Dismissal by mutual agreement of the parties. Dismissal by agreement of the parties - advantages and disadvantages for the parties

16.10.2019

What compensation is due upon dismissal by agreement of the parties (1st paragraph, 1st part of article 77 of the Labor Code of the Russian Federation)? How does such a termination of the contract go, and how do you independently calculate all the necessary compensation?

Features of dismissal by agreement between the parties

Article 78 of the Labor Code of the Russian Federation.

Article 78 Labor Code Russian Federation says that you can terminate a contract with a person in this way at any time - even during the trial period.

To dismiss a person on such a basis, it is necessary that one of the parties (employer or subordinate) express their readiness to carry out this procedure. That is, if the boss proposes to terminate the contract in this way, and the subordinate does not agree, then this is his right.

Important! Under Article 78, such termination of the contract can only be revoked by mutual agreement of the director and employee. If only one of the parties is ready to cancel the agreement, then its desire is not taken into account.

Dismissals under Art. 77 are suitable for those who do not want to work for 14 days, or have disagreements with their superiors. Often, leaving by agreement of the parties under Article 77 occurs when the director warned the employee late about the reduction.

Making a written agreement allows you to pay the subordinate all the necessary compensation to compensate for the delay. But one way or another, the person must indicate the requirement of appropriate compensation in his application for termination of the contract.

Termination of employment relationship

Article 77 of the Labor Code of the Russian Federation.

Care on this basis is convenient for the employee and the director. But how should the dismissal be properly executed by agreement of the parties under the Labor Code of the Russian Federation?

The procedure for stopping labor relations under article 77:

The employee or boss expresses a desire to terminate the contract by agreement.
A dismissal agreement is drawn up by agreement between the parties (preferably in writing).
The agreement drawn up is recorded in a special journal for such documents.
The subordinate is given his copy of the agreement against signature.
Drafting and issuing notices of dismissal.
The order is recorded in the journal.
A person is notified of the content and execution of the decree against signature.
On the designated date, the employee is fired and a settlement is made with him.

At the same time, it must be remembered that for some employees (managers, chief accountant, and so on) it is not necessary to indicate the condition for the payment of severance pay and other compensation (part 3, article 349.3 of the Labor Code of the Russian Federation).

There are no clear requirements for the execution of the agreement, so the director can draw up his own form of this document. Also, the manager may not sign the application for leaving the subordinate, if full mutual understanding has not yet been reached and the final text of the transaction has not been drawn up.

If it is impossible to familiarize the dismissed person with the order (he changed his mind about leaving, or did not come to work), then you need to draw up an act stating that the person refused or there is no way to show him the order. The same paper must also be issued if the employee has not taken his work book and the due cash compensation.

What payments are required by law?

Dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation) involves the accrual of compensation provided for by the contract to terminate the contract between the boss and the employee.

Important! If the subordinate does not agree with the head about the amount of compensation, then the director must charge him the required amount, which is indicated in the 140th article of the Labor Code of the Russian Federation, which he cannot dispute.

What compensation is due for this termination of the contract:

compensation for all unused holidays (for the entire period of work);
unpaid earnings (for the last month and all amounts withheld for the entire time of the device);
compensation for termination of the contract (if it is provided for by agreement between the parties).

The last amount is paid only if its accrual is provided for by the regulations of the organization, and its issuance was specified in the agreement. Then the employee can sue the manager.

Important! Standard size compensation is equal to 3 times the average salary of the subordinate. But at the same time, the manager and the employee can agree on a smaller or larger amount of compensation.

Upon dismissal by agreement between the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation), difficulties arise with the calculation of compensation for unused vacations. To calculate this amount, you must first find out the size of the average earnings.

Monthly payroll calculation

This value is used to calculate most of the compensation that is due on leaving. Only for the correct result, you need to remember to subtract sick days, weekends and vacation days from the total time of work in this organization.

Calculation procedure:

Find out how many days a person has worked in the company.
Add up all the salaries that the subordinate received for the entire period.
Divide earnings by days worked.

The result is a value that is used to find out the amount of other refunds.

How to calculate the amount of compensation for unused vacation?

This compensation is due only to those who have left unspent leave.

Calculation procedure:

Find out how many unused days are left for the entire period of work.
Calculate your average monthly income.
Multiply salary by vacation days.

The result is the amount that the boss is obliged to give to the subordinate.

What entry will be in the work book?

Sample record.

This document must be issued to the subordinate on the day the dismissal order is issued. But what should be put in the book when the contract is terminated by agreement?

What should be included in the document:

number and number of record;
under what article the person was dismissed (point one, part 1, 77th article of the Labor Code of the Russian Federation);
issue date and order number.

If the employee could not receive this document, then he can come for it later, or authorize in writing to be sent by mail.

The personnel department must make a record of the issuance of a work book to the owner in case he loses it, and file a claim with the former employer.

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

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

Legal regulation

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

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

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

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

Good sides of the agreement of the parties for the employee

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

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

What is the employee's risk?

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

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

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

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

Everything is relative

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

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

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

Whose initiative?

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

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

How is dismissal by agreement of the parties

The procedure for such dismissal is as follows:

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

Possible compensation

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

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

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

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

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

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

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

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

It should be noted that dismissal by agreement of the parties (UPS) appeared in the Labor Code of the Russian Federation since 2001, and precedents for its use have taken place since 2002. However, this wording of the legal basis for dismissal has the most law-enforced practice today as a ground for dismissal. Moreover, it is, frankly, preferred by both personnel officers and heads of commercial companies.

Employment contract form attribute

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

Is this leadership in the labor market justified? Is the ease of interruption of labor relations inherent in this form of dismissal positive: employer-employee? This is a moot point. According to official statistics, the unemployed make up 2-3% of the entire working-age population.

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

And it is the dismissal by agreement of the parties that is absolutely in the lead in terminating labor relations. The features of this type of dismissal in the conditions of the existence of the labor market are more clearly visible in comparison with other forms of termination of labor relations.

By downsizing and by agreement of the parties

It is well known that dismissal during staff reduction is a companion of economic crises and their consequences - optimization staff structure organizations. Its legal justification (see paragraph 2 of Article 81 of the Russian Labor Code) is quite organizationally complex and time-consuming.

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

He must also identify the personnel to whom the law guarantees the preferential right to remain in the state, and implement it. Therefore, some employers, optimizing their staff, are trying to replace the “downsizing” with an “agreement of the parties”, achieving certain benefits for the company to the detriment of the dismissed.

Paragraph 1 of Article 77 of the Russian Labor Code offers a less organizationally biased way - dismissal by agreement of the parties. This method termination of labor relations implies a tight deadline, joint regulation of the process of dismissal by the company's management and the employee. At the same time, the administration is not required to comply with the above formalities and the participation of the trade union organization.

At their own request and by agreement of the parties

The absence of a mandatory working period distinguishes the method we are studying from dismissal of one's own free will, in which only the employee himself writes the application.

In case of dismissal of one's own free will (UPSZH), such a statement is drawn up fourteen days before the agreed date of leaving work. During the aforementioned two weeks, the staff member continues to perform his/her previous duties. He also has the right to take a vacation 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 has also been significantly simplified with respect to the UPSZH. First of all, the difference lies in the absence of a two-week period of work - until the date of dismissal. The date of departure from work is negotiable, and the director also negotiates some additional conditions with the dismissed employee by mutual agreement. The employment relationship may be terminated on a date agreed upon in advance, even if the employee is on vacation or on 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 more often use it in cases of labor violations on the part of employees (absenteeism, appearance at the workplace in a state of intoxication, non-fulfillment official duties). However, even more often, this layoff is initiated by the employees themselves. It, as you noticed, has similar features with dismissal of one's own free will. However, there are differences (see table 1)

Table 1. Comparative characteristics UPSS and UPSZH

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

At the request of one of the parties, dismissal cannot be prevented. However, if it is carried out under the compulsion of the employer, it can be challenged in court. In this case, the employee is reinstated in his previous position with the payment of average earnings for forced absenteeism.

Payment of compensation

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

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 orders for the organization.

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

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

Therefore, an employee who has chosen dismissal by agreement of the parties must necessarily consider compensation as a section of the contract with the employer. the federal law No. 330-FZ of November 21, 2011 established the procedure for taxing personal income tax compensation. In accordance with paragraph 8 of paragraph 3 of Article 217 of the Russian tax code exempt from taxation compensation not exceeding three salaries of the employee.

Article 178 of the Labor Code governs the payment of such termination benefits. 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, in accordance with 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 processing such a dismissal does not provide for any standard documents. However, the preferred design option is an agreement drawn up jointly by the employee and the employer. Indication of the desired legal consequences of termination of employment due to mutual agreement of the parties, indication of the date accompany the dismissal by agreement of the parties. Payments of the amount of severance pay, the timing of the transfer of cases and positions to a new employee are also negotiated. Consider an example of the above convention.

Agreement on termination of the employment contract

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

The employment contract of 21.02.2010 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 made in 2 copies with equal legal force, 1 for each party.

Director Print Pavlov Konstantin Borisovich

Employee Selezneva Marina Viktorovna

The initiator of the dismissal is an employee

However, the proposed method of registration can often be preceded by a written application by the employee or a corresponding appeal from the administration to him. At the same time, there is no single sample on how to write a letter of resignation by agreement of the parties. Therefore, we present an example of such a document.

employee application form

Director of Alfa-Trade LLC

Pavlov Konstantin Borisovich

Statement

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

I think it's worth setting severance pay in the amount of two salaries.

Until I have received your written consent, 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.

Administration Letter

Dear Marina Viktorovna!

We suggest you terminate the employment contract, guided by paragraph 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.

Issuing a notice of dismissal

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

Alfa-Trade LLC

07/20/2014 No. 15-k

Moscow

On the dismissal of Selezneva M.V.

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

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

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

Director of Alfa-Trade LLC Pavlov K.B.

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

By means of such an order, dismissal is carried out by agreement of the parties. At the same time, the entry in the work book must necessarily mention clauses 1 of part 1 of article 77 of the Labor Code.

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

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

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

Myth No. 2: An employee who terminates an employment relationship in this way is underskilled.

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

Conclusion

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

To fully operate such a market mechanism in the labor market, ideally, a growing economy and a sufficient level of supply of competitive jobs are needed. However, the simplified organizational aspects that accompany the UPSS are in many cases preferable for the prompt termination of labor relations. This factor determines its wide application.

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

Retire by agreement of the parties is possible only if both parties to the employment contract agree: the employee and the employer. If one of the parties does not want this, for example, an employee, then there can be no talk of the legality of dismissal on this basis.

How to properly arrange dismissal by agreement of the parties? What should the employer keep? What entry is made in the work book upon dismissal by agreement of the parties? What mistakes do employers make? What should an employee pay attention to?

What is the difference between dismissal by agreement of the parties and dismissal of one's own free will?

When the initiative to terminate the employment contract comes only from the employee. He must express his desire in writing, by writing a statement, and notify about it at least 2 weeks in advance. These 2 weeks the employee must work and receive wages, he may also be on vacation, on sick leave, on a business trip, etc., which does not interrupt the notice period.

In case of dismissal by agreement of the parties, the initiative can come from any of the parties: both from the employee and from the employer. The Labor Code does not regulate the issue of such an initiative itself, it can be either an oral proposal or a written one. The employee had a talk with the director and decided to terminate the employment contract by agreement of the parties on a specific date, with specific conditions. This is enough for the initiative itself.

You can also submit a written proposal. For example, like this:

“Dear Ivan Ivanovich!

I suggest you terminate the employment contract by agreement of the parties DATE with the payment of compensation amount.

Director, signature.

The date."

An offer from an employee can also be written if it is impossible to get an audience with the director.

"In LLC" ... "

From POSITION, FULL NAME

Proposal to terminate the employment contract by agreement of the parties.

I ask you to consider the issue of terminating the employment contract with me DATE by agreement of the parties

THE DATE.

Signature"

When an employee can withdraw his application during the term of the notice of dismissal, then he will not be able to be fired. In this case, the desire of the employer does not matter.

When the employee and the employer have agreed to terminate the employment contract, the dismissal cannot be unilaterally canceled. To do this, both the employee and the employer must agree not to terminate the employment contract.

If the agreement is reached in writing, for example, the employee wrote “I agree” on the employer’s proposal or the director imposed a resolution on the employee’s proposal “Agreed”, but the dismissal itself has not yet been made, then in the event of a change in the decision, you must again make a proposal not to terminate the employment contract on agreement of the parties in writing. However, if the other party does not agree, then the employment contract will have to be terminated.

How to properly arrange dismissal by agreement of the parties?

There is no specific procedure for terminating an employment contract by agreement of the parties. But since the employment contract is concluded in writing, its termination must also be in writing.

Option 1.

One of the parties comes up with a written proposal, and the other side writes “I agree” on this proposal. But the proposal must specify the date of termination and the conditions under which the offering party wants to terminate the contract.

In this case, the employer is left with confirmation of the legality of terminating the employment contract by agreement of the parties, if the initiator was the employee. If the employer took the initiative, then the employee, if he agrees, needs to keep a certified copy of this document. So he will be able to demand compensation that the employer promises, demand timely dismissal and due payments in the event of a delay in issuing a work book and calculation.

Option 2.

If the proposal was received orally, and the other party also agreed orally, then this consent must be documented. It could be an "Agreement to Terminate an Employment Contract". It is drawn up in any form, indicating the parties. The agreement must specify what the parties agreed on: terminate the employment contract by agreement of the parties, the article of the Labor Code, the date of termination, compensation, if the employer and employee have agreed on them. The document is signed by both parties and each keeps a copy of the agreement.

I still recommend the second option. So for sure, both parties will have copies of the agreement, in which everything will be spelled out.

Based on the agreement, an order is issued, the date and number of which is indicated in the work book and an entry is made: Dismissed by agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation "

The employer is obliged to dismiss the employee on the agreed date, issue a work book and make a full payment.

Mistakes of the employer upon dismissal by agreement of the parties.

Sometimes employers require a statement from an employee, which is not legal. As mentioned above, the employer himself can take the initiative to terminate the contract. You just need to get the consent of the employee.

The second mistake is that the employer forgot about the date of termination or changed his mind about parting with the employee, or requires the delivery of material values, reports, etc. and only in this case he will terminate the contract.

Dear employers! You signed an agreement that indicates the date of dismissal, so you do not have the right to change or skip it. For this, you will be required to pay the employee average earnings for each day of deprivation of the opportunity to work, because, to pay interest for the delay in the calculation, compensation for non-pecuniary damage for violation of labor rights can also be recovered. And if an employee turns to the labor inspectorate, then you run the risk of running into a fine. After all, it's a violation.

Mistake three - an employee after the date specified in the agreement. Yes, there are such cases! The employer decided to annoy the employee for not submitting the project before the dismissal. The employee did not come to work after the date specified in the agreement. He's right: the employment contract should already be terminated. The employer, however, said that no one fired him, he changed his mind, so the employee skipped work. The result is litigation. Who do you think won the trial? That's right, an employee. It was enough for him to show the court an agreement to terminate the employment contract.

What should an employee pay attention to?

Upon dismissal by agreement of the parties, the date of dismissal can be any date that you agree with the employer. 2 weeks notice is also not required.

You must have a copy of the termination agreement (original) in your hands, or an offer from the employer with your consent, a certified copy.

If the employer has not indicated the date of dismissal anywhere, then do not sign such a document and require the desired date to be indicated.

If you do not agree to dismissal at all, then you do not need to express your consent, just as you do not need to sign a termination agreement. This is not a statement, then you will not be able to withdraw it.

Usually, employers offer to quit by agreement of the parties when they do not want to reduce the position or simply want to part with you. Claim compensation for you.

The amount is not limited by any law, so how to agree with the employer. After all, it is he who is interested in your dismissal, and not you, so feel free to say that you are ready to sign, but subject to payment of compensation in such and such an amount, or so many average earnings.

It happens that the employer asks to write a letter of resignation of his own free will, and promises to pay a bonus, a black salary only in words. This is where dismissal by agreement of the parties can come in handy: offer the employer to terminate the employment contract by agreement, where he will prescribe the amount of compensation. In this case, he will have to fulfill his promises: not voluntarily, but in court.

How is dismissal by agreement of the parties useful for the employer?

Firstly, the employee will not be able to change his decision to dismiss if such consent is reached and recorded in writing. After all, he can withdraw the application of his own free will, but he cannot change the agreement.

Secondly, this is how you resolve the issue of dismissal peacefully with the employee. If you start various persecutions of an employee, you can run into prosecutorial checks, checks by the GIT, fines, litigation and court costs. And by signing an agreement to terminate the contract, you can protect yourself from employee dissatisfaction in the form of complaints to the regulatory authorities.

Thirdly, if you don’t want to, but want to part with a specific employee, then the option of an agreement with the payment of compensation will suit you. The amount of compensation is stipulated in the agreement, so the employee has guarantees that he will receive them, and you, in turn, can save.

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Legal assistance and representation in court.

An employment contract can be terminated by agreement of the parties at any time (Article 78 of the Labor Code of the Russian Federation). Benefits of using this ground for dismissal for the employer:

guaranteed dismissal of a particular employee. Having signed the agreement, the employee no longer has the right to change his mind, withdraw the application, as established upon dismissal of his own free will;
you can determine any period of "working off", and not two weeks, as in the case of dismissal "on one's own". It is convenient if an employee quits who, for one reason or another, did not do what he was supposed to. It can be delayed until execution;
such agreements are rarely challenged in court. Especially if the agreement itself states that the parties have no mutual claims against each other, that they acted voluntarily, in the absence of pressure.

As for the employee and his benefits, the main one, perhaps, is the ability to maintain good relations, get recommendations and, in general, agree on some preferences.

Thus, dismissal by agreement of the parties is the most painless option for both the employer and the employee. However, not many people are aware of the risks arising from the incorrect execution of an "amicable" dismissal. Meanwhile, it is worth remembering about them, so that later it would not be excruciatingly painful.

Withdrawal of consent requires verification of motives

An agreement on termination of an employment contract by agreement of the parties is a final agreement. It cannot be withdrawn, in contrast to the statement of the employee upon dismissal "on his own" (part 4 of article 80 of the Labor Code of the Russian Federation).

Any cancellation of the agreements reached is possible only with the mutual consent of the employee and the employer (clause 1, part 1, article 77, article 78 of the Labor Code of the Russian Federation, clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application of the Labor Code by the courts of the Russian Federation RF").

Unilateral refusal of agreements reached is not allowed, which is aimed at preventing abuse. Neither the employee nor the employer has the right to perform any arbitrary unilateral actions aimed at abandoning the previously reached agreement (determination of the Constitutional Court of the Russian Federation dated 13.10.09 No. 1091-О-О).

However, the employee may challenge the revocation of consent, citing the fact that he did not initially have the consent to quit on this basis. Therefore, the employer will have to take into account the specific circumstances, at least find out the reasons for the recall.

Especially when it comes to women. So, if, by agreement of the parties, a pregnant woman is fired, and she subsequently disputes the dismissal, then the court will most likely interpret any doubts in her favor.

So, the employer and the employee agreed to terminate the employment contract by agreement of the parties. Two months later, the employee filed a refusal to fulfill the agreement, but was still fired. The woman went to court with a claim for reinstatement, indicating that on the day the agreement was signed she was pregnant, but did not know about it (the fact of pregnancy was confirmed by a certificate from the antenatal clinic). The court sided with the woman, stating that:

at the time of its signing, the woman believed that she was not pregnant;
termination of the employment contract, provided that she is pregnant, entails such damage for her that to a large extent deprives her and the unborn child of what she was entitled to expect while maintaining an employment relationship with the defendant;
risk of pregnancy labor law does not apply to the employee.

The employer, without checking the motives for the withdrawal of consent, issued an unreasonable dismissal order. The cassation instance rejected the employer's argument that the annulment of the agreement on the term and grounds for dismissal is possible only with the mutual consent of the employer and employee, which is absent, since, in accordance with Article 3 of the Labor Code of the Russian Federation, discrimination in the sphere of labor is prohibited (determination of the St. .09 No. 12785).

To the employer: do not be cunning

The reason for challenging the dismissal (and, most likely, the victory of the employee) is often the unfair behavior of the employer, who misleads the employee with various "innocent" tricks.

So, the dismissed person went to court, indicating that he was told that he had to come to work (he was on parental leave) and receive a notice of termination of the employment contract in connection with the upcoming reduction in staff. The employee was given:

notice of the upcoming dismissal, where he was informed that his position was being reduced, and therefore he was subject to dismissal in two months;
offer to terminate the employment contract by agreement of the parties.

After the end of the vacation, the employee was called to the personnel department, where, without explanation and familiarization, they were forced to sign the documents (“a simple formality”, as he was told), and also notified that he was “on account” (i.e., no payments should be made to him will not).

Only at home, the employee discovered that the employment contract was terminated not by redundancy, but by agreement of the parties, although he did not give consent to terminate the contract by agreement of the parties.

The court took into account that:

the employee had no intention to terminate the contract by agreement of the parties;
the signing of this agreement was forced;
the employee did not want to quit his job by agreement of the parties;
he did not write a letter of resignation;
the employee has four dependent minor children, and the agreement did not provide for any compensation for the employee;
when he signed papers under compulsion, he assumed that he was signing papers to reduce staff.

In general, the court found that there was no agreement between the parties on termination of the employment contract (determination of the Supreme Court of the Republic of Tyva dated 11.10.11 in case No. 33-853/2011).

About the form of the agreement

That is why other options for formalizing such an agreement are possible. For example, by affixing the manager's resolution on the employee's statement.

The possibility of formalizing agreements in this form is confirmed by judicial practice.

So, the employee went to court with a claim for reinstatement at work. He indicated that the administration offered him to resign by agreement of the parties and he wrote a statement on termination of the contract by agreement of the parties, and also signed the order of dismissal.

When he came to the employer to sign the agreement, he was handed a draft agreement in frames, with the terms of which he did not agree and immediately wrote a letter of revocation of the letter of resignation by agreement of the parties.

The court denied the employee's claim, indicating that (determination of the City Court of St. Petersburg dated 10/18/10 No. 33-14177 / 2010):

agreement of the parties - this is the achievement of agreements, the joint and mutual expression of the will of the parties to perform certain actions or to refrain from doing them;
the agreement may be oral or written;
the employee’s failure to indicate in the application the conditions under which he is ready to quit, including the amount of severance pay, does not indicate that the agreement did not take place, that is, the employee should have indicated these conditions immediately in the application;
the agreement can be drawn up not only in the form of a single document, but also in the form of an employee's statement with the employer's resolution affixed.

Silence is not always a sign of consent

The employee's tacit consent is NOT an agreement.

That is, if the employer simply told the employee that he was fired, and the employee remained silent, then this is NOT a dismissal by agreement of the parties. Even if the employee stopped working within the period prescribed by the employer.

So, refusing to reinstate the employee at work, the courts referred to the fact that the termination of employment took place by agreement of the parties, since after the dismissal, the plaintiff actually agreed with the termination of the employment contract.

However, the Supreme Court of the Russian Federation pointed out the inadmissibility of justifying the illegal dismissal by the fact that the employee "does not mind." An employment contract can be terminated on the basis of Article 78 of the Labor Code of the Russian Federation only after an agreement has been reached between the employee and the employer.

However, the employee did not apply to the employer with a statement about the termination of employment, and no evidence was presented indicating her consent to the upcoming termination of the employment contract.

Thus, the tacit consent of the employee to the unilateral termination of the employment contract by the employer cannot be interpreted as an agreement of the parties (determination of the Supreme Court of the Russian Federation dated 14.05.10 No. 45-B10-7).

About additional payments

Speaking of silence. In the agreement on termination of the employment contract, it is worth indicating that its terms are confidential, especially if it provides for additional payments.

At the same time, the fact that the employee was not paid the funds stipulated by the agreement is not grounds for recognizing the termination of the employment contract by agreement of the parties as illegal. If the agreement is signed, and the employer has not paid compensation, then this is not a reason to reinstate the employee at work - this is a reason to collect these amounts.

By the way, the Labor Code of the Russian Federation does not contain instructions on the need to make any payments in connection with the termination of the employment contract by agreement of the parties. But since the Labor Code of the Russian Federation provides that the employment or collective agreement may provide for other cases of payment of severance pay in addition to those provided for in Article 178 of the Labor Code of the Russian Federation (part 4 of article 178 of the Labor Code of the Russian Federation), then, as a rule, employees agree to dismissal on this basis, subject to a good severance pay.

severance pay. Pay or not?

Should the employer pay severance pay if it is only provided for in the agreement? Judicial practice has developed two approaches.

Approach #1: Must. Since dismissal by agreement of the parties implies that the employee agrees not just to quit, but to quit on certain conditions, reflected in his statement (or agreement). Therefore, the employer is obliged to pay the compensation agreed with the employee, because otherwise the employee would not have agreed. Thus, upon termination of the employment contract by agreement of the parties, the employer is obliged to pay the monetary compensation established in the agreement, regardless of whether it is provided for by local regulations (appeal rulings of the IGU dated 06.09.12 in case No. 11-19912).

Approach #2: Not required. Some courts refuse to pay severance pay under a termination agreement, arguing that severance pay is paid if it is stipulated in the employment or collective agreement. That is, if the severance pay is provided only in the agreement on termination of the employment contract (which is not an employment contract), then such payments are not made (determination of the Supreme Court of the Republic of Udmurtia dated February 16, 2011 in case No. 33-492).

The maximum amount of severance pay, including additional by agreement of the parties, is not established in Article 178 of the Labor Code of the Russian Federation, therefore it is believed that the parties have the right to indicate any amount in the employment contract. However, if the severance pay paid is clearly disproportionate, then this can lead to conflicts. Thus, the agreement on termination of the employment contract provided for a severance pay in the amount of twelve salaries of the employee. The court considered that the costs that the employee could have incurred upon dismissal of his own free will are clearly disproportionate to the amount of the severance pay and the consequences of its payment by the employer.

The amount of the severance pay was several times higher than the amount authorized capital company-employer, and the director of the company was not entitled to enter into major transactions without the consent of the founder.

Therefore, the court considered it an abuse of the right of action of the director and employee who entered into such an agreement (determination of the IGU dated January 31, 2012 in case No. 33-2405).

About the fate of the awards

Often, employees agree to dismissal by agreement of the parties only on the condition that they will be paid a bonus for the period worked. The difficulty is that the payment period may come after the dismissal and the exact amount of such a bonus is unknown.

The Labor Code of the Russian Federation does not prohibit such payments. And it is not necessary to indicate the exact amount. In the agreement, you can prescribe the calculation procedure and terms for calculating the bonus and indicate the details by which the money will be transferred to the employee.

Of course, compliance with this condition will depend on the good faith of the parties. However, the very method of terminating the contract implies a sufficient degree of mutual trust of the parties and good faith.

Dismissal by agreement of the parties is the most painless option for both the employer and the employee. However, not many people are aware of the risks arising from the incorrect execution of an "amicable" dismissal.

As a rule, an agreement on termination of an employment contract is drawn up in the form of a single document, since there are no requirements for the form of an agreement between the parties on termination of an employment contract in the legislation.

The tacit consent of the employee to the unilateral termination of the employment contract by the employer cannot be interpreted as an agreement between the parties.

The Labor Code of the Russian Federation provides that cases of payment of severance benefits in addition to those provided for in Article 178 of the Labor Code of the Russian Federation may be provided for in an employment or collective agreement.

Karina YERANOSYAN, lawyer