Changing jobs in itself is a very positive thing, but it is always preceded by the delicate, contradictory and sometimes unexpected moment of dismissal. Perhaps the most peaceful legal instrument for severing employment relations is dismissal by agreement of the parties. However, each employee qualifies this reason for dismissal in his own way, often surrounding it with myths and speculation. However, despite the simplicity of regulatory regulation, the dismissal procedure by agreement of the parties has a lot of pitfalls, which the parties to the employment contract are not always aware of.

Workers are afraid of having this article in their own work book - this, they say, indicates a forced departure from the employer. But is everything as the workers imagine? What risks does dismissal by agreement of the parties actually entail, what are the risks for the employee, how does it proceed and how is it formalized? Careerist.ru tried to understand the intricacies of labor legislation, the peculiarities of the psychology of workers and employers.

What does the law say?

The law in this case is laconic: Art. 78 of the Labor Code allows parties to labor relations to use this basis for terminating the relationship at any time. It turns out that this basis allows separation both during vacation or sick leave, and while the employee is undergoing testing. The initiative to terminate an employment contract on this basis can be expressed by both the boss and the employee, and the law does not regulate the form of such a proposal - it can be either a written or oral statement. In practice, to record mutual desire, the parties draw up a written agreement that regulates the conditions of the upcoming dismissal, the absence of mutual claims and other nuances. Based on this document, an internal dismissal order is issued, after which an entry is made in the work book.

What is the difference from voluntary dismissal? According to Art. 80 of the Labor Code, in order to be dismissed on the initiative of an employee, he, if the employer wishes, will have to work for 2 weeks. In this case, the employee is given the right to withdraw his resignation before the end of 2 weeks, while “by agreement” this will require the desire of both parties. In some cases, this is convenient for each party, since the dismissal procedure can be carried out within one business day.

The absence of any regulatory regulation of the dismissal procedure “by agreement of the parties” makes such a basis neutral. It does not carry any positive or negative assessments of the employee’s performance, does not indicate the presence of disciplinary sanctions or low efficiency of his work. In fact, this procedure allows you to refuse to record the reason for dismissal and the reasons for terminating the employment contract.

At the same time, the range of these same reasons and motives can be very wide: a change in management, a conflict with superiors, a desire to informally reduce staff, a disciplinary offense, or the employee’s desire to quickly move to another job. And this, of course, is a plus for those employees who would like to hide the reasons for their dismissal. But only when there is something to hide from the future employer - in other cases this entails certain risks and unnecessary questions from potential employers.

Hidden risks

At first glance, an amicable dismissal may seem harmless to the employee, and in most cases it will be. But not when the employer is trying to reduce its own costs in this way. For example, if an employee is dismissed due to layoffs or as a result of liquidation of the company, by virtue of Art. 178 of the Labor Code, he can qualify for severance pay in the amount of the average salary, retained for him for a 2-month period, but before official employment. If these reasons are hidden behind the wording “by agreement of the parties,” the employee can only count on compensation for unused vacation and other standard payments.

There is an opinion that along with them, if the initiative to leave “by agreement” came from the employer, the employee can claim some kind of compensation. In practice, such payments will take place if they are discussed in the notorious “agreement of the parties” - the law does not oblige the employer to pay compensation. In this regard, it is logical to raise the issue of compensation even when the management proposed to separate.

But the financial issue is far from the only disadvantage that an employee may face. Thus, when registering a dismissal “by agreement,” there is no control on the part of the trade union, which, however, does not always take the employee’s position. In addition, if the reason for dismissal is unlawful and there is no written agreement, it is almost impossible to challenge this in court. The only option is if the former employee proves that he lacks his own will to sign the notorious “agreement of the parties.” But only a few succeed in this and only in cases where such agreements were signed en masse - in otherwise cases, supervisory and judicial authorities take the side of the employer.

It should be noted that one of the obvious advantages is The absence of a statutory deadline for dismissal can be an obvious disadvantage for the employee. In particular, he may be fired on a day off, on vacation, on sick leave, and sometimes even retroactively. In this case, it does not even matter whether there are grounds for any benefits. And after signing such an agreement, it will no longer be possible to withdraw your signature. Take this into account when following your employer’s lead and resigning “by agreement of the parties.”

Upon employment

It is also worth noting the risks that can materialize after dismissal - when looking for a new job. Thus, being a candidate dismissed by agreement of the parties, the applicant may face reduced interest in himself, and therefore the employment process risks being delayed. This may be related both with the reason for termination of the employment relationship and with the status of a “non-working candidate”. Many employers consider an applicant’s employment status to be one of the most important indicators of his demand, and therefore his professionalism. The lack of work during the search process, if there is a dismissal “by agreement of the parties” in the work book, scares off some employers, since such a reason is considered suspicious. But they will not be able to find out about its presence before the interview, which is why the candidate gets an excellent chance to prepare for possible questions on this matter.

It is important to understand that the agreement of the parties indicated as the reason in the work book does not constitute an explanation of the reason for leaving. An agreement between the parties is a result, the achievement of which was facilitated by individual corporate circumstances, personal motives or the initiative of the employer. So, in order not to scare off a potential employer, you should come up with a competent explanation of why this particular reason for dismissal appears in your work book. You need to immediately dispel the employer’s doubts by pointing out that the wording does not cover misconduct or disciplinary sanctions (this is what HR will think about first, don’t doubt it). If they did occur, don’t be shy - come up with a legend about professional downtime, financial problems etc. True, in this case, you should hope that the potential employer will not ask the previous boss for recommendations...

There is no need to talk about having your own motivation - in this case, you would obviously quit “of your own free will,” and recruiters are well aware of this. You can emphasize that you yourself were not against leaving the company, but a situation arose that the management offered a mutual option.

To summarize, we note that dismissal by agreement of the parties is far from the most harmless option for dismissal, especially considering that it can hide the illegal motives of the employer and thereby violate the rights of dismissed employees. In some cases, the features of such dismissal can still play in favor of the employee, but the consequences can be unpredictable. So don’t neglect your own labor rights for the sake of corporate interests - no one will protect them better than you yourself.

An employer, on its own initiative, has the right to dismiss an employee only in cases expressly specified in the Labor Code of the Russian Federation (LC RF). The list of grounds for dismissal at the initiative of the employer is defined in Art. 81 Labor Code of the Russian Federation. Dismissal of an employee without legal grounds or in violation of established rules entails the reinstatement of this person at work with payment for the time of forced absence. However, an employment contract can be terminated at any time on grounds such as agreement of the parties. At the same time, the corresponding legal norm is of a general nature and does not serve as an answer to many practical questions. Let's consider recommendations for documenting and taxation of payments upon dismissal by agreement of the parties, based on the norms of labor and tax legislation, letters from official bodies and conclusions of arbitration practice, as well as some difficult situations that arise in practice.

Who benefits and when...

Labor legislation obliges the employer to pay the employee severance pay in the event of termination of the employment contract for a number of reasons. However, in some situations, employment relationships with employees are ended by entering into a mutual agreement to terminate the employment contract, and such agreement provides for one-time compensation payments to employees. In this case, employers are faced with questions of how to determine the amount of lump sum compensation, whether the amounts of such payments should be included as expenses when calculating income tax, whether such payments are subject to insurance premiums and, finally, whether this will be beneficial for the employer and employee.

The basis for dismissal “by agreement of the parties” is provided for in paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation, and the corresponding procedure for terminating an employment contract is set out in Art. 78 Labor Code of the Russian Federation.

The initiator of termination of the contract on this basis can be either the employee or the employer.

To apply this basis, an explanation of the reasons that prompted such a decision is not required. In this regard, dismissal by agreement of the parties may suit both the employer and the employee to a greater extent.

In other words, an employee can at any time leave a place that no longer suits him, and the employer has the right to immediately terminate the employment contract on this basis, terminating the employment relationship with the employee due to a number of circumstances, the reasons for which do not require documentary evidence.

In addition, when dismissing by agreement of the parties, it is not necessary to take into account the opinion of the trade union organization. On this basis, an employee can be dismissed both during the probationary period and in the presence of a fixed-term employment contract. If before dismissal an employee changes his mind and decides to remain in the organization, then he will not be able to do this unilaterally. Cancellation of the dismissal order and the agreement to terminate the employment contract itself is possible only with the mutual consent of the parties who signed the agreement - the employee and the employer (clause 20 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2). However, the presence of an employee’s resignation letter is not a mandatory document.

According to part 3 of Art. 57 of the Labor Code of the Russian Federation, if, when concluding an employment contract, no conditions were included in it, then they can be determined by a separate appendix to the employment contract or by a separate agreement of the parties, concluded in writing. Therefore, the execution of a mutual agreement between the parties upon dismissal may be an integral part of the employment contract, even if the employment contract itself was concluded earlier.

Note! With this form of termination of an employment contract, in addition to the legally established guarantees and compensations, the employee is usually paid additional compensation established by agreement of the parties.

So, the advantages of dismissal by agreement of the parties are the following:

the employment relationship with the employee may be terminated on the day such an agreement is reached;

The legally established deadlines for notice of dismissal are not applied, both on the part of the employee and on the part of the employer;

there is no need to take into account the opinion of the trade union organization;

when terminating an employment contract with a minor employee, the consent of the state labor inspectorate is not required (the requirements of Article 269 of the Labor Code of the Russian Federation apply only to dismissals at the initiative of the employer);

a simple procedure for registering dismissal by signing an agreement;

a dismissed employee cannot change his mind and return to the workplace, since cancellation of the agreement to terminate the contract is possible only with the mutual consent of the employee and the employer.

Thus, dismissal of an employee by agreement of the parties can be beneficial for both the employer and the employee: the first gets the opportunity to avoid labor disputes, and the second can quit without working and receive additional compensation.

We arrange it correctly

The agreement of the parties is formalized by drawing up a separate document - an agreement on termination of the employment contract. There is no legal norm that sets out mandatory conditions for an agreement, such as for an employment contract. There is also no unified form of agreement. Accordingly, each employer is free to choose the form of this document.

Mandatory terms of the agreement are the basis for termination of the employment contract and the day of dismissal of the employee. In addition, the agreement may contain the following conditions:

on the payment of additional compensation in connection with the termination of the employment contract by agreement of the parties (indicating its amount);

about the employee performing certain actions before dismissal (for example, transferring tasks to another employee or completing a project); any other conditions agreed upon by the employee and the employer, it should be taken into account that they should not worsen the employee’s position in comparison with those established by current legislation.

By analogy with an employment contract, two copies should be prepared: one for the employee, the other for the employer. Each of them must be signed by both parties to the employment relationship. Let us note that the employee’s receipt of a copy of the agreement must be recorded, for which purpose the employee personally puts a mark on the employer’s copy stating that he received a copy of the agreement to terminate the employment contract, the date and personal signature.

The maximum amount of severance pay, including additional by agreement of the parties, in Art. 178 of the Labor Code of the Russian Federation has not been established. Therefore, the parties have the right to indicate any amount in the employment contract.

Based on the dismissal agreement, an order is issued in form T-8 (if the organization uses unified reporting forms). It is necessary to familiarize the employee with such an order against signature.

An order to terminate an employment contract will become the basis for drawing up a settlement note in form T-61 and making an entry in a personal card (form T-2) and work book.

Note! It is necessary to formulate an entry in the work book with reference to clause 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation, and not on Art. 78 of the Labor Code of the Russian Federation (clause 5.2 of the resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69 “On approval of the Instructions for filling out work books”). Therefore, the entry in the work book will look like this: “The employment contract was terminated by agreement of the parties on the basis of clause 1 of part 1 of Article 77 of the Labor Code of the Russian Federation.”

At the request of the employee, all vacations not used at the time of dismissal can be provided to him with subsequent dismissal. This rule also applies to dismissal by agreement of the parties. Do not forget that in the case of granting leave with subsequent dismissal, a feature of the termination of employment relations is that the day of dismissal is the last day of leave, and not the last working day (Article 80 of the Labor Code of the Russian Federation, letter of Rostrud dated December 24, 2007 N 5277-6-1, Definition of the Constitutional Court of the Russian Federation dated January 25, 2007 N 131-O-O). In other words, the employer must make a final settlement with the employee and complete all dismissal documents on the last working day before the start of the vacation.

Common mistake! In practice, it often happens that after signing an agreement, either the employee changes his mind about resigning, or the employer changes his mind about parting with the employee, in which case the employer simply liquidates the document. However, if the agreement has already been registered, then its cancellation is, of course, possible, but to do this, destroying the document or simply revoking it is not enough. The Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” explained that the annulment of an agreement regarding the period and grounds for dismissal is possible only with the mutual consent of the employer and the employee, i.e. only by concluding another agreement (in writing).

It would be useful to remind you that upon dismissal, the employee must sign the following documents:

in the dismissal order (Form No. T-8, if the organization uses unified forms on the basis of Article 84.1 of the Labor Code of the Russian Federation);

in the work book after recording the dismissal (clause 35 of the Rules approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225);

in a personal card in form N T-2;

in the book of accounting for the movement of work books and inserts for them (clause 41 of the mentioned Rules, Appendix 3 to Resolution of the Ministry of Labor of Russia N 69);

in the payroll form N T-49, or in the payroll form N T-53, if the money is paid in cash;

on a copy of the information issued to him about accrued and paid insurance premiums to the Pension Fund (clause 4 of Article 11 of the Federal Law of April 1, 1996 N 27-FZ);

in the documents drawn up during the inventory for the transfer of material assets, if the person being dismissed is a financially responsible person (Article 11 of the Federal Law of December 6, 2011 N 402-FZ, clause 2.10 of the Methodological Instructions, approved by order of the Ministry of Finance of Russia dated June 13, 1995 N 49).

It would also be useful to check the employee’s signature on the documents that he had to sign during work, in particular on:

a copy of the employment contract and job description (if any);

all orders related to this employee;

all local regulations of the organization that related to the employee’s labor duties (Article 22 of the Labor Code of the Russian Federation).

Taxation of Worker's Compensation Payments

Upon dismissal, the employee is paid:

wages accrued including for the last day of work;

compensation for unused vacation (part 1 of article 127 of the Labor Code of the Russian Federation).

The procedure for paying legally established benefits to an employee in connection with the termination of an employment contract (severance pay) is regulated by Art. 178 Labor Code of the Russian Federation.

It should be noted that the obligation to pay compensation upon termination of an employment contract by agreement of the parties is not established by law. At the same time, in accordance with part 4 of Art. 178 of the Labor Code of the Russian Federation, on the basis of an employment or collective agreement, other cases of payment of severance pay may be provided for, as well as their increased amounts may be established.

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

When terminating an employment contract by agreement between the employee and the employer, the initiative comes from both parties. That is why, in such a situation, an additional agreement to the employment contract is drawn up, and in it, in addition to the termination period of the contract and other conditions, the conditions for the payment of “compensation” (sometimes called remuneration, additional severance pay, additional compensation upon dismissal) can be determined.

Since the agreement becomes an integral part of the employment contract, the payment of “compensation” will comply with the criteria of Art. 252 and 255 of the Tax Code of the Russian Federation and can be taken into account when calculating income tax.

In other words, if the costs of paying remuneration upon dismissal of an employee are established by an additional agreement to the employment contract, then such amounts of money can be taken into account in expenses when determining income tax (letter of the Ministry of Finance of Russia dated June 10, 2013 N 03-03-06/1/ 21465, dated January 24, 2012 N 03-03-06/1/29).

The Russian Ministry of Finance also clarified that severance pay, which the parties simply “agreed” on, cannot be taken into account when determining the income tax base, since the payment of “compensation” must be provided for in an employment (collective) agreement or an additional agreement to the employment agreement (letters dated 03/14/11 N 03-03-06/2/40, dated 01/24/12 N 03-03-06/1/29).

Recommendations. In order to eliminate tax risks upon termination of an employment contract, the employer and employee should enter into an additional agreement as an annex to the employment contract, defining in it the amount of money paid to the employee as compensation.

Let us consider, using specific examples, controversial and ambiguous situations related to the procedure for taxation of sums of money paid to an employee upon dismissal by agreement of the parties.

Situation 1. An employee dismissed by agreement of the parties was paid monetary compensation in the amount of four salaries, from which personal income tax was withheld. The employee contacted the organization with an application for the return of excessively withheld personal income tax from the amount of three salaries. Is the organization obliged to return tax?

Payments made to an employee upon dismissal (including the amount of severance pay and average monthly earnings for the period of employment) are exempt from personal income tax in an amount not exceeding in general three times the average monthly earnings or six times the average monthly earnings for employees dismissed from organizations located in the Far North and equivalent areas (clause 3 of Article 217 of the Tax Code of the Russian Federation).

Severance pay upon dismissal by agreement of the parties, provided for in the agreement to the employment contract, is actually paid in accordance with Art. 178 of the Labor Code of the Russian Federation, therefore, is exempt from personal income tax. Amounts exceeding three times (six times) average monthly earnings are subject to personal income tax in accordance with the established procedure. At the same time, the provisions of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation are applied regardless of the position held by an employee of the organization. This conclusion is confirmed by letters from the Ministry of Finance of Russia dated 08.21.12 N 03-04-05/1-982, dated 09.19.12 N 03-04-06/6-283.

Thus, today, within the established limit, severance pay (including) severance pay paid upon dismissal of an employee by agreement of the parties is not subject to personal income tax, although such a basis for payment of benefits is not directly provided for by the Labor Code (Article 178 of the Labor Code of the Russian Federation).

In a letter dated 06/07/13 N 03-04-05/21250, the Ministry of Finance of Russia indicated that in the case when a tax agent withholds personal income tax from the entire amount of severance pay that was paid upon termination of an employment contract, the amount of tax calculated within the non-taxable limit , is excessively withheld. Based on paragraph 1 of Art. 231 of the Tax Code of the Russian Federation, it is subject to return to the taxpayer. If the tax agent refuses to return the amounts of excessively withheld personal income tax, the former employee has the right to go to court to protect his rights.

So, with regard to severance pay (or additional compensation) paid to employees upon termination of an employment contract by agreement of the parties, the legislator established a personal income tax benefit: severance pay is subject to personal income tax only to the extent that it exceeds three times the average monthly salary (paragraphs 1, 6, 8, clause 3, art. 217 Tax Code of the Russian Federation). An exception is the payment of severance pay in the Far North. In this case, the non-taxable amount is six times the average monthly salary.

Note! The situation is different with the calculation and payment of insurance premiums.

Situation 2. Is compensation paid to an employee in the amount of two official salaries subject to insurance premiums in the event of termination of employment by agreement of the parties?

An exhaustive list of payments not subject to insurance premiums is established in Art. 9 of Federal Law No. 212-FZ of July 24, 2009 (hereinafter referred to as Law No. 212-FZ).

Compensation payments related to the dismissal of employees (except for compensation for unused vacation) are not subject to insurance premiums if they are established by the legislation of the Russian Federation and are paid within the limits established by law.

Compensation to an employee upon dismissal, paid in excess of the norms established by the Labor Code of the Russian Federation, is made within the framework of labor relations. Consequently, it is subject to insurance premiums (Part 1, Article 7 of Law No. 212-FZ).

In other words, the amount of compensation paid to an employee upon dismissal by agreement of the parties is subject to insurance contributions to extra-budgetary funds and insurance premiums against accidents and occupational diseases.

Let's summarize what has been said. For tax accounting purposes, the tax base for income tax is reduced by the amount of severance pay as part of labor costs (clause 9 of Article 255 of the Tax Code of the Russian Federation).

When dismissing employees, compensation can be paid both in accordance with legally established guarantees and compensation, and additionally by agreement between the employer and the dismissed employee. In the first case, Art. 178 of the Labor Code of the Russian Federation provides for guarantees and compensation established by law related to the termination of an employment contract, for example, severance pay in the amount of average monthly earnings in the event of liquidation of an organization, reduction in the number or staff of employees; severance pay in the amount of two weeks' average earnings in connection with the employee's refusal to be transferred to another job or to be transferred to work in another locality, recognition of the employee as incapable of working in accordance with a medical report, etc. These payments are not subject to income tax and insurance contributions.

Upon dismissal by mutual agreement of the parties, the payment of severance pay does not apply to legally guaranteed payments, therefore insurance premiums are charged on the amounts paid and income tax is withheld.

It should be taken into account that personal income tax provides for a benefit according to which severance pay paid to an employee, including by agreement of the parties, is not taxed within established limits.

In other words, both the amount of compensation paid by the organization upon dismissal of an employee by agreement of the parties, and the amount of insurance premiums are taken into account as expenses when calculating income tax (clause 1, 45 clause 1 of Article 264, clause 1 p 7 Article 272 of the Tax Code of the Russian Federation).

Analysis of practical situations

Often, disputes regarding dismissal issues arise only because of the misconceptions of the dismissed employee. In many cases, the employee mistakenly believes that, as in the case of dismissal of his own free will, he can “change his mind” in time and make the dismissal invalid. However, this can only be done in the same manner - by agreement of the parties. The fact that the controversial situation is a priori based on ignorance of the dismissal procedure does not reduce the problems for both the employer and the employee.

The comparative data clearly shows the main differences between the two grounds for dismissal: at will and by agreement of the parties (see table).

Comparative data on two grounds for dismissal: at will and by agreement of the parties

However, managers do not always comply with all “formalities” when documenting the termination of a contract by agreement of the parties. So, the following situation often occurs in practice.

Situation 3. The manager decided to terminate the employment contract with the employee by agreement of the parties based on an oral agreement. The employee does not object provided that additional compensation is paid in the form of “compensation”. To prove such a mutual decision, is it necessary to draw up written documents or is an oral agreement sufficient?

Indeed, labor legislation does not indicate the form of the agreement to terminate the employment contract. Therefore, such an agreement can be oral. Thus, from the Cassation ruling of the St. Petersburg City Court dated September 2, 2010 N 33-12215: an agreement is considered reached even in the absence of a separate bilateral document.

However, it must be taken into account that in the event of a labor dispute, the employer may need evidence that the dismissal was carried out by agreement of the parties (if the employee insists on the lack of consent on his part), and not at the initiative of the employer. The Ruling of the Armed Forces of the Russian Federation dated May 14, 2010 N 45-B10-7 states: the fact that the employer has not provided evidence indicating the employee’s consent to the upcoming termination of the employment contract is essential for resolving the dispute.

Recommendations. In order to avoid controversial and conflict situations with employees when terminating the contract by agreement of the parties, we recommend drawing up and signing an agreement on terminating the employment contract in writing.

Situation 4. The organization and the employee entered into an additional agreement to the employment contract on the termination of employment relations by agreement of the parties, who are provided for payment of compensation (severance pay) in the amount of 300,000 rubles. On the day the employee is dismissed, the organization cannot pay the amount of compensation due to lack of money in the current account. The employee asks to be given a certificate of debt. Is the organization obliged to issue such a document?

A certificate of debt is a document related to work, and the organization is obliged to issue it (Article 62, 84.1 of the Labor Code of the Russian Federation). If the certificate is not issued at the request of the employee, then he has the right to file a complaint with the labor inspectorate due to the fact that he was not paid timely money upon dismissal. The organization and its management may be fined for violating labor laws in accordance with Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation. Interest is also charged on delayed amounts in the amount of 1/300 of the Bank of Russia refinancing rate for each day of delay (Article 236 of the Labor Code of the Russian Federation).

Common mistake! Often in practice, due to financial difficulties, an organization cannot pay the amount established by agreement on the day of dismissal. Therefore, the text of the agreement on termination of the employment contract includes a condition that payment of monetary compensation for termination of the contract will be made by the employer not on the day of dismissal, but within three months after dismissal.

As mentioned, according to Art. 140 of the Labor Code of the Russian Federation, upon termination of an employment contract, payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal. Such amounts include all payments due to the employee, including payment of compensation established by agreement of the parties. Arbitration practice confirms this conclusion, for example, the St. Petersburg City Court in Determination dated 02.16.11 N 2119 noted that the agreement to terminate the contract in terms of the established three-month period for payment of compensation contradicts the requirements of Art. 140 Labor Code of the Russian Federation. Therefore, the inclusion in the written text of the agreement on termination of the employment contract of the condition that the payment of monetary compensation for termination of the contract is made by the employer not on the day of dismissal, but within three months after it, does not comply with current labor legislation.

Situation 5. The employment contract with the general director of Stroyservis LLC was concluded for a period until January 31, 2014. In December 2013, the new owner of the company decided to refuse the services of the mentioned general director and fired him on December 20, 2013 by agreement of the parties. Is it necessary to compensate an employee for the sudden loss of a status position and how to do it correctly?

If a decision is made to terminate the employment relationship with the director in the absence of guilty actions (inaction) of the director, he is paid compensation (Article 279 of the Labor Code of the Russian Federation). The amount of compensation is established by the employment contract. However, the amount of compensation cannot be lower than three times the employee’s average monthly earnings.

The parties to the employment contract should establish the amount of compensation when concluding the contract. If this does not happen, this amount can be determined and fixed later in an additional agreement. Dismissal of a manager without payment of compensation, if he has not committed guilty actions giving grounds for his dismissal, is a violation of the dismissal procedure. The court may decide to reinstate a dismissed person at work (clause 4.3 of the resolution of the Constitutional Court of the Russian Federation dated March 15, 2005 N 3-P).

Thus, according to Art. 279 of the Labor Code of the Russian Federation, upon dismissal of a manager, he must be paid monetary compensation, determined by agreement of the parties, but not less than three times the average monthly salary.

Conclusion. An agreement between the parties is used as a basis for dismissal when the employer and employee correctly assess the time and financial costs that dismissal for other reasons may entail, especially if the reasons for this are very transparent.

In some cases, dismissal by agreement of the parties is the best option for terminating an employment contract. Firstly, it allows the parties to reach a compromise and remain satisfied with each other and the amount of additional compensation for dismissal; secondly, it is the simplest to design; thirdly, cancellation of the agreement to terminate the contract is possible only with the mutual consent of the employee and employer.

Termination of the employment relationship between an employee and an employer by mutual consent means the dismissal of the employee by agreement of the parties. Despite the apparent clarity and transparency of this “peace” agreement, there are a number of features and nuances. The contract agreement can be terminated at any time, complete freedom of action. The procedure for dismissing a woman during maternity leave is especially difficult, and especially if she does not agree, as happens most often.

The law (Article of the Labor Code of the Russian Federation No. 78) regulates the fact of termination of a contract agreement with the consent of the employer and employee.

What does the word "agreement" mean? This is an agreement between an employer and a subordinate on specific conditions for terminating a working relationship without mutual claims.

An important point is the compulsory service time, which is canceled or reduced. There are agreements with provisions on various nuances of termination of employment relations. If there is more than one condition in the standard dismissal procedure, then any action to cancel the contract is considered to be an agreement.

Like any termination of agreements, dismissal of an employee by agreement of the parties has its own procedure:

• An employee submits an application to stop working.
• The administration of the enterprise issues a dismissal order.
• Based on the submitted document, the former employee receives personal documents and funds.

With regard to the phrase "agreement", different terms can be accepted at each stage of the process described. The faster this is done, the simpler the dismissal procedure, the less corrections will need to be made, and the greater the benefits for everyone. But it is better to discuss everything before filing an application to terminate the working relationship in the organization. Including to avoid problems with dates.

By law, after submitting an application, the resigning employee is required to work for two weeks, which is reflected in the official act. If, by mutual agreement of the parties, a decision is made to change the working time or liquidation, this is reflected in the numbers entered.

Cases of non-compliance with the initially fixed deadline involve rewriting of documents. For this reason, it is advisable to initially agree, then write down the deadline in official documentation. An application for dismissal of an employee by mutual consent must include a note indicating the termination of the employment relationship by mutual agreement of the parties, Article No. 78.

Legal Features

Official dismissal of an employee by agreement of the parties - termination of the working relationship on terms beneficial to both parties. The main question is the time of compulsory service, which increases or decreases.

Also very common is the phenomenon of dismissal due to staff reduction. In the current crisis, this is not surprising.

Let's discuss other points, pros and cons for the employee. Agreements are often made verbally between a boss and a subordinate. Since there is no legally regulated form of mutual agreement, such a position is understandable.

But agreements must be recorded in writing at any level of trust:

• Cases are different, no one is immune from anything that pushes them to break verbal promises.
• Helps avoid fuss during the dismissal process.

The documents are drawn up in two versions (for the employer, for the resigning employee). The text is filled in in any form, the agreed upon points are recorded, signatures are placed on both sides, and sealed with the seal of the organization. Witness signatures are preferred, but not required.

The agreements include a clause on the mutual consent of the parties and the absence of claims on all issues. The procedure for dismissing an employee by agreement of the parties implies the impossibility of reinstatement in a work position if the resigning employee refuses his intention to leave work.

If, under the standard procedure, the employer has the right to refuse reinstatement to the previous position, then by mutual agreement the employer renounces the position by signing the agreement.

An official order to terminate an employment relationship by consent is issued using the standard T-8 form. It contains the wording “dismissal by agreement of the parties”; a written document does not need to be attached to the official order. Within three days, the former employee of the organization is obliged to familiarize himself with the order and certify his actions with a signature and transcript.

If for some reason the employee is not satisfied with something, record the entry “I have read it, I refuse to sign.”

Types of compensation for an employee

Upon termination of employment, the former employee of the enterprise is issued a work book with notes on length of service, qualifications, and the article under which the dismissal occurred. The dismissed employee receives the remaining payments, with a certificate of income, later.

The dismissal procedure by agreement of the parties implies monetary compensation including:

• Remaining salary.
• Allowances and coefficients stipulated by the Labor Code.
• Lost bonuses.
• Cash compensation for unused, paid vacation days.
• Compensation for unpaid food, travel allowances, travel allowances, etc.

Cases of receiving workwear that require a deposit after the dismissal of an employee require the return of the deposit after the delivery of the workwear. The moments at which the resigning employee had debts are compensated from the amount of cash payments provided to him.

If you are not going to be fired, demand an extension of the employment contract.

The basic dismissal procedure by agreement of the parties does not provide for severance payments.

An exception is that a sum of money is paid in the amount of two official salaries, in the case of a preliminary agreement between both parties. If there is a provision for additional payments to the salary, this money is given in any case, except for a serious violation of labor discipline at the enterprise.

“Remuneration in an envelope” is always possible if the parties agree; the pros and cons are obvious: it is not documented, and verbal promises are broken by both parties, but it is easy to receive a significant amount of money.

Features of dismissal by agreement of the parties

You shouldn’t take risks, complicate your life, stick to the law. Basically, dismissal by agreement of the parties on the direct initiative of the employee is the same termination of an employment contract at one’s own request, but with a greater chance of negotiating favorable terms of departure from the employer.

But in this case, “there is no turning back” - the employee will not be able to change his mind and go back, without the desire of the employer. Dismissal at the initiative of the employer implies a desire to get rid of the worker. To do this, a proposal to terminate the employment agreement is provided in writing with the date of departure from the organization, company, firm.

An employee may refuse proposed actions, no matter under what conditions they are offered. An employer does not have the right by law to fire a person, except in cases of change of owner of an enterprise, firm, organization, who has the right to change the composition of employees, workers, etc.

All illegal actions, in the opinion of the employee, can be appealed in court.

The advantages for the employee in this case are that the employer does not bring the situation to court proceedings, you can count on monetary compensation and other “bonuses.”

Having formalized your employment relationship, you can rest assured that on another wonderful day you will not be thrown out onto the street without salary and benefits.

Today, legislation provides for several ways to terminate an employment agreement. At the same time, each has its own advantages and disadvantages.

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If any difficulties arise, it is best to enter into a special severance agreement.

What does it mean

Today, the dismissal procedure can be initiated by any of the parties to the contract. But at the same time, it is much easier for the employee himself to do this.

At the same time, the employer cannot do this so simply - in most situations, the Labor Code of the Russian Federation is on the side of the ordinary employee.

The considered method of terminating labor relations is provided for by the Labor Code of the Russian Federation. Should be used with current editions dated 07/13/15.

The basis for termination of the employment relationship is the wish of any of the parties to the contract.

In this case, a special agreement must be concluded in writing. This point is strictly mandatory – especially for the employee himself.

If any controversial issues arise, it may be necessary to go to court. An appropriately drawn up agreement will be a documentary basis for presenting claims against the employer on a par with an employment contract.

Moreover, the format of this agreement is not fixed in the legislation in force on the territory of the Russian Federation.

But it must necessarily contain the following sections:

• pre-agreed conditions;
• date of drawing up the document and dismissal of the employee;
• employee signature;
• reason for dismissal.

The employee needs to be as careful as possible and before signing an agreement of the type in question, be sure to carefully read its terms.

Since the employer often tries in this way to reduce the compensation payment upon termination of the employment contract. It is advisable to first consult with a lawyer regarding the contents of this type of document.

After dismissal by this method, a corresponding entry must be made in the work book with reference to the Labor Code of the Russian Federation.

Subject to compliance with the legislation in force in the Russian Federation, this process of terminating an employment agreement is usually beneficial not only to the enterprise, but also to the employee himself.

Pros and cons for the employee

Dismissal by agreement of the parties has some advantages and disadvantages. The positive points include the following:

• it is possible to independently designate the date of dismissal and avoid working off;
• demand compensation from the employer - if the employment contract is terminated on his initiative;
• upon registration with the employment service, increased social assistance is paid.

The most important advantage of an agreement of this type is the ability to terminate the contract at the most convenient time.

This is especially true for situations where it is the employer who initiates the termination of the employment contract.

In this case, the employee himself has the opportunity to set conditions. And this applies not only to the date of dismissal, but also to the amount of monetary compensation.

You can avoid the need to work for a two-week period - as if you quit at your own request.

Since this method of terminating an employment contract involves searching for a new employee to replace the one who just quit. And only the employer can decide whether the resigning employee will work.

In some individual cases, the employee has the right to demand an increase in monetary compensation - in addition to that provided in accordance with the Labor Code of the Russian Federation.

Under certain conditions (liquidation of the enterprise, downsizing), the employer may agree to them.

If the dismissal person registers with the labor exchange, then if there is a document confirming dismissal by agreement of the parties, the employee has the right to receive increased social assistance. This point is enshrined in current legislation.

Also, dismissal by agreement of the parties has its serious disadvantages. These include:

• the inability to terminate this agreement unilaterally or change its provisions;
• there is a high probability of being deceived by the employer.

For example, having written a letter of resignation of his own free will, an employee has the right to withdraw it at any time convenient for him - even on the last day before the date of final termination of the employment contract.

At the same time, having drawn up an agreement with the employer and signed it, the employee will in any case be dismissed within the specified period. The agreement can be canceled only if there is mutual consent of the parties.

Often, employers take advantage of the legal illiteracy of their employees - they draw up contracts in such a way that the amount of monetary compensation will be minimal.

There are a large number of ways to carry out such operations. Therefore, before signing, you should carefully read each clause in the agreement. This will reduce the likelihood of fraud.

How to formalize dismissal by agreement of the parties

The registration process by agreement of the parties takes a minimum amount of time. A prerequisite for completing this operation is the presence of a special agreement in writing.

This document must necessarily include the following sections:

• the date of the agreement;
• place of conclusion of the agreement;
• last name, first name and patronymic, as well as other details:
  • employee;
  • employer;
• passport details of an officially employed employee;
• individual tax number of the employer;
• signatures of the parties who previously entered into an employment contract (based on the Labor Code of the Russian Federation).

The only difference from the standard procedure for dismissing an employee at his own request is the existence of the agreement indicated above.

After the date specified therein, the employer is obliged to:

• make an appropriate entry in the work book and hand it over to the employee or his authorized representative (or send it by mail);
• on the day of dismissal (maximum - the next day) pay the compensation specified in the agreement, as well as the compensation required in accordance with the Labor Code of the Russian Federation.

Violation of the settlement date is punishable by a fine in the amount of 1/300 of the refinancing rate per day established by the Central Bank of the Russian Federation.

At the request of the employee, the accounting department is also obliged to issue a certificate of wages received over the last two years.

What documents are needed

To dismiss by agreement of the parties, the following documents are required:

• resignation letter from an employee;
• a written agreement drawn up;
• notification of a proposal to terminate the employment contract by agreement of the parties.

There is one important nuance regarding the preparation of a resignation letter. If, when terminating an employment contract at the initiative of the employee, there is no need to indicate the reason for dismissal, then when terminating by agreement of the parties, it will need to be indicated.

In this case, the resignation letter itself must contain the following information:

• last name, first name and patronymic:
  • employee;
  • the general director or other official who has the authority to sign the application;
• a clearly formulated request for dismissal;
• date of dismissal;
• employee signature;
• employer's signature.

If the initiative to terminate the employment contract in this way comes from the employer, then he needs to draw up a corresponding notice.

It outlines the most important points regarding dismissal, as well as other information. This document can be delivered either personally or by mail or registered mail.

Are payments subject to personal income tax?

Today, citizens of the Russian Federation, as well as its foreign residents, are required to pay personal income tax – personal income tax – on almost all their income.

Moreover, this fee affects almost any income. Its value is 13% for citizens of the Russian Federation and other persons.

On compensation paid by the employer upon dismissal by agreement of the parties, personal income tax is not charged on the entire amount, but only part of it:

• not exceeding three times the average monthly salary;
• not exceeding six times the average monthly salary if the employee was employed in the Far North or in regions equivalent to it.

This point is covered in as much detail as possible in the legislation in force in the Russian Federation:

• letter from the Ministry of Finance dated June 26, 2014;
• Letter from the Ministry of Finance dated 04/07/14

The situation is similar with contributions to various types of funds. But it should be taken into account that different regional offices interpret the legislation affecting this issue differently.

Position #1: According to current laws, fees to extra-budgetary funds are not imposed on various compensation payments related to the termination of an employment contract with an employee. (Federal Law of July 24, 2009).

But at the same time, the payment transferred by the employer by agreement of the parties is not established by the legislation itself and is not mandatory. Therefore, insurance premiums for it should be calculated in any case.

Position #2: The objects of taxation of fees in favor of various extra-budgetary funds are various payments to individuals in accordance with employment contracts. (Federal Law of July 24, 1998).

But at the same time, the compensation transferred according to the agreement does not fall under the scope of the employment contract concluded with the employee. Accordingly, no fees need to be paid.

This moment is quite complicated. That is why the employer must first consult directly with the local offices of the Pension Fund of the Russian Federation and the Social Insurance Fund. This will avoid the occurrence of various quite serious problems.

Features of dismissal by agreement of the parties with payment of two salaries

Often, dismissal by agreement of the parties is carried out when staff reductions are coming.

The employee himself needs to know that in this case the employer will be obliged to pay monetary compensation in addition to what is required under the Labor Code of the Russian Federation in the amount of the average monthly salary.

At the same time, a smaller amount cannot be indicated in the agreement - this contradicts the legislation in force in the Russian Federation.

However, receiving a second salary is possible only if an appropriate agreement is concluded with the employer.

Since neither the Labor Code of the Russian Federation nor federal legislation obliges to pay a second salary even with a layoff. But there are exceptions.

For example, if a military personnel whose service is less than 20 years is laid off, then he is paid exactly 2 salaries. If the service period is more than 21 years, the reduction means receiving at least 7 monthly salaries as compensation.

Which is better: dismissal by agreement of the parties or layoff?

Most often, the employer offers its employees to resign by agreement of the parties only in the event of liquidation of the enterprise or layoff.