Hello! Today we’ll talk about dismissal by agreement of the parties. Situations often arise in which an employee clearly cannot cope with his job responsibilities. The manager would be happy to fire him without starting an open conflict, but does not know how to do it correctly. This will be discussed further.

The essence of the concept of “dismissal by agreement”

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

Nowadays this wording is often found, but not all employees understand its meaning, so for now they prefer the proven interpretation “fired due to at will».

Explanations in the Labor Code

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

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

Causes

The following reasons are relevant for the employee:

• To avoid dismissal for violations (under article);
• Pressure that may be exerted by a manager;
• Receipt of all payments provided for in the employment contract.

This can be beneficial for an employer in the following cases:

• Get rid of the presence of an unnecessary employee (even with payment of a sum of money);
• If you are unwilling to comply with the entire reduction process;
• Dismiss an employee of a preferential category.

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

Typically, such dismissal is initiated by the manager. But the law does not prohibit an employee from initiating an agreement.

List of conditions for concluding an agreement

The most important point on the entire list is voluntary order. The parties must not force each other to enter into an agreement.

The second important condition is the employer does not have the right to prohibit an employee from dismissal. He can only work for two weeks.

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

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

Stages of the dismissal procedure

The whole procedure initially begins with the manager or employee voicing their desire to terminate the existing one.

Form: simple written form.

1. An employee's resignation letter is required by agreement of the parties. In writing, the employer expresses his agreement with this statement (the “Agreed”, “Agree” visa is acceptable).
2. An agreement is drawn up directly.
3. Once concluded, it is quite difficult to change the agreement. Therefore, it is worth considering all its conditions in advance.
4. The agreement must indicate the date of dismissal. On this day, the manager issues a dismissal order.
5. At the final stage, the employee gets acquainted with it and receives the final payment and completed work book. Ultimately, the dismissal can be considered completed and the employment relationship terminated.

Sample agreement

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

• Sample form of an agreement to terminate an employment contract

Required payments and compensations

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

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

• Remuneration for time worked;
• Compensation for vacation if it is not used.

Important information: The payment to the resigning employee must be issued on the day the termination of employment employment contract. Other payment terms are not allowed, even if the employee does not object to this.

What entry will be made in the labor record?

A record of dismissal is made in the work book with reference to the general article. The reason for dismissal is also indicated, but layoffs are not allowed.

Mistakes made by the employer

Often employers, when concluding a severance agreement with an employee, make mistakes. We will consider those that are most common below.

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

Important points of the agreement

• Direct desire to terminate the employment contract;
• Date of conclusion and number of the contract;
• Date of dismissal of the employee;
• Whether there are benefits or compensation;
• The timing of payments and their size;
• The order in which cases will be transferred to another employee.

The agreement can be drawn up in a single copy and kept by the employer, but it still needs to be signed in 2 copies. This helps to avoid unnecessary disagreements in the future.

Benefits for the employee

As with any procedure, there are also positive and negative sides. Let's look at what is important specifically for the employee.

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

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

Disadvantages for the employee

• You may be sick (sick leave issued). Of course, no one is obliged to agree to this. If compensation for consent is implied, then this is a clear advantage of such dismissal.

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

• An individual employee cannot make changes to the agreement;

• Such dismissal is difficult to challenge in judicial procedure. Accordingly, such a decision must be approached carefully.

Differences between the two types of dismissal

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

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

Dismissal of preferential categories of employees

IN this section we will consider .

In this case, the law allows for dismissal if the wording sounds like “agreement of the parties.” If the woman’s consent is available, the procedure will not cause difficulties. But she also has every right to refuse, which she notifies the employer in writing. Then the employer does not have legal rights to remove her from work.

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

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

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

• In the dismissal order;
• In the journal for registering the issuance of labor;
• In the personal card created for him.

Having considered the most important points of the dismissal procedure by agreement of the parties, it is worth mentioning one important nuance: if an employee agreed to enter into an agreement to avoid pressure from management, he may well go to court. And it is absolutely possible that he will be reinstated.

Then the employer will be obliged to pay not only funds for temporary absence, but also quite possibly, compensation for moral damage. Therefore, first of all, it is worth complying with the requirements of the law, this applies to both parties to the agreement.

Just like employers, there are often dishonest employees who do not comply with the terms of the agreement. Therefore, it is still worth concluding it in writing and in several copies.

Dismissal made by agreement of the parties is a fairly common practice between employees and employers. And this good sign, since reaching agreement on dismissal means, on the part of the employee, remaining on good terms with his superiors, receiving good recommendations, and for the employer, it is a guarantee of security against the risk of challenging the legality of dismissal.

What are the nuances of this process, how it happens and what documents are supported, we explain in this article.

Legal regulations

This type of dismissal is described in Article 78 of the Labor Code of the Russian Federation, and this article contains only two lines without additional explanations, indicating only the possibility of terminating the employment relationship at the mutual desire of the parties at any time. The procedure for dismissal is set out in more detail in the previous Article 77. Article 36, paragraph 1. The Labor Code provides generally accepted rules for such dismissal.

That is why personnel officers and those being dismissed often have questions regarding this basis:

• the employee leaves or is fired;
• whose initiative prevails;
• what should be the working period;
• what to include in the application;
• what monetary payments are due, etc.

FOR YOUR INFORMATION! Fearing "pitfalls", employers and employees sometimes prefer dismissal for other reasons, whereas it is worth familiarizing yourself with all the advantages and disadvantages of the method, and only then making a final decision. Remember, the devil is not nearly as scary as he is painted.

Good aspects of the agreement between the parties for the employee

A resigning employee should consider the agreement of the parties as a reason for dismissal, because:

• the application can be submitted at any time during the term of the employment contract;
• the reason for leaving is not required in the application;
• the moment of leaving is discussed with the employer, there is no mandatory service;
• you can agree with the employer on the conditions of care – terms, compensation, etc.;
• neutral entry in the work book;
• an excellent alternative in case of threat of dismissal for guilty behavior;
• the length of service is not interrupted for another month after leaving on this basis;
• When registering with the Employment Center, the benefit will be higher.

What does the employee risk?

The disadvantages of this formulation of the basis include the following points:

• the contract can be terminated in any situation, even on sick leave, on vacation, or if the employee belongs to a preferential category;
• if an employee changes his mind about quitting, it will no longer be possible to withdraw the application signed by his superiors;
• the union does not control such dismissals;
• It is impossible to challenge the employer's actions in court.

Why does an employer benefit from an agreement between the parties?

An employer often recommends this form of grounds to a dismissed person because it is beneficial: the agreement does not provide for the payment of additional severance pay unless this is specified in the collective agreement. There is no need to consult with the trade union organization for such dismissals. Another important point is that by agreement of the parties, a pregnant woman, a minor employee, an employee on maternity leave, and other preferential categories can be dismissed. This makes it convenient to terminate student contracts. And finally, the most important thing is insurance against litigation.

Everything is relative

If an employee is thinking about which reason to choose for leaving, it makes sense to compare the features of the parties’ agreement and other popular reasons.

1. Your own desire or agreement? When choosing one of these methods, it is worth taking into account the main differences:
   • when leaving at your own request, you must notify about it 2 weeks in advance, the agreement does not oblige you to work off;
   • the date of departure is determined at will, and by agreement it can be set for mutual convenience;
   • the employee can withdraw the application at his own request, and the agreement of the parties provides for the will of the employer;
   • material unemployment compensation for someone who left on their own initiative is lower than for someone who entered into an agreement with the employer.
2. Agreement or reduction? Here the initiative often belongs to the employer: if the employee still has to be fired, you can invite him to indicate another reason for this; the advantages for management are obvious. But should the employee agree?
   • It makes sense if the employer is interested in such an employee financially. It is necessary to calculate which amount will be greater: three (in some cases 5) salaries of severance pay paid upon layoffs, or the “goodies” that the employer offers when concluding an agreement. It doesn't have to be money: sometimes a good recommendation is much preferable.
   • Another possible advantage of choosing an agreement for the employer is preferences for future employment. To receive maximum compensation from the Employment Center, a registered dismissed employee must not be employed for 2 months. And if the agreement of the parties provided for any compensation, they will be paid to the employee regardless of his future plans, so he can not waste time and immediately get a new job.

NOTE! In order for all the promises of the entrepreneur to be guaranteed to be fulfilled, the agreement must not be oral, but drawn up in writing and signed in 2 copies, although the Labor Code of the Russian Federation does not insist on a specific form: .

Whose initiative?

Despite the fact that the term “agreement” implies equality of the parties, the initial initiative necessarily comes from one person. The law does not differentiate between them: it is enough to obtain written notification from one party and consent from the other (also written).

In practice, most often the application for dismissal by agreement of the parties is written by employees, even if the verbal initiative belongs to the employers. This makes it easier to keep records and insure yourself against challenges and litigation.

How does dismissal occur by agreement of the parties?

The procedure for such dismissal takes place in the following order:

1. Oral initiative of either party, negotiation of the terms of dismissal, reaching agreement.
2. The resignation letter is in free form, but must contain:
   • Full name of the person leaving;
   • request for termination labor relations according to Article 77 or 78 of the Labor Code of the Russian Federation;
   • details of the employment contract;
   • expected date of departure;
   • date of application;
   • applicant's signature.
3. Visa “I agree” from the employer on the application.
4. Written agreement, signing and registration. It must indicate all the conditions of dismissal, which cannot be changed unilaterally. Required elements:
   • indication of reciprocity of the decision;
   • details of the contract that will be terminated;
   • the last day of work of the dismissed person;
   • the amount and conditions for calculating compensation (if any);
   • ID details of the departing employee;
   • name of the organization and TIN of the head;
   • signatures of both parties.
5. Issuance of the order on the basis of a signed agreement, familiarization with the employee’s signature in the usual manner.
6. Entering into the work book the entry “Dismissed by agreement of the parties, clause 1, part 1, article 77 of the Labor Code of the Russian Federation” or “The employment contract was terminated by agreement of the parties, clause 1, part 1, article 77 of the Labor Code of the Russian Federation.”
7. On the day of departure - the employee’s calculation of wages, sick leave and compensation for vacation, if it was not used. Issuance of a work book and a copy of the order to the outgoing employee.

Possible compensation

If the employment contract does not specify the amount of compensation upon dismissal by agreement of the parties, its purpose is the good will of the employer. But the agreement is just that: an agreement that it is possible to reach a mutual consensus on any issues, including the amount of severance payments.

The law does not limit possible payments upon dismissal, so theoretically an employee can ask the employer for any amount. Depending on how profitable it is for the latter to let the employee go, a “bargain” may occur, after which the parties will agree on an acceptable amount. Most often, it does not exceed the amount required for staff reductions - three (maximum five) standard salaries.

To be able to claim a “severance” amount, you need to ask your employer about it in writing. To do this, the departing person writes a statement asking for compensation. The application requires the following essential details:

• Full name and position of the employee;
• Full name of the head;
• Name of the organization;
• expression of intention to terminate the Employment contract (indicate its number and date of conclusion) by agreement of the parties;
• link to article 78 of the Labor Code of the Russian Federation or clause 1 of Art. 77 Labor Code of the Russian Federation;
• planned date of termination of work;
• a request for compensation (preferably indicating the amount);
• date of writing;
• personal signature, transcript.

The employer may not satisfy the request for the stated amount of compensation in whole or in part. The signing of the statement will occur only after reaching consensus.

ATTENTION! It is advisable to include in the statement or agreement a final phrase stating that the parties have no claims against each other.

In any case, upon leaving by agreement of the parties, the employee will necessarily receive the following payments on his last working day:

• calculation of wages for hours worked;
• compensation for unused vacation days;
• allowances and bonuses, if they were due under the employment contract.

The Labor Code recently introduced a provision that the termination of an employment contract can be carried out by agreement between the employer and the employee. It has been implemented since January 2002. The dismissal of an employee by definition of “agreement of the parties” raises many questions and discussions not only among employees, but also among employers and employees of the personnel department.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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Grounds for dismissal of employees

IN production activities of any enterprise there are often situations when there are no direct grounds for dismissing a negligent employee, but he must certainly be removed from the job labor responsibilities. If this situation arises, then the employer is faced with the question of the method of dismissal and the choice of wording for it.

To solve it, he can put forward a proposal to the employee:

• free from functional responsibilities at your own request;
• dismiss by mutual agreement of the parties.

In the first option, when an employee is dismissed at his own request, his voluntary expression of will is assumed. However, the current situation does not always correspond to reality. If a dispute arises, the employee has the right to file a claim in court and win the trial. But to do this, he must prove that he wrote the statement under duress from the employer.

In addition, he can withdraw his application before the end of the notice period for dismissal, as noted in article number 80 of the Labor Code of the Russian Federation. As a result, the employer is held administratively liable for an offense committed during dismissal.

In the second case, the fundamental feature is the mutual agreement of the parties, preventing Negative consequences for the employer. An adopted bilateral decision to terminate an employment relationship cannot be changed unilaterally. This provision was approved by a decision of the Supreme Court during the consideration of the issue of application Russian courts Labor Code, issued number 2 in March 2004. It states that the agreement between the employer and the employee regarding the period of dismissal and its grounds is recognized as invalid only with the mutual consent of the employer and the employee.

Some employers, when dismissing employees due to staff reductions, offer them to write a statement by agreement of the parties. Moreover, the employer does not explain what the difference is in the wording of the dismissal. The employee has to decide for himself the question of choice: dismissal by agreement of the parties or by layoff, which is better? By current legislation An employee dismissed with this wording has the right to receive compensation from his previous employer for five months if he was unable to find a job.

Features of the wording “by agreement of the parties”

The distinctive features of dismissal, which is carried out according to an agreement reached during negotiations between the parties, include:

• according to the instructions of Article 78 of the Labor Code, it can be carried out regardless of time;
• the opportunity to terminate the apprenticeship contract is provided in accordance with Article 208.

A student agreement is usually concluded with a person undergoing vocational training, retraining, advanced training, training for a second profession.

In addition to the first provision, it should be noted that an employee who is on labor leave or on sick leave due to temporary disability is subject to dismissal. Moreover, without control from the trade union organization, therefore, the dismissal of an employee as a result of a mutual agreement provides certain benefits to the employer.

Advantages

The main advantages include:

• Both parties can initiate dismissal. In this case, the employer can put forward a proposal, and the employee can write a statement;
• optional explanation of the reasons why the employment contract is terminated;
• there is no need to warn about the date of dismissal, since it is set by the parties themselves;
• there is no control of the trade union organization, and if a minor is dismissed, then the state labor inspectorate and the commission dealing with the affairs of minors and protecting their rights;
• the previously established probationary period does not affect the termination of the contract;
• allows you to agree on the period of dismissal;
• allows you to agree with the employer so that the dismissal is carried out with payment of compensation calculated in percentage from the average salary.

Calculations on the amount of compensation are made in accordance with the instructions of Federal Law No. 1032-1 regulating employment in the country, adopted for execution in April 1991.

How is the procedure carried out?

Labor legislation does not establish a specific procedure for terminating an employment contract with the wording of the agreement of the parties. However, in practical activities enterprises have tested and successfully implemented a procedure that satisfies the requirements of employers.

Termination of an employment contract

If the interested parties agreed during the negotiations, then its results are documented in a document called “Agreement on Termination of the Employment Contract”. It is drawn up in two copies and signed by the parties. Moreover, one copy remains in the organization, and the other is given to the employee.

The document is drawn up in writing in any form.

Although the legislation does not directly indicate its necessity, it serves evidence base in case of disagreements and conflicts.

Based on the accepted agreement, a dismissal order is issued indicating: the grounds in accordance with the provisions of the Labor Code of the Russian Federation, namely Article 77, of the approval document, the date of its signing, registration number. It is drawn up on the unified form T-8.

The Labor Code provides, prior to actual dismissal, under a bilateral agreement, the possibility of taking a leave of absence, followed by dismissal. When taking a vacation, the employee is not compensated because he is paid vacation pay. The day of dismissal is considered the final day of vacation.

Entry in the work book

The preparation of proper documentation when dismissing employees is regulated by the Labor Code.

In accordance with its provisions, it is necessary to make a record of dismissal in the work book, indicate its verbatim wording, and also note in it normative act or a link to it.

It is carried out according to the requirements for filling out books in accordance with personnel records.

The work book is issued to the employee on the day corresponding to his dismissal. After reading the record, he must sign it. Next, the employee’s personal card is drawn up, the information stated in the order is entered into it.

Dismissal of a pregnant woman and maternity leave

According to standards Labor legislation it is possible to relieve a pregnant employee from performing her labor duties using the wording “by agreement of the parties.” If she agrees, then the dismissal procedure proceeds without complications. But she has the right to refuse; then she must write a statement of refusal addressed to the employer. In it, she notes her disagreement; in this situation, the employer is deprived of the right to remove her from work.

Termination of an employment contract without the consent of a maternity leaver is considered contrary to the law.

If she files a claim with the court or the state labor inspectorate, she will be reinstated at work. The Labor Code provides additional guarantees for pregnant women that protect their interests in labor relations with the employer.

Final formalities

Full settlement with the employee is made on the day of dismissal. On this day he is paid wages for the time worked, compensation if the next one was not used labor leave according to the instructions of Article 127 of the Code, a one-time severance pay.

Payments must be entered into the settlement note form with the unified form T-61.

When receiving documents, the employee must sign:

• in the work record book, thereby confirming that he received the documents;
• in a personal card, which is issued by the inspector of the personnel department in accordance with the conduct of personnel records;
• on the order of his dismissal from work, indicating the date.

If the employee is interested, then upon his application, copies of the dismissal order, a Form 2-NDFL certificate of income, and a certificate of payment of insurance premiums are issued.

Contents of the mutually accepted agreement

The agreement document regarding the termination of the employment contract describes in detail the main provisions accepted by the parties so that unforeseen circumstances and conflicts do not arise in the future.

These include:

• the intentions of the parties facilitating the termination of the contract, which means the dismissal of the employee from work;
• date of termination of the employment relationship, that is, the last working day;
• terms of severance pay, if the parties previously agreed on payments, its final amount, the procedure for making payments;
• no complaints against each other.

It does not provide for a clause obliging one of the parties to warn the other in advance about the upcoming severance of the labor relationship that accompanies the dismissal of an employee.

In practice, dismissal by agreement of the parties is used in situations where it is necessary to immediately terminate the employment contract.

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In addition to the information listed above, it includes:

• full name of the organization;
• personal data of the manager, employee, their positions;
• date of conclusion of the employment contract, its registration number.

The document containing the contents of the agreement on the terms of termination of the employment contract is registered in the appropriate book and is assigned a number.

Implications for stakeholders

In accordance with Article 77 of the Labor Code, agreement by the parties on the terms of dismissal is beneficial to both parties, as it provides them with certain rights.

The employee appears additional features with this type compared to dismissal with the wording “at one’s own request”:

• the period for maintaining continuous work experience is increased by one week;
• unemployment benefits are assigned upon registration with the employment service, and with a significantly increased payment amount;
• benefits are paid over a long period of time without interruption.

Benefits received by the employer include:

• the impossibility of the employee changing the decision to terminate the employment contract, since it is drawn up in writing and has acquired legal force;
• resolving the issue of dismissal peacefully, which allows the employer to avoid inspections by the prosecutor's office, the state labor inspectorate, and legal proceedings accompanied by financial expenses;
• the employer may issue a dismissal order while the employee is on vacation or on sick leave due to inability to perform work;
• the possibility of maintaining a position upon dismissal of an employee who does not fulfill his duties in accordance with his position.

The legislation provides that the parties can terminate an employment contract through negotiations between themselves and reaching an agreement. Dismissal by agreement of the parties can only be formalized if the administration and the hired employee mutually agree to the conditions established in the agreement. Despite the fact that the procedure is regulated by the Labor Code of the Russian Federation, many of its aspects are determined by court decisions.

Since the dismissal of an employee by agreement of the parties implies the achievement of mutual agreement, this method is the least conflicting for ending the employment relationship.

Negotiations can resolve most issues that arise. conflict situations and disputes. It is imperative to remember that a dismissal agreement by agreement of the parties will be valid if, at the time of drawing up, all parties voluntarily agreed to sign it.

Both the employee who has a desire to leave the enterprise and the administration of the company who made the decision to terminate have the right to begin this procedure.

In the first case, the employee sends to personnel service enterprise application for dismissal by agreement of the parties. If the initiative for dismissal comes from management, then the employee is sent a corresponding letter on company letterhead.

Attention! If any of the parties refuses to sign it, then it must be carried out, which involves mandatory warning to the administration in a certain time, or at the initiative of the employer with the payment of various types of compensation and the execution of a number of documents.

Current practice shows that dismissal by agreement of the parties is carried out in Lately often at the initiative of the employer. To convince the employee, they may be offered compensation upon dismissal by agreement of the parties in an increased amount and other compensation in favor of the employee.

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

This type of termination of relations with an employee has a number of positive and negative aspects. Let's take a closer look at them.

Benefits for the employee

• An employee who wishes to formalize his dismissal using this method may, by agreement with management, not work out the period established by the Labor Code of the Russian Federation.
• The employee does not need to explain to the company the reason why he decided to quit.
• An employee can request from his employer increased amounts of severance pay and compensation, as well as recommendations, etc.
• Also, dismissal by agreement between the parties gives the offending employee a chance, with the consent of the administration, to avoid an undesirable mark on his work record.
• Due to increased compensation, when registering with the employment service, the amount of unemployment benefits will be higher than with traditional methods of terminating a contract.

Disadvantages for the employee

• If an employee leaves by agreement, then he cannot change his mind and not terminate the contract, as is possible when applying at his own request. In order to terminate the dismissal procedure, he must obtain the consent of the company administration.
• It is impossible to revise the terms of the agreement after it is signed.
• The agreement drawn up cannot be canceled even in court.
• The employee independently makes decisions regarding his dismissal, opinions trade union body the company does not take into account.

Is such dismissal beneficial for the employer?

For the employer, this type of dismissal is more profitable, even though it requires additional costs or concessions.

If an undisciplined employee works for a company, then upon termination of the contract with him, by agreement between the parties, the administration has the opportunity to part with him without drawing up a number of relevant documents.

In addition, this person will not be able to review the signed agreement in court and return to the company.

Attention! You can part with an unwanted employee even while he is on vacation or on sick leave, which cannot be done when the company initiates this procedure.

Another side that has positive aspects for the employer is that when the parties are dismissed, it is possible to agree with the employee that he will help find a replacement person with relevant experience or experience, or will provide him with training.

Thus, the work process will not stop for a long time.

Dismissal by agreement of the parties or at your own request, which is better?

When deciding to terminate the employment relationship between a firm and its employee, each party has the right to choose how to do this. Before starting this process, you need to weigh all the positive and negative aspects of each method, as well as correctly navigate the current situation, determining the goals of dismissal.

After the document is completely completed, it must be registered in the order register and submitted to the head of the company for signature.

Step 3. Familiarization of the employee with the dismissal order

After the order is drawn up and signed by the manager, the form must be given to the resigning employee for review and signature. Thus, he confirms that the document has been read. The signature and date are placed in the fields specially designated for this purpose.

If the employee cannot familiarize himself with the order, or he refuses to sign on it, it is necessary to draw up a report on this event. In the presence of witnesses, a document is drawn up, the details of which must then be indicated on the order in the field intended for signature.

The employee may receive a copy of the dismissal order, but to do this he must submit the request in writing. The employer does not have the right to refuse such a request, and must hand over a copy within three days.

Step 4. Making the necessary entry in your personal card

Attention! In the event that an employee refuses to sign the card, a report on this is drawn up in the presence of the commission. These documents are subsequently stored together in the archive.

Step 5. Entering information into the work book

When the basis for termination of an employment contract is the concluded agreement of the parties, the entry in the employment contract must include a reference to Article 77 of the Labor Code of the Russian Federation: “Dismissed by agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code Russian Federation» .

An entry must be made only on the basis of an existing dismissal order. Information about it must also be reflected in the labor document in the last column.

The entry made is certified by the personnel officer, manager, or employee whose duties include performing such work. According to the new rules, a seal impression is no longer required. The employee must familiarize himself with the finished record and put his signature in confirmation of this.

Step 7. Issuance of salary calculations

On the day that is the last for the employee in this company, he needs to be given all the money due.

These include:

• Payment for last month work;
• Severance pay upon dismissal by agreement of the parties. Also, additional payments can be determined by labor or internal regulations.

Sometimes on the final day it is not possible to hand over the paycheck to the person leaving. Most often this happens due to the fact that he is absent from work that day due to illness, illness or other valid reason. In such a situation, the money must be kept at the enterprise, and it is issued the next day after former employee declares his readiness to receive settlement payments.

In addition to cash, settlement payments can be transferred to a salary card or bank account. In these circumstances, the transfer date may be postponed to the next banking day.

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Important! If, for any reason, a dispute occurs between the employee and the employer about the amount of amounts to be paid, then on the specified day only that part that is not disputed by both parties must be paid. Negotiations are underway for the remaining amount, or one of the parties must begin legal proceedings.

If, before resigning, an employee decides to use the available vacation days, then he is not paid compensation for them. However, it must be remembered that providing such a rest period is the goodwill of the employer, and not an obligation.

Step 8. Preparation and issuance of documents that need to be completed upon termination of the contract

After the termination of the employment contract has occurred and the payment has been transferred, former employer is obliged to prepare and hand over some mandatory documents:

• Work book of the employee. into it personnel worker enter information about dismissal and hand over the document to the resigning employee on the last day.

The employee needs to sign the entry in the work record, and also confirm its receipt by noting it in a special journal of work records at the enterprise. If a situation arises that an employee cannot pick up a work permit on the last day, for example, he went on a business trip, got sick, or for some reason simply refuses to do so, the HR officer needs to draw up a notification.

It must inform you of the need to come up to receive a work permit, or to give your consent to send the document by mail or courier service. From the moment such a message is sent to the dismissed employee, the organization is relieved of responsibility for failure to issue a work permit. fixed time.

• , which was accrued to the employee for the two previous years and the year of dismissal. It will be needed to calculate sick leave at the new place. The certificate is drawn up on a special form.
• for each year of work in the company.
• On the right about accrued and transferred contributions to the Pension Fund. The document is drawn up on a special form developed by the fund.
• Copies of internal forms related to the activities of the dismissed employee. These could be orders, incentives, thanks, etc. They can be issued upon written request within 3 days. The organization has no right to refuse to issue copies of documents.
• Certificate of average salary for the employment service. The document must be issued within three days from the submission of the request. There is a special form, but organizations may not use it and issue the certificate arbitrarily.

bukhproffi

Important! For failure to issue a new SZV-STAZH certificate, the company employee faces a fine of up to 50 thousand rubles.

Step 9. Submitting information about dismissal to the military registration and enlistment office (if necessary)

According to current law, if an employee liable for military service is dismissed from the organization, the company must report this fact to the regional branch of the military registration and enlistment office. This must be done within two weeks of the dismissal. There is a special form for notification, which is put into effect by the rules of conduct military registration at enterprises.

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

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

About legal grounds and correct execution of documents

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

Approximate procedure:

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

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

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

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

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

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

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

Is the employee entitled to any benefits or compensation?

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

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

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

Standard payments and compensation include:

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

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

Calculation of their size

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

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

Taxation of payments

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

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

FAQ

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

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

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

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

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