Dismissal takes place by agreement of the parties. When and how to dismiss an employee by agreement of the parties

Ignorance of their rights and poor understanding of the law often lead to sad consequences - employees are deprived of work using voluntary methods, without regard to the Labor Code. To prevent this from happening, you need to know how dismissal is carried out by agreement of the parties. Properly completed documentation will help you receive money that will help the family budget while the person is looking for another job. Dismissal by agreement of the parties with payment of compensation in 2018 is carried out on the basis of the employee’s consent to terminate the employment contract.

What is dismissal by agreement of the parties?

To avoid the burden of litigation, which is a necessary measure in case of wrongful deprivation of work, company management uses dismissal by agreement of the parties in 2018. This procedure helps normalize the work process. Employees of organizations see that dismissed persons are dealt with fairly, in accordance with the Labor Code, management makes payments upon dismissal by agreement of the parties in 2018.

With proper documentation, the likelihood of a dismissed employee filing lawsuits sharply decreases, since he must sign all papers. A citizen who stops working benefits from the procedure for concluding an agreement, since it is possible to negotiate compensation payments individually. The settlement amounts may be large amounts determined by the parties.

Legal regulation

Dismissal by agreement of the parties with payment of compensation in 2018 is regulated by Article 78 of the Labor Code of the Russian Federation, which indicates that an employment contract can be terminated by agreement of the parties at any time before expiration on the initiative of the management or employee of the company. This also applies to contracts concluded for an indefinite period. The amount of compensation payments for certain categories of citizens is limited by Article 349.3 of the Labor Code.

The lower limit of compensation upon dismissal by agreement of the parties with payment of compensation in 2018 is established by Part 1 of Article 127 of the Labor Code of the Russian Federation, which states that a citizen must receive additional payment for unused periods of vacation provided annually, according to the number of days. The company is obliged to issue settlement documents to the dismissed person out of turn, on the day when the citizen receives the documents. This procedure is provided for in Articles 84 Part 1 and 140 of the Labor Code of the Russian Federation.

Why is it necessary?

The peaceful resolution of disagreements that cannot be resolved in the usual way that arose during the labor process is the purpose of dismissal by agreement of the parties with the payment of compensation in 2018. The management of companies that hire an employee whose work record book contains a record of termination of the contract under paragraph 1 of part 1 of Article 77 of the Labor Code is forced to make inquiries about the reasons for termination of cooperation at the previous place of work. Such a record indirectly indicates controversial situations that have arisen between superiors and subordinates, which are not subject to publicity.

At the initiative of the employer

Termination of cooperation according to the agreement is beneficial to the company’s management, who wants to get rid of a subordinate, but has no legal grounds for this - there are no disciplinary sanctions or other violations of the labor regime. A document of peaceful dismissal with payment of compensation, which is signed by both parties, is the “lesser evil” compared to legal costs. Trade union committees do not review such agreements.

At the initiative of the employee

Early termination of a contract at the initiative of an employee occurs if the worker does not want to work in a particular organization, and the management does not sign the application of his own free will. It is not uncommon for the CEO and accountant to be blackmailed by subordinates who are aware of legal or financial violations committed by the company. Dismissal by agreement of the parties with payment of compensation in 2018 will suit the employee and management in such a situation.

Termination of an employment contract by agreement of the parties in 2018

The process of leaving work by mutual agreement of management and employee includes several successive stages. They are not stipulated by law, but in order to avoid conflict situations resolved in court, documentation must be drawn up in writing, with copies of official paper forms being issued to interested parties. Termination of labor activity occurs according to the following algorithm:

An initiative expressed orally by management or subordinates to stop work.
Writing a statement indicating the date of termination of activities, oral discussion of conditions and compensation payments.
Written consent, with registration and signing by the parties to the transaction.
Issuance of an order in the established form, under which the employee must sign.
Settlement with the issuance of agreed funds.
Entry in the work book.
Handing money and documents to the dismissed person.

Application for dismissal by agreement of the parties in 2018

The HR department of an enterprise requires a clearly and competently drawn up application for dismissal. The employee can type on a computer or write a statement in his own hand indicating the necessary data:

In the upper left corner - the full name of the company, surname, initials of the general director, surname, initials, position of the employee.
In the middle, in large font, is the word “Statement.”
The main text contains the essence of the petition, indicating the end date of the work, the reasons for the severance of the employment relationship, and the legislative norms justifying the initiative. For dismissal by agreement of the parties with payment of compensation in 2018, the standard is Art. 77, clause 1 of the Labor Code of the Russian Federation.
Date, applicant's signature and transcript.

Discussion of the conditions and amount of compensation payments between the parties

Agreement to terminate cooperation is beneficial to the worker if he receives large amounts of money. The employee is entitled to wages for the time actually worked, additional payments for unused leave, compensation for termination of the transaction, if such is stipulated in the employment contract. There are nuances that a citizen signing a document with payment of compensation should know. If compensation is not specified in the company’s local regulations, then management is not obligated to make payments.

Registration and signing of the agreement

The document is drawn up in any form. The agreement must indicate the following information:

Company name, last name with initials of the manager, full name of the employee.
Details of the employment contract that needs to be terminated, an indication of legal standards.
The date of termination of contractual obligations (depending on whether the employee leaves with or without work), the amount of compensation payments by the employer to the employee.
Obligations of the employee to return material assets, documents, and other property used in the process of work.
The obligation of the parties not to have mutual claims after signing the document.
Signatures and details of the parties to the agreement.

Order and familiarization of the employee against signature

After signing the form, the HR department issues an order for the enterprise, which indicates the full name of the dismissed employee, details of the contract, agreements, and the wording of termination of the contract. The paper has a number that is entered in the work book. The order form is signed by the head of the company; in addition, the signature of the resigning employee is required, indicating the fact that he has read and agreed with the text of the document.

Entries in the work book and personal card

After registering the order, the head of the personnel department (HC) enters the following information into the work book of the resigning worker:

Serial number of the record, date.
Information about dismissal - number, date of the document, articles of the Labor Code of the Russian Federation justifying the action.

The personal card must have similar information about the reasons for dismissal, details of the order, agreement. Records are made for verification of record keeping by supervisory authorities. The work book with a record of dismissal is provided to the employee immediately after payment of the payroll. The following documents are issued:

employment history;
copy of the order;
copy of the agreement.

Calculation note in form T-61

For the management of the enterprise, the act of the unified form T-61 serves as evidence of payments made to the dismissed party. The details are filled in by the OK employee; the calculation of the amount of salaries due for compensation payments is made by the organization’s accounting department. Columns 3 and 4 of the document indicate the average salary of a worker and the number of hours worked. The rules for calculating compensation are the same as for calculating regular vacation pay.

Issuance of documents and monetary compensation on the employee’s last day of work

According to the legislation, a dismissed citizen can apply for calculated additional payments from the moment of signing the order, without waiting for the day the salary is issued. Along with financial resources, documents are issued indicating the peaceful settlement of monetary and legal disagreements regarding the premature termination of the contract at the initiative of one of the parties.

Pros and cons of entering into an agreement

Dismissal by agreement of the parties with payment of compensation in 2018 has positive and negative sides for the company’s management and the person leaving. These include the following factors:

Speed and ease of registration. Accounting and OK will not have to draw up a bunch of papers - just write an agreement on the application, if the initiative for dismissal came from the employee, issue an order, and issue the due money. Correct preparation of documentation guarantees the absence of claims from trade unionists, courts of first instance and supervisory authorities. An employee can quit on any day, previously agreed upon, without loss of money or reputation. At a future job, a note of resignation by consent is regarded as an ability to compromise.
The ability to reach mutual agreement on all issues. The signing of the paper by the parties contributes to the peaceful resolution of disputes. The amount of monetary compensation and the date of dismissal are agreed upon in advance; after signing the consent form, there are no claims left; the directorate of the enterprise and the employee part ways peacefully, without reproaches, accusations, or filing lawsuits in the courts.
Agreement of conditions. The procedure allows the parties to the transaction to agree on any conditions accompanying dismissal. There are often situations when contractual circumstances are not advertised, remaining confidential. This condition helps both parties defend their rights within the framework of the law, negotiating the deadline for leaving work, and mutual obligations.
The disadvantages include the lack of requirements for employers for protected categories of citizens. If the employment contract provides for a severance of relations with the conclusion of a peaceful deal, then the management of the organization can fire a pregnant woman, a person on a probationary period, or on study leave. Reinstatement at the enterprise with the withdrawal of the application is possible with the written consent of both parties to the transaction, with the exception of the woman carrying a child - the law provides for the pregnant woman’s pre-emptive right to cancel the agreement.

Compensation upon dismissal by agreement of the parties

If the amount of compensation given to a citizen upon termination of work duties is not stipulated by the concluded contract, then you can only claim the payments required by law. Legal practice shows that, when agreeing on the conditions for leaving a position, amounts of about three salaries are paid - as in the case of liquidation of an organization or reduction of staff positions.

Determined by whom and how

A person leaving his job needs to know what payments he is entitled to upon dismissal. It depends on your actual earnings. Unless otherwise provided by agreement of the parties, you can claim wages for time worked and compensation for labor leave. The benefit is calculated by the company's accounting department, and the amount is indicated in the official transaction document.

Is severance pay mandatory?

In addition to the payments required by law, which are made on a general basis, the employer is not obliged to pay additional money to the worker if he does not agree with his claims, and otherwise is not stipulated by the employment contract. The company's management can accommodate the worker halfway by paying amounts in excess of the subsidies established by law if they see this as a benefit for themselves. The amount of compensation is discussed verbally.

Limitation on the amount of compensation for executive employees

According to Article 349. Clause 3 of the Labor Code of the Russian Federation, persons holding senior positions in private and public companies cannot apply upon resignation, by agreement, to receive amounts exceeding three times their earnings. The article provides a caveat: compensation does not include wages due, earnings maintained during temporary incapacity for work, payments when going on business trips and studies, or additional payments for vacations.

Personal income tax on payments upon dismissal as agreed by the parties in 2018

Tax Code in paragraph 3 of Art. 217 provides for an exemption from income tax on compensation issued upon retirement to a citizen if it does not exceed three times his salary. If payments are higher than the specified level, then the excess amount is subject to personal income tax. For residents of the Far North, the upper non-taxable ceiling of subsidies is set at six times the monthly wage.

Peculiarities of calculating insurance premiums to the Pension Fund of Russia and the Social Insurance Fund of Russia from the amount of compensation

All compensation paid by the employer to the employee under employment contracts and collective agreements are subject to contributions to the Pension Fund, Social Insurance Fund and Compulsory Medical Insurance Fund. This is established by Federal Law No. 212-FZ dated July 24, 2009 “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation and the Federal Compulsory Medical Insurance Fund.”

In accordance with paragraph 2 of Article 9 of the said act, compensation for unused vacation, payments in the form of severance pay in part exceeding three times (for those who worked in the Far North - six times) the amount of monthly earnings must be subject to insurance contributions to the specified funds. No deductions are made from other payments related to the dismissal of an employee.

Video

If one day you get tired of your job, you may think about how to quit by agreement of the parties. To find out, you can look at the Labor Code or go through sites on the Internet, looking for the necessary information. Or you can just read our article and become familiar with all the nuances and pitfalls.

Provisions of the Labor Code

According to the set of articles of labor legislation, the initiator of termination of labor relations can be either the employer or the employee. The latter has more advantages and, accordingly, more opportunities to terminate the employment contract. If the employer must either wait until the end of the contract or hope that the employee will commit misconduct, then the employee can decide to leave the enterprise on any day at his discretion, if he agrees with his boss on how best to do this for mutual benefit. This is called an agreement between the parties. This issue is set out in detail in Article 78 of the Labor Code.

How to formalize dismissal by agreement of the parties

By and large, termination of an employment relationship by agreement of the parties is dismissal of one’s own free will, since the initiator is also the employee and only him. The difference is that when leaving the company of his own free will, the employee must work for two weeks and nothing else. That is, if a person needs to be relieved of his position on the twentieth of August, he must submit an application no later than the sixth of August - otherwise he will not have time.

The situation is completely different if the parties enter into an agreement. In this case, if the boss does not object, you can leave even on the same day when the application is written. True, in this case it will be difficult to make the final payment to the employee, as required by law, on the last working day, but this can also be agreed upon.

Actually, the article of the code states that by agreement of the parties, an employment contract can be terminated at any day, the main thing is that everyone is happy with it.

How does the procedure for voluntary dismissal work?

As in general cases, when the initiator of termination of work is an employee, the following conditions must be met:

writing a resignation letter;
issuance of an order for the enterprise;
full settlement with the employee.

The only difference is that between the application and the order, the employee and his boss negotiate the conditions for terminating the working relationship and fulfill them - this can affect the timing of dismissal, work, as well as the amount of payments.

How does dismissal occur by agreement of the parties under a fixed-term employment contract?

Here we should immediately make a reservation that there are two types of employment contracts: fixed-term and unlimited. With the latter, everything is clear: they are concluded for an indefinite period, and work on them continues until the employee retires, decides to leave the enterprise, or until the enterprise itself is liquidated. And such contracts are concluded in most cases, since fixed-term employment contracts - documents that indicate the end date of work - are allowed to be concluded only in some cases.

For example, if part-time students or students are hired. Or if the work is seasonal, for a certain period - but not less than two to three months. In such cases, the document may not contain a specific date, but the wording “until the completion of work”, “until a permanent employee enters the workplace.”

Naturally, the question arises: if the document indicates the exact date (or its equivalent), does the employee have the right to submit a letter of resignation without waiting until the contract expires? The answer to this is: of course, the employee has such a right.

The text of the article of the Labor Code leaves no doubt: you can resign at your own request and resign by agreement of the parties on any day.

Required documents

Since the procedure for terminating a working relationship is structured in the same way as a similar procedure in the general case, the documents required for its execution are standard.

Employee statement

Having decided to leave the company of his own free will, the employee must write a statement about this addressed to his immediate superior. Bearing in mind the mandatory fourteen days of work, he must indicate in the application the date taking into account this work.

p>In the event of dismissal by agreement of the parties, if an agreement has been concluded with the boss to reduce this period, the application indicates the agreed date.

Severance agreement

There is no approved form for such a document, and most participants in the work process prefer to conclude it only in words. On the one hand, this position is quite understandable: it allows you to bypass some legal norms, for example, taxes. On the other hand, if the employer makes a big promise, he may well subsequently renege on his promises, and the employee will not be able to recover compensation in court. Therefore, it is recommended to write down all agreements reached and seal them with the organization’s seal.

Agreements may relate not only to terms of service, but also to payments on the last working day - for example, an employer may assign additional compensation not provided for by law, consultations that a former employee will provide to his replacement, and so on. A written agreement also protects the employer if the employee wants to renege on his obligations.

Order for the enterprise

When terminating an employment contract, the enterprise issues an order to this effect. The document is drawn up in form T-8 based on the application. It mentions dismissal by agreement, but does not describe the terms of the agreement. Records of the agreements reached can be attached to the order if desired. The employee must sign the order, indicating that he is familiar with its points. Three days are allotted for this.

Entry in the work book

When terminating an employment contract, an entry must be made in the work book with reference to the relevant article of the code. When dismissing under Article 78, the entry “dismissed by agreement of the parties” is made; the terms of the agreement are not written down. The employee must certify with his signature the entry in the work book and in the personal card. After this, the book is handed over to him

Payments upon dismissal as agreed by the parties

On the last working day, the employer also makes final payments to the employee. That is, it must give him:

wages and bonuses earned by this date. All required bonuses and coefficients are also paid;
compensation for all unused calendar vacation days.

If an employee took vacation in advance during his working years, on the contrary, previously issued vacation pay will be withheld from him. It is also necessary to withhold expenses for travel, food and special clothing, if any were spent on the employee. Payment of severance pay is not provided, but since the parties additionally stipulate the conditions, they can agree on benefits in an amount that suits both. The agreement may also provide for other deadlines for final payment - for example, a week or two days before dismissal.

Some nuances

When dismissing by agreement of the parties, as well as when dismissing at his own request, the employee can think about it and withdraw his application before the end of his service. Unless the employer has already promised someone his position in writing, the employee can continue to perform his duties as if nothing had happened. If the dismissal period has passed, but the employee continues to come to work and work, the employment contract is considered to be extended by default and not terminated. If at the same time the employee still needs to leave the company, he will need to re-write the application and work it out.

All of these terms apply only if the written agreement does not indicate otherwise.

If on the last working day the employee was not given a work book and was not paid off, he still has the legal right not to appear at the enterprise again, and to demand what is due to him in court. Therefore, it is good to immediately draw up the agreement in two copies - one will remain at the enterprise, and the second will be in the hands of the employee.

We hope that in our article you have found answers to all your questions about the procedure that is carried out upon dismissal by agreement of the parties.

In labor law there is such a thing as dismissal by agreement of the parties. What is it, and what does it mean for employers and employees? Let's try to explore this issue in detail.

Labor legislation

Article 78 of the Labor Code of the Russian Federation states that an employment contract can be terminated at any time if both parties to the labor relationship agree to this. That is, an employer can fire an employee by agreement of the parties, and an employee can leave the enterprise if his boss does not mind. In fact, this is the entire content of the article.

What is dismissal by agreement of the parties?

So what is hidden behind this term “agreement”? In reality, this simply means that the employee and his boss have agreed on certain conditions under which the termination of the relationship will take place. Moreover, this can be either just one condition, such as a working period - if, for example, the employee does not want to stay for the required two weeks - or a whole series of agreements on all the nuances of terminating the contract. That is, when there is at least one condition specified beyond the standard usual procedure, this can already be considered an agreement.

The procedure for dismissal by agreement of the parties

As in the case of any other termination of employment relations, upon agreement of the parties, the standard procedure applies:

the employee writes a statement;
based on his application, an order for the organization is issued;
Based on the order, on the last working day the employee is given documents and money.

But what about the agreements, you ask? And an agreement can be reached at any time during the dismissal procedure. True, the sooner this is done, the fewer documents will have to be corrected later.

Statement

It is best to discuss the terms of dismissal by agreement of the parties before writing a statement. Why? If only because you should be very careful with dates. In general cases, an employee must work for fourteen days before resigning; accordingly, this time period must be reflected in the application. That is, if the date under the text is the first day, the employee can ask for termination of the employment contract only from the fourteenth day at least.

But if the employee agrees with the employer on a shortened period of service or, conversely, that he must serve for one and a half months before leaving, this, of course, will be reflected in the dates indicated in the application. And if the provision after the agreement does not correspond to what is written in the document, the application will have to be rewritten.

It is for these reasons that it is better to first discuss and agree, and then record something on paper.

An application for dismissal by agreement of the parties must contain only a request to terminate the employment relationship with a note that it is carried out by agreement.

All conditions under which the employment relationship will end must be described in the agreement. If desired, this document can be attached to the order.

Agreement of the parties upon dismissal

As mentioned above, an agreement is any agreement between an employee and his employer that goes beyond the established procedure for terminating an employment contract in the general case.

Most often, we are talking about the terms of compulsory work, either increasing or decreasing, but anything can be discussed: from payments to consultations that the former employee will provide to the company, and recommendations that the employer will issue on or before the last working day.

Registration of dismissal by agreement of the parties usually remains oral: as they agreed in a conversation about certain obligations, they took each other’s word for it. In principle, since there is no established form of agreement, such a position can be understood, but it is still better to write down any agreements, no matter what the credit may be. Firstly, there are all sorts of situations, for example, no one is insured against accidents, and secondly, this will help to avoid unnecessary fuss.

It is recommended to draw up such a document in two copies, one of which will remain with the employee, and the second - at the enterprise. Both samples must be signed by both parties and sealed with the seal of the enterprise, the text is drawn up in any form, the main thing is that all the agreed points are reflected. Signatures of witnesses are not required; it is enough that the text is certified by the employee and the employer.

p>It is highly advisable to include at the end of the document a clause stating that the parties have no claims against each other.

The main feature of the agreement is that if one of the parties changes their mind, for example, an employee wants to withdraw his application, it will be impossible to do this without the consent of the other party. That is, if under normal circumstances a manager can refuse to reinstate an employee only if he has already promised this position to another person in writing, then with an agreement he can refuse simply on the grounds that a signed document already exists.

Order of dismissal by agreement of the parties

The order for the enterprise is drawn up in form T-8. It must contain the wording “by agreement of the parties.” The agreement itself may not be attached to the order, but it is better to make it an appendix.

The employee must, within three days, put a signature under the order indicating that he has read everything and agrees with the text. If for some reason he does not do this, an appropriate entry must be made under the document, for example: “Acquainted, refused to sign.”

Final payment upon dismissal by agreement of the parties

On the last working day, the employee must receive a work book, a certificate of average salary and all the money that he managed to earn by this date. The cash that the employee must receive includes:

wage;
all bonuses and coefficients required in a given area and for a given position;
quarterly and monthly bonuses that must be paid by this date;
any payments included in the remuneration system established at the enterprise;
compensation for unused calendar vacation days;
compensation for previously paid meals, travel, etc., if this is described in the internal documents of the enterprise.

For example, if upon joining an organization an employee receives a uniform for which he leaves a deposit, then on the day of dismissal he returns the clothes and receives the deposit back. If the employee remains in debt to the organization, for example, he took vacation days in advance and received payments, then upon dismissal, the debts are deducted from his pay.

Payment of severance pay under the agreements is not provided. But an option is possible, for example, to dismiss an employee by agreement of the parties with payment of the required two salaries - if the parties agree on this. If, for example, the organization has adopted a provision that under any circumstances (except for a serious violation of discipline) an employee receives benefits in addition to his salary on his last working day, then even with the agreement of the parties, this money is paid. Unless, of course, the employee refuses them. It is clear that the parties can agree on payment “in an envelope”, but this, of course, cannot be reflected in the documents, and oral agreements can be violated at any time, so it is better not to risk it.

Dismissal by agreement of the parties on the initiative of the employee

By and large, this is the same as dismissal of one’s own free will, with the only difference being that the employee can negotiate special conditions for himself. And another characteristic feature is that the employee will not be able to change his mind and withdraw the application if the employer does not agree to return him to the workplace.

Dismissal by agreement of the parties on the part of the employer

The employer may at any time offer the employee to terminate the employment contract. To do this, you must send him a written proposal, in which you must indicate the date of the proposed dismissal.

It should, of course, be understood that an employee may refuse to leave the organization, no matter what favorable conditions the boss offers him - the employer has no right to force or force him to resign, unless we are talking about a change of owner, who can replace the manager within three months, his deputy and chief accountant.

We hope our article helped you understand how best and most correctly to arrange the dismissal of an employee by agreement of the parties.

The Labor Code of the Russian Federation provides a basis for terminating an employment contract as an agreement of the parties (Article 78 of the Labor Code of the Russian Federation). The Labor Code of the Russian Federation formulates this basis succinctly: “An employment contract can be terminated at any time by agreement of the parties to the employment contract.”

By agreement of the parties, the employment contract can be terminated at any time, and the law does not establish any period of “working off” or warning.

Moreover, by agreement of the parties, the employment contract can be terminated on any day agreed upon by the parties, including while on vacation and while on sick leave.

Both the employee and the employer can initiate dismissal by agreement of the parties. Typically, an employment contract is terminated under this clause when both parties want to end the matter quickly and painlessly. The initiator of termination of the employment contract - the employee or the employer - sends his proposal to the other party, and if the parties reach an agreement, then an agreement to terminate the employment contract is signed.

Cancellation of the agreement reached is possible only with the mutual consent of the parties to the employment contract (clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes”).

The agreement defines the conditions for termination of employment, payment of compensation, etc.

However, in any case, upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal (Part 1 of Article 140 of the Labor Code of the Russian Federation).

Upon dismissal the following are paid:

Salary accrued up to the last day of work;

Compensation for unused vacation (Part 1 of Article 127 of the Labor Code of the Russian Federation).

If you first go on vacation and then quit (Part 2 of Article 127 of the Labor Code of the Russian Federation), you will also be entitled to vacation pay. The day of dismissal will be considered the last day of vacation.

In addition to salary and compensation for unused vacation, the agreement may also provide for severance pay. In this case, it must also be paid on the day of dismissal.

Upon dismissal of his own free will (Article 80 of the Labor Code of the Russian Federation), the employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance.

The specified period begins the next day after the employer receives the resignation letter. By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.

On the last day of work, the employer is obliged to issue the employee a work book and other documents related to work, upon the employee’s written application, and make the final payment.

Upon dismissal at one's own request, the following is paid:

Wages accrued up to the last day of work;

Compensation for unused vacation.

If an employee served a probationary period in an organization and during it quit of his own free will, then he is also entitled to compensation for unused vacation.

Moreover, if the working year is not fully worked out, the vacation days for which compensation must be paid are calculated in proportion to the months worked.

Surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to more than half a month are rounded up to a full month (letter of Rostrud dated December 18, 2008 No. 6966-TZ).

Upon dismissal due to termination of a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation), the employee must be warned in writing at least three calendar days before dismissal. In this case, the employer must pay wages for time worked and compensation for unused vacation.

Upon dismissal at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation), the employee is provided with certain guarantees and compensation (see Chapter 27 of the Labor Code of the Russian Federation).

Upon termination of an employment contract in the event of liquidation of the organization or reduction in the number or staff of the organization’s employees (clauses 1 and 2 of Article 81 of the Labor Code of the Russian Federation):

The employee is paid severance pay in the amount of average earnings;

The employee retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay) (paragraph 1 of Article 178 of the Labor Code of the Russian Federation).

Moreover, in exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it (paragraph 2 of Article 178 Labor Code of the Russian Federation).

In addition to severance pay, the employee is paid compensation for unused vacation (Article 127 of the Labor Code of the Russian Federation).

The employer is obliged:

Notify employees about the upcoming dismissal personally and against signature at least two months in advance (paragraph 2 of Article 180 of the Labor Code of the Russian Federation);

Offer the employee another available job (vacant position) (Part 3 of Article 81 and Paragraph 1 of Article 180 of the Labor Code of the Russian Federation);

Comply with the requirements for the preferential right to retain workers with higher labor productivity and qualifications (paragraph 1 of Article 179 of the Labor Code of the Russian Federation).

According to paragraph 2 of Article 179 of the Labor Code of the Russian Federation, with equal labor productivity and qualifications, preference in remaining at work is given to:

Family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is their constant and main source of livelihood);

Persons in whose family there are no other self-employed workers;

Employees who received a work injury or occupational disease while working for this employer;

Invalids of the Great Patriotic War and invalids of combat operations in defense of the Fatherland;

Employees who improve their skills at the direction of the employer without interruption from work.

Also, according to Article 178 of the Labor Code of the Russian Federation, severance pay is paid to an employee in the amount of two weeks’ average earnings upon termination of an employment contract due to:

With the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or with the employer’s lack of relevant work (subclause 8, part 1, article 77 of the Labor Code of the Russian Federation );

With conscription for military service or assignment to alternative civilian service (subclause 1, part 1, article 83 of the Labor Code of the Russian Federation);

With the reinstatement of the employee who previously performed this work (subclause 2, part 1, article 83 of the Labor Code of the Russian Federation);

With the employee’s refusal to be transferred to work in another area together with the employer (subclause 9, part 1, article 77 of the Labor Code of the Russian Federation);

With the recognition of the employee as completely incapable of working in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation (subclause 5, part 1, article 83 of the Labor Code of the Russian Federation);

With the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (subclause 7, part 1, article 77 of the Labor Code of the Russian Federation).

As you can see, the most “profitable” thing is dismissal during the liquidation of the organization or reduction in headcount and staff (clauses 1 and 2 of Article 81 of the Labor Code of the Russian Federation). That is why employers in such a situation often offer employees to write a letter of resignation of their own free will. Or by agreement of the parties.

However, if the employee proves in court that in fact there was a suspension from work under duress, then, according to Article 234 of the Labor Code of the Russian Federation, the organization will be obliged to pay this employee the earnings he did not receive for the entire period of illegal dismissal, as well as restore him to his previous place of work.

Dismissal by agreement of the parties has its advantages. And the downsides.

Firstly, the consent of the parties is required, i.e. the employee and the employer. It does not matter who first proposed to terminate the contract, it is important that the other party agrees with this proposal.

For example, an employee received a more favorable offer from another organization. Or, on the contrary, the employee is excellent and qualified, but relationships with colleagues are absolutely not improving. There is no reason to fire him, but there is no point in keeping him at work either. If the employee also believes that it is impossible to maintain further employment relationships, then there is no problem, Article 78 of the Labor Code of the Russian Federation will help.

The Labor Code of the Russian Federation does not regulate in any way how an employee and employer will agree on a civilized “divorce.” Depending on the situation and (or) the wishes of the parties, they can agree:

About the date of dismissal;

Compensation (if termination of the contract is initiated by the employer);

Relocation compensation, etc.

Anything that does not contradict the law is suitable - the main thing is that both parties agree.

This is the most “market” basis for dismissal, since the Labor Code of the Russian Federation does not interfere in any way with the relationship between employee and employer.

It is assumed that the employee and the employer will hold peaceful negotiations, draw up an agreement to terminate the employment contract, in which they will stipulate all the conditions - and everyone is free. You can resign by agreement of the parties at any time. At any time - this means both during illness and during vacation.

This can be reflected in the work book in two ways, both of which are correct:

“Dismissed by agreement of the parties - paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation”;

“Dismissed by agreement of the parties - Article 78 of the Labor Code of the Russian Federation.”

There is no violation here: both paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation and Article 78 of the Labor Code of the Russian Federation regulate precisely dismissal by agreement of the parties.

And yet, what is more profitable for the employee?

When dismissing at his own request, the employer has the right to demand that the employee work for another two weeks (if the dismissal does not occur during the employee’s probationary period). What if you have already found a new job, if they are already waiting for you there?

Dismissal by agreement of the parties does not provide for the need to work off; it is possible to agree on a specific date for dismissal.

However, voluntary dismissal can also take place before the 14 days have expired.

In both cases, the working period may be reduced or not set at all, if you are able to reach an agreement with your employer.

There is another side to the coin: you do not want to spoil your relationship with the employer and confront him with the fact of your dismissal. However, you want to be able to freely attend courses, trainings, and interviews without hassle. You can agree on dismissal by agreement of the parties even after a few months.

The employer will be able to calmly find a replacement for you, and you will be able to complete and transfer the work.

This is such a civilized way to leave gracefully... you just need to remember that if you submitted a resignation letter of your own free will, then you have the right to change your mind (before the expiration of your service period). Of course, you won’t have the same idyll with your employer, but from a legal point of view you are spotlessly clean.

But with dismissal by agreement of the parties, such a number will not work. Once you have signed an agreement to terminate the employment contract with your employer, you will not be able to change your mind and stay, even if you agreed to leave after a long time.

However, you can try to negotiate with the employer. However, he is not obliged to agree with you, as is the case with voluntary dismissal.

Perhaps these are the main differences.

Now regarding the differences between dismissal by agreement of the parties and layoffs.

We constantly have to deal with the fact that the employer offers employees, instead of dismissal due to staff reduction or staff reduction, to resign by agreement of the parties. Is it worth agreeing to this? I think not, and here's why.

We look at Article 81 of the Labor Code of the Russian Federation. When laying off, the employer is obliged to:

Notify the employee at least two months in advance of the upcoming layoff;

Analyze the data of all laid-off employees;

Identify those who cannot be laid off by law;

Identify those who have a preferential right to remain at work during layoffs;

Upon dismissal, pay wages for the period worked, compensation for unused vacation days, as well as severance pay in the amount of average earnings.

Moreover. As a rule, after dismissal within two months (or maybe three, if the employee registered with the employment authorities within two weeks after dismissal and was unable to find a new job during this time), the employer is obliged to pay compensation to the employee.

The question is, why does the employer need all this?

Dismissal by agreement of the parties is much simpler; it is just two steps:

Obtain consent from the employee to terminate the employment contract;

Fulfill the agreed terms.

By the way, with this type of registration, the likelihood of litigation and, especially, reinstatement of a dismissed employee tends to zero. The logic, in principle, is clear: “We are all adults, you yourself agreed, on what basis should you be reinstated?” But here's the money question!

It was already mentioned above that the laid-off employee receives tangible compensation. And there is no point in going for dismissal by agreement of the parties if it is more beneficial to the employer. Now, if the employer puts forward really impressive arguments (for example, not three, but five average earnings plus good recommendations), then why not agree to resign by agreement of the parties?

And one more plus of dismissal by agreement of the parties. In order to receive compensation from your employer, you will have to not get a job for at least two months (I mean officially), otherwise the benefit payment will stop.

If you quit by agreement of the parties, then you receive all compensation, regardless of whether you get a job or not.

I just ask you very much: never, under any circumstances, believe verbal promises. All promises must be clearly stated in the agreement on termination of the employment contract.

Remember that after you sign this document, the employee will no longer be able to terminate it unilaterally or refuse it (unless the employer agrees, and this is unlikely).

An agreement that has been signed and entered into legal force (as a rule, this happens after signing) is almost impossible to challenge. If at all possible.

The conclusion from this is: never, under any circumstances, “put yourself in the company’s position” by refusing financial compensation or agreeing to lower compensation. The entrepreneur in this case is your employer; it was he who should have thought about not getting into a difficult financial situation. And don’t let him try to shift his problems onto your shoulders.

So. It is beneficial to resign by agreement of the parties if:

You need to choose a time of dismissal that is convenient for you;

There is a real, documented opportunity to receive more attractive compensation from the employer;

After your dismissal, you want to register with the employment service (and receive a larger benefit and for a longer period of time than if you quit voluntarily without good reason).

Now the cons:

You can be fired even when you are on vacation or sick leave. Strictly speaking, this is not exactly a drawback; after all, you do not have to agree. Moreover, if you get good compensation, then why not;

Dismissal by agreement of the parties is uncontrolled. No unions (if you remember what that is), no special conditions;

Dismissal by agreement of the parties does not provide for any additional compensation (unless otherwise specified in the employment or collective agreement). Get only what is specified in the agreement with the employer. There will be no automatic payments;

You can't change your mind. You will not be able to unilaterally withdraw consent and refuse dismissal;

Forget about legal protection. This may be harsh, but in the vast majority of cases you will not be able to challenge your dismissal in court.

Here is briefly what you need to know about termination of a contract by agreement of the parties. Obviously, this is a progressive way of regulating labor relations, which requires considerable maturity and personal responsibility.

IMPORTANT:

Few people understand the difference between dismissal by agreement of the parties (Article 78 of the Labor Code of the Russian Federation) and dismissal at their own request (and employers quite often use this ignorance to their advantage).

If, during the probationary period, an employee comes to the conclusion that the job offered to him is not suitable, he has the right to terminate the contract at his own request by notifying the employer in writing three days in advance (Article 71 of the Labor Code of the Russian Federation).

If an employee proves in court that in fact there was a suspension from work under duress, then, according to Article 234 of the Labor Code of the Russian Federation, the organization will be obliged to pay this employee the earnings he did not receive for the entire period of illegal dismissal, as well as restore him to his previous place of work.

In addition, monetary compensation for moral damage is recovered in favor of the employee, the amount of which is determined by the court (Article 394 of the Labor Code of the Russian Federation).

Once you have signed an agreement to terminate the employment contract with your employer, you will not be able to change your mind and stay, even if you agreed to leave after a long time.

Once you sign this document, the employee will no longer be able to terminate it unilaterally or refuse it (unless the employer agrees, and this is unlikely).

Anna MATSERAS, lawyer

Many legal norms of the Labor Code of the Russian Federation seem simple and transparent for application. However, their close study and analysis allows us to come to the conclusion that it is possible to implement the prescribed provisions only after overcoming numerous difficulties. One of the striking examples is Article 78 of the Labor Code of the Russian Federation, which establishes the procedure for dismissal by agreement of the parties. It received the palm thanks to its very brief content, because not a single regulatory document contains explanations of its documentation.

The Labor Code of the Russian Federation provides the employee with great privileges - he has the opportunity to resign at any point in time that is beneficial only to him (Article 77 of the Labor Code of the Russian Federation). This could even be during vacation or sick leave. The employer, in the presence of the conditions described above, can terminate the contract on his own initiative only in exceptional cases: liquidation of the enterprise or termination of activities. Trade union organizations do not exercise any control. The same method of ending a relationship is also possible under a student agreement.

About legal grounds and correct execution of documents

The provision of the Labor Code, which allows the termination of employment relations by agreement of the parties, states that this will only require an appropriately executed addition to the contract, signed by the employee and the employer.

Approximate procedure:

The employee writes to the director of the enterprise, requesting termination in accordance with the mutual agreement they have reached.
The employer reviews the application and either signs it or begins discussing with the employee a termination date that satisfies both parties.
The procedure is completed by a properly executed additional agreement to the employment contract, which has one purpose - to terminate the last document.

The opposite situation is also possible - the employer offers the employee termination of employment by mutual consent by sending him a corresponding notice with the dates indicated in it, the amount of monetary compensation and other important conditions. The additional agreement can contain information about the date of termination, the procedure for transferring cases, the timing of inventory, compensation payments and other important points.

The fact that the termination of the contract has been completed is evidenced by order in form No. T-8 and entry in the employee’s work book.

What advantages does terminating the contract by agreement of the parties bring to the employer?

An employee who plans to resign based on his own desire is given the opportunity to withdraw his application at any time. And in the event of termination of labor relations by agreement of the parties, such a privilege is not provided. It is possible to cancel a signed agreement only with the consent of the opposite party. That is, unilateral termination procedure is not possible.

The conclusion that termination of employment relationships based on an agreement is beneficial for the employer can be made based on the following points:

legal opportunity to take the initiative to terminate the employment relationship;
no need to explain the real reason for such a decision and no need to worry about meeting the deadlines established by law. For example, if the reason for dismissal is a forced reduction in staff, then dismissal of an employee is impossible without observing the deadlines allotted for his notice;
independently setting the date of dismissal, including at the end of the current working day. This point is especially important when dismissing an employee who has individual financial responsibility, since the employer has every right to indicate in the agreement the period necessary for a thorough inventory of material assets;
the employer has no obligation to coordinate the dismissal with the trade union committee;
the dismissal of an employee cannot be prevented by either filing a sick leave certificate, going on vacation, or completing a probationary period;
the agreement of the parties provides for the establishment of special conditions, as well as the term, procedure and amount of compensation payment (severance pay or compensation);
there are no special requirements for documenting the agreement;
Some active employees who do not want to resign due to layoff and make such an entry in their work book often agree to receive compensation and begin to look for a new employer, who, having seen the entry in the work record, will come to the conclusion that his future employee is an absolutely non-conflict person , ready to find a compromise solution even in difficult times of crisis.

Is the employee entitled to any benefits or compensation?

Labor legislation has long defined situations in the event of which an employee receives upon dismissal. A clear example of this is the liquidation of a company or reduction in the number of employees. But in some cases, the amount of this benefit can be included in the employment or collective agreement.

The mutual agreement for terminating the employment relationship provides for a number of favorable conditions for both parties. An employee who quits for such a reason can count on receiving so-called “compensation”, the amount of which depends on the result of negotiations between the parties.

The legislation does not establish any limits on this payment. The amount can be secured only by signing the termination agreement.

Standard payments and compensation include:

wages, which is calculated taking into account the last working day;
cash payment for the number of days of unused vacation. If the resigning employee decides to use his vacation in full, then there can be no question of any compensation. Then only .

You can watch the following video for more details about payments:

Calculation of their size

and wages must be paid to each resigning employee. If an employee has used more vacation days than he was entitled to at a given time, then payment for all these days will be withheld from his salary. The amount of compensation is calculated based on the employee’s full vacation entitlement for a full year of work, or on the number of months actually worked.

To talk about the specific amount of compensation upon dismissal, you need to indicate them when signing a mutual agreement.

Taxation of payments

The following contributions are imposed on all amounts paid to the employee:

Personal income tax. Under normal operating conditions, this tax is paid only at the end of the calendar month, and the dismissal procedure provides for slightly different conditions, namely the actual receipt of wages by the individual. After dismissal of an employee, personal income tax must be paid to the budget:
- on the day the funds were received from the bank or on the day the money was transferred to the account;
- the next day if settlements with those dismissed are made from proceeds received at the cash desk.
Income tax. Wages, or rather their quantity, are clearly monitored in accordance with paragraphs 1-3 of Art. 255 of the Tax Code of the Russian Federation. Compliance with these standards is a very important point, because if they were relied upon when calculating wages, then the taxable income tax base will be reduced by the entire amount of wages and compensation for unused vacation.
UST and contributions to the pension fund. Payment of this tax is required in the event of a decrease in the taxable income tax base due to payments established in the labor (collective) agreement. Compensation and monetary compensation for unused vacation are not subject to unified social tax and contributions to the pension fund.
Contributions for injury cases.

FAQ

Is it possible to terminate the contract by agreement of the parties with the implementation of what is provided for in Part 2 of Art. 127 of the Labor Code of the Russian Federation, the right to use vacation?

If the dismissal is not related to the occurrence of the employee’s guilty actions, then you can use vacation followed by dismissal. Competent documentation in this case involves the following sequence:

Issuing an order stating that the employee has gone on vacation.
Signing by the parties of an additional termination agreement. In this case, the date of termination must coincide with the last day of vacation.
Issuing an order to terminate the contract, the date of which must correspond to the last working day before the start of the vacation.
Making an entry in the work book.

Does the employer have the right to refuse an employee who has applied to him to terminate the employment relationship by agreement of the parties?

The Labor Code of the Russian Federation does not provide a clear answer to this question. Based on the wording of Art. 78 of the Labor Code of the Russian Federation, which allows termination of the contract by agreement of the parties, we conclude that the employee has no reason to demand consent from the employer. You can resort to another option - terminate the employment contract on your own initiative (clause 3, part 1, article 77 of the Labor Code of the Russian Federation).