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Labor code dismissal of an employee by agreement of the parties. Brief description of the entire dismissal process

  • Date: 15.10.2019

The reached consent or agreement between the employer and the employee is one of the grounds for the termination of employment legal relations. But in order to understand what dismissal is by agreement of the parties, one should 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 specifying regulatory legal act... What turns out, it is necessary to take into account when dismissing not only labor, but also civil legislation, because it is it that determines the concept and procedure for concluding agreements. It is important to take into account the well-established procedural acts of judicial practice.

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

The Labor Code tells us that the employer and the employee have the right to terminate labor 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 presence of this consent must be based on evidence base- documentation, correspondence, which testifies to the fact 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 drawn up arbitrarily. An essential feature is that an employee can submit such an application not only while at work, but also during vacation and during sick leave.

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

Benefits of dismissal by agreement

Upon termination of 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 occurs according to a more simplified procedure than, say, dismissal at the initiative of the enterprise, or for reasons beyond the control of the parties.

An employee does not need to work off the statutory two weeks. Therefore, by writing a statement of termination labor relations for this very reason, he saves his time. The employer is released from the obligation to coordinate the dismissal of the employee with the trade union body, as if he were following the procedure under Article 81 of the Labor Code.

Also, for the enterprise, a clear advantage 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 absolutely cannot be done in other cases when the enterprise needs to terminate labor relations with such categories of employees. For example, with the upcoming layoff, workers in the decree cannot be dismissed, and by agreement of the parties, there is no prohibition.

How to properly execute termination of an employment contract

Since it regulates dismissal by agreement of the parties, Art. 78 of the Labor Code, but the general grounds for the 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 stated above, a simple reference to the rule of the article is not enough. There must be a document confirming this motive for terminating the employment contract. That is, in order for an agreement to be reached between the parties to legal relations, it is necessary that one party obtains an initiating document from the other party. An enterprise can apply to an employee with a letter about the need for negotiations, as a result of which such a decision will be made.

The employer can 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 has every right to ask him to fire him by agreement of the parties, referring in his application to the same 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, when terminating an employment agreement, you should adhere to general recommendations on registration.

An important role in the very concept of an agreement is played by the voluntariness of indicating all points that are not standardized in the Code. Take, for example, severance pay. Its legislator does not oblige to pay the dismissed person according to this wording. And yet, the company has the right to pay, by agreement, severance pay, which must be specified in the agreement. Also, the amount of such allowance must be spelled out in the decree and in the agreement. Do not forget to deduct personal income tax from it, since this is an additional benefit that is taxed, in contrast to cases and amounts that are directly spelled out in the Labor Code.

Dismissal by agreement - step by step instructions

There is a certain general procedure according to which the termination of an employment contract is carried out, taking into account the peculiarities that the procedure for reaching agreement by both parties to the legal relationship implies.

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

Many employers think 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 indeed all labor legislation does not oblige to reach an agreement in writing. And, often, this stage of the procedure is ignored by the company, with which the employee is terminating 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 receives the severance pay if he does not sign on the receipt of funds.

Agreement on termination of an employment contract - important nuances

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

  • The employee has a continuous seniority within a month after leaving the post at the given enterprise;
  • The employee receives larger size unemployment benefits, compared to the amount he would have received if he on their own;
  • Dismissal to the employer 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 seek permission to dismiss from the trade union body;
  • For an enterprise, this is perhaps the most legal and painless article in order to say goodbye to an unwanted specialist with whom an employment contract has been concluded for an unlimited period;
  • According to this wording, a woman can be fired, even during maternity leave or pregnancy.
  • An employee cannot “change his mind” to quit, as he could by quitting on his own initiative.

The agreement reached by the parties can only be terminated by mutual agreement of both the employee and the enterprise. Even if the circumstances have changed for each side, 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 for the company itself. After all, you do not need to warn two months in advance, but you can carry out the dismissal on any day specified in the agreement.

If the employee refused to be fired by agreement of the parties, the firm can carry out the reduction after the proposal of the agreement of the parties. And, in this case, substantial violation there will be no legislation if the employer observes the deadlines established by law. Knowing that he is in danger of being laid off, there is a chance that the employee will choose the agreement. After the signing of the agreement, one cannot be dismissed under another article, including due to a reduction in the number of staff.

Another common problem and controversy is the timing of an 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 authority to be valid, functional job duties the employer's representative 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 them to an employment contract.

Either an employee or an employer can speak. The most commonly used type of employee deduction from the state is dismissal by agreement of the parties. In this case, the employer does not spoil the labor statistics of the entire enterprise and avoids a rather lengthy and complicated procedure for issuing the required documents, and the employee does not receive negative entries in his work book. However, the most common cases are when an employee expresses a desire to terminate the employment contract in this scenario. In this regard, such an expression of will is often confused with the dismissal of an employee of his own free will. It should also be noted that the dismissal procedure by agreement of the parties has many positive aspects.

Pros of dismissal by agreement of the parties for the employer

For example, the undoubted advantages for the employer are:

  • the possibility of terminating the employment contract concluded with the employee before the expiration of its validity period;
  • the possibility of non-compliance with obligations and guarantees in relation to women who are pregnant or already having children;
  • absence of any obligations that entailed dismissal by agreement of the parties;
  • write-off from the staff of an employee on labor leave.

In addition, the employer reserves the right not to notify the relevant trade union organization, as well as the employment service. The employer also has the right to withhold the payment of severance pay if such situations are not specified by local regulations.

Pros for the employee

In turn, the employee also receives several benefits, such as:

  • termination of labor relations at any convenient time, possibly both dismissal "one day" and the allocation of another day, different from the date of signing the agreement;
  • pay monetary compensation may be higher than upon dismissal due to redundancy (but it may not exist at all, depending on the agreement of the parties);
  • there is no need to work for two weeks, as opposed to being expelled from the state at will;
  • when registering with the employment service, a person dismissed by agreement of the parties receives a larger allowance.

Perhaps the most important is the procedure itself for drawing up the proper documentation, since it is on the correctness of the wording that the successful completion of the employment relationship depends.

Dismissal procedure

So, the first thing to do is to set a dismissal date that both parties will agree on. Then the dismissal by agreement of the parties takes place in the described order: the employee verbally or in writing concludes an agreement with the employer on the date of exclusion from the state, then writes a statement in which it is required to indicate a clearly formulated justification in connection with which the dismissal is made by agreement of the parties, and the agreed date. Otherwise, this could lead to all sorts of differences and difficulties in interpretation, which in the event of an unfavorable development of cases could lead both parties to litigation. The statement can be endorsed either by the chief structural unit, or the chief accountant, if such a document was drawn up by a materially responsible person.

Two conditions

The agreements on the basis of which dismissal can be made by agreement of the parties have already been announced earlier, but we will repeat them again:

  1. Determination of the specific expiration date of the employment contract.
  2. Reaching an agreement between the parties on the termination of labor obligations.

1. How dismissal by agreement of the parties differs from dismissal on other grounds.

2. How to formalize the termination of an employment contract with an employee by agreement.

3. In what order are taxes and contributions calculated from compensation paid upon dismissal by agreement.

An employment contract with an employee can be terminated both at the initiative of the employee himself and at the initiative of the employer, as well as due to circumstances beyond the control of the parties. In addition to these grounds, the Labor Code of the Russian Federation also provides for dismissal by "mutual consent", that is, by agreement of the parties. However, the situation when both the employee and the employer are simultaneously interested in terminating the employment relationship is extremely rare in practice. As a rule, the initiator is still some one party, and most often the employer. Then why do employers prefer, instead of dismissal, for example, to reduce the number or staff, to "negotiate" with employees? You will find the answer to this question in this article. In addition, we will find out what are the features of the design and implementation of the dismissal procedure by agreement of the parties, how it can be beneficial to the employer and employee.

Dismissal by agreement of the parties in the Labor Code of the Russian Federation is devoted to article 78. And literally the content of this entire article is as follows:

The employment contract can be terminated at any time by agreement of the parties to the employment contract.

The Labor Code does not contain any more clarifications regarding the procedure for carrying out and processing the dismissal of an employee by agreement of the parties. Therefore, when terminating labor relations with an employee on this basis, one should be guided by the established practice, primarily judicial, as well as explanations given by individual departments, such as the Ministry of Labor of Russia.

Features of dismissal by agreement of the parties

To begin with, let's define how dismissal by agreement of the parties is fundamentally different from dismissal on other grounds. These features just explain why employers and workers in certain situations prefer to disperse by drawing up an agreement.

  • Simplicity of design.

All that is required to carry out a dismissal by agreement is the will of the employee and the employer, documented. Moreover, the whole procedure can take only one day - if the day of drawing up the agreement is the day of dismissal. Neither the employer nor the employee is required to notify each other in advance of their intention to terminate the employment contract. In addition, the employer does not need to notify the employment service and the trade union. Thus, it is obvious that it is much easier for an employer to "part" with an employee by agreement than, for example, by.

  • The ability to agree on the terms of dismissal.

Within the meaning of the very wording “dismissal by agreement of the parties,” termination of an employment contract in this case is possible if the employee and the employer have agreed to the conditions put forward by each other, that is, have reached an agreement. In this case, the conditions can be very different. For example, the agreement can provide for the payment of monetary compensation to the employee (severance pay) and its amount, as well as the period of work, the procedure for transferring cases, etc. It should be noted that the payment of severance pay upon dismissal by agreement is not a prerequisite, and its minimum and maximum amount is not legally established. Also, the term of work - it may not be at all (dismissal on the day of signing the agreement), or, on the contrary, it can be quite long (more than two weeks). It is obvious how these conditions of dismissal by agreement affect the interests of the employee and the employer: for the employee, the advantage is the opportunity to receive monetary compensation, and for the employer, the opportunity to establish the required period for working off and transferring cases to a new employee.

  • Modification and cancellation only by mutual agreement.

After the agreement establishing a specific date and conditions for dismissal is signed by the employee and the employer, it is possible to amend or withdraw from it only by mutual agreement. That is, an employee with whom an agreement on termination of an employment contract has been signed cannot unilaterally “change his mind” to quit or put forward new conditions for dismissal (Letter of the Ministry of Labor dated 04/10/2014 No. 14-2 / ​​OOG-1347). This is one of the main advantages of dismissal by agreement of the parties for the employer compared to, for example, dismissing an employee of his own free will, in which the employee has the right to withdraw his letter of dismissal.

! Note: In the event that an employee sends a written notification of his desire to terminate or change a previously signed dismissal agreement, the employer should also respond in writing, arguing his position (to meet the employee halfway or leave the agreement unchanged).

  • The absence of "exceptional" categories of workers who are not subject to dismissal by agreement.

The Labor Code of the Russian Federation does not provide for any restrictions on employees who can be dismissed by agreement of the parties. Therefore, the presence of an employee on vacation or sick leave cannot be considered an obstacle to terminating an employment contract with him on this basis, in contrast, for example, to dismissal at the initiative of the employer (part 6 of article 81 of the Labor Code). By agreement, employees who have entered into both a fixed-term employment contract and an unlimited one, as well as employees during the probationary period, can be dismissed.

Also, from a formal point of view, the legislation does not prohibit the dismissal of a pregnant employee by agreement of the parties: such a prohibition is valid only upon dismissal at the initiative of the employer (part 1 of article 261 of the Labor Code). However, when terminating a contract with a pregnant woman, the employer should be especially careful: firstly, consent to terminate the contract must really come from the employee herself, and secondly, if the employee did not know about her pregnancy at the time of signing the dismissal agreement, but found out later and expressed a desire to annul the agreement, the court may recognize her claim as legal (Definition The Supreme Court RF dated 05.09.2014 No. 37-KG14-4).

  • No special justification is required for dismissal.

Unlike, for example, dismissal for disciplinary violations, in which the employer must have sufficient evidence that the employee committed them, dismissal by agreement is based solely on the will of the parties and does not require any evidence or confirmation (the main evidence is the agreement itself, signed by the parties) ... Thus, if the employee is "guilty", then dismissal by agreement can be beneficial to both parties: the employee will avoid an unpleasant entry in the work book, and the employer will not have to additionally confirm the legality of the dismissal.

These are the main distinctive features dismissals by agreement of the parties, which explain its attractiveness for both parties to the employment relationship. Employers especially love dismissal on this basis: this is the fastest and surest way to part with unwanted employees, which practically eliminates the possibility for employees to challenge its legality and recover from work- after all, they personally agreed to terminate the employment contract. Of course, we are talking about the employee's voluntary consent to dismissal, and not about situations where such consent was obtained under pressure or fraudulently (which, however, the employee has to prove in court).

The procedure for registration of dismissal by agreement of the parties

  1. Execution of an agreement on termination of an employment contract.

Such an agreement between the employee and the employer is the basis for dismissal, therefore it is in mandatory must be documented. However, the form of the dismissal agreement is not regulated, that is, the parties have the right to draw up it in any form. The main thing is that this document should contain:

  • grounds for dismissal (agreement of the parties);
  • the date of dismissal (last working day);
  • written expression of the will of the parties to terminate the employment contract (signature).

An agreement on termination of an employment contract can be drawn up:

  • in the form of an employee's statement with a written resolution of the employer. This option is the simplest, but it is suitable in cases where only the date of dismissal is agreed (which is indicated in the application);
  • in the form of a separate document - an agreement on termination of an employment contract. Such an agreement is drawn up in duplicate, one for the employee and one for the employer. In addition to the mandatory components, it may contain additional conditions agreed by the parties: the amount of monetary compensation (severance pay), the procedure for transferring cases, granting leave with subsequent dismissal, etc.
  1. Issuance of a dismissal order

An order for the dismissal of an employee by agreement of the parties, as well as for dismissal on other grounds, is drawn up according to the unified form T-8 or T-8a (approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1) or according to. In this case, the order prescribes:

  • in the line "Grounds for termination (termination) of the employment contract (dismissal)" - "Agreement of the parties, clause 1 of part 1 of Art. 77 Labor Code Russian Federation»;
  • in the line "Basis (document, number and date)" - "Agreement on termination of the employment contract No. ... from ...".
  1. Filling out the work book

When an employee is dismissed by agreement of the parties, the following entry is made in his work book: "The employment contract was terminated by agreement of the parties, paragraph 1 of part one of article 77 of the Labor Code of the Russian Federation"

The resignation record is certified by the employee responsible for keeping work books, with the seal of the employer, as well as the signature of the dismissed employee (clause 35 of the Decree of the Government of the Russian Federation of 04.16.2003 No. 225 "On work books"). The work record book is issued to the employee on the day of dismissal (part 4 of article 84.1 of the Labor Code of the Russian Federation), and the fact of its receipt is confirmed by the employee's signature in the personal card and the work record book and inserts in them.

Dismissal payments by agreement of the parties

On the day of the employee's dismissal, that is, on the last working day, the employer must pay him completely (Articles 84.1, 140 of the Labor Code of the Russian Federation). The following amounts are subject to payment:

  • remuneration for hours worked (up to and including the day of dismissal);
  • compensation for unused vacation;
  • severance pay (if its payment is provided by agreement of the parties).

! Note: The final settlement with the employee must be made on the day of termination of the employment contract. Install more late date payments (after dismissal), the employer is not entitled, even if the employee himself does not object and such a period is provided for by the agreement on termination of the employment contract (Article 140 of the Labor Code of the Russian Federation).

The calculation and payment of wages for days worked and compensation for unused vacation (withholding for vacation used in advance) upon dismissal by agreement of the parties are no different from similar payments upon dismissal on other grounds. Therefore, let us dwell in more detail on the "specific" payment - monetary compensation in the form of severance pay.

As already mentioned, the amount of severance pay does not have any statutory restrictions and is determined only by agreement of the parties. In practice, most often the amount of the severance pay is set for the employee:

  • as a fixed amount;
  • based on the official salary (for example, double the amount of the official salary established by the employment contract);
  • based on the average earnings for a certain period after the dismissal (for example, in the amount of the average earnings for two months after the dismissal).

! Note: If the size of the severance pay is set on the basis of average earnings, its amount is determined in accordance with the Decree of the Government of the Russian Federation of 12.24.2007 No. 922 "On the specifics of the procedure for calculating the average wage." At the same time, the procedure for calculating the average daily earnings for the payment of severance pay differs from that which is used for calculating vacation pay and compensations for unused vacation. The average daily earnings for the payment of severance pay is calculated by dividing the amount of payments included in the calculation for the last 12 calendar months preceding the day of dismissal by the number actually spent for this period of days (paragraph 5, clause 9 of Resolution No. 922). Thus, the amount of the severance pay depends on the number of working days in the period for which it is paid.

Taxes and contributions from severance pay by agreement of the parties

  • Personal income tax from severance pay paid upon dismissal by agreement of the parties

In accordance with paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, not subject to personal income tax the following payments related to the dismissal of employees:

  • severance pay,
  • average monthly earnings for the period of employment,
  • compensation to the head, deputy heads and chief accountant of the organization,

provided that the amount of such payments does not generally exceed three times the average monthly earnings(six times - for employees of organizations located in the Far North and equivalent areas). Amounts exceeding three times (six times) average monthly earnings are subject to personal income tax in accordance with the general procedure (Letter of the Ministry of Finance of Russia dated 03.08.2015 No. 03-04-06 / 44623).

! Note: According to the clarifications of the Ministry of Finance of the Russian Federation, in order to apply paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, the following must be taken into account:

  • If the severance pay due to the employee upon dismissal by agreement of the parties is paid to him in parts, then in order to determine the amount of the benefit that is not subject to personal income tax, it is necessary sum up all benefits payments, even if they are produced in different tax periods (Letter of the Ministry of Finance of Russia dated 21.08.2015 No. 03-04-05 / 48347).
  • To determine three (six) times the average monthly earnings should be guided by Art. 139 of the Labor Code of the Russian Federation and the procedure for calculating the average wage (average earnings) established by the Decree of the Government of the Russian Federation of 12.24.2007 No. 922 "On the specifics of the procedure for calculating average wages" (Letter of the Ministry of Finance of Russia dated June 30, 2014 No. 03-04-06 / 31391) ... Average daily earnings are calculated in the following order:

* Settlement period - equal to 12 previous calendar months

  • Contributions from severance pay paid upon termination of employment by agreement of the parties

By analogy with personal income tax, insurance premiums in the Pension Fund of the Russian Federation, FFOMS and FSS not accrued for the amount of payments in the form of severance pay and average monthly earnings for the period of employment, not exceeding in general three times the average monthly earnings(six-fold - for employees of organizations located in the regions of the Far North and equivalent areas) (subparagraph "d" paragraph 2 of part 1 of article 9 of Law No. 212-FZ, subparagraph 2 of paragraph 1 of article 20.2 of Law No. 125-FZ). A part of the severance pay paid upon dismissal by agreement of the parties in excess of three (six) times the average monthly salary is subject to insurance premiums in the general manner (Letter of the Ministry of Labor of Russia dated 09.24.2014 No. 17-3 / B-449).

  • Tax accounting of compensation upon dismissal by agreement of the parties

Employers using both the STS and STS, have the right to take into account in expenses for the remuneration of the amount of severance pay to employees dismissed by agreement of the parties (clause 6, clause 1, clause 2 of article 346.16; clause 9 of article 255 of the Tax Code of the Russian Federation). The main condition: the payment of such an allowance must be provided for by an employment or collective agreement, an additional agreement to the employment contract or an agreement on termination of the employment contract. Severance pay is recognized for tax purposes in its full amount without any restrictions.

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Normative base

  1. Labor Code of the Russian Federation
  2. Tax Code of the Russian Federation
  3. Federal Law No. 212-FZ of July 24, 2009 "On Insurance Contributions to the Pension Fund of the Russian Federation, Social Insurance Fund of the Russian Federation, Federal Mandatory Medical Insurance Fund"
  4. Federal Law of 24.07.1998 No. 125-FZ "On compulsory social insurance against industrial accidents and occupational diseases"
  5. Decree of the Government of the Russian Federation of 04.16.2003 No. 225 "On work books"
  6. Decree of the Government of the Russian Federation of December 24, 2007 No. 922 "On the specifics of the procedure for calculating average wages"
  7. Resolution of the State Statistics Committee of the Russian Federation of 05.01.2004 No. 1 "On approval of unified forms of primary accounting documentation for labor accounting and remuneration"
  8. Determination of the Supreme Court of the Russian Federation dated 05.09.2014 No. 37-KG14-4
  9. Letters from the Ministry of Labor
  • dated 10.04.2014 No. 14-2 / ​​OOG-1347
  • dated 24.09.2014 No. 17-3 / B-449

10. Letters from the Ministry of Finance of Russia

  • dated 03.08.2015 No. 03-04-06 / 44623
  • dated 21.08.2015 No. 03-04-05 / 48347
  • dated 30.06.2014 No. 03-04-06 / 31391

Find out how to get acquainted with the official texts of these documents in the section

♦ Heading:,,.

Domestic legislation does not disclose this concept in any way, and even more so does not establish any rules for dismissal by agreement of the parties, however, in companies with foreign management, this issue approach with alertness. The fact is that our Western partners use a similar formulation in the case when parting with a person does not work out in an amicable way.

Sometimes the employee's position is strong and there is nothing to fire him for. However, it happens that people can no longer work together, but no one wants to leave either. And sometimes it happens that an employee has something to fire for, but he knows so much that his departure can do much more harm than if he stayed. So we have to negotiate the dismissal by agreement of the parties.

Therefore, the answer to the question in which cases they are dismissed on the basis indicated is, as a rule, confidential, because the employee and the employer are not interested in disclosing the true and often confidential reasons for the termination of employment.

Sample

Dismissal by agreement of the parties, procedure

Step 1. Deciding whether to stop working

First, the employee and the administration must agree on the upcoming break and termination of employment. Who will initiate such a movement is not important. It is important to have an agreement, which is better to be fixed in writing. If the initiator is an employee, he can write a statement (the form of the application for dismissal by agreement of the parties is not defined, it is written in free form). If the initiator is the administration, at first there may be a verbal agreement, which will subsequently be documented and contain all the necessary points, including what is paid upon dismissal by agreement of the parties.

Step 2. Preparation of documents for subsequent care

The next step is to draw up a regulation called an agreement. It has a free form and is drawn up separately, that is, it is not an additional agreement to an employment contract, it is a separate document.

The act specifies:

  • personal data of an employee and an employee of the administration who is authorized to conclude such acts, as well as the name of the legal acts on the basis of which they operate;
  • terms of termination of the contract (the person and the administration can agree that the employment contract will expire the next day, or they may decide that the employee will work for another month);
  • terms of termination (this section may provide for dismissal without "working off" by agreement of the parties);
  • financial component (in addition to mandatory payments upon termination of working relations for hours worked and unused holidays, the employee and the administration may agree that upon dismissal by agreement of the parties, compensation in 2019 will be 5 salaries or 10, here it depends on the capabilities of the organization and the needs of the departing person, and may miss this moment altogether);
  • signature and seal of the organization (if applicable).

This local bilateral act does not indicate the reasons for the termination of the contract. This paper also does not answer the question of why people made such a decision. Simply put, this is an additional contract by analogy with the labor contract, only in the reverse order.

If people have agreed among themselves, they sign this document and transfer it to the accounting department to prepare the final calculation.

Step 3. Payments between the employee and the organization

Upon receipt of the documents, the personnel prepare an order for the dismissal of the employee by agreement of the parties, and the accounting department prepares an order for the appropriate payment. All payments are made on the last working day of the departing person. Dismissal by agreement of the parties with payment of compensation may be provided for by the local regulation organizations, therefore sometimes it is not necessary to prescribe these conditions.

Step 4. Issuance of documents on the day of termination of employment

On the last working day, personnel officers give him to the resigning person work book, as well as a number of other documents.

Sample entry in the work book

Brief summary

How to dismiss, the procedure is quite simple, but it is important for the employer to have the documents:

  • employee statements;
  • a written and personally signed agreement to terminate the relationship between the employee and the employer;
  • an order to terminate labor relations;
  • the presence of marks on the issue required documents dismissed employee.

For this reason, an employee, in the presence of a compromise with the employer, can leave at any time - this is literally written in article 78 of the Labor Code of the Russian Federation and confirmed by paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2. Dismissal by agreement of the parties undoubtedly has its advantages ( in principle, you can agree on any conditions and fix them in the document), but there are also disadvantages. During subsequent employment, they may begin to ask uncomfortable questions: what is the reason why you decided to leave your former employer? What to answer in this case is up to you.

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

Dismissal of an employee from the company on this basis means that the management agreed with his decision. In contrast to leaving at will, when the interests of the enterprise remain in a secondary place.

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

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

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

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

Pros and cons of dismissal by agreement of the parties.

Studying article 78 Labor Code, you will find many benefits in reaching agreement with your employer:

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

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

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

Step-by-step instruction.

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

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

Which option to choose when planning to quit?

Consider the options for dismissal:

  • staff reduction;
  • by agreement of the parties;
  • at will.

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

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

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

Take advantage of a free legal consultation right now! Write your question in the box below.

Dismissal by agreement of the parties, payments, labor registration and other nuances

Dismissal by agreement of the parties is devoted to one article in the Labor Law - Art. 78 of the Labor Code of the Russian Federation. It says a little: contract of employment 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 may 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 a corresponding reason:

  • an employee can quit when he pleases (on vacation, during illness);
  • on this basis, the student contract can be terminated.

In this basis, there is a certain nuance - 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 an employee

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

  • the initiative to terminate the contract can come from both the employee and the employer;
  • the reason for dismissal in the application can be omitted;
  • the deadline for submitting an application is not limited;
  • 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 size of the 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 formulation of dismissal, the continuity of work experience lasts another 1 calendar month;
  • if you then register at the employment center at the place of registration, the unemployment benefit will be slightly higher.

But there are also disadvantages. They are considered 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 severance pay, if this is not stipulated in the collective agreement, in the supplementary agreement or other local normative act;
  • you cannot 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 employer's actions.

Dismissal registration

It is necessary to draw up the actual agreement on the termination of the employment contract (the initiator can be both an organization and an employee). 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;
  • the date of termination of the employment relationship, that is, the date of the last working day;
  • the amount and conditions for the payment of monetary compensation to the employee, if provided;
  • date and place of his detention. Without this information, the document will be considered null and void;
  • position and full name of the employee;
  • the full name of the employer with an indication of the organizational and legal form;
  • position and full name of the person who represents the interests of the employer and has the authority to sign documents;
  • passport data 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).

Dismissal payments

Based on Art. 140 of the Labor Code of the Russian Federation, the employer is obliged to pay off 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 to ask for compensation

The amount of compensation is not stipulated in the law. It can be anyone! Its size can be specified in a collective agreement or local regulation.
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 what the personnel 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 the regulations for the enterprise. In all other cases, this is his right!
The amount of compensation is indicated 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 of the Supreme Court of the Russian Federation No. 2 of 17.03.04.

Compensation agreement

In any case, the employee writes a statement. It should 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;
  • a request for termination of the contract;
  • reference to clause 1 of Art. 77 of the Labor Code of the Russian Federation or at Art. 78 of the Labor Code of the Russian Federation;
  • number and date of the current employment contract;
  • the date when the contract is planned to be terminated;
  • a request to pay the compensation specified in the agreement;
  • date of application submission;
  • applicant's signature with transcript.

The agreement is an annex to the agreement. 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 come to a consensus.
The period for negotiating the terms can be somewhat delayed. All issues discussed by the parties are recorded in the protocol of disagreements. When an understanding is reached, it is necessary to draw up a new text of the agreement, or make corrections in the old document, making references to the protocol of disagreements.

Dismissal is formalized by order, where an indication is made to 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 that it is impossible to familiarize him with the document (in case of absence or unwillingness).

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

Employment record

Record is made by the employee of the personnel department.
There are 2 options for how the entry in the employee's work book should look like when dismissing on such a basis.

  • the record number is indicated;
  • the date when it was made;
  • in column 3 it is written: "dismissed by agreement of the parties, paragraph 1 of part 1 of article 77 of the Labor Code of the Russian Federation"
  • date and number of the order.
  • 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, paragraph 1 of part 1 of article 77 of the Labor Code of the Russian Federation" Both the one and the other record have the same legal force.

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

More information in our infographic

Reasons for dismissal and the advantages of such a basis for dismissal

Reasons prompting the employee to leave the employer:

  1. by article (for example, truancy);
  2. the likelihood of receiving "compensation" from the employer (beneficial to women who are on unpaid "child" leave);
  3. the need to go to another job, but there is no time to work off the due date.

Reasons prompting the employer to fire an employee:

  1. the need to terminate labor relations with an unwanted employee;
  2. the need to fire employees who cannot be fired 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. an employee with whom an agreement has been drawn up can be dismissed in any case, since a change in 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 borne in mind that the employee has the right to challenge it in court, arguing his position with pressure from the employer, especially when it comes to workers in the most vulnerable categories who were dismissed without monetary compensation.

Payments at the labor exchange

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

  • passport;
  • education document;
  • employment history;
  • a copy of the parties' agreement 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;
  • have reached the age of 16;
  • who are not retirees and full-time students;
  • not engaged in entrepreneurial activity;
  • not holding 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 job. Average earnings are determined on the basis of the data provided in the certificate from the last job.
In the first 3 months in the status of unemployed, the applicant will receive 75% of their average earnings. In the next 4 months - 60%, and then - 45%.

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

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

If the applicant gets a job with the help of the exchange or on his own, then he is removed from the register and ceases to receive benefits. Also, he is not removed from the register 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 proposes to terminate the employment contract by mutual consent? So that your rights as an employee are not violated, you must use the instructions:

  • it is necessary to draw up this agreement. Both parties must participate. The employee has every right to make his own conditions for subsequent dismissal. He can himself offer to pay him compensation, he can indicate its amount, 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 order 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 have received a copy of the agreement”;
  • the employee writes a statement in accordance with the agreement between the employee and the employer;
  • the employer issues an order, and the employee gets acquainted with it, that is, puts his signature;
  • the accounting department makes a full payment with the employee;
  • the personnel officer makes a corresponding entry in the work book and hands it over to the employee;
  • the employee confirms the fact of issuing him a work book with his signature;
  • obtaining the necessary certificates in the accounting department.

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How is dismissal by agreement of the parties

The parties in all cases of termination of labor relations may establish the terms of this event in an agreement. This method reflects one of the fundamental principles of law - freedom of contract. Counterparties are not limited by anything, including labor standards, except general requirements Civil legislation under contracts (rules on nullity and invalidity). In this case, it is necessary to observe the procedure for writing such a transaction.

Legislation and basic concepts

In Art. 77 of the Labor Code of the Russian Federation, the method under consideration is provided for by the first paragraph. This demonstrates the importance of the principle that is characteristic of all legal system- freedom of contract. Nothing can restrict the subjects in establishing their conditions, except the law.

Mandatory writing form provided for in Art. 161 GK. It is also important to comply with other norms of this code: regarding the form (Articles 158 - 163 of the Civil Code), suspensive conditions and consent (Articles 157 and 157.1 of the Civil Code), nullity and invalidity (Article 166 of the Civil Code) and others regarding transactions.

In practice, there is no need for a special study of the legislation: to complete a transaction, you only need to agree on all the conditions, draw up them in writing, put down dates and signatures, as well as the seal of the enterprise. We will describe the main nuances below.

Principles

There are only two basic principles: the absence of coercion (equality, voluntariness) and observance of the norms of civil law.

The event cannot be arranged under duress or as a result of blackmail from the employer (an employee can do this in very rare cases).

In the process, each counterparty has its own interest. In practice, of course, the situation is slightly different: the employer, as a rule, always has an advantage, and the employee depends on him. The main thing here is not to use this circumstance in the design of the procedure. Or use it so that it is not noticeable.

The order of the transaction

It should be emphasized that the agreement is not the only required document in this procedure. The employee must write on its basis a letter of resignation under paragraph 1 of Art. 77 of the Labor Code of the Russian Federation.

Below is the a brief memo in the form of a table, after reading which, you can quickly delve into the practical aspects of the issue:

The order must contain the details of the contract.

Dismissal by agreement of the parties: content and sample document

Standard in document contains paragraphsconcerning the following:

  • the date of termination of the employment relationship;
  • working time. You can provide for a longer period than that specified in the Labor Code, or abolish it altogether. It is also allowed for the employee to leave on the day of imprisonment;
  • compensation and payments: you can set any conditions on this issue at your discretion, including even their complete absence;
  • how and when to transfer cases;
  • absence or presence of claims;
  • any other clauses that the parties deem it necessary to provide.

The indication of the very reason for the termination of the employment relationship is optional. There are also simple templates in which there are almost no requirements - then all issues are resolved by default, as they are spelled out in the employment contract.

Video: Legal advice

Statement

A statement from the employee must be mandatory, otherwise the entire procedure will be invalid.

In addition to signing all the papers, the employee must also write a letter of resignation by agreement. It indicates the reason for the event under paragraph 1 of Art. 77 of the Labor Code of the Russian Federation. You can also specify the details of the contract (its number and the date of registration in the office of the company).

Everything in the RF Labor Code of 2018 is about dismissal. More details here.

Matters related to compensation and severance pay

The amounts are set at the discretion of the parties. If there are no special conflicts between the boss and the worker, then they, as a rule, are not less than the minimum established in the Labor Code of the Russian Federation in Ch. 27.

Standard payments are as follows: salary for actually worked, vacation compensation, severance pay. In most cases, it is the last amount that is increased or decreased. But you can also replace all these payments with one amount - this issue can be discussed as you like.

Contractors have the right to set the date of payments.

It is important to take into account one nuance: often the employee only submits a letter of resignation by agreement, and it is not formalized. In this case, by default, he is entitled to guarantees and payments established by the Labor Code of the Russian Federation.

Pros and cons for employee and employer

Let's reveal with the table all the pros and cons of this method:

Features from practice

The described method in practice is also used to "mask" other reasons for dismissal. Let's describe a few examples.

A common case: a citizen is threatened with expulsion "under the article." As is known, this procedure not very profitable for both counterparties: it is laborious for the employer, since it is necessary to document such an offense.

In case of violations, it is necessary to draw up acts, warn the negligent employee in writing, take him to a medical examination (in case of drunkenness), demand an explanation from him (for example, when absenteeism), consider it and determine whether the reasons for the absence were important, and perform other similar actions.

But you can agree and disperse amicably. Thus, the employer will quickly get rid of the unwanted employee, without unnecessary conflicts and formalities, and the violator's work book will be clean of unpleasant entries.

Also, in this way, you can vacate vacancies in case of redundancy, which is a rather laborious process: it is necessary to respect all the rights of beneficiaries, offer them a transfer, etc.

It should be especially reminded about the release of certain categories by this method. This is especially true for pregnant women, maternity wives, single women with children. But, using this method, it is advisable to provide for adequate compensation in the documents, because the citizen waives his very important rights.

If such a transaction is challenged in court, the lack of adequate compensation may increase doubts about its voluntariness.

And if other evidence is provided that the transaction was not concluded voluntarily, using the dependent position of the employee, etc., then this can be fraught with serious consequences for the employer.

On the agreement on the place of residence of the child in case of divorce. Find out further.

What is the limitation period for the division of property after a divorce? The answer is here.

On the one hand, the described method allows the employee to demand higher payments from the employer and other things in return, for example, to give up his privileges (for example, to preferentially remain in vacancies). On the other hand, it gives the management the opportunity to carry out the procedure in the fastest and most painless way.

Dismissal by agreement of the parties

When one of the parties labor contract decides to terminate it, it would be ideal to do this without entering into conflicts and controversial situations with the second. In this case, it is advisable to conclude an agreement with each other so that both the employee and the employer can come to an agreement. In practice, this is quite rare and is called dismissal by agreement of the parties.

Dismissal procedure

Dismissal by agreement of the parties is provided for by applicable law. Both an employee of the enterprise and an economic entity can act as initiators of the termination of an employment contract.

Having made a decision to end this relationship, one side must discuss it with the other. Terminating the contract by agreement of the parties is possible only with the consent of each of them, so they need to come to this. Often, if the employer is the initiator, the employee is offered dismissal payments by agreement of the parties in exchange for his positive response.

If the termination is initiated by an employee, then in exchange for the consent of the administration, he can help to select and train a future candidate, or work out a certain period, etc.

If termination occurs with this wording, then the basis is not the employee's statement, but the drawn up agreement. A letter of resignation by agreement of the parties is drawn up by an employee only if he is the initiator. In this case, it is the basis for concluding an agreement.

Not applicable here mandatory terms notifications to each other. The Labor Code of the Russian Federation establishes that termination by agreement can occur at any time specified in the drawn up document.

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

This dismissal can be beneficial to each party, as it allows you to end the relationship that has become unnecessary with minimal losses.

For an employee

The main positive moment for an employee of this type of contract termination is the ability not to work out the fourteen days provided for by the Labor Code of the Russian Federation, but to leave earlier. He can also receive a fairly large amount of severance pay and other payments upon dismissal.

Sometimes, when committing a disciplinary offense, an employee, by agreeing to dismissal by agreement of the parties, can avoid a negative entry in the work book.

However, the employee must remember that by completing an agreement to terminate the contract, he loses the right to refuse the upcoming dismissal.

For the employer

The administration of the organization often goes to given view dismissal, so that she has the ability to break off labor relations at any time, including during vacation or sick leave.

Often this wording is disguised as a reduction in staff. Dismissal at the initiative of the employer in this case requires him to pay benefits in a certain amount, and by agreement, he has the opportunity to reduce these costs, the main thing is to reach an agreement with the dismissed employee.

Also, this type of termination of the contract gives the company confidence that the employee will not change his mind.

On the other hand, not all types of dismissal initiated by the employer require additional severance payments from the employer. And in order to reach an agreement and break off the employment relationship with a negligent employee, the company will have to provide him with compensation, which under normal circumstances it would not pay.

The difference between dismissal of your own free will and by agreement of the parties

Dismissal of his own free will (at the initiative of the employee) differs from by agreement of the parties in that it occurs at the request of the employee, and the second by an agreement reached in writing.

Termination of the contract by agreement occurs within the timeframe established in it, which can be any, therefore the two-week notice of dismissal does not apply here.

An employee cannot, upon dismissal by agreement, refuse it without the consent of his employer. This right is given to him within fourteen days if he submits an application of his own free will.

Dismissal compensation by agreement of the parties

As stated in labor legislation, upon dismissal, an employee has the right to rely only on established payments, for example, for unused vacation time. However, in practice, the employer, upon termination of the contract by agreement of the parties, often pays additional compensation.

At the same time, its size and the obligation to issue it at the legislative level are not fixed anywhere. Therefore, if the company agrees to make such a payment, its volume and conditions of receipt must be recorded in the agreement on termination of the contract.

Most often, the amount of compensation payment is determined:

  • As a fixed amount;
  • As a multiple of the official salary (for example, triple the salary);
  • How average earnings for a certain period after dismissal (for example, in the amount of the average salary for the next three months).

Step-by-step instructions for dismissal

Step 1. Drafting the agreement

Confirmation of the agreement between the employee and the employer to terminate the employment contract is an agreement. It is compiled in any form, in writing, in two copies - one for each participant. Despite the fact that the legislation does not establish the obligatory nature of this action, it still needs to be done. Otherwise, in the event of litigation, it will be impossible to prove the agreement reached or the amount of the severance payment.

This document sets out all the essential conditions of the agreement reached - the final day of work, the presence or absence of compensation, the responsibility of the employee and the employer, and other significant circumstances. The payment of any additional funds is not enshrined in law, therefore the amount and payment of compensation is determined by the parties and prescribed in writing.

It must be remembered that the amount of compensation for certain types of workers is limited by the Labor Code of the Russian Federation.

After signing it, the agreement must be registered in accordance with the procedure established at the enterprise. For example, in the agreement log. The second copy is handed to the employee, after which he puts a personal signature on the employer's copy, confirming that he has received the document.

Step 2. Drawing up an order for dismissal

Based on the signed agreement, the personnel department draws up a dismissal order in the form of T-8. It is necessary to indicate the required data - full name. employee, his position, date of dismissal. As the reason for the termination of the contract, “Dismissal by agreement of the parties, clause 1 of Art. 77 of the Labor Code of the Russian Federation ". In the line "Basis" in this case, you need to write down the details of the concluded agreement - its date and number.

The employee must read the order and sign it. In case of refusal to do this, an act is drawn up.

The dismissal order must be recorded by the HR inspector in the order register.

Step 3. Final calculation

The accountant calculates the payments due to the employee, drawing up a calculation note on the T-61 form. These include the salary for the time worked actually before the dismissal, compensation for unused rest, and other agreed payments.

Payment of all amounts occurs on the last working day at the enterprise. If the employee, for any reason, did not work on that day, then it is necessary to settle with him no later than the next day after the receipt of the request for payment. When there is a dispute between the employee and the company about the amount to be paid, the employer must pay the uncontested part at the specified time.

Step 4. Issuance of a work book

An employee of the personnel department enters into the work book information that the dismissal was made by agreement of the parties. It must contain a mention of the grounds for such an action - clause 1 of Art. 77 of the Labor Code of the Russian Federation. The employee needs to put his visa in confirmation that he has familiarized himself with the entered data.

At the same time, it is necessary to make an entry in the personal T-2 card, where the information from the work book is duplicated. The employee also needs to subscribe to it.

The work book is handed over to the hands on the final day of work. Upon receipt of it in the journal of registration of the movement of work books, the employee puts a personal signature in confirmation of this fact.

Step-by-step instructions for dismissal by agreement of the parties

What does dismissal mean by agreement

Domestic legislation does not disclose this concept in any way, and even more so does not establish any rules for dismissal by agreement of the parties, however, companies with foreign management approach this issue with caution. The fact is that our Western partners use a similar formulation in the case when parting with a person does not work out in an amicable way.

Sometimes the employee's position is strong and there is nothing to fire him for. However, it happens that people can no longer work together, but no one wants to leave either. And sometimes it happens that an employee has something to fire for, but he knows so much that his departure can do much more harm than if he stayed. So we have to negotiate the dismissal by agreement of the parties.

Therefore, the answer to the question in which cases they are dismissed on the basis indicated is, as a rule, confidential, because the employee and the employer are not interested in disclosing the true and often confidential reasons for the termination of employment.

Sample

Dismissal by agreement of the parties, procedure

Step 1. Deciding whether to stop working

First, the employee and the administration must agree on the upcoming break and termination of employment. Who will initiate such a movement is not important. It is important to have an agreement, which is better to be fixed in writing. If the initiator is an employee, he can write a statement (the form of the application for dismissal by agreement of the parties is not defined, it is written in free form). If the initiator is the administration, at first there may be a verbal agreement, which will subsequently be documented and contain all the necessary points, including what is paid upon dismissal by agreement of the parties.

Step 2. Preparation of documents for subsequent care

The next step is to draw up a regulation called an agreement. It has a free form and is drawn up separately, that is, it is not an additional agreement to an employment contract, it is a separate document.

The act specifies:

  • personal data of an employee and an employee of the administration who is authorized to conclude such acts, as well as the name of the legal acts on the basis of which they operate;
  • terms of termination of the contract (the person and the administration can agree that the employment contract will expire the next day, or they may decide that the employee will work for another month);
  • terms of termination (this section may provide for dismissal without "working off" by agreement of the parties);
  • the financial component (in addition to mandatory payments upon termination of working relations for hours worked and unused vacations, the employee and the administration may agree that upon dismissal by agreement of the parties, compensation in 2018 will be 5 salaries or 10, here it depends on the capabilities of the organization and the needs of the departing person, and may miss this moment altogether);
  • signature and seal of the organization (if applicable).

This local bilateral act does not indicate the reasons for the termination of the contract. This paper also does not answer the question of why people made such a decision. Simply put, this is an additional contract by analogy with the labor contract, only in the reverse order.

If people have agreed among themselves, they sign this document and transfer it to the accounting department to prepare the final calculation.

Step 3. Payments between the employee and the organization

Upon receipt of the documents, the personnel prepare an order for the dismissal of the employee by agreement of the parties, and the accounting department prepares an order for the appropriate payment. All payments are made on the last working day of the departing person. Dismissal by agreement of the parties with payment of compensation may be provided for by a local regulatory act of the organization, therefore, sometimes it is not necessary to prescribe these conditions.

Step 4. Issuance of documents on the day of termination of employment

On the last working day, personnel officers give the resigning person his work book, as well as a number of other documents.

Sample entry in the work book

Brief summary

How to dismiss, the procedure is quite simple, but it is important for the employer to have the documents:

  • employee statements;
  • a written and personally signed agreement to terminate the relationship between the employee and the employer;
  • an order to terminate labor relations;
  • the presence of marks on the issuance of the necessary documents to the dismissed employee.

For this reason, an employee, in the presence of a compromise with the employer, can leave at any time - this is literally written in article 78 of the Labor Code of the Russian Federation and confirmed by paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2. Dismissal by agreement of the parties undoubtedly has its advantages ( in principle, you can agree on any conditions and fix them in the document), but there are also disadvantages. During subsequent employment, they may begin to ask uncomfortable questions: what is the reason why you decided to leave your former employer? What to answer in this case is up to you.

The article was written based on materials from sites: iurist.su, trudinspection.ru, 101zakon.ru, ip-on-line.ru, clubtk.ru.


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