If not dismissed by agreement of the parties. Rules for dismissal by agreement of the parties. How best to quit if the employer does not agree

The agreement of the parties is easy to document. The actions of the employer are practically indisputable in court, since in this situation there are no preferential categories - the employment contract can be terminated even with a pregnant woman.

For an employee, dismissal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation is a characteristic of its non-conflict, which future employers will appreciate.

STRATEGY OF DISMISSAL BY AGREEMENT OF THE PARTIES.

What to do if the employee does not agree to the terms of dismissal?

In this case, experts advise to conduct competent negotiations with him. Here are a few tips to help you achieve results.

If the employer has decided to dismiss, the dismissal must take place for any reason. There is no way back. Therefore, it is necessary to study various ways dismissal of an employee at the initiative of the employer (they are listed in Article 81 of the Labor Code of the Russian Federation) and analyze which of them can be applied in a particular case - that is, prepare a plan B.

It must be remembered that dismissal is possible due to both “guilty actions of the employee” - for example, appearing at the workplace in a state of intoxication, absenteeism, gross violation job duties, and "innocent" - for example, layoffs, changes in conditions employment contract. Moreover, if the employer has chosen a “guilty” strategy, then, when developing plan B, he must adhere only to it - for example, collect evidence. A similar situation is with the "innocent" strategy. Throwing is not allowed.

It is necessary to prepare for dismissal negotiations carefully, but it is more efficient to conduct them on the same day, as they say, “to resolve the issue immediately”, even if the negotiations are dragging on and everyone wants to disperse, postponing the decision for tomorrow. Perhaps tomorrow everything will be different and the efforts of the employer will break against the wall of doubt and reflection, often unreasonably erected by the employee during the break provided.

The presence of real evidence that an alternative dismissal option is possible will allow you to quickly reach an agreement in negotiations with an employee who should be dismissed by agreement of the parties.

When preparing for negotiations, you need to collect as much information about the employee as possible: whether he has a mortgage, whether there are dependents, what kind of family. Those who are alone and not burdened with payments make concessions more easily than those who are bound by financial obligations.

The structure of the negotiation is also important. As a rule, it is as follows: reconciliation with the dismissal, discussion of alternative moves (plan B), bidding, final part, registration of the agreement. Someone thinks that the main thing in this process is bidding. In fact, the key is the procedure for reconciliation with the dismissal. For an employee, the message of the upcoming dismissal is a shock. And how well contact is established with the employer at the first stage of negotiations, their result will be so successful. How long can reconciliation last? As much as needs. Only after the employee understands that the dismissal is inevitable and it is not as scary as it seems at first glance, you can proceed to the next stage.

At the end of the negotiations, you need to cheer and thank the employee, switching his attention to the paperwork.

Pitfalls of dismissal by agreement of the parties.

And now, using examples of specific court cases, we will consider several issues related to the termination of an employment contract by agreement of the parties.

CAN AN EMPLOYEE BE RETURNED TO WORK IF THEY BELIEVE THAT THE TERMINATION BY AGREEMENT OF THE PARTIES WAS SIGNED UNDER THE PRESSURE OF THE EMPLOYER?

If the employee proves that the employer forced him to sign a dismissal agreement under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation, then reinstatement is possible. If not, the court will take the side of the employer. Example - Appellate ruling of the Moscow City Court dated March 18, 2016 in case No. 33-9523 / 2016. The employee, dismissed by agreement of the parties, tried to be reinstated at work. At the trial, he said that he signed the documents on dismissal under pressure from the employer.

By virtue of the requirements of Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections.

The staff member was unable to provide convincing evidence for his claim. The employer, on the other hand, provided the court with a dismissal order by agreement of the parties, issued on the basis of the employee's application.

Since the employee and the employer agreed on the grounds and term for terminating the employment contract, the court concluded that it was legal to terminate the employment relationship on the basis indicated in the order.

A similar situation was considered by the Moscow City Court in the Appeal ruling dated September 26, 2016 in case No. 33-8787/2016.

The Deputy Director for Medical Affairs was dismissed by agreement of the parties upon graduation probationary period. The employee tried to be reinstated through the court, indicating that she signed the agreement under pressure from the employer. The court considered the employer's actions to be in accordance with labor legislation for the following reasons.

During the probationary period, the employee was reprimanded for improper performance official duties which was the reason for his dismissal. The court found that the employer had grounds for reprimanding, the procedure for imposing a disciplinary sanction and the time limits provided for in Art. 193 of the Labor Code of the Russian Federation, are not violated, the severity of the misconduct is taken into account. The employee received a notice of termination of the employment contract, which contained information about the unsatisfactory result of the test. On the same day, an agreement was concluded between her and the employer to terminate the employment contract under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, which was signed by the employee with her own hand.

Checking the plaintiff's argument that she was put under pressure by notifying her of her impending dismissal due to the failure to complete the probationary period, the court concluded that the presentation of such a notification is the right of the employer on the basis of Art. 71 of the Labor Code of the Russian Federation in the presence of an established probationary period and it cannot be considered as putting pressure on the employee, that is, the employer legally put her before the choice of dismissal on the named basis or by agreement of the parties. The plaintiff did not provide any other evidence of pressure exerted by the employer, therefore the court reasonably refused to satisfy her demands for recognition of the dismissal as illegal and reinstatement at work.

CAN AN EMPLOYER CHANGE THE GROUND OF DISMISSAL IF THE EMPLOYEE REFUSED TO RESIGN BY AGREEMENT OF THE PARTIES?

If the employee is against the conclusion of an agreement to terminate the employment contract, the agreement in accordance with Art. 78 of the Labor Code of the Russian Federation does not sign with him, therefore, dismissal under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation is impossible. In this case, the employer has the right to dismiss on another basis, named in the labor legislation.

Consider, as an example, the Appeal Ruling of the Moscow City Court dated August 16, 2016 No. 33-31927/2016. The director was announced his dismissal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation by agreement of the parties, and two days later - on changing the grounds for dismissal to dismissal under Part 2 of Art. 278 of the Labor Code of the Russian Federation. Considering that the actions of the employer were illegal, the director went to court, pointing out that he did not express his will to dismiss by agreement of the parties, and the employer had no right to change the basis for dismissal after the termination of the employment relationship.

The court sided with the employer on the following grounds. At the meeting, it was decided to terminate the powers of the director, he was offered to resign by agreement of the parties. However, due to the disagreement of the director to conclude an agreement on termination of the employment contract, the agreement in accordance with Art. 78 of the Labor Code of the Russian Federation was not signed with him and the dismissal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation did not take place.

On an extraordinary general meeting members of the organization unanimously decided to terminate the powers of the director. The employee was dismissed on the basis of paragraph 2 of Art. 278 of the Labor Code of the Russian Federation (adoption by the authorized body of a legal entity of a decision to terminate the employment contract). The court pointed out: in paragraph 2 of Art. 278 enshrines the right to terminate the employment contract with the head of the organization at any time and regardless of whether the head committed the guilty actions, and also regardless of the type of employment contract - fixed-term or indefinite. Moreover, this rule allows for the possibility of terminating an employment contract with the head of the organization by decision of the owner of the property of the organization, an authorized person (body) without indicating the motives for making the decision.

IS IT LEGAL TO DISMISSAL AN EMPLOYEE BY AGREEMENT OF THE PARTIES IF HE SIGNED SUCH AN AGREEMENT BUT THEN DEMANDED IT TO BE CANCELLED?

If an employee requires annulment of the dismissal agreement by agreement of the parties, then the employer cannot dismiss him under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation, since no agreement has been reached between the parties. At the same time, it should be borne in mind that some courts consider the requirements of the employee to be legitimate only if the reasons for refusing to sign the agreement are quite significant, for example, the woman found out about her pregnancy. In this case, the dismissal must be at the initiative of the employer in compliance with all requirements of labor legislation.

Let us consider as an example the Definition of the Armed Forces of the Russian Federation dated 06/20/2016 No. 18-KG16-45. The procurement department specialist went to court demanding her reinstatement at work. She signed an agreement to terminate the employment relationship, but, having learned about her pregnancy, she applied to the employer with a request to cancel this agreement and was refused.

In refusing to satisfy the woman's claims, the court of first instance proceeded from the fact that the dismissal was made by agreement of the parties, and not at the initiative of the employer. The mere fact that the employee was pregnant, which she was not aware of at the time of signing the agreement on termination of employment and dismissal, is not grounds for recognizing the dismissal as illegal. The Court of Appeal agreed with the findings of the Court of First Instance and their legal basis.

The Judicial Collegium for Civil Cases of the Armed Forces of the Russian Federation considered the conclusions of the previous judicial instances to be incorrect. The agreement of the parties to terminate the employment contract could not remain valid due to the absence of the will of one of the parties for this - the employee filed an application to refuse to fulfill the agreement reached with the employer on termination of the employment contract in connection with pregnancy, which at that time she did not know. Since no agreement was reached between the parties, the dismissal was actually carried out at the initiative of the employer. And termination of the employment contract at the initiative of the employer with a pregnant woman is not allowed. (part 1 of article 261 of the Labor Code of the Russian Federation). The situation when the employer did not know about the pregnancy of the dismissed employee is stipulated in clause 25 of Decree of the Supreme Court of the Russian Federation No. 1, which states: since the dismissal of a pregnant woman at the initiative of the employer is prohibited, the lack of information from the employer about her pregnancy is not a basis for refusing to satisfy the claim for reinstatement at work. Consequently, the guarantee in the form of a ban on the dismissal of a pregnant woman at the initiative of the employer is also applicable to relations arising from the termination of an employment contract by agreement of the parties.

A similar decision was made by the St. Petersburg City Court in Ruling No. 12785 dated September 28, 2009. At the time of the conclusion of this agreement, the employee also did not know about her pregnancy. Upon learning, she sent the employer a statement with a refusal to fulfill the agreement in connection with the pregnancy and a certificate from the antenatal clinic, and despite this, she was dismissed by agreement of the parties.

The court pointed out that, when initially signing the agreement, the woman proceeded from the fact that her dismissal entailed legal consequences exclusively for her personally. However, in the changed circumstances, she realized that the termination of the employment contract could lead to deterioration material well-being her unborn child. Therefore, the court recognized the motives for abandoning the original decision as significant. But the employer did not take into account the materiality of these motives, did not consider it necessary to inform the employee of his opinion on her application for refusal to fulfill the agreement, although he had necessary documents. These actions were qualified by the court as an abuse of the right.

IS DISMISSAL BY AGREEMENT OF THE PARTIES IS LEGAL IF THE AGREEMENT ON DISMISSAL IS NOT ISSUED IN A SEPARATE DOCUMENT?

The termination agreement may not be drawn up as a separate document. Let us consider as an example the Appellate ruling of the Moscow City Court dated March 18, 2016 in case No. 33-9523/2016. When resolving the dispute about reinstatement after dismissal by agreement of the parties, the court correctly considered the argument of the dismissed employee to be untenable that the parties had not signed an agreement to terminate the employment contract in writing. The Labor legislation does not indicate as a prerequisite for dismissal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation signing a separate agreement (Article 78 of the Labor Code of the Russian Federation).

IS IT ALLOWABLE TO DISMISSAL AN EMPLOYEE BY AGREEMENT OF THE PARTIES DURING THE LIQUIDATION OF THE ORGANIZATION?

If the employee himself expressed a desire to sign a dismissal agreement, then dismissal by agreement of the parties is legal even on the day the organization is liquidated. When the employer offered to sign such an agreement to the employee immediately before the decision to liquidate the organization, then this dismissal is unlawful, since in fact there is a dismissal in connection with the liquidation of the organization.

Upon termination of the contract in connection with the liquidation of the organization, the employee must be provided with all the guarantees and compensations provided for by law. So, in the Bulletin judicial practice Omsk Regional Court” (No. 3 (44) for 2010) states: sometimes employers, in order to avoid paying compensation upon termination of an employment contract due to the liquidation of an organization, established by Art. 178 of the Labor Code of the Russian Federation, terminate employment contracts for other reasons, including by agreement of the parties, which entails the recognition of the dismissal as unlawful. Example - Determination of the Judicial Collegium for Civil Cases of the Omsk Regional Court dated January 27, 2010 in case No. 33-516 / 2010. In connection with the entry into force of Law No. 244-FZ, the employer decided to liquidate the organization. Employment contracts with casino managers were terminated by agreement of the parties the day before the liquidation. The court found the employer's actions illegal.

IS THE EMPLOYER OBLIGED TO PAY COMPENSATION TO THE EMPLOYEE IN THE TERMINATION OF THE EMPLOYMENT CONTRACT BY AGREEMENT OF THE PARTIES?

Labor legislation does not oblige the employee to pay compensation upon termination of the employment contract by agreement of the parties. However, if the condition for this compensation is contained in the agreement on termination of the employment contract and it is included there lawfully (does not contradict the requirements of labor legislation and previously fixed agreements), then the employer is obliged to pay compensation.

When an agreement on termination of an employment contract, which provides for the payment of compensation upon dismissal of an employee by agreement of the parties, contradicts, for example, a previously concluded employment contract or the Labor Code of the Russian Federation, the payment of compensation is illegal, which was pointed out by the Supreme Court of the Russian Federation in the Ruling of 10.08.2015 No. 36-KG15-5 . The employee was asked to terminate the employment contract by agreement of the parties with the payment of compensation. The condition for the payment of compensation upon dismissal was contained in an additional agreement to the employment contract. However, after the dismissal, the employer did not pay compensation in the agreed amount.

The court of first instance, where the woman applied, recognized the actions of the employer as correct, but then the court of appeal overturned this decision. Further, by a decision of the presidium of the regional court, the decision of the court of first instance was upheld - the employee was not entitled to compensation upon dismissal. Supreme Court confirmed this, guided by the following. The court found that indeed the additional agreement to the employment contract for the employee provided for social guarantees, including the obligation of the employer to pay the specified compensation upon termination of the employment contract with the employee in connection with the decision of the person exercising the rights and obligations of the employer.

Satisfying the claims of the employee, the court of first instance came to the conclusion that the condition provided for in the agreement on termination of the employment contract on the payment of compensation to the employee on the basis of an additional agreement to the employment contract is applicable in the event of termination of employment by agreement of the parties.

Wrong position of ships

Among other things, the court of first instance proceeded from the fact that the employer has the right to establish for the employee additional guarantees in excess of the mandatory ones determined by the labor legislation of the Russian Federation. In this regard, the agreement on the payment of compensation upon termination of the employment contract is an unconditional right of the employer and cannot be recognized as violating the rights and legitimate interests of the parties to the employment contract, since there is no local regulation prohibiting the establishment and payment of compensation upon dismissal of employees in the organization.

Supporting the decision of the court of first instance, the presidium of the regional court pointed out that the labor legislation does not contain a ban on the establishment directly in the employment contract or additional agreements to it of conditions for the payment of an increased severance pay. According to the presidium, the agreement on termination of the employment contract is an act containing the norms labor law, which by virtue of Art. 11 of the Labor Code of the Russian Federation, the employer is obliged to be guided in labor relations with the employee.

The Court of Appeal sided with the employer. Reversing the decision of the court of first instance to satisfy the claim of the employee, he proceeded from the fact that the collective agreement, local regulations, labor contract do not contain conditions for the payment of monetary compensation to the employee precisely upon termination of the employment contract by agreement of the parties, labor legislation does not provide for this payment either.

The Judicial Collegium for Civil Cases of the Armed Forces of the Russian Federation also considered that the conclusions of the courts that satisfied the claim of the dismissed employee violated the norms of substantive and procedural law. Indeed, by virtue of Part 3 of Art. 11 of the Labor Code of the Russian Federation, all employers in labor relations and other directly related relations with employees are obliged to be guided by the provisions of labor legislation and other acts containing labor law norms.

Chapter 27 of the Labor Code of the Russian Federation regulates the provision of guarantees and compensations to employees related to the termination of an employment contract. The payment of severance pay to an employee is not due for any dismissal, but only for dismissal on the grounds specified in the law - a list of grounds for paying employees severance pay in various amounts and, in certain cases, termination of an employment contract is given in Art. 178 of the Labor Code of the Russian Federation.

Termination of an employment contract by agreement of the parties is one of the general grounds for termination of an employment contract under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation - in this case, the law does not provide for the payment of severance pay to the employee.

But in addition to those established by law, additional cases of payment of severance pay and their increased amounts may be determined in the employment contract. The provision on this is contained in Part 4 of Art. 178 of the Labor Code of the Russian Federation.

Indeed, the employment contract and additional agreements to it provided for the payment of compensation upon termination of the employment contract with the employee (in addition to the grounds established by law). Here the Supreme Court, like the Court of Appeal, pointed to one essential condition contained in the listed documents: the payment was supposed only if the dismissal occurs by the decision of the employer, and the termination of the employment contract by agreement of the parties is not.

Therefore, the agreement on termination of the employment contract, which provides for the payment of compensation upon dismissal of the employee by agreement of the parties, was recognized by the Supreme Court as contradicting the employment contract previously concluded by the parties, and Part 1 of Art. 9 of the Labor Code of the Russian Federation (by virtue of which the contractual regulation of labor relations must be carried out in accordance with labor legislation).

But if the condition on compensation upon dismissal by agreement of the parties was drawn up in a separate document and was not based on an agreement on compensation from the employment contract, the employer would have to fulfill it.

The correct position of the courts

In the opinion of the Supreme Court of the Russian Federation, the indication of the presidium of the regional court that the agreement on termination of the employment contract is an act containing labor law norms is also untenable. The list of acts containing labor law norms is given in Art. 5 of the Labor Code of the Russian Federation.

An employment contract and an agreement on its termination are not acts containing labor law norms. These are agreements between an employee and an employer.

Among them, the employment contract and the agreement on termination of the employment contract are not named, since they do not contain labor law norms, but are agreements between the employee and the employer that determine the working conditions or the conditions for terminating labor relations specific employee. That is why the actions of the employer, who promised compensation to the employee upon dismissal by agreement of the parties, but did not pay the promised money, were recognized by the Supreme Court as not contrary to law.

* * *

Dismissal by agreement of the parties, that is, according to paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation, - the procedure is quite simple. However, the employer should remember that the agreement must be bilateral. If the employee presents evidence to the court that this agreement was signed against his will, then the dismissal will be declared illegal. The employee should not forget that often the termination of the employment contract by agreement of the parties is carried out by the employer in order not to pay compensation to the dismissed person (for example, provided for upon dismissal at the initiative of the employer).

In preparing this part of the article, materials from the speech of the managing partner of the BLS law firm E. Kozhemyakina at the forum "Personnel Business - 2016" were used.

Resolution of the Plenum of the Armed Forces of the Russian Federation of January 28, 2014 No. 1 "On the application of legislation regulating the labor of women, persons with family responsibilities and minors."

Federal Law No. 244-FZ dated December 29, 2006 “On state regulation activities for the organization and conduct of gambling and on amendments to certain legislative acts Russian Federation».

In itself, a job change is a very positive thing, but it is always preceded by a delicate, controversial and sometimes unexpected moment of dismissal. The most peaceful legal instrument for breaking off labor relations is, perhaps, dismissal by agreement of the parties. However, each employee qualifies this ground for dismissal in their own way, often surrounding it with myths and conjectures. Nevertheless, despite the simplicity of regulatory regulation, the dismissal procedure by agreement of the parties has a lot of pitfalls that the parties to the employment contract are not always aware of.

Employees are afraid of the presence of this article in their own work book- this, they say, speaks of a forced departure from the employer. But is everything as the working people imagine it to be? What risks does dismissal by agreement of the parties actually bear, what threatens the employee, how does it go 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 the parties to an employment relationship to use this basis to terminate the relationship at any time. It turns out that this basis allows you to part both during vacation or sick leave, and during the employee's test. The initiative to terminate the employment contract on this basis can be expressed by both the boss and the employee, and the legislation does not regulate the form of such a proposal - it can be either a written or an oral statement. In practice, in order to fix mutual desire, the parties draw up a written agreement that regulates the conditions for the upcoming dismissal, the absence of mutual claims and other nuances. Based on this document, internal order about dismissal, after which an entry is made in the work book.

What is the difference from dismissal "on one's own"? According to Art. 80 of the Labor Code, for dismissal at the initiative of the employee, he, if the employer wishes, will have to work 2 weeks. At the same time, the employee is given the right to withdraw the letter of 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 of the parties, since the dismissal procedure can be carried out within one business day.

The absence of any normative 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 activities, does not indicate the presence of disciplinary sanctions or the low efficiency of his work. In fact, this procedure allows you to refuse to fix the reason for dismissal and the motives for terminating the employment contract.

At the same time, the range of these very reasons and motives can be very wide: a change of leadership, a conflict with superiors, a desire to informally reduce staff, a disciplinary offense, or an employee’s desire to quickly switch to another job. And this, of course, is a plus for those employees who would like to hide the reasons for 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 an employee, and in most cases it will. But not when the employer is trying to reduce their own costs in this way. For example, if an employee is fired due to redundancy or as a result of the liquidation of the company, by virtue of Art. 178 TK, he can apply for severance pay at the rate of average salary, kept for him for a 2-month period, but until 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 together with them, if the initiative to part “by agreement” came from the employer, the employee can claim some kind of compensation. In practice, such payments will take place if they are referred to 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 authorities offered to leave.

But financial question- far from the only drawback that an employee may face. So, when registering a dismissal “by agreement”, there is no control from the trade union, which, however, does not always take the position of an employee. In addition, if the reason for dismissal is illegal and there is no written agreement, dispute it in judicial order almost impossible. The only option is if former employee will prove the absence of his own will to sign the notorious "agreement of the parties." But only a few succeed and only in those cases when such agreements were signed en masse - otherwise, the supervisory and judicial authorities take the side of the employer.

It should be noted that one of the obvious advantages - lack of statutory deadlines for dismissal, may become obvious disadvantage for the worker. In particular, he can be fired on a day off, on vacation, on sick leave, and sometimes even retroactively. It does not matter even the existence of grounds for any benefits. And after signing such an agreement, it will no longer be possible to withdraw your signature. Keep this in mind when following the employer's lead and quitting "by agreement of the parties."

When applying for a job

Separately, it is worth noting the risks that may materialize after the dismissal - when looking for a new job. So, being a candidate fired by agreement of the parties, the applicant may face a reduced interest in his own person, in connection with which the employment process risks being delayed. It may be related both with the reason for termination of the employment relationship, and with the status of "non-working candidate". Many employers consider job seeker employment to be one of the most important indicators its relevance, and hence professionalism. The lack of work in the search process, if there is a dismissal “by agreement of the parties” in the work book, scares off individual 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 a great chance to prepare for possible questions about this.

It is important to understand that the agreement of the parties indicated as a reason in the work book is not an explanation of the reason for leaving. The agreement of the parties is the 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 flaunts in your work book. It is necessary to immediately dispel the doubts of the employer, indicating that the wording does not hide misconduct and disciplinary action(it is about them that the HR will think first of all, do not hesitate). If they did take place, do not be shy - come up with a legend about professional downtime, financial problems etc. True, in this case, one should hope that the potential employer will not ask for recommendations from the previous bosses ...

You should not talk about the presence of 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 there was, they say, such a situation that the authorities offered a mutual option.

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

Dismissal by agreement of the parties suits the company in almost all cases, even when the initiative for dismissal comes from the employee. In the agreement, you can prescribe all the conditions for dismissal: the term of dismissal, the amount of amounts payable to the employee in connection with the dismissal, the procedure for transferring the work 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 in case of dismissal at the initiative of the employee, and even more so at 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 termination of the employment contract, in which it is recommended to provide for: the term for terminating the contract, the timing 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 payable.

In order to receive the average earnings saved for him for the second month, the employee submits to the employer a corresponding application and a work book in which there is no employment record at the end of the second month from the moment 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 public employment service agency, provided that within two weeks after the dismissal, the employee applied to this agency and was not employed by him. 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 demotivating 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, the 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 a dismissal is formalized either by the employee's statement with the employer's resolution, or by a separate document - an agreement to terminate the employment contract. Each party must be in possession of the original or a certified copy of this agreement. 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 obligations of the employer to pay severance pay, provide leave, and help in further employment. In addition, this document may spell out the obligation of the employee to take an inventory, hand over financial statements, transfer certain documents or free up a workplace. I believe that the more detailed the agreement is, the easier the dismissal itself will be.

From the point of view of procedure, dismissal by agreement of the parties is the simplest and most fast way"say goodbye" to the employee: in this case, it is not required to send an advance notice of dismissal, offer to transfer to another job, exercise the pre-emptive right to stay 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 who is on vacation or on sick leave. Therefore, employers often “disguise” other ways of dismissal under the agreement of the parties.

For example, you do not like this or that employee, but there is no reason to dismiss him “under the article”. Let him know about 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 plans to lay off staff, which 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 achieve the inclusion in the agreement of 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 the worker to stop labor Relations if he committed an offense for which he is threatened with dismissal: he was absent without good reason throughout the working day, appeared in a state of intoxication, committed theft at the place of work. So do not think that if a person was fired by agreement of the parties, his former employer something is necessarily hiding or pursuing bad goals.

In the end, the parties may decide to terminate the employment contract by agreement and without any reason. So this wording is no worse than the entry "fired of his own free will." And some employers even believe that dismissing an employee with previous place work by agreement of the parties speaks of his loyalty, non-conflict behavior and willingness to compromise, which is very much appreciated in difficult times of crisis.

Alexander Yuzhalin, Leading Lawyer of the Department of Labor Law of the Institute of Professional Personnel Officer

The initiator of termination of the employment contract on this basis may be both the employee and the employer. At the same time, the key feature of this ground for terminating the employment contract is 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 this case 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, the proposal to terminate the employment contract on this basis can be drawn up by the party in writing, indicating the conditions under which the employment contract will be terminated. If the other 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 the 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 paying an employee a certain amount Money upon dismissal is the key when making a decision: to agree to the termination of the employment contract or still refuse. In this case, the employee and the employer must decide on the appropriateness of such payments and decide for themselves whether 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 rather 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 amount of the payment may depend on financial condition employer; on the amount of wages received by the employee; from the position occupied by the employee; from the reason that served to put forward the initiative to terminate the employment contract.

Svetlana Lenkova, HR Director at TNG GROUP

The most suitable for a company is the dismissal of 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 by trade union organizations. The employer is not obliged to coordinate his decision with someone, even if we are talking about minor employees. Therefore, such a decision on the part of the employee should be as balanced and responsible as possible: he must take care of his own interests.

Dismissal by agreement of the parties does not in itself provide for any compensation and guarantees to the employee (unless it is expressly stated in the employment or collective agreement). That is, all compensation to the employee is regulated only by his agreement with the employer - there is no need to rely on "automatic" payments. 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 invited to sign the document “Proposal to terminate the employment contract”, on which the employee writes by hand “I am familiar with the proposal.
The employee writes by hand the consent to dismissal by agreement of the parties and the date of termination of the contract.
The termination agreement is signed.
A dismissal order is issued.
The employee signs the dismissal order and receives a work book and a calculation.

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

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

The following situation is also possible: the employee decided to quit and wants to warn the employer about this in advance in order to be able to attend interviews more freely, but would not like to leave until he finds a new job. For example, an employee is sure that he will definitely find a new job within a month. 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 invited to sign the document “Proposal to terminate the employment contract”, on which the employee writes by hand “I am familiar with 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, compensation, as a rule, is two or three salaries.

The employer, on his own initiative, has the right to dismiss an employee only in cases expressly specified in the Labor Code of the Russian Federation (Labor Code of the Russian Federation). The list of grounds for dismissal at the initiative of the employer is defined in Art. 81 of the Labor Code of the Russian Federation. dismissal of an employee legal grounds or in violation of the established rules entails the reinstatement of this person at work with payment for forced absenteeism. However, the employment contract can be terminated at any time on such grounds as the agreement of the parties. At the same time, the relevant legal norm is general character and does not answer many practical matters. Let's consider recommendations on documenting and taxing payments upon dismissal by agreement of the parties, based on the norms of labor and tax legislation, letters from official bodies and the conclusions of arbitration practice, as well as some difficult situations that arise in practice.

To whom and when it is beneficial ...

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, labor relations with employees are terminated by concluding a mutual agreement to terminate the employment contract, while such an agreement provides for lump-sum compensation payments to employees. In this case, employers face questions about how to determine the amount of a one-time compensation, whether the amounts of such payments should be included in expenses when calculating income tax, whether such payments are subject to insurance premiums, and, finally, whether it will be beneficial to the employer and employee.

The grounds for dismissal "by agreement of the parties" are provided for in clause 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 of the Labor Code of the Russian Federation.

The initiator of termination of the contract on this basis can be both the employee and the employer.

For the application of this basis, it is not required to explain the reasons that prompted such a decision. In this regard, dismissal by agreement of the parties may suit both the employer and the employee to a greater extent.

In other words, the 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 need to be documented.

In addition, when dismissing by agreement of the parties, it is not necessary to take into account the opinion 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 the dismissal the employee changes his mind and decides to stay in the organization, then he will not be able to do this unilaterally. It is possible to cancel the dismissal order and the agreement itself to terminate the employment contract only with the mutual consent of the parties signing the agreement - the employee and the employer (paragraph 20 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 04 N 2). At the same time, the presence of an employee's letter of resignation is not a mandatory document.

According to part 3 of Art. 57 of the Labor Code of the Russian Federation, if at the conclusion of the employment contract any conditions were not included in it, then they can be determined by a separate annex to the employment contract or by a separate agreement of the parties concluded in writing. Therefore, the execution of a mutual agreement of the parties upon dismissal can be an integral part of the employment contract, even if the employment contract itself was concluded earlier.

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

So, the advantages of dismissal by agreement of the parties are as follows:

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

the statutory deadlines for notification of dismissal do not apply, both on the part of the employee and on the part of the employer;

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

upon termination of the employment contract with underage worker 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 a dismissal by signing an agreement;

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

Thus, the 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 out and receive additional compensation.

We make out correctly

The agreement of the parties is formalized by drawing up separate document- agreement on termination of the employment contract. legal norm, in which mandatory conditions for an agreement, such as an employment contract, no. 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 grounds for termination of the employment contract and the day the employee is dismissed. 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);

on the employee's performance certain actions before leaving (for example, transferring cases to another employee or completing a project); any other conditions that the employee and the employer agree on, it should be taken into account that they should not worsen the position of the employee in comparison with the established 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. Note that the receipt by the employee of a copy of the agreement must be recorded, for which the employee personally puts a note on the copy of the employer that he received a copy of the agreement on termination of 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 is not established. Therefore, the parties have the right to specify any amount in the employment contract.

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

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

Note! It is necessary to formulate an entry in the work book with reference to paragraph 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 Decree of the Ministry of Labor of Russia dated 10.10.03 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 by the time of dismissal can be granted 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, the peculiarity of the termination of employment relations is that the day of dismissal is the last day of vacation, and not the last working day (Article 80 of the Labor Code of the Russian Federation, letter from Rostrud dated December 24, 07 N 5277-6-1, Definition of the Constitutional Court of the Russian Federation of January 25, 2007 N 131-OO). In other words, the employer must make the final settlement with the employee and draw up all the documents for dismissal on the last working day before the start of the vacation.

Frequent mistake! In practice, it often happens that after signing the agreement, either the employee changes his mind about leaving, or the employer - to part 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 for this it is not enough to destroy the document or simply withdraw it. The Plenum of the Armed Forces 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 annulment of an agreement on the term and grounds for dismissal is possible only with the mutual consent of the employer and employee, i.e. only by concluding another agreement (in writing).

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

in the dismissal order (form N 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 the record of dismissal (clause 35 of the Rules approved by Decree of the Government of the Russian Federation of April 16, 03 N 225);

in a personal card in the form N T-2;

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

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

on copies of information issued to him on accrued and paid insurance premiums to the Pension Fund of the Russian Federation (clause 4 of article 11 federal law dated April 1, 1996 N 27-FZ);

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

It would also be useful to check the presence of 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 organizations that related to the work duties of an employee (Article 22 of the Labor Code of the Russian Federation).

Taxation of employee benefits

Upon termination, an 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 the payment of legally established benefits to an employee in connection with the termination of an employment contract (severance benefits) is regulated by Art. 178 of the 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 legally established. 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, as well as their increased amounts.

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 the employee is dismissed (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 is drawn up to the employment contract, and in addition to the term for terminating the contract and other conditions, it can also determine the conditions for paying "compensation" (sometimes they are called remuneration, additional severance pay, additional compensation upon dismissal).

Since the agreement becomes an integral part of the employment contract, the payment of "compensation" will meet 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 (letters of the Ministry of Finance of Russia dated 10.06.13 N 03-03-06 / 1 / 21465, dated January 24, 2012 N 03-03-06/1/29).

The Ministry of Finance of Russia also clarified that the severance pay, on which the parties simply "agreed", cannot be taken into account when determining the base for income tax, since the payment of "compensation" should be provided for by the labor (collective) agreement or an additional agreement to the employment contract (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 conclude an additional agreement as an annex to the employment contract, determining in it the amount of money paid to the employee in compensation.

Consider on concrete examples controversial and ambiguous situations related to the procedure for taxation of monetary amounts paid to an employee upon dismissal by agreement of the parties.

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

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 income tax individuals in an amount not exceeding in general three times the average monthly salary or six times the average monthly salary for employees dismissed from organizations located in the Far North and areas equivalent to them (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 the size (six times the size) of the average monthly earnings are subject to personal income tax in the prescribed manner. At the same time, the provisions of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation apply regardless of the position held by the employee of the organization. This conclusion is also confirmed by the letters of the Ministry of Finance of Russia dated August 21, 2012 N 03-04-05 / 1-982, dated September 19, 2012 N 03-04-06 / 6-283.

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

In a letter dated June 7, 2013 N 03-04-05 / 21250, the Ministry of Finance of Russia indicated that in the case when the tax agent withheld personal income tax from the entire amount of the severance pay that was paid upon termination of the employment contract, the amount of tax calculated within the non-taxable limit , is over-retained. 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, in relation to severance benefits (or additional compensations) paid to employees upon termination of the employment contract by agreement of the parties, the legislator established a personal income tax exemption: severance pay is subject to personal income tax only in excess of three times the average monthly earnings (paragraphs 1, 6, 8, clause 3 of Art. 217 of the Tax Code of the Russian Federation). An exception is the payment of severance pay in the regions of the Far North. In this case, the tax-free amount is six times the average monthly salary.

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

Situation 2. Is the compensation paid to the employee in the amount of two official salaries in case 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 the Federal Law of July 24, 2009 N 212-FZ (hereinafter - Law N 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 legislation.

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 of article 7 of Law N 212-FZ).

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

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

Upon dismissal of employees, payment of compensations can be carried out both in accordance with legally established guarantees and compensations, 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 compensations established by law related to the termination of an employment contract, for example, severance pay in the amount of the average monthly earnings in case 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 transfer to another job and from transfer to work in another locality, recognition of the employee as incapable of labor activity in accordance with a medical report, etc. These payments are not subject to income tax and insurance premiums.

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

It should be borne in mind that a personal income tax exemption is established, according to which the severance pay paid to an employee, including by agreement of the parties, is not taxed within the 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 (clauses 1, 45 clause 1 of article 264, clause 1 clause 7 article 272 of the Tax Code of the Russian Federation).

Analysis of practical situations

Often disputes over layoffs arise only because of the delusions 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. What controversial situation a priori based on ignorance of the procedure for dismissal, does not reduce the problems for both the employer and the employee.

Comparative data clearly shows the main differences between the two grounds for dismissal: voluntarily and by agreement of the parties (see table).

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

Characteristic	Voluntary dismissal	Dismissal by agreement of the parties

Grounds for dismissal	The opinion of the employer is not taken into account by labor legislation in this case and does not affect the rights of the employee granted to him by the Labor Code of the Russian Federation	The initiator of the agreement can be both the employer and the employee. The employee can either agree or refuse to be dismissed on this basis.
Base shape	Employee's personal written statement	Formally, the form of the agreement of the Labor Code of the Russian Federation is not established. To avoid risks, it is recommended to draw up an additional agreement in writing as an integral annex to the employment contract
Dismissal order	Mandatory Published	Mandatory Published
Possibility to cancel the desire to terminate the employment contract	There is an opportunity to unilaterally "change your mind" and not quit	Unilaterally, the party to the employment relationship is not entitled to "change its mind" - only by mutual agreement of the parties

Nevertheless, managers do not always follow all the "formalities" when documenting termination of the contract by agreement of the parties. Thus, 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 on the basis of an oral agreement. The employee does not object, subject to the payment of additional compensation in the form of "compensation". Is it necessary to draw up written documents to prove such a mutual decision or is a verbal agreement sufficient?

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

However, it must be borne in mind that in the event of a labor dispute, the employer may need to prove that the dismissal was made precisely 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 Supreme Court of the Russian Federation dated May 14, 2010 N 45-B10-7 states: the fact that the employer has not provided evidence of the employee’s consent to the upcoming termination of the employment contract is essential for resolving the dispute.

Recommendations. In order to avoid disputes and conflict situations with employees when terminating the contract by agreement of the parties, we recommend that you draw up and sign 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 by agreement of the parties, which provides for the payment of compensation (severance pay) in the amount of 300,000 rubles. On the day of dismissal of the employee, the organization cannot pay the amount of compensation due to lack of money in the current account. The employee asks to issue him a certificate of debt. Is the organization required to issue such a document?

A certificate of debt is a document related to work, and the organization is obliged to issue it (Articles 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 labor inspection 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 of the Code of Administrative Offenses of the Russian Federation. Interest is also charged on delayed amounts in the amount of 1/300 of the refinancing rate of the Bank of Russia for each day of delay (Article 236 of the Labor Code of the Russian Federation).

Frequent mistake! Often, in practice, due to financial difficulties, the organization cannot pay the amount established by the agreement on the day of dismissal. Therefore, the text of the agreement on termination of the employment contract includes the condition that the 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 the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. Such amounts include all payments due to the employee, including the payment of compensation established by agreement of the parties. Arbitration practice confirms this conclusion, for example, the St. Petersburg City Court, in its Ruling of February 16, 2011 N 2119, noted that the agreement to terminate the contract in terms of the established three-month period for paying compensation is contrary to the requirements of Art. 140 of the 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 the current labor legislation.

Situation 5. An employment contract with the General Director of Stroyservice LLC was concluded for a period until January 31, 2014. In December 2013 new owner the company decided to refuse the services of the said CEO and fired him on December 20, 2013 by agreement of the parties. Is it necessary to compensate an employee for a 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 head, compensation is paid to him (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 less than three times the average monthly salary of the employee.

The parties to the employment contract should determine the amount of compensation at the time of the conclusion of the contract. If this does not happen, this amount can be determined and fixed later in additional agreement. The dismissal of a manager without payment of compensation, if he did not commit guilty acts that give rise to his dismissal, is a violation of the procedure for dismissal. The court may decide to reinstate the dismissed person (clause 4.3 of the decision of the Constitutional Court of the Russian Federation of March 15, 2005 N 3-P).

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

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

In some cases, dismissal by agreement of the parties is the best way termination of the 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 in design; thirdly, cancellation of the agreement on termination of the contract is possible only with the mutual consent of the employee and the employer.

Today, many workers are still afraid of the entry in the work book "dismissal by agreement of the parties." They are more to their liking - "fired of their own free will." Employees, not without reason, believe that their new employer will find such an employee conflicting or unprofessional. Claiming to new position You need to explain your reasons for leaving. Therefore, a more familiar wording of dismissal is chosen.

Such doubts are explained by the fact that in the labor legislation this article is practically not described or deciphered in any way. It says that the employment contract can be terminated at any time, by mutual agreement. This, as you can see, is not enough. This article was introduced in 2002, that is, for more than ten years, the practice of its application has already been developed.

The initiators of such dismissal can be both the employee and the employer.

Any circumstances can serve as reasons for dismissal at the initiative of an employee, but the most basic ones will be described in the list below:

the employee does not want to be fired on an “aggressive” basis, for example, for violation of discipline;
too much pressure from the employer;
uncomfortable working conditions;
more promising work was offered;
moving;
the employee wants to receive severance payments that are in his contract;
he definitely needs to choose the moment of dismissal (for example, now, or in three months);
the employee wants to receive more benefits for a longer period of time than if he quit of his own free will without a good reason;
he does not need to motivate his departure from work;
no need to notify the employer;
the reputation of the employee is not affected by such a basis.

The most common employer reasons are as follows:

staff cuts are needed;
you can use such a basis if the employee is guilty of something;
the employee is disloyal and does not comply with discipline;
it is necessary to dismiss personnel, but this cannot be done for other reasons; for example, the worker is on vacation or sick leave;
the employee does not fit in with colleagues.

The peculiarity of this wording is that both parties are interested in dismissal. Suppose an employer does not like the quality of a person’s work, and he suggests that he quit, and the employee needs to move to another city.

Often it is management that takes the initiative, because it is easier for an employee to quit of his own free will.

If the employer puts pressure on the worker when concluding an agreement, the latter has the right to defend his interests in court. An employee may directly inform his manager about his desire to go to court.

Such behavior will not worsen the situation, but only strengthen the position of the employee. The authorities are afraid to contact legally savvy employees and often make concessions to them.

However, this foundation also has its drawbacks:

Article 78 of the Labor Code of the Russian Federation states that an employee can be fired even when he is on sick leave or on vacation. But the employer will not be able to do this if he is the initiator of such a dismissal. The employee has the right not to agree to such an offer, because on such a basis everything should be on a voluntary basis. True, sometimes management can offer good severance compensation.
Trade unions have no control over dismissal by agreement of the parties. The employer is not obliged to consult with someone and coordinate their decisions. Therefore, the employee, before making any decision, must carefully consider everything.
After signing the agreement, the employee will not be able to cancel his dismissal unilaterally, since both parties must participate in making such a decision.

Even through the court, he will not be able to withdraw his application with rare exceptions (for example, if the management forced the employee to sign against his will).

Dismissal by agreement of the parties with the payment of compensation occurs depending on the agreements and conditions in the document. By default, no one will pay the employee.

First you need to write the name of the document. A little lower - specify the details: the date of entry into force of the contract and its number. Further, it is indicated locality, in which the company is registered and the date of conclusion of the agreement.

The body of the document indicates the name of the enterprise, then the position, the initials of the head (usually the director) and the information of the employee in the same form.

This is followed by provisions that the employer and employee have agreed upon. The first line is the line that records the fact of the termination of the contract with an indication of the article. Specifies the end date for the employee. After that, the terms of the agreement and their special clauses are set out - whether the employee wants to go on vacation before being fired when he receives severance pay. And also it is necessary to establish the obligations of the dismissed. For example, transfer cases to your colleague.

These items are followed by two standard ones:

The parties have no claims against each other.
Each party has one copy of the agreement, and they are legally equal.

Below is an example of such an agreement.

Compensation after dismissal

When an organization encounters a problematic employee who is disloyal or does not perform well, they need to fire them. Terminating a contract on grounds that damage reputation will be very difficult for management. In addition, this process threatens to be time-consuming and inconsistent with company policy.

In this case, it will be more profitable to persuade the employee (namely, to persuade, and not to force) to sign an agreement with the payment of compensation to him. This will save management time and money, and thicken the worker's wallet.

The paper must contain the amount and the date of its issuance. Then the dismissed person will receive money for the period specified in the document. If he did not receive the entire payment, then the company will have to pay it with interest.

Let's consider this important question in detail:

First, it is determined whether it is necessary, in general, to pay an allowance to the employee. This provision is fixed in the contract.
Next, you need to decide on the amount of money. It is not formed or limited by law in any way. It is usually set according to the worker's average earnings, or his salary, or just a fixed amount. Although it is not controlled by the state, its volume is still important for both parties, because they will have to transfer contributions to social funds and pay personal income tax if certain limits are exceeded. This will hit the budget of both the enterprise and the worker. To calculate the limits, a methodology is used, which should be fixed in the agreement. Following it, the employer finds three times the average income of the worker.
The next step is to determine the term of dismissal. This is also an important point. On this day, you will need to make all the necessary payments and transfer the documents to the dismissed person. Sometimes you need to take inventory. And it is also worth saying that the day of dismissal can be absolutely any and it is not necessary to work for fourteen days.

When the previous points are completed, an agreement is drawn up. Although there is no clear procedure for such an agreement, it must be fixed in writing. There should be a date for the end of work, the amount of benefits and other important items, depending on the agreements.

After drawing up the document, the employer lists the agreed compensation:

salary for the last working period;
severance pay;
compensation for all holidays that the employee did not use.

Although the allowance is issued on a voluntary basis, the same interest applies to each day of delay as for wages. For each day of delay, one hundred and fiftieth (1/150) of the amount of underpaid compensation is added to the amount. However, if a different calculation method is established in local regulations, then it must be used.

And also the question could arise - will this payment be taxed? As discussed earlier, the allowance is subject to personal income tax when it exceeds the limits, that is, three times the average salary of the worker if he works in normal climatic conditions, otherwise - six times. In all other cases, the allowance is exempt from taxes.

The legislation provides for making an entry in the work book indicating the reason for the dismissal of the employee in strict accordance with the rule of law. Therefore, writing "dismissed by agreement of the parties" is wrong. It is necessary to write as expressly stated in the article of the law.

An example is the following wording:

"Employment contract terminated."
"Employment contract terminated."
“Dismissed by agreement of the parties, paragraph 1 of the first part of Article 77 Labor Code Russian Federation".

All three phrases are legally equal and any of them can be used. For a complete record, its serial number and date are first indicated in columns - "1" and "2", respectively. The law provides for the signature of the employer, seal and signature of the employee in all cases of dismissal.

Dismissal on the basis of an agreement between the two parties allows a citizen to register with the Labor Exchange immediately after the termination of the employment contract and receive a certain amount as financial support from the state. In the process of obtaining this benefit, there are some features and nuances.

As many people know, unemployment benefits are paid to citizens whose salaries paid taxes to the state budget every month. Payments occur within one year after the termination of the employment contract. The amount itself will depend on the average wage for latest work.

Registration of payments to citizens who do not have any official sources of income, have not retired or may receive new profession, having completed courses at the Employment Center (Employment Center), is not provided.

students;
persons under the age of sixteen;
persons who are in military service under a contract;
pensioners.

If you want to receive, in addition to unemployment benefits, also payments from a previous employer, then you should send documents for registration within two weeks after the termination of the employment contract.

Documents you must provide:

a document certifying the qualification;
work book with a record of dismissal by agreement of the parties;
certificate 2-NDFL indicating the average salary at the last workplace;
identity document;
SNILS.

What is the procedure and procedure for calculating benefits? First, from your 2-NDFL certificate, they take data on the average salary for the last three months of work at your last place of work. Next, your three salaries are added up and divided by three. Thus, your average wage is obtained. Now you need to find the percentage of your average monthly income and get the amount of compensation that you will be paid.

The payout amount is different for each month. Within three months after registration, you can receive 75% of the average salary, then 60%, then 45%.

So, if you received forty thousand rubles at your last job and now your fourth month of unemployment is underway, then the calculation formula will look like this: 40,000 x 0.6 \u003d 24,000 rubles.

At first glance, the amount is pretty good for the fact that you will not do anything. However, you will not be paid that kind of money. If the result of the work exceeds the limits set by the state, then you will be paid an amount corresponding to the ceiling of these limits. The smallest allowance is 850 rubles, the largest is 4900.

If you were fired from your last job for an unexcused reason, such as misconduct, you will be paid the minimum benefit.

Brief description of the entire dismissal process

This list lists the main procedures for dismissal. If the state somewhere is not established clear order actions, the established practice helped here.

If you want to terminate the employment contract, you need to decide with your management so that all agreements are recorded on paper:

The parties agree on terms.
An agreement is being drawn up.
Management represented by the employer draws up an order.
The employee performs his last duties, completing all projects and handing over cases to colleagues.
The employer makes an entry in the citizen's work book upon termination of the contract.

The whole procedure ends with the payment of the sums agreed with him to the dismissed person.

Sometimes a manager needs to make a reduction.

Then he faces many problems:

it is necessary to warn the worker about the termination of the contract for 2 months;
get acquainted with the data of all employees;
to find those who can not be fired on this basis at the moment;
identify those who will benefit from the reduction.

Further, after the date of termination, it is necessary to pay wages for the time of working off, severance pay, and if a citizen was registered with the Labor Exchange and did not find a job within three months, accrue additional funds to him. And also the manager will be responsible for the procedure, that is, the worker can challenge the actions of the employer.

Obviously, this is a very complex process. Therefore, management has the opportunity to offer the employee to quit by agreement of the parties.

In this case, there will be only three steps:

discussion of conditions;
signing;
fulfillment of final duties.

The employee, in turn, has the right not to agree to such an offer if it does not give him any benefits. Then the employer usually offers a severance pay of one and a half times the amount prescribed by law and other benefits.

The worker, for his part, must not make hasty decisions. It is possible to agree to such a proposal from the management only when the dismissal for reduction will bring him less benefits than by agreement of the parties. Everything needs to be carefully considered and weighed. Even if the director asks to get into position, most often he just wants not only to make his work easier, but also to shift it to the employee.

You cannot rely solely on verbal promises when signing an agreement. As already mentioned, there is no clear structure of the document established by law, therefore, all agreements and conditions should be written down so that later there will be no problems, because it is impossible to withdraw such an agreement at the initiative of one party.

What to choose: dismissal of one's own free will or by agreement of the two parties

Some positive aspects of mutual consent to dismissal were discussed earlier. However, there are others.

If the contract is canceled at the employee’s own request, the employer may require working off within two weeks. If, for example, another company offered you a better salary, but on the condition that you must start work immediately, you can try to persuade the previous employer to leave by agreement of the parties. In this case, you can do nothing.

An example can also be given for the reverse situation. You decide to quit and warn the employer about this so that you have the opportunity to interview for new job. In this case, he is helped by dismissal by agreement of the parties. Until the date of dismissal has come, both parties are aware of the planned termination of the employment contract. The employee calmly looks for a new job, if he is sure that during this period he will find it, and the employer is looking for a new qualified subordinate.

After submitting the application, the specialist has the right to change his mind and cancel his decision during the period of working out. At the legal level, his work will remain with him, as before he initiated such a procedure.

At the end, here are some key tips:

The agreement is drawn up by mutual agreement in writing.
Once signed, neither party can revoke it at will.
Upon dismissal, all obligations and conditions must be met.
The clauses of the agreement must not contradict the law.
An employee may be dismissed for another reason before the moment of dismissal by agreement of the parties.

When hiring an employee, the employer may refuse for a certain reason. In order to understand how the reason is justified, you should read the labor law. Now many employers may not give you a job because you have a non-Slavic appearance, too old or too young, the wrong gender (even if it does not play any role in this profession), and so on.

This is a violation of the law and should be punished. And in many very different cases, employers often commit the offense in one way or another. Some do not even know that they are violating someone's rights. Employees, in turn, should take care of their own interests, not make hasty decisions about the choice of grounds for dismissal, and always keep a plan "B" for themselves.

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