What is fraught with dismissal by agreement of the parties. "By agreement of the parties": all for and against amicable dismissal. Employment contract form attribute

Many employees are wary of the wording “fired by agreement of the parties”, preferring the old and “time-tested” wording “fired by agreement of the parties” to it. own will". How do these types of layoffs actually differ? What are the pros and cons of dismissal by agreement of the parties?

In recent years, the wording “dismissed by agreement of the parties” has become more and more common. But many employees are afraid of such a record, because they do not understand what is behind this wording. With the dismissal of one's own free will, everything is clear: he wanted to quit - and quit. At least, this is how they perceive this wording “at the household level”. And dismissal by agreement of the parties seems incomprehensible: did the employee want to leave, or did they decide to fire him? Was it a neutral dismissal, or was there some kind of conflict behind it? Therefore, employees often refuse to be fired by agreement of the parties, they try to stay "out of harm's way";)

Dismissal by agreement of the parties, like the usual dismissal of one's own free will, has its pros and cons.

If you clearly understand the difference between these two types of dismissal, it will be clearer with which wording in your particular situation it will be more profitable for you to quit.

Difficult simple wording

Where did this wording come from? Why does she raise so many questions? First of all, because this is a relatively new ground for dismissal. It appeared only in new edition The Labor Code, which was adopted in 2001 and has been in force in Russia since January 2002, is just over ten years old. Prior to that, the code did not provide for the possibility of dismissal by agreement of the parties. By the way, there are similar formulations in foreign labor codes - and they are very actively used in practice.

It is worth noting that such a “mystical halo” around the wording “helps” is also an extremely concise definition given in the Labor Code - the legislators did not bother with detailed explanations. Article 78 of the Labor Code of the Russian Federation is called "Cancellation employment contract by agreement of the parties". And the text under this heading looks like this: "The employment contract can be terminated at any time by agreement of the parties to the employment contract." And it's all. There are no explanations or interpretations.

Therefore, for some time, not only employees, but also personnel officers puzzled over this wording. This was another (perhaps the most important) reason for distrust of this type of dismissal. But over the decade of using the new Labor Code, many points have become clear, and now it is already possible to speak more confidently about the pros and cons for the employee (and also for the employer) in such a formulation, and when it makes sense to use it.

Let's find out what is behind the legal formula "fired / fired by agreement of the parties." Already from the title of Article 78 of the Labor Code of the Russian Federation, it is clear to us that in order to terminate an employment contract, the consent of the parties is necessary. The parties to an employment contract, as you know, are the employee and the employer. Therefore, both the employee and the employer must agree to terminate the employment relationship. They can come to this decision either mutually or on the initiative of one of the parties. It turns out that the initiative to dismiss can come from both the employee and the employer. But it is important that the other party eventually agrees with this proposal - otherwise there will simply be no "agreement of the parties".

It turns out that such a wording is possible both in the case when the employee of his own free will decided to leave the company (for example, he received a more promising offer from another organization), and in the case when the employer wants to get rid of the employee, but there are no “unfriendly” articles of the Labor Code. cannot or does not want to use the code for dismissal of an employee. And here, too, there can be many reasons: the employee failed to establish relations with colleagues and / or management, the level of qualification turned out to be insufficient, the quality of the employee’s work is not satisfied ... This may simply be the result of a rethinking of business goals, as a result of which some position turned out to be unnecessary, or - the result of a complex economic situation companies. In the latter case, behind the desire to get rid of the employee is the desire of the employer to reduce the cost of paying wages and maintaining the employee's workplace. In this case, the employer wants to veil the reduction in the number of staff or the organization's staff with the wording of dismissal by agreement of the parties (we will talk about this in more detail below).

How the employee and the employer will come to a general agreement, how they will encourage each other to agree to such a decision - the Labor Code does not describe. These are already, as they say, "personal problems" of the employee and the employer. They can simply agree on the date of dismissal (we will also talk about this in more detail a little later), or about some kind of "compensation" and compensation that the company will pay to the employee (if it was the employer who initiated it), or about something else - it will be entirely depend on the situation and the wishes of the parties. Simply put, they can agree to any conditions of separation that do not contradict Russian laws - with the proviso that BOTH parties must agree to these conditions.

We can say that, providing for the possibility of dismissal by agreement of the parties, the Labor Code gives the employee and the employer maximum independence, refusing to interfere in their affairs and agreements. Simply put, allows them to negotiate an end labor relations"on market terms".

Based on the results of negotiations between the parties, an “Agreement on termination of the employment contract” is drawn up. There is no special form for such a case, so the parties usually enter into a standard agreement. At the same time, it may either mention additional terms agreed upon by the employee and the employer, or not. In Russia, companies most often take the first option as a basis. But in Western companies, on the contrary, they try to describe in as much detail as possible everything that the employee and the company receive as a result (compensation to the employee and the obligations of the employee to the company). Foreign agreements may include specific amounts of compensation, specific models of laptops and cars issued to an employee in the form of compensation, amounts for repayment of housing and communal expenses, etc. It must be said that from the point of view of the law, a detailed and precise enumeration of the conditions is, of course, preferable.

As can be seen from the text of Article 78 of the Labor Code of the Russian Federation, you can quit by agreement of the parties at any time. To do this, you need to sign the "Agreement on termination of the employment contract" (we already mentioned it above). At any time - this means that you can quit both during vacation (any, including during study leave), and during illness.

From the point of view of the law, the wording “fired / dismissed by agreement of the parties” is no worse for an employee than the wording “fired of his own free will”. Both records only confirm the fact that the employee left the company. As in the case of voluntary dismissal, on the last day of work, the employee must receive the final payment and work book. In the work book, dismissal by agreement of the parties is usually drawn up in one of two ways:

The first option: "Fired by agreement of the parties - paragraph 1 of the first part of Article 77 Labor Code Russian Federation".

The second option: "Fired by agreement of the parties - article 78 of the Labor Code of the Russian Federation."

Both formulations are correct, because both paragraph 1 of the first part of Article 77 and Article 78 of the Labor Code regulate precisely the dismissal by agreement of the parties.

Dismissal by agreement of the parties or dismissal of one's own free will

Some of the differences between these two formulations have already been noted above. Here we will focus on a few more important features.

Usually, upon dismissal of their own free will, the employer has the right to require the employee to work for another two weeks (there are exceptions - for example, if the dismissal occurs during probationary period employee). Suppose that the specialist has already found new job and he needs to urgently move to a new place. Dismissal by agreement of the parties just gives him such an opportunity: this wording does not provide for the need for working off, you can agree on a specific date for dismissal (recall, you can terminate the contract under this article at any time - even right on the day the agreement is signed). Naturally, this is possible if you can agree on this with your employer.

(However, it should be noted that upon dismissal of his own free will, the employer has the right to demand working off from the resigning person, but may also agree to a shorter working off, and also not to demand working off at all.)

Now imagine the reverse situation: an employee has decided to quit and wants to warn the employer about this in advance in order to be able to attend interviews more freely, but would not like to leave until he finds a new job. Suppose an employee is sure that within a month and a half he will definitely find a new job. Again, dismissal by agreement of the parties gives him the opportunity to agree on any date for dismissal - even after a few months. The following can be used as an argument to convince the employer: such a “delayed” date of dismissal gives the company the opportunity to find a high-quality replacement for the employee without haste, and the resigning specialist will be able to slowly complete all important work tasks. How separate condition You need to discuss with the employer the possibility of the employee to attend interviews during the remaining period of his work.

Another one important feature, which must be remembered: by submitting a letter of resignation of his own free will, the employee has the right to “change his mind” - before the expiration of the working period. Then he can simply "withdraw" his application. It is unlikely that after this his relationship with the employer will remain the same, but from a legal point of view, his work will continue in exactly the same way as before - until the filing of a letter of resignation.

With dismissal by agreement of the parties, this option will not work. Once both parties have signed the "Agreement to Terminate the Employment Contract", the employee can no longer "change his mind" and stay - even if his dismissal date does not come until a few months later. The only option is to negotiate with the employer and persuade him to take you back. That is, the success of these actions will depend on the "good will" of the employer - from the point of view of the law, he is not obliged to take you back - after all, it was an equal agreement of both parties.

Dismissal by agreement of the parties or dismissal by reduction

Often, the employer offers employees to quit by agreement of the parties instead of dismissal due to a reduction in staff or to reduce the number of staff. From a legal point of view, there are completely different reasons behind these formulations, and the procedure for terminating an employment relationship will also be different.

But what does this mean for the worker? And which option to choose? To answer this question, you need to compare what he receives in one case, and what - in another.

When reducing employees (the reduction is regulated by Article 81 of the Labor Code of the Russian Federation), the employer needs to perform a rather complicated procedure: notify the employee at least two months in advance about the upcoming reduction, analyze the data of all employees who are being laid off, identify those who cannot be reduced by law, as well as those who has advantages in case of reduction, in case of dismissal, to fully pay the reduced employee wages for the period worked, compensation for unused vacation days, as well as severance pay, in the amount of average earnings. After the dismissal within three months, the employer is obliged to pay the employee financial compensation if the employee is registered with the employment authorities and could not find a new job during this time.

Thus, staff reduction is a procedure that always comes from the employer, and he is forced to take full responsibility for its implementation. Why is it beneficial for the employer to replace the reduction with dismissal by agreement of the parties?

First of all, because of the simpler dismissal procedure - instead of a multi-stage procedure, there are, in fact, two steps:

- negotiations with the employee, during which the parties agree on the conditions of "parting" (they are fixed in the "Agreement on termination of the employment contract");

- fulfillment of these conditions by both parties.

That is, dismissal by agreement of the parties is an “easier” form of termination of employment relations. In addition, the likelihood of litigation in this case is minimal (unlike layoffs due to redundancy). The employee practically cannot challenge the dismissal in court by agreement of the parties - after all, he was a full participant in this agreement and had to clearly understand what he was agreeing to.

But there is still the issue of financial compensation - perhaps the most important for the employee. This is where the full-fledged “market” begins: if an employee correctly represents his rights upon dismissal for a reduction, then he can easily calculate what level of compensation (from minimum to maximum) he can receive from the employer in this case. It is clear that it makes no sense for him to refuse severance pay and other payments for the sake of some ephemeral benefits. Therefore, he will not go to dismissal by agreement of the parties “just like that”. And without his expressed consent and his signature, this agreement simply will not happen.

Therefore, if an employer wants to simplify his life, and instead of laying off employees by agreement of the parties, he will have to convince the employee with “financial arguments”. There are no clear rules in the law on this matter, it all depends on what amounts and conditions the employee and the employer can agree on. That is, there are no legal obligations to offer the employee "compensation" upon dismissal by agreement of the employer's side. Usually the employer does this for the sake of economic expediency - that is why we are talking about full-fledged market negotiations between the employee and the employer.

When should an employee agree to such a proposal - to quit by agreement of the parties instead of being laid off for redundancy? Only if the company offers really more attractive conditions compared to the amounts of official layoff compensation (as we have already noted, they must be at least three of the average employee earnings, and as a maximum of five such average earnings). Therefore, if a company offers you to quit by agreement of the parties instead of layoffs, and at the same time offers the same three average earnings, then there is not much point in making such an agreement. A common market practice (the Moscow labor market) is that in this case, the offer to the employee of compensation is approximately 1.3 - 1.5 times more than he would receive in the event of dismissal due to redundancy.

If you have been offered a really attractive financial compensation as an alternative to downsizing, then it makes sense to consider such an offer. Especially if the agreement also contains additional clauses (for example, the employer undertakes to give the employee good recommendations, etc.).

It is highly recommended not to rely solely on verbal promises and to record in detail in "Agreement to terminate the employment contract" all the conditions that you eventually agreed with the employer. This is really important - especially when you consider that after both parties sign the agreement, the employee will no longer be able to terminate it unilaterally or refuse it - unless the employer agrees to his proposal, which in such a situation is rather doubtful . The agreement has full legal force from the moment of its signing. In this case, the agreement of the parties, as a rule, cannot be challenged in court. Arbitrage practice in this matter is quite stable: the agreement of the parties is called that because it is decided and signed together, and is very rarely subject to cancellation.

There is another important argument that makes dismissal by agreement of the parties more attractive for the employee compared to the reduction (if, of course, the amount of payments to the employee is attractive enough). This moment is connected with further financial and career prospects. If an employee wants “to the maximum” to receive financial compensation in the event of a reduction, then he needs to register with the employment authorities, and then not get a job anywhere for at least two months (at least officially), otherwise the payment of benefits will stop. And in the case of dismissal by agreement of the parties, the employee receives all the compensation prescribed in the agreement (usually several average earnings), regardless of whether he got a new job or not, and how quickly this happened. Therefore, you can get a new job immediately after being fired - your financial income will not only not fall, but will even be significantly higher for some time.

There are also cases when in no case should you agree to dismissal by agreement of the parties instead of dismissal due to redundancy. First of all, if the employer, offering such a wording of dismissal, does not offer you any financial compensation, asking you to "enter the position" of the company, or offers compensation lower than you will receive in the event of a reduction - for example, we are talking about compensation in total less than three average monthly earnings of an employee. In this case, the employer does not just want to make life easier for himself, but actually tries to shift the financial burden of the reduction on the shoulders of employees. Therefore, it makes sense to study your rights and not succumb to provocations;)

Pros and cons of dismissal by agreement of the parties

So, let's sum up. In what cases is it more profitable for an employee to quit by agreement of the parties?

- if it is important to choose a time of dismissal convenient for you (for example, you need to quit instantly or, conversely, in a month, two, etc.);

- if it is possible to receive more attractive compensation from the employer than you would receive in the case of other forms of dismissal (for example, the company is ready to pay higher compensation than the employee would receive through redundancy);

- if the employee is going to register with the employment service after dismissal - in this case, he will be paid a larger allowance and a longer period of time than upon dismissal of his own free will without good reason.

Now we list the disadvantages of dismissal by agreement of the parties (for an employee):

- Article 78 of the Labor Code of the Russian Federation allows you to dismiss an employee even when he is on vacation or on sick leave. When terminating the contract at the initiative of the employer (with rare exceptions), the employer does not have such an opportunity. However, this moment cannot be fully considered a disadvantage, because the employee is not obliged to agree to such an initiative of the employer - because we are talking about the agreement of the parties. If the employee received sufficient compensation from his point of view for his consent, then such a dismissal may even be beneficial for him.

- Dismissal by agreement of the parties does not provide for any control on the part of trade union organizations. The employer is not obliged to coordinate his decision with anyone, even if we are talking about minor employees. Therefore, such a decision on the part of the employee should be as balanced and responsible as possible: he must take care of his own interests.

- Dismissal by agreement of the parties in itself does not provide for any compensation and guarantees to the employee (unless it is directly indicated in the employment or collective agreement). That is, all compensation to the employee is regulated only by his agreement with the employer - there is no need to rely on "automatic" payments. It all depends on the results of negotiations between the employee and the employer.

- The employee will not be able to unilaterally withdraw his consent and "cancel" his dismissal - the agreement between the employee and the employer to terminate the employment contract comes into force immediately after it is signed by both parties.

- The employee will not be able to challenge such a dismissal in court (in the vast majority of cases). The last two points, again, mean that the employee must make a balanced decision to dismiss, weighing all the pros and cons. However, an adult must responsibly make a decision to dismiss, regardless of its legal form;)

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

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

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Legal basis and features of the type of dismissal

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

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

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

The legislation regarding dismissal on this basis contains only one imperative norm. It consists in prohibiting the payment of severance pay to general directors and their deputies, as well as chief accountants of enterprises with at least 50 percent of the state's share in the authorized capital.

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

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

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

Positive and negative sides

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

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

Despite the large number of positive aspects, there are also disadvantages of this procedure:

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

For the employer, there are the following positive aspects:

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

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

The procedure for the parties to labor relations upon dismissal

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

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

Notice to the other party.
The employer or employee notifies the other participant of the desire to enter into such an agreement. It is advisable to formalize this stage with a written notice, in which significant points should be indicated, such as the date of dismissal, conditions and a declaration of will aimed at terminating mutual obligations.
Agreement of conditions.
The parties agree on all conditions of dismissal.
Drawing up an agreement.
The legislation does not contain special requirements for its form, therefore, it is practiced both in the form of a written document and in the form of an employee's application with a resolution of the head.
Issuing a notice of dismissal.
Fulfillment of all conditions of the agreement preceding the moment of termination of the employment contract.
The employee and the employer fulfill all the terms of the agreement on which the agreement was reached. Such conditions may include the transfer of cases to another employee.
Registration of a work book.
On the day of dismissal, an appropriate entry is made in the work book of the employee.
Calculation.
The employer makes a full settlement with the dismissed employee on his last working day.

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

Employee compensation payments

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

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

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

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

The employer is obliged to make a full settlement with the employee on the last day of the employment contract. If this day falls on a weekend, the management of the enterprise must wait for the employee to apply with a demand to pay the due cash, after which the calculation is made no later than the next day.

Documentation of the procedure

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

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

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

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

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

Hello! Today we will talk about dismissal by agreement of the parties. Often there are situations in which the employee clearly cannot cope with his official duties. The manager would be happy to fire him without starting an open conflict, but does not know how to do it correctly. This will be discussed further.

The essence of the concept of "dismissal by agreement"

Dismissal of an employee by agreement of the parties - a very democratic option for dismissal, which, moreover, does not cause a lot of negative emotions in the employee, since the initiative here can belong to both the manager and the employee himself.

Now this wording is often found, but not all employees understand its meaning, so for the time being they prefer the proven interpretation “fired of their own free will”.

Clarifications in the TC

By and large, the Labor Code does not specifically address this topic and does not explain it. The entire volume of the explanatory article takes only a couple of lines.

In fact, this only means that the conditions for such dismissal are at the discretion of both parties.

The reasons

For the employee, the following reasons are relevant:

To avoid dismissal for violations (under article);
Pressure that can be exerted by the leader;
Receipt of all payments that are stipulated in the employment contract.

For the employer, this can be beneficial in the following cases:

Get rid of the presence of an unnecessary employee (even with the payment of a sum of money);
If you do not want to comply with the entire reduction process;
Carry out the dismissal of an employee of a preferential category.

The final paragraph is a direct violation of the law and if the employee goes to court, he will most likely be reinstated.

Usually the manager initiates such a dismissal. But the law does not prohibit the employee from being the initiator of the conclusion of an agreement.

List of conditions for concluding an agreement

Most main point from the whole list is voluntary order. The parties should not force each other to conclude an agreement.

Second important condition — An employer does not have the right to prevent an employee from being fired. He can only work off for two weeks.

If the employee has committed a misconduct, or there is a reduction in the staff of the company or enterprise, the employee cannot prevent the manager from firing him.

Here is a detailed video on how to fire an employee by agreement of the parties.

Stages of the dismissal procedure

The whole procedure initially begins with the fact that the manager or employee voices his desire to terminate the existing one.

Format: simple written form.

An employee's statement of dismissal is required by agreement of the parties. In writing, the employer expresses its agreement with this application (the visa “Agreed”, “Agreed” is acceptable).
An agreement is drawn up directly.
Once signed, it is difficult to change the agreement. Therefore, it is worth considering all its conditions in advance.
The agreement must specify the date of dismissal. On this day, the leader issues a dismissal order.
At the final stage, the employee gets to know him and receives the final payment and the completed work book. In the end, the dismissal can be considered completed, and the employment relationship terminated.

Sample Agreement

Below is an agreement form, and you can also download it and use it as a sample.

An approximate form of an agreement to terminate an employment contract

Due payments and compensation

The law does not oblige the employer to pay compensation in this case. At the same time, the parties can discuss this point and include it in the agreement.

As for other payments, they are all identical, as with other forms of termination of the employment contract. The employee must receive:

Salary for hours worked;
Compensation for vacation, if it is not used.

Important information: The calculation to the resigning employee must be issued on the day when the employment contract is terminated. Other payment terms are not allowed, even when the employee does not object to this.

What entry will be made in the labor

An entry about the dismissal is made in the work book with reference to the general article. The reason for the dismissal is also indicated, while reductions are not allowed.

Mistakes made by the employer

Often, employers, concluding a dismissal agreement with an employee, make mistakes. Those that are most common, we will consider below.

Trying to force an employee . In fact, the manager himself can initiate the dismissal;
An attempt to single-handedly change the terms of an already concluded agreement. Increase the number of days for working off, try to force them to do something that is not mentioned in the agreement. This is a violation of the law and is fraught with a fine if the employee contacts the regulatory authorities;
Many employers consider "voluntarily dismissal" and "by agreement of the parties" to be identical. You always need to clarify what the employee means, so as not to end up in an unpleasant situation later.

Important points of the agreement

Directly desire to terminate the employment contract;
Date of conclusion and number of the contract;
The date the employee left;
Whether or not there are benefits and compensations;
Timing of payments and their size;
The order in which cases will be transferred to another employee.

The agreement can be drawn up in a single copy and kept with the employer, but still it is worth signing it in 2 copies. This helps to avoid unnecessary disagreements later on.

Benefits for the employee

As in any procedure, there are also positive and negative sides. Consider the important ones for the employee.

You can choose the most convenient time for dismissal (for example, without working off);
The amount of compensation and payments exceeds those that will be made in case of other forms of dismissal (staff reduction);
If, after dismissal, the employee plans to register with the employment center.

Now let's look at the disadvantages of this procedure.

Cons for the employee

You can or are sick (sick leave issued). Of course, no one is obliged to agree to this. If it means receiving compensation for consent, then this is a clear advantage of such a dismissal.

Trade unions do not control this procedure. The employee himself weighs all the pros and cons and makes sure that his interests are protected;

The employee alone cannot make changes to the agreement;

Such a dismissal is difficult to challenge in court. Accordingly, it is necessary to approach the adoption of such a decision in a balanced way.

Differences between the two types of dismissal

No. p / p	Criterion	Worker's wish	Agreement with the employer
1	The form	Written form, with the visa of the employer and prof. organizations	Free form, acceptable and oral, signed by both parties
2	Timing	Served 2 weeks before the planned date	You can enter a specific date or period of time.
3	Finance	vacation pay, sick leave, salary	The amount and terms of payment of compensation are negotiated on an individual basis.
4	reversibility	You can withdraw your application within 2 weeks	Agreement cannot be revoked.
5	Employee Protection	Prof. the organization must agree on the dismissal, it is impossible to dismiss several categories of employees	No agreement needed
6	Job center payments	delayed	Pass immediately

Let's summarize: Both the employee and the employer choose the type of dismissal individually in order to benefit primarily for themselves.

The selection algorithm is actually simple: you need to carefully study the legislation (on your own or with the help of a specialist), then choose the most beneficial way for yourself, consciously take the decisive step.

Dismissal of preferential categories of employees

In this section, we will consider.

In this case, the legislation allows for dismissal if the wording sounds like "an agreement of the parties." If the woman's consent is available, the procedure will not cause difficulties. But she also has the full right to refuse, which she notifies the employer in writing. Then the employer has no legal right to remove her from work.

Important information: Forcing an agreement or dismissal without the consent of an employee is illegal!

The Labor Code for pregnant women contains guarantees that protect their interests in the world of work.

Among other things, when the employee receives all the documents, he must sign the following documents:

In the order of dismissal;
In the journal for registering the issuance of labor;
On his personal card.

Having considered the most important points of the dismissal procedure by agreement of the parties, it is worth mentioning one important nuance: if the employee agreed to conclude an agreement, in order to avoid pressure from management, he may well go to court. And it is absolutely not excluded that he will be reinstated.

Then the employer will be obliged to pay not only funds for temporary absenteeism, but it is quite possible to compensate for moral damage. Therefore, first of all, it is worth observing the requirements of the law, this applies to both parties to the agreement.

Like employers, there are often dishonest employees who do not comply with the terms of the agreement. Therefore, it is still worthwhile to conclude it in writing and in several copies.

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

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

However, as with any legal issue, it has its pitfalls. This article is devoted to what the employee and the employer should know about this type of dismissal.

○ Dismissal by agreement of the parties.

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

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

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

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

✔ What could be the reasons?

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

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

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

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

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

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

✔ Necessary conditions for dismissal by agreement.

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

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

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

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

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

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

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

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

And so, it all starts with the fact that someone, an employee or an employer, in writing proposes to the other party to terminate the employment contract. For the worker it will be statement, dismissal by agreement of the parties for the employer begins with a business letter to the employee. The form of the application or letter is not established by law, the main thing is that the will of the party be expressed quite clearly. The next step is to express the consent of the other party. Again, written form is required - but it is acceptable that it be expressed in putting on the original document the inscription "I agree", the date and the signature of the other party.
FROM The next step is to draw up the actual termination agreement. What should be included in it will be discussed below. We only note that the terms of the agreement are highly dependent on the specific circumstances and working conditions of the dismissed employee.
P Once an agreement has been concluded, it can only be changed in the same manner in which it was concluded. The employee cannot stop working ahead of time, but the employer does not have the right to dismiss the departing employee earlier than specified in the agreement.
This requirement not only follows directly from the law, but is also confirmed by the opinion Supreme Court of the Russian Federation (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004), as well as of the Constitutional Court of the Russian Federation (Determination No. 1091-О-О of October 13, 2009). In addition, unlike dismissal of one's own free will, upon dismissal by agreement of the parties, the employee cannot change his mind and withdraw the application - this requires that the employer is also not opposed to keeping the employment contract in effect.
Therefore, when concluding an agreement, the employee and the employer must take the most responsible approach to determining its conditions.
AT the day specified in the agreement, the employer issues a dismissal order. Unlike the agreement, the form of the order is fixed by the Decree of the State Statistics Committee of Russia No. 1 of 01/05/2004. In this case, the unified form of the order to dismiss T-8 is used. According to federal law“On Accounting”, since 2012, organizations can create their own unified forms of documentation, but usually most employers use the T-8 form.
P after the dismissal order is issued, the employee familiarizes himself with its contents against signature, and an appropriate entry is made in the work book. Then the final settlement is made with the employee, he is given a work book in his hands - and after that the dismissal is considered to have taken place, and the employment relationship between the employee and the employer is completely terminated.

✔ Compensation and payments.

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

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

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

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

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

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

○ What entry is made in the work book?

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

At the same time, according to the instructions for filling work books(approved by Decree of the Ministry of Labor of the Russian Federation No. 69 of 10.10.2003) the entry should contain a reference to the general article on dismissal (Article 77 of the Labor Code of the Russian Federation), and not to Art. 78 of the Labor Code of the Russian Federation, which specifically refers to dismissal by agreement of the parties.

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

○ What mistakes do employers make?

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

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

○ What should the employee pay attention to?

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

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

Dismissal by agreement of the parties provides that the employee, his employer agrees with the current situation. Sometimes employees themselves ask to enter such an option for terminating the agreement in the work book. Before making a final decision, clarify the pros and cons of this type of dismissal.

What does the agreement of the parties mean?

The dismissal of an employee from the company on this basis means that the management agreed with his decision. In contrast to leaving of one's own free will, when the interests of the enterprise remain in a secondary place.

The initiator of such termination of the contract may be the organization or the employees themselves. The key advantage of this option is that, having reached a mutual agreement, the parties can end the relationship at any time. The employment contract, additions to it, are drawn up in two copies, then the application of the dismissed person must be in two copies.

Although the legislation does not contain a sample of such an agreement, it does not require its additional preparation. Professionals recommend dismissing employees by agreement of the parties only after it is signed.

The Labor Code does not regulate the specific form of such an agreement, however, it must contain the following information:

data indicating the agreement of the parties, thanks to which they came to an agreement;
details of the current labor agreement;
the date after which the company must dismiss the employee;
financial nuances regarding the amount of compensation, if any, provided by law in this situation.

Pros and cons of dismissal by agreement of the parties.

Studying Article 78 of the Labor Code, you will find a lot of advantages in reaching an agreement with your employer:

Leave workplace you can immediately after the manager agrees to fire you. You do not have to work, additionally linger in your place.
When an employee is dismissed by agreement of the parties, registered with the Employment Service, he will be able to receive payments longer, in a larger amount.
This option of dismissal allows you to get a higher level of compensation than with a reduction in staff.
Record in the labor indicating 78 Art. TC makes the employee more attractive in the eyes of future employers, as it indicates his loyalty. This will provide an advantage to the employee in the subsequent job search.

In addition to the advantages, this option of dismissal hides significant disadvantages:

Dismissal, which is accompanied by an agreement between the parties, is not regulated by trade unions or other controlling organizations. For example, if a pregnant woman was fired by agreement of the parties, this confirms her voluntary consent and is not subject to appeal.
All compensation, severance pay due to staff in this type of termination of employment must be spelled out in the collective / labor agreement.

Step-by-step instruction.

Actions in this situation differ little from the algorithm for dismissal of one's own free will:

as soon as the employee applied for termination of the employment contract, agreements were reached, an order is drawn up for the enterprise;
the resigning person is familiarized with the issued document against signature;
an appropriate entry is made in the employee's personal card;
on the day of dismissal, an identical entry is entered in the work book;
the employee signs in the journal for receiving work books for the issued document;
on this day, a full settlement with the employee is carried out, the issuance of all remaining documents.

Which option to choose when planning to quit?

Let's take a look at the exit options:

for downsizing;
by agreement of the parties;
at will.

If you think about the job search planned in the future, then dismissal by agreement of the parties - best option termination of labor relations.

On the one hand, it shows the employee as a person who is loyal to his company. He did not silently put the application on the table, but entered into a dialogue with the employer and found a compromise.

On the other hand, he looks like a specialist, a professional in his field, whom the management did not send to free bread during the first staff reduction.