By agreement of both parties. Termination of an employment contract by agreement of the parties

Despite the fact that the Labor Code of the Russian Federation (LC RF) has been in force for over 4 years, it contains legal norms that at first glance seem unremarkable and not at all difficult to apply. However, upon closer study and analysis of their text, the implementation of the provisions contained in them raises significant difficulties. Thus, Article 78 of the Labor Code of the Russian Federation, which regulates dismissal by agreement of the parties, in brevity, confidently holds the palm among its “neighbors” under the Labor Code. The procedure for terminating an employment contract on this basis is not prescribed in any regulatory document, so our practical recommendations for documentation should come in handy.

Features of dismissal by agreement of the parties

Dismissal by agreement of the parties has its own characteristics.

Firstly, VIn accordance with Article 78 of the Labor Code of the Russian Federation, an employment contract can be terminated on this basis at any time. This means that Article 78 of the Labor Code of the Russian Federation allows fire an employee both during the period of his being on vacation, and during the period of his temporary disability, which cannot be done upon termination of the contract at the initiative of the employer (except in cases of liquidation of the organization or termination of the activities of the employer-individual). At the same time, no control is provided on the part of trade union organizations over the dismissal of workers on this basis.

Secondly, so way not only the employment contract, but also the student contract may be terminated, which, according to Article 208 of the Labor Code of the Russian Federation, is terminated on the grounds provided for termination of an employment contract.

Technique for terminating a contract by agreement of the parties

Please note the following point. Article 78 of the Labor Code of the Russian Federation regulates dismissal by agreement of the parties. But the Instructions for filling out a work book require reference in this case to paragraph 1 of Article 77 of the Labor Code of the Russian Federation. Since the basis for making an entry in the work book is an order, it must also contain a reference to clause 1 of Art. 77 Labor Code of the Russian Federation. For the same reason, we indicate this article in all possible documents preceding the issuance of the order.

Now we will try to explain the procedure for carrying out such a dismissal. Before terminating an employment contract in this way, one of the parties (employee or employer) must offer to do so.

Initiating document

Let's first imagine what it is the employee expressed a desire break up by mutual agreement. In this case, he should send unilateral offer to the employer about termination with him labor relations, in terms of civil law, an offer , which can be accepted (“approved”) by the employer or not. The proposal is submitted in the form of an application.

This is where problems arise with writing the text of a document. A fairly common mistake is to use the following formulation:

Which sides? Reading such a statement, you think that, secret from the employee, the employer will be forced to let him go on all four sides only after concluding an agreement with some mysterious third party.

It seems that it would be more correct to compose the text of the statement in one of the following ways:

Please note the following point. To terminate the employment contract by agreement of the parties, the employee’s request must be expressed in one of the above ways (Examples 2 and 3). If the employee wrote a statement asking fordismissing him at his own request, even if the employer expresses consent, it does not automatically transform into an agreement of the parties.

An example of a correct application is presented in Example 4.

If the initiator termination of the contract is the employer, then he will have to send an offer to the “unhappy” employee. When drafting the text of this document, it should be remembered that the employer is not obliged to motivate his proposal in any way.

Proposal to terminate the employment contract might look like Example 5.

Agreement and order to terminate the employment contract

After the parties reach a consensus, it is necessary to draw up the agreement on termination of the employment contract.

Convenient if initially conditions for termination of an employment contract on this basis were introduced V text of the section of the employment contract, providing the grounds for its termination. A fragment of the employment contract in this case may look like this:

Procedure for termination of employment relations on this basis can also be stipulated in the collective agreement between employees and the employer.

When drafting an agreement, you can use the language presented in Example 7.

It is worth noting that the text of Article 78 of the Labor Code of the Russian Federation does not say about the need for written form agreement between the parties at termination of an employment contract. For this reason, often the employer and employee, not having any claims against each other and not being interested in each other, do not formalize this “agreement” in writing. However, according to the author of the article, this is not entirely true. An agreement must be drawn up in any case. On its basis an order is issued. Completed form dismissal order by agreement of the parties is given in Example 8.

“Advantages” of dismissal under paragraph 1 of Article 77 of the Labor Code of the Russian Federation

Both for the employee and for the employer there are advantages of applying paragraph 1 of Art. 77 Labor Code of the Russian Federation.

The “advantages” for the employee in this case are as follows:

• continuous service is maintained for one month after dismissal, and not for three weeks, as in the case of termination of an employment contract at one’s own request without good reason;
• if a person registers with the employment service, the benefit will be paid to him in a much larger amount and for a longer period of time than in case of dismissal of his own free will without good reason.

Employer benefits:

• there is no requirement to coordinate the dismissal with the trade union body, and in cases with employees under eighteen years of age - with the state labor inspectorate and the commission for minors;
• no compensation or other guarantees are provided for termination of employment relations with an employee(unless this is expressly stated in the employment or collective agreement).

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 formulation is often found, but not all employees understand its meaning, so for now they prefer the proven interpretation of “dismissed of their own free will.”

Clarifications 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 a 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 employment contract is terminated. 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 amount;
• 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 court. 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 has no legal right 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 the employee agreed to enter into an agreement in order 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 is a 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;
   • a request to terminate the employment relationship under 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 in any way 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.

Dismissal by agreement of the parties is suitable for the company in almost all cases, even when the initiative for dismissal comes from the employee. In the agreement, you can specify all the conditions of dismissal: the period of dismissal, the amount of amounts to be paid to the employee in connection with the dismissal, the procedure for transferring the work record book, the amount and procedure for compensation for material damage caused by the employee.

There is always a risk of lawsuits, but in this case it is less likely than with dismissal on the initiative of the employee, and even more so on the initiative of the employer. There is a possibility that an employee will go to court to challenge an agreement to terminate an employment contract if the terms of such an agreement are clearly illegal, violate or infringe on the rights of employees.

An agreement is concluded with the employee on the termination of the employment contract, in which it is recommended to stipulate: the term of termination of the contract, the terms of payment and the amount of compensation paid upon dismissal, the conditions for compensation for material damage, the procedure for issuing a work book to the employee, the condition that the employee has no claims against the employer, including including the amount of compensation to be paid.

In order to receive the average earnings retained for the second month, the employee submits to the employer a corresponding application and a work record book, which does not contain a record of employment at the end of the second month from the date of dismissal.

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it. An employee may initiate dismissal by agreement of the parties under any circumstances. In practice, the initiative in most cases comes from the employer.

To minimize the demotivational effect on the remaining employees, you need to show loyalty to them, encourage them, hold events that support the corporate spirit in the company, and generally behave like human beings.

Anton Tolmachev, General Director of the legal company "YurPartner"

According to, an employment contract can be terminated at any time by agreement of the parties. Thus, both the employee and the employer can initiate dismissal on this basis. Such dismissal is formalized either by an employee’s statement with the employer’s resolution, or by a separate document - an agreement to terminate the employment contract. Each party must have the original or a certified copy of this agreement in hand. In addition, the employer is obliged to issue a dismissal order and familiarize the employee with it against signature.

When terminating an employment contract by agreement of the parties, the most important thing is that the fact of dismissal and its conditions suit both the employee and the employer. The agreement of the parties, as a rule, contains the employer’s obligations to pay severance pay, provide vacation, and assistance in further employment. In addition, this document may stipulate the employee’s obligation to conduct an inventory, submit financial statements, transfer certain documents, or vacate the workplace. I believe that the more detailed the agreement is drawn up, the easier the dismissal itself will be.

From a procedural point of view, dismissal by agreement of the parties is the easiest and fastest way to “say goodbye” to an employee: in this case, there is no need to send advance notice of dismissal, offer to transfer to another job, or exercise the preemptive right to remain at work. In addition, it is possible to terminate an employment contract by agreement of the parties with a minor, with a pregnant woman, and with an employee on vacation or sick leave. Therefore, employers often “disguise” other methods of dismissal under the agreement of the parties.

For example, you don’t like this or that employee, but there is no reason to fire him “under the article”. Inform him of your desire to terminate the employment contract by agreement of the parties, offer good recommendations, a free schedule while looking for a new job, or a small monetary compensation - and the problem can be solved. If your company is planning a staff reduction that partners and competitors should not know about, agree with the candidates for dismissal to terminate the contract by agreement of the parties. The main thing is to ensure that the agreement includes conditions that are beneficial to both you and the employee. This can only be done through negotiations.

Sometimes the employee himself is happy to initiate the termination of the employment contract by agreement of the parties. It is especially “beneficial” for an employee to terminate the employment relationship in this way if he has committed an offense for which he faces dismissal: he was absent without good reason for the entire working day, appeared in a state of intoxication, or committed theft at the place of work. So you shouldn’t think that if a person was fired by agreement of the parties, his former employer is necessarily hiding something or pursuing bad goals.

Ultimately, the parties may decide to terminate the employment contract by agreement and without any reason. So this wording is no worse than the entry “dismissed at his own request.” And some employers even believe that the dismissal of an employee from his previous job by agreement of the parties indicates his loyalty, non-conflict behavior and willingness to compromise, which is very much valued in difficult times of crisis.

Alexander Yuzhalin, leading lawyer of the Department of Labor Law of the Institute of Professional Personnel

The initiator of termination of an employment contract on this basis can be either the employee or the employer. At the same time, the key feature of this basis for terminating an employment contract is the expression of the will of the two parties. Accordingly, if one of the parties objects to the conclusion of such an agreement, termination of the employment contract on this basis cannot be applied.

A distinctive feature of this procedure is that the employment contract in the case under consideration can be terminated at any time. The legislation of the Russian Federation does not define the procedure for drawing up and concluding an additional agreement. In practice, a proposal to terminate an employment contract on this basis can be drawn up by a party in writing, indicating the conditions under which the employment contract will be terminated. If the second party agrees, it is subsequently drawn up and signed.
additional agreement in writing, indicating the terms to be negotiated.

It is necessary to pay attention to two conditions for terminating an employment contract: the date of termination of the employment contract and the payments that the employer undertakes to make upon dismissal. These conditions are not regulated by law, so the parties must agree on this themselves. As practice shows, the conditions for payment to the employee of a certain amount of money upon dismissal are key when deciding whether to agree to terminate the employment contract or refuse. In this case, the employee and the employer must decide on the appropriateness of such payments and make a decision for themselves - to agree or refuse the conditions proposed by the other party.

If the employer needs to terminate the employment contract with the employee on this basis, and the employee is against such termination, the only way to achieve the desired result is to offer the employee more favorable conditions under which he will agree to terminate the employment contract. It is quite problematic to name the average amount that is usually paid in such cases. This is due to the fact that each case of termination of an employment contract on this basis is individual. The size of the payment may depend on the financial condition of the employer; on the amount of wages the employee receives; from the position held by the employee; on the reason that served to put forward the initiative to terminate the employment contract.

Svetlana Lenkova, HR Director at TNG GROUP

It is most suitable for a company to dismiss employees by agreement of the parties, when the employer wants to get rid of the employee, but cannot or does not want to use any “unfriendly” articles of the Labor Code to dismiss the employee.

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

Dismissal by agreement of the parties does not in itself provide any compensation or guarantees to the employee (unless this is expressly stated in the employment or collective agreement). That is, all compensation to an employee is regulated only by his agreement with the employer - there is no need to rely on “automatic” payments. Everything depends on the results of negotiations between the employee and the employer.

The employee will not be able to unilaterally withdraw his consent and “cancel” his dismissal - the agreement between the employee and the employer to terminate the employment contract comes into force immediately after it is signed by both parties.

The procedure for terminating an employment contract upon dismissal by agreement of the parties:

• The employee is asked to sign the document “Proposal to terminate the employment contract”, on which the employee writes by hand “I have read the proposal”.
• The employee writes by hand the consent to dismiss by agreement of the parties and the date of termination of the contract.
• The dismissal agreement is signed.
• A dismissal order is issued.
• The employee signs the dismissal order and receives a work book and a paycheck.

If dismissal by agreement of the parties occurs on the part of the employee, then the procedure is the same, only the employee brings the proposal, and the employer writes the consent.

An employee can initiate dismissal by agreement of the parties when he urgently needs to quit without working for two weeks. Dismissal by agreement of the parties gives him just such an opportunity: this wording does not provide for the need to work off; it is possible to agree on a specific date for dismissal.

The following situation is also possible: an employee has decided to quit and wants to notify the employer about this in advance in order to be able to attend interviews more freely, but would not like to leave until he finds a new position. For example, an employee is sure that within a month he will definitely find a new job. And dismissal by agreement of the parties gives him the opportunity to agree on any date of dismissal - even after a few months.

The employee is asked to sign the document “Proposal to terminate the employment contract”, on which the employee writes by hand “I have read the proposal”. If the dismissal occurs in order not to dismiss the employee under the article, then compensation is not provided. If the dismissal is due to other reasons, the compensation, as a rule, is two to three salaries.

Every 2 citizens of the Russian Federation went through the procedure of terminating their employment relationship. In most cases, dismissal occurs by agreement of the parties. The employer and subordinate can terminate the employment relationship by mutual agreement. Each party needs to have an idea of ​​how to correctly formalize the termination of an employment contract.

The following factors may serve as reasons for cancellation of an employment contract by agreement of the parties:

1. Receiving monetary compensation from the company in the form of dismissal payments.
2. Violation of obligations under an employment contract. When a citizen seriously violates the rules of labor discipline, this may result in forced dismissal. In order not to spoil the reputation, the head of the organization can make concessions and terminate the relationship by mutual agreement.
3. An opportunity for an employer to dismiss categories of persons whom it does not have the right to dismiss under other circumstances (women on maternity leave or pregnant women).

Most often, the employer is the first to take the initiative when dismissing someone, since it is beneficial for him to get rid of, for example, an unscrupulous employee or to hire an acquaintance for the position. If something does not suit an employee, he may well resign of his own free will.

Pros and cons for an employee when terminating a business relationship by agreement

Cancellation of an employment contract by agreement of both parties can be beneficial for both the employer and the subordinate. As with all situations, there are pros and cons.

Positive sides

Dismissal of an employee by agreement of the parties is beneficial to him for the following reasons:

• Both the worker and the employer can offer to resign;
• a staff member has the right not to indicate in the application the reason for leaving work;
• the applicant is not required to work 14 days before leaving the place of work completely;
• if the employer was the first to take the initiative, then the applicant has the right to demand monetary compensation in the form of severance pay, and negotiate its amount and timing of payments;
• an entry in the employee’s book will not in any way ruin the employee’s reputation;
• if you are asked to resign due to any violation, ending the working relationship by agreement of the parties is a beneficial option;
• after this type of dismissal, the person will still have work experience for a month;
• leaving work by agreement of the parties will give the citizen the right to register with the labor exchange and receive a good unemployment benefit.

Cons for a repaired one

In this case, there are some disadvantages for the employee:

• in this situation, the employer can fire even in cases prohibited by law;
• trade union organizations cannot control the legality of the procedure;
• the director of the enterprise may refuse to pay monetary compensation;
• if the application has already been agreed upon and signed by the manager, the employee will not be able to change his mind and cancel the application;
• in this situation, the manager is almost always right, and the courts are on the employer’s side.

Is this procedure beneficial for the employer?

Dismissal by agreement of the parties may be convenient for the manager in the following cases:

1. The employer is not satisfied with how the subordinate performs his duties, and he wants to dismiss him in an amicable manner.
2. Dismissal by mutual consent is convenient for the director in cases where there is no desire or opportunity to carry out the staff reduction procedure.
3. An employer can resort to this procedure when he wants to get rid of a person whom he does not have the right to fire in any other way.

Most often, the initiator of termination of a working relationship by mutual agreement is the manager.

Important! Neither party in this matter has the right to put pressure on the other in its own interests.

What is better: an agreement among ourselves or only personal desire?

A certain type of dismissal from an enterprise can be beneficial for either the employee or the manager. For the first, most often, it is advantageous to leave of his own free will, and for the employer - by agreement. There are advantages and disadvantages in both the first and second cases.

The main advantages of dismissal by agreement:

1. The employee has the right to set his own dismissal date. This is beneficial to a citizen when he is looking for a new job, but does not yet know exactly when he should start it. In this case, in the old place, the person himself regulates the terms of dismissal, but in agreement with the manager.
2. When a citizen leaves his place of work in this way, he can go to the labor exchange, register for unemployment and receive decent pay for this. This option is valid when the initiator of the cancellation of the relationship is the head of the enterprise.
3. If dismissal is, first of all, the desire of the manager, then the employee always has the right to count on monetary compensation.
4. The work experience still lasts for 30 days after the termination of the employment relationship.

Among the disadvantages of this method are the following:

• If the employee and the employer have agreed and discussed everything, the application is signed by both parties, then the resigning citizen will no longer be able to change his mind. Dismissal in this situation will occur in any case.
• Dismissal by agreement does not provide for any benefits or payments by law; everything happens by agreement of the parties. If you come across an unscrupulous employer, he may not pay the citizen a penny.
• No one has the right to unilaterally cancel an application for dismissal by agreement of the parties.
• When applying for a new job, the director may ask to explain the reason for his dismissal from the previous place.
• An employer can even fire a pregnant or maternity woman using this method.

Dismissal on your own initiative has the following advantages:

1. This method of dismissal gives the citizen great guarantees. Always with such a turn of events, the person resigning receives compensation payments.
2. When resigning on personal initiative, a person receives a standard entry in the work book, which does not raise questions from subsequent employers.
3. Having expressed a personal desire to leave the enterprise, an employee may change his mind and remain employed.

Among the disadvantages of this type of dismissal are the following:

1. After a citizen’s personal request for dismissal, he is still required to participate in the work process for 14 days.
2. Dismissal is always agreed upon with trade union organizations.
3. Unemployment benefits will be minimal.
4. The internship is terminated immediately.

The director of the company and the employee have the right to independently choose the most profitable method of dismissal for themselves, weighing all the pros and cons.

Reduction or by agreement?

When an enterprise plans to reduce staff, some managers offer their subordinates a different arrangement - to leave their position by agreement of the parties. What is more beneficial for the employee and the employer?

This can be beneficial for managers in the following situations:

1. There is no need to warn the subordinate about dismissal in advance; an agreement to terminate the working relationship can be drawn up at any time convenient for the parties.
2. It is unlikely that an employee can start a lawsuit for leaving work and win it.

For an employee in this situation, the main thing remains the financial side of the issue. If it is more profitable for the manager to dismiss a citizen by agreement of the parties, then he will have to offer him a good financial reward.

There are no legislative acts stipulating the financial side of the issue when terminating a relationship by agreement of the parties, so the employer and employee can come to a common denominator in matters of severance pay. If the director of the company offers a subordinate compensation in the amount of 3-5 salaries, then formalizing the resignation with the consent of the persons can be beneficial for both.

Another advantage of terminating the contract by agreement of the parties is the prospect of further employment. If the workforce is reduced, the employee will not be able to immediately find a new job. He must not work for 2 months if he wants to register as unemployment, and receive compensation for this. After dismissal, by agreement of the persons, the former employee of the organization can formalize a new working relationship.

Is it possible to perform the procedure without written consent?

When dismissing employees by mutual agreement, its formalization is always provided. It is recommended to do this in writing, but there are no provisions in this regard in the Labor Code.

If the initiator is the head of the company, then he sends a letter to the citizen in writing indicating the reason and deadline. When a worker does not agree with the rules for terminating a business relationship proposed by the employer, he can also express his point of view in writing.

If an employer needs to fire several employees at once, he must convene a general meeting and hold negotiations in which everyone will express their opinion. If during the negotiations all employees agree with the leader, then a letter of agreement is drawn up separately for each. The dismissal agreement by mutual consent of the parties is always drawn up in 2 copies.

How to correctly cancel an employment contract with the consent of persons?

Termination of the contract and preparation of all necessary documents occurs in several steps:

1. Registration of written consent of both parties.
2. Drawing up a dismissal order by the employer.
3. Familiarization with the worker's documents.
4. Entering data into the employee's personal file.
5. Reflection of the entry required by law in the workbook.
6. Drawing up settlement documents and familiarizing the employee with them.
7. Payment of all required compensations, benefits, bonuses to the employee.
8. Give the employee the documents he is entitled to.
9. If necessary, inform the military authorities in a timely manner about the employee’s dismissal.

Each point has its own nuances and requires detailed consideration and explanation.

Registration of written consent

• the last day that the citizen will work at this enterprise;
• the right to paid leave before dismissal;
• required compensation payments to the employee;
• rules for transferring work responsibilities.

Attention! Neither party can protest against the terms of the agreement drawn up and refuse to comply with them. Any clauses of the agreement can be changed only by mutual agreement.

Drawing up an order

The main document that serves as the basis for termination of an employment contract is an order drawn up by the employer. This document is registered under an individual number by the secretary of the enterprise in the order journal.

The order does not indicate a specific reason for dismissal, but puts the entry “by agreement of the parties.” Also, the conditions of dismissal specified in the agreement are not specified.

Familiarization of the employee with the documentation

The dismissed employee must be familiar with the written dismissal order. To confirm that the employee is familiar with the document, he puts his signature on it.

An employee, if desired, can ask for copies of the necessary papers, and the head of the company should not refuse the request.

When the employer does not have the opportunity to familiarize the dismissed person with the document so that he can sign, then a corresponding entry is made on the order about the impossibility of familiarization. The same is done if the employee refuses to sign this document.

Entry in personal file

When an employee is hired for a position in a company, a personal file is created for the employee. During the procedure for dismissal from an enterprise, a certain mark is also placed in the personal file, which indicates the order number and the date of termination of the employee’s work. The employee must be familiar with the entry in the personal card and sign. If the person leaving does not want to sign this document or does not have the opportunity to do so, then the HR department employee and the employer sign the document in their own hand and draw up a corresponding act.

Mark in the work book

A note is placed in the employee’s book that the employee was dismissed in accordance with the order (the number of the order and the date of its preparation are indicated). The entry will contain the following content: “Dismissed by mutual decision,” and a reference to Article 77, Part 1 of the Labor Code of the Russian Federation is indicated. The reason for the termination of the relationship is not indicated in the work book.

Responsibility for entering information into the work book rests entirely with the head of the organization, and he will be punished and will return monetary compensation to the employee in the event of incorrect wording or illegal dismissal.

Drawing up settlement documents

The settlement document is drawn up to take into account all the required compensation in cash equivalent to the employee upon dismissal. Such compensation may include unused vacation, sick days, unpaid days worked before dismissal and other payments.

HR services are responsible for drawing up and processing settlement documents, and accountants are responsible for calculating all payments.

The first page contains general information about the company and the employee, and also notes how many days the employee did not use as vacation. On the second page, a complete calculation of all funds is carried out, all tax accruals and withholdings are indicated, and as a result, the amount receivable in cash is worth.

Full payment calculation

Upon dismissal, the employer is obliged to return all accrued funds due to the employee.

These include:

• payment for days worked by the employee until the date of termination of participation in the work process of the enterprise;
• payment of unused days of annual leave;
• payment of severance pay, if stipulated in the agreement.

The issuance of all due funds is made on the day that will be the last for work at this enterprise. If this is not possible due to the employee’s absence from the workplace, then the manager is obliged to make all payments no later than one day following the date of the employee’s request for payment.

The Labor Code of the Russian Federation provides for the payment of benefits in connection with the dismissal of an employee with the consent of the manager. In accordance with Article 181, Part 1 of the Labor Code of the Russian Federation, such benefits cannot be paid to an employee who had to be fired due to a violation of labor regulations. The Labor Code also provides for a certain amount of compensation upon dismissal by agreement of the parties for certain categories of employees. These categories include managers, their direct deputies, as well as accounting employees.

Issuance of documentation to the employee

On the last day of the employee’s participation in the work process, the director of the company must hand over the necessary documents:

1. A work record book with a corresponding record of the employee’s dismissal in accordance with the order. The employee must sign for receipt of the work permit.
2. Certificate of salary calculation for the last 24 months.
3. Certificate of insurance pension contributions for the entire period of work.
4. Certificate of average salary (issued if the employee plans to register for unemployment after dismissal).
5. Certificate with a note on work experience.
6. Other documents that the employee has the right to request.

All documents must be issued to the employee directly on the day of dismissal. If this is not possible, then within 3 working days.

Notification of military authorities about the dismissal of an employee

If the dismissed employee is a citizen liable for military service, the employer is obliged to notify the relevant authorities of his dismissal within 14 days.

What controversial situations may arise?

Often, during dismissal, the parties' opinions on any issue differ. For example, an employer does not want to deal with the reduction procedure, since it requires more time and serious costs. The employee must be notified of the planned layoff 60 days before the expected date.

Dismissal by agreement of the parties in this case will be a beneficial help for the manager, since it is not necessary to keep the employee in office for a long time, and the director can get off with a small severance pay if dismissed by agreement of the parties. This approach is used by managers who need to quickly get rid of an employee in order to hire a friend or relative.

Sometimes an employee can start disputes. For example, he needed to reschedule his dismissal a little. In this case, you must start the entire document submission procedure again. Conduct a conversation with the manager, and if he agrees to change the date, a new agreement is drawn up and a new statement is written. If the parties come to a mutual opinion, then the old documents are canceled and new ones are drawn up.

conclusions

So, dismissal by agreement of the parties can be convenient for both the employee and the employer. The employee's benefit mainly depends on the reliability and integrity of the manager. Even in the event of a staff reduction, dismissal by mutual agreement may be more profitable if the manager well rewards the subordinate for compliance.

The employee and the manager must discuss everything in detail so that later controversial situations do not arise. If the citizen and the employer are able to come to an amicable agreement, the director, for his part, pays good compensation, and the employee does not make high demands for dismissal, then the parties will be able to end their labor relationship on a positive note.