Many employees are wary of the wording “dismissed by agreement of the parties,” preferring the old and “time-tested” wording “dismissed by agreement.” at will" How are these types of layoffs actually different? 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 common. But many workers are wary of such a recording because they do not understand what is behind this wording. With voluntary dismissal, everything is clear: I wanted to quit and quit. At least, this is how this formulation is perceived “at the everyday level.” And dismissal by agreement of the parties seems incomprehensible: did the employee himself want to leave, or did they decide to fire him? Was this a neutral dismissal, or was there some kind of conflict behind it? Therefore, employees often refuse to be fired by agreement of the parties and try to stay “out of harm’s way”;)
Dismissal by agreement of the parties, like conventional dismissal at will, has its pros and cons.
If you clearly understand the difference between these two types of dismissal, it will be clearer which wording in your specific situation will be more profitable for you to quit.
Difficult simple wording
Where did this wording come from? Why does it raise so many questions? First of all, because this is a relatively new basis for dismissal. It appeared only in new edition Labor Code, which was adopted in 2001 and has been in force in Russia since January 2002 - just over ten years. Previously, the code did not provide for the possibility of dismissal by agreement of the parties. By the way, similar formulations exist in foreign labor codes - and are very actively used in practice.
It is worth noting that such a “mystical aura” around the wording “helps” is also supported by the extremely laconic definition given in the Labor Code - legislators did not bother themselves with detailed explanations. Article 78 of the Labor Code of the Russian Federation is called "Termination employment contract by agreement of the parties". And the text under this heading looks like this: “An 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 formulation. This became another (perhaps the most important) reason for distrust in this type of dismissal. But over the decade of using the new Labor Code, many points have become clearer, and now we can speak more confidently about what pros and cons for the employee (as well as for the employer) there are in such a formulation, and when it makes sense to use it.
Let's find out what is behind the legal formula “dismissed/dismissed 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 required. The parties to an employment contract, as is known, are the employee and the employer. Therefore, it is necessary that both the employee and the employer 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 side ultimately agrees with this proposal - otherwise there will simply be no “agreement of the parties.”
It turns out that such a formulation 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 to dismiss an employee. And here, too, there may be many reasons: the employee was unable to establish relationships with colleagues and/or management, the level of qualifications turned out to be insufficient, the employee is not satisfied with the quality of the employee’s work... This may simply be the result of a rethinking of business goals, as a result of which some position ended up 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 employer’s desire to reduce costs for paying wages and maintaining the employee’s workplace. In this case, the employer wants to use the wording of dismissal by agreement of the parties to disguise the reduction in the number of personnel or staff of the organization (we will talk about this in more detail below).
The Labor Code does not describe how the employee and the employer will come to a common agreement, how they will encourage each other to agree to such a decision. These are, as they say, “personal problems” of the employee and the employer. They can simply agree on the date of dismissal (we’ll also talk about this in more detail a little later), or on some kind of “compensation” and compensation that the company will pay to the employee (if the employer was the initiator), or on something else - this 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 caveat that BOTH parties must agree to these conditions.
It can be said that, by providing for the possibility of dismissal by agreement of the parties, the Labor Code gives the employee and employer maximum independence, refusing to interfere in their affairs and agreements. Simply put, it allows them to agree to end labor relations"on market conditions."
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 usually the parties enter into a standard agreement. At the same time, it may either mention additional conditions, which the employee and employer agreed upon, 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 ultimately receive (compensation to the employee and the employee’s obligations to the company). Foreign agreements may include specific amounts of compensation, specific models of laptops and cars issued to the employee in the form of compensation, amounts for repayment of housing and utility costs, etc. It must be said that from the point of view of the law, a detailed and precise listing of 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 resign by agreement of the parties at any time. To do this, you need to sign the “Agreement on Termination of the Employment Contract” (we have already mentioned it above). At any time - this means that you can resign during vacation (any vacation, including during study leave) and during illness.
From the point of view of the law, the wording “dismissed/dismissed by agreement of the parties” is no worse for the employee than the wording “dismissed at his own request”. 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 a final payment and work book. In the work book, dismissal by agreement of the parties is usually formalized in one of two ways:
First option: “Dismissed by agreement of the parties - paragraph 1 of part one of Article 77 Labor Code Russian Federation".
Second option: “Dismissed 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 dismissal by agreement of the parties.
Dismissal by agreement of the parties or dismissal at one's own request
We have already noted some of the differences between these two formulations above. Here we will focus on a few more important features.
Usually, upon dismissal of his 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). Let's assume that the specialist has already found himself new job and he urgently needs to move to a new place. Dismissal by agreement of the parties gives him just such an opportunity: this wording does not provide for the need to work off; one can agree on a specific date for dismissal (we remind you that the contract under this article can be terminated 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 one’s own free will, the employer has the right to require the resigning employee to work off, but may also agree to a shorter period of work, or not require work at all.)
Now imagine the opposite situation: an employee has decided to quit and wants to notify the employer in advance in order to be able to attend interviews more freely, but would not like to leave until he finds a new position. Let’s assume that the 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 of dismissal - even after a few months. The following can be used as an argument to convince the employer: such a “postponed” dismissal date 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 related matters. How separate condition The employee's ability to attend interviews during the remainder of his or her employment should be discussed with the employer.
Another one important feature, which must be remembered: by submitting a resignation letter of his own free will, the employee has the right to “change his mind” - before the expiration of the term of service. 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 he submits his resignation.
This option will not work with dismissal by agreement of the parties. Once both parties have signed the Termination Agreement, the employee can no longer “change his mind” and stay – even if his termination date is only a few months away. 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 due to reduction
Often, an employer offers employees, instead of dismissal due to staff reduction or staff reduction, to resign by agreement of the parties. From a legal point of view, there are completely different reasons behind these formulations, and the procedure for terminating the employment relationship will also be different.
But what does this mean for the employee? And which option should I choose? To answer this question, you need to compare what he gets in one case and what in the other.
When laying off workers (the layoff is regulated by Article 81 of the Labor Code of the Russian Federation), the employer needs to complete a rather complex procedure: notify the employee at least two months in advance about the upcoming layoff, analyze the data of all laid-off workers, identify those who cannot be laid off by law, as well as those who has advantages in the event of layoffs; upon dismissal, pay the laid-off employee in full wages for the period worked, compensation for unused vacation days, and also severance pay, in the amount of average earnings. After dismissal, within three months the employer is obliged to pay the employee financial compensation if the employee is registered with the employment authorities and was unable to 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 an employer to replace layoffs with dismissal by agreement of the parties?
First of all, due to a simpler dismissal procedure - instead of a multi-step procedure, there are essentially two steps:
— negotiations with the employee, during which the parties agree on the terms of “separation” (they are recorded 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 the employment relationship. In addition, the likelihood of litigation in this case is minimal (unlike dismissal due to staff reduction). It is practically impossible for an employee to challenge dismissal in court by agreement of the parties - after all, he was a full participant in this agreement and should have clearly understood what he was agreeing to.
But there still remains the issue of financial compensation - perhaps the most important for the employee. This is where a full-fledged “market” begins: if an employee correctly represents his rights upon dismissal due to 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 accept 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 workers, dismiss 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 employer can agree on. That is, there is no legal obligation to offer the employee “compensation” upon dismissal by agreement of the employer. 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 an offer - to resign by agreement of the parties instead of dismissal due to layoff? Only if the company offers truly more attractive conditions compared to the amounts of official redundancy compensation (as we have already noted, they must amount to at least three average employee earnings, and at a maximum five such average earnings). Therefore, if a company offers you to resign by agreement of the parties instead of dismissal due to reduction, and at the same time offers the same three average earnings, then there is little point in making such an agreement. A common market practice (Moscow labor market) is to offer the employee in this case compensation approximately 1.3 - 1.5 times more than he would receive in the event of dismissal due to staff reduction.
If, as an alternative to redundancy, you have been offered truly attractive financial compensation, 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 only on verbal promises and to record them in detail in “Agreement on termination of employment contract” all the conditions that you ultimately agreed on with the employer. This is really important - especially considering 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 quite doubtful . The agreement has full legal force from the moment it is signed. 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 an employee compared to layoffs (if, of course, the amount of payments to the employee is sufficiently attractive). This moment is connected with further financial and career prospects. If an employee wants to receive “the maximum” financial compensation in the event of a layoff, 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 specified 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 dismissal - 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 staff reduction. First of all, if the employer, proposing such a dismissal wording, does not offer you any financial compensation, asking you to “get into the position” of the company, or offers compensation that is lower than you will receive in the event of a layoff - 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 his life easier, but is actually trying to shift the financial burden of the reduction onto the shoulders of the employees. Therefore, it makes sense to study your rights and not give in to provocations;)
Pros and cons of dismissal by agreement of the parties
So, let's summarize. In what cases is it more profitable for an employee to resign by agreement of the parties?
— if it is important to choose a convenient time for dismissal (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 case of other forms of dismissal (for example, the company is ready to pay higher compensation than the employee would receive due to staff reduction);
- if the employee plans to register with the employment service after dismissal, in this case he will be paid a larger benefit and for a longer period of time than if he was dismissed at his own request without good reason.
Now we list the disadvantages of dismissal by agreement of the parties (for the employee):
— Article 78 of the Labor Code of the Russian Federation allows you to dismiss an employee even when he is on vacation or sick leave. When terminating the contract at the initiative of the employer (with rare exceptions), the employer does not have this option. However, this point cannot be fully considered a disadvantage, because the employee is not obliged to agree to such an initiative by the employer - because we are talking about an agreement between the parties. If the employee received sufficient compensation from his point of view for his consent, then such dismissal may even be beneficial to 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 workers. Therefore, such a decision on the part of the employee must be as balanced and responsible as possible: he must take care of his own interests.
— Dismissal by agreement of the parties does not in itself provide any compensation or guarantees to the employee (unless this is expressly stated in the employment or collective agreement). That is, all compensation to an 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 on termination of the employment contract comes into force immediately after it is signed by both parties.
— The employee will not be able to challenge such dismissal in court (in the vast majority of cases). The last two points, again, mean that the employee must make a decision on dismissal carefully, weighing all the pros and cons. However, an adult must responsibly make a decision on dismissal, 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 may 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 have a negative impact on 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 negotiate terms that suit both the employer and the employee. This procedure is practiced when terminating an employment contract with employees who cannot be dismissed for other reasons without violating labor legislation. 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, an employment contract can be terminated by mutual agreement at any time, regardless of the period for which it was concluded. To conclude an agreement, the will of both parties is required, but in most cases the initiator is one person.
To terminate a contract on this basis, it is only necessary to have agreement between the employee and the management of the enterprise on the basic conditions. They have the right not to explain their motivation this decision, since the legislation does not contain such requirements.
This procedure allows the parties to independently set the date of dismissal and the conditions for participants in the labor relationship. The Labor Code provides enough freedom of action in this matter. He also leaves the procedure for concluding an agreement at the discretion of the employee and the employer, stipulating only general aspects of the procedure.
The legislation regarding dismissal on this basis contains only one imperative norm. It consists in prohibiting the payment of severance pay to general directors and their deputies, as well as chief accountants of enterprises in whose authorized capital the state share is at least 50 percent.
Features of dismissal by agreement of the parties in Russia are as follows:
- An already signed agreement can be changed only by 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 at his own request. This means that the employee will not be able to change his mind and cancel the agreement on his 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 eliminate the two-week working period.
- It is quite problematic to challenge an agreement drawn up in accordance with the requirements of the law.
- Allows you to terminate your student contract.
This procedure also allows the employee, by agreement with the employer, to avoid dismissal on grounds that may affect his reputation in the future.
Positive and negative sides
An employee may benefit from dismissal on this basis for the following reasons:
- No obligation to motivate 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 to work for two weeks.
- The ability to use this basis if there is guilt on the part of the employee by agreement with management.
- By agreement, you can leave yourself time to look for a new job.
- When mutual obligations on this basis are eliminated, the continuity of service increases by a month.
- Opportunity to receive increased unemployment benefits.
- This basis does not reflect negatively on the employee’s reputation. On the contrary, in today's conditions new employer may consider the employee more loyal, and therefore more willing to accommodate.
Despite the large number of positive aspects, there are also disadvantages of this procedure:
- It is not possible to cancel unilaterally, which means that you cannot change your decision to quit after signing the agreement.
- Lack of union control.
- There is no obligation for the enterprise to pay severance pay if this is not established by the terms of the contract for dismissal on this basis.
- It is quite difficult to challenge an agreement even if there is pressure from the employer, since it is very difficult to prove such influence on an employee in a lawsuit.
For the employer, there are the following positive points:
- The ability to terminate obligations with an unwanted employee without tangible consequences. For the employer, this also means the opportunity to reduce the risk of leakage of valuable information when dismissing an employee who is entrusted with a trade secret.
- The ability to carry out the procedure without explaining the reason.
- The ability to set the term and conditions of dismissal in agreement with the employee.
- Lack of union supervision over dismissals on this basis.
- The ability to terminate a relationship with an employee whose dismissal is problematic or impossible for other reasons.
- Lack of supervision by the state labor inspectorate when dismissing a minor.
- A simple procedure for terminating an employment relationship.
- Possibility to simplify the procedure for staff reduction 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 consent to resign and signing the agreement.
Procedure for 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 they wish to terminate an employment contract, the parties must proceed 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, which should indicate significant points, such as the date of dismissal, conditions and expression 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, so it is practiced both in the form of a written document and in the form of an employee application with a manager’s resolution.
- Drawing up a dismissal order.
- Compliance with all terms of the agreement preceding the moment of termination of the employment contract.
The employee and employer fulfill all the terms of the agreement regarding which an agreement has been reached. Such conditions may include the transfer of cases to another employee.
- Registration of a work book.
On the day of dismissal, a corresponding entry is made in the employee’s work book.
- Calculation.
The employer makes a full payment to the dismissed employee on his last working day.
At the same time, the procedure for dismissing certain categories of employees may have its own characteristics. For example, upon termination of mutual obligations with general director a meeting of the founders should be held, during which a decision on this issue should be adopted and recorded in minutes.
Compensation payments due to an employee
Before dismissal on this basis, it will be useful for the employee to know what they must pay for termination of the contract. He can count on the following compensation:
- For days of unused vacation.
- Salary 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 count only on receiving the funds specified in the original document. If the parties wish to establish an obligation to pay compensation, they should enter into an additional agreement regarding this, which will be an annex to the main agreement.
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 applies only within three average wages. All cash transfers over this limit are subject to taxation general order at a rate of 13 percent.
The employer is obliged to make a full payment to 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 request payment of the due cash, after which payment is made no later than the next day.
Documentation of the procedure
Parties should document the entire process to avoid possible future litigation. An employee, acting as the initiator of the procedure, can formalize his will in the form of a statement or written notification 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 regulations on which the parties have reached an agreement.
The text of the document can be compiled in any form, but, based on practice, it must indicate the following points:
- Date of preparation of the document.
- Parties' data.
- Details of the employment contract.
- Grounds for termination of relations with reference to the article and its part.
- The date on which the employee will be terminated.
- Conditions agreed upon by the parties.
The agreement is drawn up in two copies, one for each party.
Hello! Today we’ll talk about dismissal by agreement of the parties. Situations often arise in which an employee clearly cannot cope with his job responsibilities. 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 also 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.
Nowadays, this formulation is often found, but not all employees understand its meaning, so for now they prefer the proven interpretation of “dismissed of their own free will.”
Explanations in the Labor Code
By and large, the Labor Code does not specifically address or explain this topic. The entire explanatory article takes up just a couple of lines.
In fact, this only means that the terms of such dismissal are at the discretion of both parties.
Causes
The following reasons are relevant for the employee:
- To avoid dismissal for violations (under article);
- Pressure that may be exerted by a manager;
- Receipt of all payments provided for in the employment contract.
This can be beneficial for an employer in the following cases:
- Get rid of the presence of an unnecessary employee (even with payment of a sum of money);
- If you are unwilling to comply with the entire reduction process;
- Dismiss 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 at work.
Typically, such dismissal is initiated by the manager. But the law does not prohibit an employee from initiating an agreement.
List of conditions for concluding an agreement
Most main point from the entire list this is voluntary order. The parties must not force each other to enter into an agreement.
Second important condition — the employer does not have the right to prohibit an employee from dismissal. He can only work for two weeks.
If the employee has committed an offense, or there is a reduction in the staff of the company or enterprise, the employee cannot prevent the manager from dismissing 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 manager or employee voicing their desire to terminate the existing one.
Form: simple written form.
- An employee's resignation letter is required by agreement of the parties. In writing, the employer expresses his agreement with this statement (the “Agreed”, “Agree” visa is acceptable).
- An agreement is drawn up directly.
- Once concluded, it is quite difficult to change the agreement. Therefore, it is worth considering all its conditions in advance.
- The agreement must indicate the date of dismissal. On this day, the manager issues a dismissal order.
- At the final stage, the employee gets acquainted with it and receives the final payment and a completed work book. Ultimately, the dismissal can be considered completed and the employment relationship terminated.
Sample agreement
Below is the agreement form, and you can also download it and use it as a sample.
- Sample form of an agreement to terminate an employment contract
Required payments and compensations
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 an employment contract. The employee must receive:
- Remuneration for time worked;
- Compensation for vacation if it is not used.
Important information: The payment to the resigning employee must be issued on the day the employment contract is terminated. Other payment terms are not allowed, even if the employee does not object to this.
What entry will be made in the labor record?
A record of dismissal is made in the work book with reference to the general article. The reason for dismissal is also indicated, but layoffs are not allowed.
Mistakes made by the employer
Often employers, when concluding a severance agreement with an employee, make mistakes. We will consider those that are most common below.
- Trying to force an employee. In fact, the manager himself can initiate 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 about which there is not a word 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 “dismissal at will” 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
- Direct desire to terminate the employment contract;
- Date of conclusion and number of the contract;
- Date of dismissal of the employee;
- Whether there are benefits or compensation;
- The timing of payments and their amount;
- The order in which cases will be transferred to another employee.
The agreement can be drawn up in a single copy and kept by the employer, but it still needs to be signed in 2 copies. This helps to avoid unnecessary disagreements in the future.
Benefits for the employee
As with any procedure, there are also positive and negative sides. Let's look at what is important specifically for the employee.
- You can choose the most convenient time for dismissal (for example, without working hours);
- The amount of compensation and payments exceeds those that will be made for 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.
Disadvantages for the employee
- You may be sick (sick leave issued). Of course, no one is obliged to agree to this. If compensation for consent is implied, then this is a clear advantage of such dismissal.
- Trade unions do not control this procedure. The employee himself weighs the pros and cons and makes sure that his interests are protected;
- An individual employee cannot make changes to the agreement;
- Such dismissal is difficult to challenge in court. Accordingly, such a decision must be approached carefully.
Differences between the two types of dismissal
| No. | Criterion | Employee's desire | Agreement with the employer |
| 1 | Form | Written form, with employer and professional visa. organizations | Free form, acceptable and oral, signed by both parties |
| 2 | Deadlines | Served 2 weeks before the planned date | You can enter a specific date or time period |
| 3 | Finance | Vacation pay, sick leave, wages | The amount and terms of payment of compensation are negotiated individually |
| 4 | Reversibility | You can withdraw your application within 2 weeks | The 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 approval required |
| 6 | Payments by the employment center | Postponed | 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 method for yourself, consciously taking the decisive step.
Dismissal of preferential categories of employees
In this section we will consider.
In this case, the law allows for dismissal if the wording sounds like “agreement of the parties.” If the woman’s consent is available, the procedure will not cause difficulties. But she also has every 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 employee’s consent is illegal!
The Labor Code provides guarantees for pregnant women 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 dismissal order;
- In the journal for registering the issuance of labor;
- In the personal card created for him.
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 enter into an agreement in order to avoid pressure from management, he may well go to court. And it is absolutely possible that he will be reinstated.
Then the employer will be obliged to pay not only funds for temporary absence, but also quite possibly, compensation for moral damage. Therefore, first of all, it is worth complying with the requirements of the law, this applies to both parties to the agreement.
Just like employers, there are often dishonest employees who do not comply with the terms of the agreement. Therefore, it is still worth concluding 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 carrying out the dismissal procedure by agreement of the parties and show what the agreement of the parties upon dismissal should contain.
The Labor Code (LC RF) contains about forty options for dismissing workers. But the first place in the code is given to dismissal by agreement of the parties. This is due to the fact that the principle of freedom of contract is one of the main ones not only for labor law, but also for the entire legal system as a whole.
However, as in any legal issue, there are pitfalls here. This article is devoted to what the employee and 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 dismissal?
Regarding this type of dismissal, the Labor Code of the Russian Federation is extremely laconic. The entire article 78, which deals with dismissal by agreement of the parties, consists of exactly one phrase, stating that the employment contract can be terminated in this way at any time.
The only link to this article elsewhere in the Labor Code of the Russian Federation is Art. 349.4, according to which compensation, severance pay and other payments during such dismissal are not made for managers, deputies and chief accountants of municipal and government agencies, corporations and companies, as well as societies where more than half authorized capital belongs to 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 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 agree to this rather exotic form of dismissal can be different. As a rule, for an employee such reasons will be:
- The desire to receive severance pay or other payments that may be provided for in the employment contract.
- In order not to be fired “under the article” - that is, for violation of discipline, the Labor Code of the Russian Federation or regulatory acts of the enterprise.
- Psychological pressure from the management of the organization (although usually in these cases the employee is required to resign of his own free will).
In turn, the employer benefits from dismissal by agreement of the parties:
- If you need to get rid of a disloyal employee, even if you pay him some money if he insists on it.
- If you don’t want to follow the normal downsizing procedure.
- If you need to dismiss an employee with benefits who cannot be dismissed in the usual manner.
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 be reinstated at work and paid for forced absence.
As a rule, the initiator of dismissal by agreement of the parties is the employer. To an employee who does not want to continue labor activity at an enterprise, 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 service. However, the law does not prohibit an employee from approaching the employer with such an initiative.
✔ Necessary conditions for dismissal by agreement.
The most important condition under which dismissal is made by agreement of the parties is its complete voluntariness. By law, neither party has the right to force the other to enter into such an agreement.
When dismissing at his own request, the employer has the right only to demand complete a two-week period but cannot prohibit the employee from resigning. If dismissed due to staff reduction 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 taking place 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 in any way the conditions under which such dismissal occurs. The parties can agree on 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: 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 employer or employee taking the initiative to terminate the employment contract.
The law does not define who exactly can become the initiator, but it does set a condition: all changes and additional agreements to the employment contract must be made in writing. This applies to the termination agreement in full.
- AND So, it all starts with the fact that someone, an employee or an employer, proposes in writing to the other party to terminate the employment contract. For the employee it will be application, dismissal by agreement of the parties for the employer it begins with a service 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 is expressed clearly enough. The next step is to express the consent of the other party. Again, writing is required - but it is acceptable for it to be expressed by affixing the inscription “I agree” to the original document, the date and the signature of the other party.
- WITH The next step is to draw up the actual termination agreement. What should be included in it will be discussed below. Let us only note that the terms of the agreement greatly depend 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. An employee cannot terminate his employment prematurely, but the employer does not have the right to dismiss a 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, when dismissed by agreement of the parties, the employee cannot change his mind and withdraw the application - this requires that the employer is also not against maintaining the employment contract in force.
Therefore, when concluding an agreement, the employee and the employer must take the most responsible approach to determining its terms. - IN On the day specified in the agreement, the employer issues a dismissal order. In contrast to the agreement, the form of the order is fixed by Resolution of the State Statistics Committee of Russia No. 1 of 01/05/2004. In this case, the unified form of the order for dismissal 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 a corresponding entry is made in the work book. Then the final payment is made to the employee, he is given a work book - and after that the dismissal is considered completed, and the labor 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 of additional payments to the employee arises.
However, the law does not provide for the employer’s obligation to pay compensation to the dismissed employee in this case.
However, no one prohibits the parties from negotiating additional payments due to the employee when concluding a dismissal agreement.
Moreover, since such an agreement can only be concluded by mutual consent, the employee has the right to set such a condition and demand payment of severance pay to him.
All other payments upon dismissal by agreement of the parties are absolutely the same as upon dismissal for other reasons. The employee is due:
- 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 an employee quits before the end of the year for which he has already received vacation, 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 records(approved by Resolution of the Ministry of Labor of the Russian Federation No. 69 of October 10, 2003) the entry must 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 record must indicate the reason for dismissal and there must be no layoffs. Therefore, the entry in the work book should look something like this: “Dismissed 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 fairly rare procedure, so many employers make mistakes when concluding it. Let's look at the most common ones:
- The employer requires the employee to write a letter of resignation. In fact, as already mentioned, this is not necessary: the management of the enterprise can also take the initiative.
- The employer tries to unilaterally change the terms 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 will have the right to appeal to regulatory and supervisory authorities - and the employer risks receiving a fine.
- Some employers openly confuse dismissal at their own request and by agreement of the parties. In this case, you can observe the following picture: the employee submits an application with a request to consider concluding a dismissal agreement, and the head of the enterprise issues a visa: “Dismiss at his own request.” 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 absence. Therefore, the employer must always clarify what exactly the employee is proposing: to resign of his own free will or to enter into an agreement to terminate the employment contract.
○ What should an employee pay attention to?
An employee resigning by agreement of the parties must not forget about certain circumstances:
- E If the initiative for dismissal comes from the employer, you can safely demand severance pay. Moreover, the amount is not limited either by the Labor Code of the Russian Federation or by any other act.
- P Upon dismissal by agreement of the parties, no work is required. You can resign any day, without waiting two weeks.
- N o, unlike voluntary dismissal, the employee cannot withdraw the application and continue working. If the management does not agree, the dismissal will take place in any case.
- WITH the notice of dismissal must be in writing - and it is highly advisable that two copies be made. The employee has the right to take one of them for himself. This will be useful in case of possible disputes in the future.
- N Some employers prefer to spell out possible termination conditions in the employment contract itself. This is not prohibited, but in this case, when dismissing, you should read the contract as carefully as possible.
- IN The termination agreement must clearly indicate the date of termination of the employment contract. After it, the employee has the right to stop working, but leave work early; the employer will be able to fire the employee not by agreement, but for absenteeism.
- B Illness and other circumstances that prevent work are not reflected in the date of dismissal. If by this time 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.
- N Finally, an entry must be made in the work book indicating paragraph 1 of Art. 77 Labor Code of the Russian Federation.
Dismissal by agreement of the parties provides that the employee and his employer agree with the current situation. Sometimes employees themselves ask to include this option of terminating the agreement in their work book. Before making a final decision, check the pros and cons of this type of dismissal.
What does the agreement between the parties mean?
Dismissal of an employee from the company on this basis means that management agreed with his decision. In contrast to leaving of one's own free will, when the interests of the enterprise remain secondary.
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 terminate 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 has been signed.
The Labor Code does not regulate the specific form of such an agreement, but 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 employment agreement;
- the date after which the company must fire the employee;
- financial nuances regarding the amount of compensation, if any are provided for 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 agreement with your employer:
- Leave workplace you can immediately after the manager agrees to fire you. You won’t have to work extra hours or stay in your place.
- When an employee is dismissed by agreement of the parties and registered with the Employment Service, he will be able to receive payments for a longer period of time and in a larger amount.
- This type of dismissal allows you to receive a higher level of compensation than with staff reduction.
- Entry in the labor record indicating Article 78. TC makes an employee more attractive in the eyes of future employers, since it indicates his loyalty. This will provide an advantage to the employee during the subsequent job search.
In addition to the advantages, this dismissal option has significant disadvantages:
- Dismissal, which is accompanied by an agreement between the parties, is not regulated by trade unions or other regulatory 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 and severance pay due to staff in this type of termination of employment must be specified in the collective/labor agreement.
Step-by-step instruction.
Actions in this situation differ little from the algorithm for dismissal at will:
- as soon as the employee applied for termination of the employment contract, agreements were reached, and an order was drawn up for the enterprise;
- the person leaving is familiarized with the issued document against signature;
- a corresponding 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 log of receipt of work books for the issued document;
- On this day, a full settlement with the employee is made and all remaining documents are issued.
Which option to choose when planning to quit?
Let's consider dismissal options:
- on staff reduction;
- by agreement of the parties;
- at your own request.
If you think about your planned future job search, then dismissal by agreement of the parties is best option severance of labor relations.
On the one hand, it shows the employee as a person 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 management did not send to free bread during the first staff reduction.
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