Properly arrange dismissal by agreement of the parties. Dismissal by agreement of the parties and the labor code

The reached consent or agreement between the employer and the employee is one of the grounds for termination of labor relations. But in order to understand what is dismissal by agreement of the parties, it is necessary to analyze the norms of the current labor legislation, and the general legal nature of the concept of "agreement", to understand the essence of contractual legal relations.

The very procedure for dismissal according to this wording is not spelled out either in the Labor Code of the Russian Federation or in any clarifying regulatory legal act. What happens, it is necessary to take into account not only labor, but also civil legislation when dismissing, because it is it that determines the concept and procedure for concluding agreements. At the same time, it is important to take into account the established procedural acts of judicial practice.

When and how to dismiss an employee by agreement of the parties

The Labor Code indicates to us that the employer and employee have the right to terminate the employment contract by mutual agreement. Only one single article 78 of the Code regulates such a right. As for the categories of employees, or other requirements, the normative act does not establish. Based on this, we can conclude that any dismissal due to the agreement reached will be considered a priori correct.

But the existence of this consent must have an evidence base - documentation, correspondence, which indicates that, nevertheless, this agreement took place. And for this, it will not be superfluous to request from the employee himself a letter of resignation by agreement of the parties. Since there is no unified approved form, it is compiled arbitrarily. An essential feature is that the employee can submit such an application not only while at the workplace, but also during the vacation period, and during the period of sick leave.

Termination employment contract can also occur during the absence of the employee at the place of work for a number of good reasons. Therefore, dismissal occurs at any time, indicated by the parties in the agreement and in the application. The above statement must contain information on reaching the consent of the employee and the enterprise regarding the dismissal, as well as an indication of the norm of the article. It should also reflect in the application the date from which the employment contract is terminated.

Benefits of leaving by agreement

When terminating an employment contract by mutual agreement, there are advantages to the benefit of both the employer and the employee. Dismissal by agreement of both parties takes place according to a more simplified procedure than, say, dismissal at the initiative of the enterprise, or for reasons beyond the control of the parties.

The employee does not need to work out the two weeks required by law. Therefore, by writing a statement on the termination of employment for precisely this reason, he saves his time. The employer, on the other hand, is relieved of the obligation to coordinate the dismissal of an employee with the trade union body, as if he were carrying out the procedure under article 81 of the Labor Code.

Also, for the enterprise, a clear plus is the termination of the employment contract by mutual will due to the fact that it is possible to dismiss both employees on maternity leave and during pregnancy, which is absolutely impossible in other cases when the enterprise needs to terminate labor relations with such categories of employees. For example, with the upcoming reduction, workers on maternity leave cannot be fired, but by agreement of the parties, there is no ban.

How to properly terminate an employment contract

Since it regulates dismissal by agreement of the parties, Art. 78 of the Labor Code, but the general grounds for termination of labor relations include article 77, which must be referred to in the work book and in the order, defining paragraph 1 of this article in the documents.

But, as mentioned above, a simple reference to the norm of the article is not enough. A supporting document of such a motive for terminating the employment contract must be available. That is, in order for an agreement to be reached between the parties to the legal relationship, it is necessary that one party receives an initiating document from the other party. An enterprise can send a letter to an employee about the need for negotiations, as a result of which such a decision will be made.

The employer may also send a letter to the employee with a proposal to consider the issue of early termination of the employment contract by agreement of the parties, in accordance with paragraph 1 of Art. 77 of the Code. But the employee also has every right to ask him to be dismissed by agreement of the parties, referring in his application to the same Noma of the Code.

As already mentioned, labor legislation does not provide clear instructions and additional articles governing the dismissal of an employee by agreement of the parties. Therefore, upon termination labor agreement, should be followed general recommendations by design.

An important role in the very concept of an agreement is played by the voluntariness of indicating all the points that are not standardized in the Code. Here, at least take severance pay. Its legislator does not oblige to pay the dismissed person according to such a wording. And yet, the company has the right to pay, by agreement, severance pay, which must be indicated in the agreement. The amount of such benefits should also be spelled out in the decree and in the agreement. Do not forget to calculate personal income tax from it, since this is an additional benefit that is taxed, in contrast to the cases and amounts that are directly prescribed in the Labor Code.

Dismissal by agreement - step by step instructions

There is a certain general procedure for terminating an employment contract, taking into account the specifics that the procedure for reaching agreement by both parties to the legal relationship implies.

p> As you can see, from general order such a procedure is distinguished by the agreement by the parties of the possibility of terminating the employment contract, as well as the need to consolidate the agreement reached in writing in the form of a separate document. The specified additional agreement is attached to the order on dismissal by agreement of the parties. There are no special requirements for the preparation of this additional agreement, but when drawing up it, one should take into account General requirements Civil Code of the Russian Federation on the rules for concluding contracts and additions to them.

Many employers are thinking about whether it is necessary to draw up such an agreement at all, because Article 78 of the Labor Code does not establish it, and in general, all labor legislation does not oblige to reach agreement in writing. And, often, this stage of the procedure is ignored by the company with which the employee terminates the employment relationship. This situation can lead to unpleasant “surprises” in the future, since it will be extremely problematic to prove the fact of consent, as well as the fact that the employee received the amount of severance pay if he does not put his signature on the statement of receipt of funds.

Agreement on termination of the employment contract - important nuances

What should the employer and employee pay attention to when choosing this method of terminating cooperation:

• The employee has a continuous seniority within a month after leaving the position at this enterprise;
• The worker receives more unemployment benefits than what he would receive if he quit own will;
• Employer dismissal by agreement of the parties, in accordance with paragraph 1 of Art. 77 of the Labor Code of the Russian Federation, gives the right not to ask permission for dismissal from the trade union body;
• For an enterprise, this is perhaps the most legitimate and painless article in order to say goodbye to an objectionable specialist with whom an employment contract has been concluded indefinitely;
• According to this wording, you can fire a woman, even during the period of the decree, or pregnancy.
• An employee cannot “change his mind” about quitting, as he could do it, quitting on his own initiative.

The agreement reached by the parties can be terminated only by mutual agreement of both the employee and the enterprise. Even if the circumstances of each party have changed, unilaterally, the agreement cannot be canceled. Unless, of course, in court, the employee proves that the contract was drawn up due to difficult circumstances for him or under duress, with pressure, by the employer.

Dispute Resolution

Often, in order not to fire their specialists due to layoffs, employers resort to tricks and ask employees to write a statement on their own, or by agreement of the parties. And it saves a lot of time, and nerves to the enterprise itself. After all, you don’t need to warn two months in advance, but you can dismiss on any day specified in the agreement.

If the employee refused to be fired by agreement of the parties, the company can carry out a reduction after the proposal of the agreement of the parties. And, in this case, there will be no significant violation of the law if the employer complies with the deadlines established by law. Knowing that he is facing redundancy, there is a chance that the employee will choose the agreement. After signing the agreement, it is no longer possible to dismiss under another article, including due to a reduction in the number of staff.

Another common problem and contentious situation is setting deadlines in the agreement. Sometimes, one of the parties wants to change them. This will not be a problem if the parties again sign an addendum to the agreement, in which they indicate the need to clarify the terms, and put their personal signatures.

Not many employees, and even employers, know that a legal document concluded by the parties will not be valid if an unauthorized representative signed the contract on behalf of the employer. In order for the powers to be valid, the functional duties of the representative of the employer or the statutory documents of the enterprise must contain a clause stating that such a representative has the right to dismiss personnel, conclude contracts and agreements with the employment contract with them.

Dismissal by agreement of the parties is devoted to one article in the Labor Legislation - Art. 78 of the Labor Code of the Russian Federation. Little is said in it: the employment agreement can be terminated by mutual agreement.

In fact, neither the employees nor the employer understand the essence of such termination and its consequences. In this regard, many questions arise: how is the process going, whether the employee is entitled to any payments, what could be the reasons that prompted the employee and the employer to make such a decision.

Features of dismissal by agreement

There are two features of dismissal for the corresponding reason:

• the employee can quit when he pleases (on vacation, during illness);
• on this basis, you can terminate the student agreement.

There is some nuance in this basis - you can not work out the prescribed 2-week period, which is mandatory in case of dismissal of your own free will.

Pros and cons for the employee

Here you can highlight the pros and cons of such a dismissal for the employee. The pluses include:

• the initiative to terminate the contract may come from both the employee and the employer;
• the reason for dismissal in the application may not be indicated;
• there is no time limit for submitting an application;
• You can terminate the employment contract at any time, even in those cases that are prohibited by law;
• you can “bargain” with the employer - discuss with him the terms, the amount of severance pay, and so on;
• the record of dismissal by agreement does not “spoil” the work book;
• may be an alternative to dismissal if the employee is at fault;
• with this wording of the dismissal, the continuity of experience lasts another 1 calendar month;
• if you then register with the employment center at the place of registration, then the unemployment benefit will be slightly higher.

But there are also disadvantages. They refer to the disadvantages for the employee. It:

• the employer can terminate the contract at any time, even in cases prohibited by law;
• there is no control over the legality of dismissal by the trade union;
• the employer is not obliged to pay the employee a severance pay, unless it is stipulated in the collective agreement, in the supplementary agreement or other local regulatory act;
• it is impossible to unilaterally change your mind and withdraw the letter of resignation if the agreement has already been signed;
• judicial practice in such cases is scanty, since it is almost impossible to challenge the actions of the employer.

Registration of dismissal

It is necessary to draw up the actual agreement on termination of the employment contract (both the organization and the employee can be the initiator). Art. 67 of the Labor Code of the Russian Federation establishes the need for a written conclusion of an employment contract, therefore it is more expedient to draw up an agreement on paper, and not in words. The document is drawn up in 2 copies, has all the necessary details.

Sample and content of the agreement

It should contain the following information:

• mutual content of the parties;
• details of the employment contract to be terminated;
• date of termination of employment, that is, the date of the last working day;
• the amount and terms of payment to the employee monetary compensation, if provided;
• date and place of its conclusion. Without this information, the document will be considered void;
• position and full name of the employee;
• full name of the employer with an indication of organizational - legal form;
• position and full name of the person who represents the interests of the employer and has the authority to sign documents;
• passport details of the dismissed employee;
• TIN of the employer;
• Signatures with transcripts.

The agreement is signed by both parties. The document can provide for a monetary payment of compensation to the employee for terminating the contract (compensation upon dismissal by agreement is not at all a prerequisite for such termination of the contract).

Payments upon dismissal

Based on Art. 140 of the Labor Code of the Russian Federation, the employer is obliged to pay the employee on the day of dismissal. The amount paid to an employee includes:

• salary for hours worked;
• compensation for unused vacation;
• compensation for termination of the contract, if such was provided for by the agreement.

What kind of compensation to ask

The amount of compensation is not specified in the law. She can be anyone! Its size can be specified in the collective agreement or local regulatory act.
The main condition is that the employee and the employer can negotiate. As a rule, the amount of compensation is not less than in case of dismissal due to redundancy - a maximum of 3 average employee salaries. This is how the practice shows. The employee has the right to ask for more, the employer has the right to offer less.

The employer is obliged to pay compensation only if it is stipulated in regulations by enterprise. In all other cases - it is his right!
The amount of compensation is specified in the agreement, which is signed by both parties. Only in this case, the employee will be able to sue if the employer violates the terms of termination of the employment contract, according to this document.

Such an agreement cannot be terminated by one of the parties; its cancellation requires the desire of two participants in labor relations: an employee (employee) and an employer - clause 20 of the Resolution of the Plenum Supreme Court RF No. 2 dated 17.03.04.

Compensation Agreement

In any case, the employee writes a statement. It must contain the following information:

• position and name of the employer or person. authorized by him to sign applications;
• position and full name of the employee;
• request to terminate the contract;
• reference to paragraph 1 of Art. 77 of the Labor Code of the Russian Federation or Art. 78 of the Labor Code of the Russian Federation;
• number and date of the current employment contract;
• the date on which the agreement is to be terminated;
• request to pay compensation specified in the agreement;
• date of application;
• applicant's signature with transcript.

The agreement is an annex to the contract. It can be drawn up by both the employee and the employer. The employer has the right not to sign the application until the parties reach a consensus.
The period of discussion of the conditions may be somewhat delayed. All issues discussed by the parties are recorded in the protocol of disagreements. When mutual understanding is reached, it is necessary to draw up a new text of the agreement, or make adjustments to the old document, making reference to the protocol of disagreements.

The dismissal is formalized by order, where an indication is made of clause 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The order is signed by the employee, or a note is made about the impossibility of familiarizing him with the document (in case of absence or unwillingness).

An appropriate entry is made in the work book of the dismissed employee, indicating that the contract is terminated by mutual agreement.

Entry in the work book

The record is made by a personnel officer.
There are 2 options for how an entry in an employee's work book should look when dismissed for such a reason.

Option one:

• record number is indicated;
• the date it was made;
• in column 3 it is written: "dismissed by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation"
• date and order number.

Option two:

• columns 1, 2 and 4 indicate the same information as in the first case;
• in column 3, you can write: “the employment contract was terminated by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation” Both entries have the same legal force.

A copy of the order and work book is handed over to the employee on the day of dismissal.

More information in our infographic

Reasons for dismissal and advantages of such grounds for dismissal

Reasons for an employee to leave an employer:

1. according to the article (for example, absenteeism);
2. the likelihood of receiving "compensation" from the employer (beneficial for women who are on unpaid "children's" leave);
3. the need to go to another job, but there is no time to work off the deadline.

Reasons for an employer to fire an employee:

1. the need to terminate an employment relationship with an objectionable employee;
2. the need to dismiss employees who cannot be dismissed for other reasons (pregnant women on sick leave, students, employees on vacation).

Benefits for the employer:

1. there is no need to consult and notify the union of the proposed dismissal;
2. the employee with whom the agreement has been drawn up can be dismissed in any case, since changing the decision on the part of the employee himself is not possible without the consent of the organization.

When concluding an agreement, it must be taken into account that the employee has the right to challenge it in court, arguing his position with pressure from the employer, especially when it comes to employees of the most vulnerable categories, dismissed without monetary compensation.

Labor exchange payments

Within 2 weeks after the dismissal, the employee has the right to register with the employment center at his place of residence. This requires the following documents:

• the passport;
• education document;
• employment history;
• a copy of the agreement of the parties on dismissal;
• certificate of the applicant's earnings for the last 3 months of work;
• application in the prescribed form.

In 2018, only:

• able-bodied citizens;
• who have reached the age of 16;
• non-pensioners and full-time students;
• not involved entrepreneurial activity;
• not occupying the position of founders of enterprises and firms;
• sentenced to correctional labor or imprisonment.

The amount of the benefit depends on the average earnings of the unemployed for the last 3 months at the last place of work. The average earnings are determined on the basis of the data presented in the certificate from the last place of work.
In the first 3 months of being unemployed, the applicant will receive 75% of their average earnings. In the next 4 months - 60%, and then - 45%.

The allowance is accrued and paid only for 12 months within 1.5 years. If the unemployed person could not find a job for a year through no fault of his own, then the allowance will be paid for another 1 year. Its size will be equal to the minimum allowance for the region.
The applicant receives the status of unemployed on the 11th day from the date of submission of all documents. In the first 10 days, employees of the employment center offer him all the available vacancies that suit him in terms of qualifications.

If the applicant has an "unpopular" specialty, he will be offered training or retraining. If in 10 days he does not find suitable job or place of registration, on the 11th day he will receive the status of unemployed and will receive unemployment benefits from that day.

The amount of the benefit paid cannot be less or more than that established by Law No. 1032-1 of April 19, 1991 “On Employment of the Population” - 850 rubles and 4,900 rubles, respectively.
The authorities of some regions make additional payments to their unemployed. So, in Moscow, the government compensates for transportation costs in the amount of 1,190 rubles, and makes an additional payment of 850 rubles to the minimum and maximum amount. Thus, unemployed Muscovites receive 2,890 and 6,940 rubles respectively.

If the applicant gets a job with the help of the exchange or on his own, then he is deregistered and ceases to receive benefits. Also, he is not deregistered if he refused the offered vacancies 2 times or refused to undergo retraining in the direction from the center.

Step-by-step instruction

The employer offers to terminate the employment contract by mutual agreement? To ensure that your rights as an employee are not violated, you must use the instructions:

• this agreement is required. Both parties must participate. The employee has every right to make his own conditions for subsequent dismissal. He can offer to pay him compensation, he can indicate its size and so on. It is worth considering Art. 349.3 of the Labor Code of the Russian Federation, which indicates the categories of workers who are not entitled to severance pay. The agreement is drawn up in 2 copies;
• registration of the agreement. This is done by the secretary or clerk in the manner that the employer has. For example, in the agreement log;
• delivery of the second copy to the employee. Delivery is confirmed by the signature of the employee on the copy of the employer. Experts recommend writing “I received a copy of the agreement”;

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

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

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

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

Difficult simple wording

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dismissal by agreement of the parties or dismissal by reduction

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

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

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

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

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

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

- fulfillment of these conditions by both parties.

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

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

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

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

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

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

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

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

Pros and cons of dismissal by agreement of the parties

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

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

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

- if the employee is going to register with the employment service after dismissal - in this case, he will be paid benefits bigger size and a longer period of time than upon dismissal of one's own free will without good reason.

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

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

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

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

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

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

Dismissal is a termination process between an employer and a subordinate. This procedure may be accompanied by various circumstances, as well as the reasons that served as grounds for terminating the contract. One of the most common conditions for terminating a professional relationship is. It is important for employers and subordinates to understand the advantages and disadvantages of this option for dismissal.

The concept of dismissal by agreement of the parties

Dismissal by agreement of the parties is regulated by Art. 78 of the Labor Code of the Russian Federation. The positions of this standard reflect the position according to which the manager and his subordinate have the right to come to an agreement among themselves in order to remove the employed person from the position. In such circumstances, there is no need to carry out an additional series of actions that are required to be performed with other types of dismissal.

The features of the considered method of terminating an employment contract include:

• An employee may be removed from a position in conditions where any other type of dismissal is illegal. For example, when the subject is on regular leave or on . At the same time, this method is also allowed to dismiss a woman who is expecting a child or a woman on maternity leave. The agreement of the parties solves a similar dilemma;
• Through such an agreement, it is lawful to break professional relations under a student agreement;
• The manager and employee can avoid a number of formalities that should be performed with other options for dismissal. In particular, the subject has the right not to work for an additional 2 weeks before the immediate termination of the execution official duties. At the same time, the subjects can, through discussion, come to special, individual conditions for dismissal and stipulate the nuances that will suit both the manager and the subordinate. Often such positions are a specific date of departure from office, the amount of compensation funds and the procedure for their provision.

In this type of termination of an employment contract, it is important that both parties agree to the procedure. In turn, dismissal of one's own free will can be carried out if only the employee expresses his will.

At the same time, this type of dismissal is characterized by a provision according to which it is practically impossible to achieve recognition of the agreement as illegal. However, this is only relevant if the procedure was correctly framed in terms of documentation.

The initiator of the process under consideration can be both the employer and the subordinate. In addition, the reason for such a procedure may also be the influence of insurmountable objective circumstances. However, as practice shows, the manager often acts as the initiator.

Dismissal by agreement of the parties: pros and cons for the employee

An entity that is removed from office due to the agreement of the parties to a work contract can count on a number of benefits from such a process. In particular, the benefits of the dismissal in question include:

However, this procedure entails not only positive aspects. Despite the fact that the disadvantages of such a dismissal are much less than the advantages, they nonetheless exist:

• With the type of dismissal under consideration, the relevance of the employment contract cannot be terminated with the expression of the will of only one party. This means that if the employee first gives his consent to this procedure, and then changes his mind, then to continue labor activity The company will require the consent of the employer. Practice shows that managers often insist on their own, and the subjects are subsequently removed from their posts. Therefore, this decision must be correctly assessed by the employee: it is almost never possible to prove the illegality of such a dismissal;
• This type of dismissal does not provide for the need for the employer to pay the former subordinate.

Such an allowance, however, must be paid in circumstances where the relevant provision is fixed in the subject's individual employment agreement;

• If an employee is going to challenge the legality of such a dismissal in court, he must be prepared for difficulties. This is due to the difficulty of providing the court with documentary or witness testimony regarding the presence of pressure on the psyche of the dismissed subject.

So, if the employee assessed everything and made the exact decision to end his labor activity in a particular organization, dismissal by agreement of the parties is beneficial and one of the most operational ways removal from office.

Dismissal by agreement of the parties: pros and cons for the employer

The advantages of dismissal by agreement of the parties exist not only for the employee, but also for the employer. In particular, the benefits of such a dismissal for a manager include:

• If a professional activity a particular employee ceased to satisfy the interests of the company, this method of dismissal is the most easy option removal of the subject from office, without arranging litigation or conflicts;
• Like the employee, the manager also has the right not to indicate the reason for terminating the employment contract with the subordinate. The wording "by agreement of the parties" is sufficient;
• Legislation provides managers with the opportunity to draw up agreements with their subordinates, according to which the parties can, in individually determine the nuances of dismissal ( the exact date, compensation, conditions for ensuring payments, etc.);
• This type of dismissal represents the only way out for the removal of such employees who cannot be dismissed in any other way;
• Trade union formations at the enterprise do not interfere in the process of dismissal by agreement of the parties;
• The process under consideration is also not regulated by the labor inspectorate.

This provision is typical even if a person under the age of 18 is removed from office.

• Practice shows that employers use this method layoffs in order to mask the actual layoffs in the company.

Among the disadvantages of this method of dismissal for the employer, the following can be distinguished: if a pregnant employee was dismissed in this way, then she has the right to be reinstated in the company if she proves that at the time of signing this agreement she did not know that she was expecting a child.

Features of payment of compensation upon dismissal by agreement of the parties

Having considered the pros and cons of dismissal by agreement of the parties, it is appropriate to pay special attention to the procedure for providing compensation funds to a former employee. So, the payments that must be provided to the subject without fail include:

• Reimbursement for holiday days current year that have not yet been used by the person;
• Payment for the work carried out, which has not yet been provided to the subject from the date of the previous payment and until the actual removal from office;
• Additional payments (allowances, bonus amounts, etc.), if such is provided for by the employee's employment agreement or local company regulations.

In addition to what was agreed, the parties to professional relations also have the right to prescribe in an individual agreement the possibility for an employee to receive additional compensation if there are appropriate conditions, which the parties also establish on the basis of a personal agreement.

It is also important to emphasize that the considered compensation upon dismissal by agreement of the parties is not subject to taxation if the total amount of compensation is less than three times the average monthly earnings of a particular employee. For the territories of the Far North, the provision on the sixfold amount of the salary of the subject is typical.

The procedure for issuing dismissal by agreement of the parties

The law does not provide for any clearly regulated algorithm of actions that could be guided by when dismissing an employee by agreement of the parties. However, practice shows that there is a generally accepted procedure that most domestic employers follow when considering the type of dismissal:

Upon dismissal CEO joint-stock company, he cannot be lawfully removed from office by agreement of the parties without the written consent of the shareholders.

It is also appropriate to highlight the general rules for the execution of the dismissal agreement in question. So, the document should contain the following information:

• confirmation of the consent of both parties to the contract;
• the main details of the labor agreement on the basis of which the subordinate worked;
• general data about the employee (full name, series and number of the passport, as well as the position held by the subject);
• the name of the company and its TIN. The full name of the organization is assumed, as well as its address;
• specific date of the last working day;
• conditions for providing compensation funds to the employee, as well as their volume;
• date and place where this document was issued;
• general information about the representative of the employer (full name, as well as the position held by the subject).

The specified person must be authorized to sign such documents. If the considered procedure is carried out by an entity that did not have the authority to do so, all the executed papers and, as a result, the dismissal itself will be recognized as null and void.

• signatures of the manager and the dismissed subject with their transcript.

The nuances of dismissal by agreement of the parties

Dismissal by agreement of the parties is the most profitable and convenient option for both parties to the employment contract. Due to its convenience and efficiency, it is this method of dismissal that employers seek to use in case of conflicts with subordinates.

It is important to note that after signing such an agreement and thus certifying all agreements, the employer does not have the right to change the article on the basis of which the professional relationship is broken. In case of such a need, the consent of the other party is required. To do this, the subject draws up a written notice, after which the discussion begins. In circumstances where both parties come to new agreements during the discussion, it is necessary to draw up a new document.

If both parties agree to continue working together after signing the dismissal paper by agreement of the parties, it is necessary to publish a new document-cancellation of the previous decision, or start drawing up a new employment contract.

Thus, the pros and cons of dismissal by agreement can affect situations differently, depending on the specific circumstances. In order to ensure the most profitable and competent conduct of the dismissal procedure, it is important for employers and subordinates to be familiar with the procedure for carrying out all options for dismissal.

The agreement of the parties to dismiss is in many cases the only way to part with an unsuitable employee without conflict. This type of termination of labor relations often suits the employees themselves, because in the agreement the parties can agree on the payment of monetary compensation. Labor legislation does not establish strict requirements for the design and content of the agreement, however, when concluding it, one should adhere to the rules that have developed in practice.

By agreement of the parties, both a fixed-term employment contract and an employment contract concluded for an indefinite period can be terminated at any time. To do this, one of the parties (employee or employer) comes up with a proposal to dismiss by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation). The initiative can be expressed orally or in writing (for example, a sample written proposal from the employer to the employee to dismiss by agreement of the parties is presented in the forms section on the website https://www.moedelo.org/Pro (Article 78 of the Labor Code of the Russian Federation, clause 20 of the Resolution Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004).

How to draw up an agreement?

The agreement must be drawn up by analogy with an employment contract: in two copies, each of which is signed by the parties. One copy of the agreement must be given to the employee, the other will be kept by the employer. The employee must sign a copy of the agreement kept by the employer to receive his copy. For example, in this form: "Received a copy of the agreement. Signature, date" (part 1 of article 67 of the Labor Code of the Russian Federation).

What to include in the agreement?

• an indication of the mutual desire of the employee and the employer to terminate the employment contract by agreement of the parties. To do this, it is advisable to include in the agreement a separate clause stating that it is signed by the parties (employee and employer) voluntarily, on the basis of their free will and without any coercion;
• details (date and number) of the employment contract that is being terminated;
• date of termination of employment (the last day of work of the employee).

Also, the agreement can include a condition on the payment of monetary compensation to the employee for termination of the employment contract, its size and other conditions. Payment of monetary compensation to the employee upon dismissal by agreement of the parties is not mandatory(Article 78 of the Labor Code of the Russian Federation).

If an annual leave is issued with the subsequent dismissal of the employee by agreement of the parties (part 1 of article 127 of the Labor Code of the Russian Federation), it is advisable to include in the agreement a condition for granting leave to the employee with subsequent dismissal.

The agreement must contain the same information that is indicated in the employment contract:

• date and place of conclusion of the agreement;
• surname, name, patronymic of the employee and the name of the employer who entered into the agreement;
• information about the documents proving the identity of the employee;
• TIN of the employer;
• information about the representative of the employer who signed the agreement, and the basis by virtue of which he is endowed with the appropriate authority;
• signatures of the parties to the employment contract (part 1 of article 57 of the Labor Code of the Russian Federation).

An employer or employee cannot unilaterally cancel or change an agreement concluded between them on termination of an employment contract. Cancellation (cancellation) or modification of the agreement is possible only with the mutual consent of the parties (clause 20 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004, Ruling of the Constitutional Court of the Russian Federation No. 1091-О-О of October 13, 2009).

Comment - Often, in practice, the question arises: how long should it take from the moment the agreement on termination of the employment contract is signed to the dismissal of the employee? The question arises due to the fact that in relation to the dismissal of one's own free will, a certain period of warning ("working off") is set for the employee - according to general rule- two weeks (Article 80 of the Labor Code of the Russian Federation). However, in a situation where a dismissal agreement is concluded between the parties, such a period is not defined.

The parties to the employment contract themselves set the date for termination of employment (the last day of work). If the date of conclusion of the agreement and the last day of work do not coincide, then the working days between the date of conclusion of the agreement and the date of termination of the employment contract will be the time that the employee will work before dismissal (for example, the date of conclusion of the agreement to terminate the employment contract is January 11, and the date of termination labor relations - January 17) (Article 78 of the Labor Code of the Russian Federation, paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004).

We issue a dismissal

The dismissal order is the primary accounting document and can be executed either in a unified form (No. T-8 or No. T-8a), or in a form independently developed by the employer and approved in his accounting policy. The order form used must contain all the required details listed in Part 2 of Art. 9 federal law No. 402-FZ of December 6, 2011

On the day of dismissal final payment is made to the employee, namely he is paid:

• salary for hours worked not received by the day of dismissal;
• compensation for unused vacations(if any);
• compensation for termination of the employment contract (if such payment is provided for by the agreement) in the amount determined by the agreement.

Also on the day of dismissal give the employee a work book with a record of dismissal, which is entered in column 3 of the section "Information about work" as follows: "The employment contract was terminated by agreement of the parties, clause 1 of part one of article 77 of the Labor Code of the Russian Federation." The record of the reason for dismissal (termination of the employment contract) must fully comply with the wording of the Labor Code of the Russian Federation with reference to the relevant article, part and paragraph of the article. All words in the entry must be written in full, without abbreviations (paragraph 2, clause 1.1 of the Instruction, approved by Decree of the Ministry of Labor of Russia No. 69 of October 10, 2003).

If the employee is absent from work on the day of termination of the employment contract, a notification must be sent to him by mail with a request to appear for a work book. From the moment the notification is sent, the employer is released from liability for the delay work book(parts 4-6 of article 84.1 of the Labor Code of the Russian Federation, paragraphs 12, 36, 41