Dismissal by agreement of the parties consequences. What does dismissal by agreement of the parties mean. Taxation of payments to an employee upon dismissal by agreement of the parties

Termination of an employment contract by agreement of the parties is one of the safest for an employer. However, there are pitfalls here as well. Which? Now we'll find out.

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.

Dismissal strategy 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 of dismissing 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 as a result of both the "guilty actions of the employee" - for example, appearing at the workplace in a state of intoxication, absenteeism, gross violation of labor duties, and "innocent" - for example, layoffs, changes in the terms of the 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.

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 reinstated at work if he believes that the dismissal by agreement of the parties was signed by him under pressure from 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 at the end of the 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 trial period, the employee was reprimanded for improper performance of official duties, which was the reason for 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 the employer change the grounds for dismissal if the employee refused to quit 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.

At an extraordinary general meeting of the organization's participants, a decision was unanimously adopted 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 dismiss an employee by agreement of the parties if he signed such an agreement, but then demanded to cancel it?

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 Armed Forces of the Russian Federation No. 1, which states: since the dismissal of a pregnant woman at the initiative of the employer is prohibited, the absence 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 a deterioration in the material well-being of 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 regarding her application for refusal to fulfill the agreement, although he had the necessary documents. These actions were qualified by the court as an abuse of the right.

Is dismissal by agreement of the parties legal if the dismissal agreement is not drawn up 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. Resolving the dispute on 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 permissible to dismiss 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. Thus, in the Bulletin of Judicial Practice of the Omsk Regional Court (No. 3 (44) for 2010) it is indicated: 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 upon 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 Ruling No. 36-KG15-5 dated 10.08.2015 . 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. The Supreme Court confirmed this, guided by the following. The court found that indeed the supplementary agreement to the employee's employment contract 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 additional guarantees for the employee 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 establishing conditions directly in the employment contract or additional agreements to it on the payment of an increased severance pay. In the opinion of the presidium, the agreement on termination of the employment contract is an act containing the norms of 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 an employee by agreement of the parties, was recognized by the Supreme Court as contradictory to 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 an 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.

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 the employment relationship of a particular 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 of December 29, 2006 “On State Regulation of Organizing and Conducting Gambling and on Amendments to Some Legislative Acts of the Russian Federation”.

Dismissal by agreement of the parties is devoted to one article in the Labor Legislation - Art. 78 of the Labor Code of the Russian Federation. Little is said in it: the employment agreement can be terminated by mutual agreement.

In fact, neither the employees nor the employer understand the essence of such termination and its consequences. In this regard, many questions arise: how is the process going, whether the employee is entitled to any payments, what could be the reasons that prompted the employee and the employer to make such a decision.

Features of dismissal by agreement

There are two features of dismissal for the corresponding reason:

the employee can quit when he pleases (on vacation, during illness);
on this basis, you can terminate the student agreement.

There is some nuance in this basis - you can not work out the prescribed 2-week period, which is mandatory in case of dismissal of your own free will.

Pros and cons for the employee

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

the initiative to terminate the contract may come from both the employee and the employer;
the reason for dismissal in the application may not be indicated;
there is no time limit for submitting an application;
You can terminate the employment contract at any time, even in those cases that are prohibited by law;
you can “bargain” with the employer - discuss with him the terms, the amount of severance pay, and so on;
the record of dismissal by agreement does not “spoil” the work book;
may be an alternative to dismissal if the employee is at fault;
with this wording of dismissal, the continuity of experience lasts another 1 calendar month;
if you then register with the employment center at the place of registration, then the unemployment benefit will be slightly higher.

But there are also disadvantages. They refer to the disadvantages for the employee. It:

the employer can terminate the contract at any time, even in cases prohibited by law;
there is no control over the legality of dismissal by the trade union;
the employer is not obliged to pay the employee a severance pay, unless it is stipulated in the collective agreement, in the supplementary agreement or other local regulatory act;
it is impossible to unilaterally change your mind and withdraw the letter of resignation if the agreement has already been signed;
judicial practice in such cases is scanty, since it is almost impossible to challenge the actions of the employer.

Registration of dismissal

It is necessary to draw up the actual agreement on termination of the employment contract (both the organization and the employee can be the initiator). Art. 67 of the Labor Code of the Russian Federation establishes the need for a written conclusion of an employment contract, therefore it is more expedient to draw up an agreement on paper, and not in words. The document is drawn up in 2 copies, has all the necessary details.

Sample and content of the agreement

It should contain the following information:

mutual content of the parties;
details of the employment contract to be terminated;
date of termination of employment, that is, the date of the last working day;
the amount and terms of payment to the employee of monetary compensation, if provided;
date and place of its conclusion. Without this information, the document will be considered void;
position and full name of the employee;
the full name of the employer with an indication of the organizational and legal form;
position and full name of the person who represents the interests of the employer and has the authority to sign documents;
passport details of the dismissed employee;
TIN of the employer;
Signatures with transcripts.

The agreement is signed by both parties. The document can provide for a monetary payment of compensation to the employee for terminating the contract (compensation upon dismissal by agreement is not at all a prerequisite for such termination of the contract).

Payments upon dismissal

Based on Art. 140 of the Labor Code of the Russian Federation, the employer is obliged to pay the employee on the day of dismissal. The amount paid to an employee includes:

salary for hours worked;
compensation for unused vacation;
compensation for termination of the contract, if such was provided for by the agreement.

What kind of compensation to ask

The amount of compensation is not specified in the law. She can be anyone! Its size can be specified in the collective agreement or local regulatory act.
The main condition is that the employee and the employer can negotiate. As a rule, the amount of compensation is not less than in case of dismissal due to redundancy - a maximum of 3 average employee salaries. This is how the practice shows. The employee has the right to ask for more, the employer has the right to offer less.

The employer is obliged to pay compensation only if it is stipulated in the regulations for the enterprise. In all other cases - it is his right!
The amount of compensation is specified in the agreement, which is signed by both parties. Only in this case, the employee will be able to sue if the employer violates the terms of termination of the employment contract, according to this document.

Such an agreement cannot be terminated by one of the parties; its cancellation requires the desire of two participants in labor relations: an employee (employee) and an employer - clause 20 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 dated 17.03.04.

Compensation Agreement

In any case, the employee writes a statement. It must contain the following information:

position and name of the employer or person. authorized by him to sign applications;
position and full name of the employee;
request to terminate the contract;
reference to paragraph 1 of Art. 77 of the Labor Code of the Russian Federation or Art. 78 of the Labor Code of the Russian Federation;
number and date of the current employment contract;
the date on which the agreement is to be terminated;
request to pay compensation specified in the agreement;
date of application;
applicant's signature with transcript.

The agreement is an annex to the contract. It can be drawn up by both the employee and the employer. The employer has the right not to sign the application until the parties reach a consensus.
The period of discussion of the conditions may be somewhat delayed. All issues discussed by the parties are recorded in the protocol of disagreements. When mutual understanding is reached, it is necessary to draw up a new text of the agreement, or make adjustments to the old document, making reference to the protocol of disagreements.

The dismissal is formalized by order, where an indication is made of clause 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The order is signed by the employee, or a note is made about the impossibility of familiarizing him with the document (in case of absence or unwillingness).

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

Entry in the workbook

The record is made by a personnel officer.
There are 2 options for how an entry in an employee's work book should look when dismissed for such a reason.

Option one:

record number is indicated;
the date it was made;
in column 3 it is written: "dismissed by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation"
date and order number.

Option two:

columns 1, 2 and 4 indicate the same information as in the first case;
in column 3, you can write: “the employment contract was terminated by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation” Both entries have the same legal force.

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

More information in our infographic

Reasons for dismissal and advantages of such grounds for dismissal

Reasons for an employee to leave an employer:

according to the article (for example, absenteeism);
the likelihood of receiving "compensation" from the employer (beneficial for women who are on unpaid "children's" leave);
the need to go to another job, but there is no time to work off the deadline.

Reasons for an employer to fire an employee:

the need to terminate an employment relationship with an objectionable employee;
the need to dismiss employees who cannot be dismissed for other reasons (pregnant women on sick leave, students, employees on vacation).

Benefits for the employer:

there is no need to consult and notify the union of the proposed dismissal;
the employee with whom the agreement has been drawn up can be dismissed in any case, since changing the decision on the part of the employee himself is not possible without the consent of the organization.

When concluding an agreement, it must be taken into account that the employee has the right to challenge it in court, arguing his position with pressure from the employer, especially when it comes to employees of the most vulnerable categories, dismissed without monetary compensation.

Labor exchange payments

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

the passport;
education document;
employment history;
a copy of the agreement of the parties on dismissal;
certificate of the applicant's earnings for the last 3 months of work;
application in the prescribed form.

In 2018, only:

able-bodied citizens;
who have reached the age of 16;
non-pensioners and full-time students;
not engaged in entrepreneurial activity;
not occupying the position of founders of enterprises and firms;
sentenced to correctional labor or imprisonment.

The amount of the benefit depends on the average earnings of the unemployed for the last 3 months at the last place of work. The average earnings are determined on the basis of the data presented in the certificate from the last place of work.
In the first 3 months of being unemployed, the applicant will receive 75% of their average earnings. In the next 4 months - 60%, and then - 45%.

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

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

The amount of the benefit paid cannot be less or more than that established by Law No. 1032-1 of April 19, 1991 “On Employment of the Population” - 850 rubles and 4,900 rubles, respectively.
The authorities of some regions make additional payments to their unemployed. So, in Moscow, the government compensates for transportation costs in the amount of 1,190 rubles, and makes an additional payment of 850 rubles to the minimum and maximum amount. Thus, unemployed Muscovites receive 2,890 and 6,940 rubles respectively.

If the applicant gets a job with the help of the exchange or on his own, then he is deregistered and ceases to receive benefits. Also, he is not deregistered if he refused the offered vacancies 2 times or refused to undergo retraining in the direction from the center.

Step-by-step instruction

The employer offers to terminate the employment contract by mutual agreement? To ensure that your rights as an employee are not violated, you must use the instructions:

this agreement is required. Both parties must participate. The employee has every right to make his own conditions for subsequent dismissal. He can offer to pay him compensation, he can indicate its size and so on. It is worth considering Art. 349.3 of the Labor Code of the Russian Federation, which indicates the categories of workers who are not entitled to severance pay. The agreement is drawn up in 2 copies;
registration of the agreement. This is done by the secretary or clerk in the manner that the employer has. For example, in the agreement log;
delivery of the second copy to the employee. Delivery is confirmed by the signature of the employee on the copy of the employer. Experts recommend writing “I received a copy of the agreement”;

It should be noted that dismissal by agreement of the parties (UPS) appeared in the Labor Code of the Russian Federation since 2001, and precedents for its use have taken place since 2002. However, this wording of the legal basis for dismissal has the most law-enforced practice today as a ground for dismissal. Moreover, it is, frankly, preferred by both personnel officers and heads of commercial companies.

Employment contract form attribute

Dismissal by agreement of the parties (Article 77 of the Russian Labor Code) is often encountered in connection with the spread of the contract form of employment in the Russian labor market. This form of contractual relationship between employers and staff is an indispensable element of the market system.

Is this leadership in the labor market justified? Is the ease of interruption of labor relations inherent in this form of dismissal positive: employer-employee? This is a moot point. According to official statistics, the unemployed make up 2-3% of the entire working-age population.

These data are objectively underestimated all over the world. The fact is that not all unemployed are registered at the labor exchange for various reasons. Therefore, it is a generally accepted fact that the data of the International Labor Organization are 4-5 times higher than the official statistics on unemployment.

And it is the dismissal by agreement of the parties that is absolutely in the lead in terminating labor relations. The features of this type of dismissal in the conditions of the existence of the labor market are more clearly visible in comparison with other forms of termination of labor relations.

By downsizing and by agreement of the parties

It is well known that dismissal during staff reduction is a companion of economic crises and their consequences - optimization of the organization's staff structure. Its legal justification (see paragraph 2 of Article 81 of the Russian Labor Code) is quite organizationally complex and time-consuming.

The employer is obliged to warn the staff being reduced in this way in advance and, in addition, to offer candidates for dismissal an alternative staff position (note that the existing staff is often characterized by a shortage of vacant positions).

He must also identify the personnel to whom the law guarantees the preferential right to remain in the state, and implement it. Therefore, some employers, optimizing their staff, are trying to replace the “downsizing” with an “agreement of the parties”, achieving certain benefits for the company to the detriment of the dismissed.

Paragraph 1 of Article 77 of the Russian Labor Code offers a less organizationally biased way - dismissal by agreement of the parties. This method of termination of labor relations involves a short time frame, joint regulation of the process of dismissal by the company's management and the employee. At the same time, the administration is not required to comply with the above formalities and the participation of the trade union organization.

At their own request and by agreement of the parties

The absence of a mandatory working period distinguishes the method we are studying from dismissal of one's own free will, in which only the employee himself writes the application.

In case of dismissal of one's own free will (UPSZH), such a statement is drawn up fourteen days before the agreed date of leaving work. During the aforementioned two weeks, the staff member continues to perform his/her previous duties. He also has the right to take a vacation for this period. However, even if the employee is on sick leave, the 14-day period will not be considered interrupted.

Dismissal by agreement of the parties has also been significantly simplified with respect to the UPSZH. First of all, the difference lies in the absence of a two-week period of work - until the date of dismissal. The date of departure from work is negotiable, and the director also negotiates some additional conditions with the dismissed employee by mutual agreement. The employment relationship may be terminated on a date agreed upon in advance, even if the employee is on vacation or on sick leave.

Legal differences between the two types of dismissals

Dismissal by agreement of the parties involves the procedure for terminating the employment contract between the employer and the employee in accordance with Article 78 of the Russian Labor Code. Employers more often use it in cases of labor violations by employees (absenteeism, appearing at the workplace in a state of intoxication, failure to perform official duties). However, even more often, this layoff is initiated by the employees themselves. It, as you noticed, has similar features with dismissal of one's own free will. However, there are differences (see table 1)

Table 1. Comparative characteristics of UPSS and UPSZH

When analyzing the information contained in the above table, pay attention to the detail: it is impossible to challenge the dismissal by agreement of the parties unilaterally (unlike the UPSZh). It was adopted jointly under the UPSS, and therefore ceases to operate by mutual agreement.

At the request of one of the parties, dismissal cannot be prevented. However, if it is carried out under the compulsion of the employer, it can be challenged in court. In this case, the employee is reinstated in his previous position with the payment of average earnings for forced absenteeism.

Payment of compensation

If there is a dismissal by agreement of the parties, compensation for unused vacation must be paid to the employee. In addition to her, he is obligatorily paid accrued wages for the current month to the last day of work, as well as bonuses and various bonuses (for length of service, qualifications) taken into account in the remuneration of the organization. Then the employee receives a work book and a certificate of average monthly wages.

However, not only mandatory payments promise an employee dismissal by agreement of the parties. Compensation in the amount of one salary is often stipulated by the employer in orders for the organization.

The legislation does not establish a specific framework for such payments, therefore, an agreement between the employer and the employee may establish a contractual amount of additional compensation.

It is no secret that this type of dismissal is more beneficial for the employer than for the employee. The motivation is well known: the employee cannot independently withdraw the written application, and the trade union, in turn, cannot influence this process in any way.

Therefore, an employee who has chosen dismissal by agreement of the parties must necessarily consider compensation as a section of the contract with the employer. Federal Law No. 330-FZ of November 21, 2011 established the procedure for taxing personal income tax compensation. In accordance with paragraph 8 of clause 3 of Article 217 of the Russian Tax Code, compensation not exceeding three employee salaries is exempt from taxation.

Article 178 of the Labor Code governs the payment of such termination benefits. According to it, provisions for its payment can be included in the collective labor agreement. The second option for regulating such compensation is stipulated directly in the documents that accompany a specific dismissal by agreement of the parties. At the same time, in accordance with paragraph 3 of Article 217 of the Tax Code of the Russian Federation, personal income tax was not levied on severance pay not exceeding three salaries, and for the regions of the Far North - six salaries.

Registration of dismissal

The current practice of processing such a dismissal does not provide for any standard documents. However, the preferred design option is an agreement drawn up jointly by the employee and the employer. An indication of the desired legal consequences of termination of employment due to mutual agreement of the parties, an indication of the date accompany the dismissal by agreement of the parties. Payments of the amount of severance pay, the timing of the transfer of cases and positions to a new employee are also negotiated. Consider an example of the above convention.

Agreement on termination of the employment contract

The employer - Alfa-Trade LLC represented by the director Konstantin Borisovich Pavlov, acting on the basis of the charter, and the employee - merchandiser Marina Viktorovna Selezneva came to an agreement that:

The employment contract of 21.02.2010 N 35 will be terminated by agreement of the parties.
The employment contract is terminated on July 20, 2014.
The employee is paid compensation in the amount of one official salary.

The agreement is made in 2 copies with equal legal force, 1 for each party.

Director Print Pavlov Konstantin Borisovich

Employee Selezneva Marina Viktorovna

The initiator of the dismissal is an employee

However, the proposed method of registration can often be preceded by a written application by the employee or a corresponding appeal from the administration to him. At the same time, there is no single sample on how to write a letter of resignation by agreement of the parties. Therefore, we present an example of such a document.

employee application form

Director of Alfa-Trade LLC

Pavlov Konstantin Borisovich

Statement

I ask for your consent to terminate the employment contract with me from July 20, 2014, respectively, paragraph 1 of Art. 77 of the Labor Code (reason - by agreement of the parties).

I consider it expedient to establish a severance pay in the amount of two salaries.

Until I have received your written consent, I reserve the right to withdraw this application at any time.

Merchandiser Selezneva

Marina Viktorovna.

The agreement, as an option, may also be preceded by an appeal from the administration, initiating dismissal by agreement of the parties. The sample text is similar to that presented in the application.

Administration Letter

Dear Marina Viktorovna!

We suggest you terminate the employment contract, guided by paragraph 1 of Art. 77 of the Labor Code (i.e. by agreement of the parties) from July 20, 2014

Compensation is established, according to the collective labor agreement, in the amount of two salaries.

Director

Pavlov K.B.

Issuing a notice of dismissal

Based on the agreement, the head of the organization signs the corresponding order. Dismissal by agreement of the parties is gaining legal force at this moment. Often, along with this order, an order is issued on the acceptance and transfer of cases and an inventory.

Alfa-Trade LLC

07/20/2014 No. 15-k

Moscow city

On the dismissal of Selezneva M.V.

FIRE:
Selezneva Marina Viktorovna, merchandiser, 07/20/2014 by agreement of the parties (Article 37 of the Labor Code).

The accounting department to pay Selezneva M.V. monetary compensation in the amount of three salaries.

Reason: statement by Selezneva M.V. dated July 15, 2014.

Director of Alfa-Trade LLC Pavlov K.B.

Selezneva M.V. has read and agrees with the order.

By means of such an order, dismissal is carried out by agreement of the parties. At the same time, the entry in the work book must necessarily mention clauses 1 of part 1 of article 77 of the Labor Code.

Should the wording “dismissal by agreement of the parties” be avoided when dismissing?

This question, of course, is controversial and associated with myths.

Myth No. 1: an employee dismissed by agreement of the parties is a violator of labor discipline.

Myth No. 2: An employee who terminates an employment relationship in this way is underskilled.

The reason for the emergence of these prejudices was the practice of employers to “cut down” negligent employees under Article 77 of the Labor Code. However, if an employee is confident in his qualifications, as well as in the fact that he will be immediately employed elsewhere, then these myths are insignificant. On the contrary, a person will be able to quickly get the expected job.

Conclusion

Is the OPS in its current form ideal as a labor market tool? Based on macroeconomic patterns, its parameters (for example, non-participation of trade unions in its process) are incorrect with a significant level of unemployment.

To fully operate such a market mechanism in the labor market, ideally, a growing nature of the economy and a sufficient level of supply of competitive jobs are needed. However, the simplified organizational aspects that accompany the UPSS are in many cases preferable for the prompt termination of labor relations. This factor determines its wide application.

A person dismissed by agreement of the parties should take into account that in some cases an incorrectly executed agreement and, accordingly, an order to dismiss by agreement of the parties may ignore the payments or benefits due to him. Therefore, everything should be foreseen and taken into account.

The Labor Code of the Russian Federation provides for several ways to terminate an agreement between an employee and an employer. The most commonly used - at their own request or by agreement of the parties. Each method has both its advantages and disadvantages.

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Legal basis

Before an officially employed worker chooses exactly how he will terminate the employment contract, he must necessarily study the legal foundations of this process.

The most important are the following articles of the Russian Federation:

Each section covers the process of termination of employment in as much detail as possible. Having carefully read them, the employee will be able to choose the most suitable way for him to terminate the employment relationship without any difficulty.

In this case, it is necessary to focus on the Labor Code of the Russian Federation of December 30, 2001, as amended by Law No. 197-FZ of July 13, 2015.

Article No. 80 of the Labor Code of the Russian Federation considers in as much detail as possible all the features of the process of terminating an employment contract at the initiative of an employee - according to this article, the employee himself can terminate the agreement at any time, at his discretion.

Moreover, in the following cases, the operation in question must be carried out on the date indicated by the employee himself:

continuation of work is impossible for justified reasons;
violation by the employer:
- labor legislation;
- terms of the contract;
- local regulations.

This point is covered in as much detail as possible in the following federal laws:

from 30.06.06;
dated 02.07.13

Article No. 78 of the Labor Code of the Russian Federation indicates the possibility of terminating an employment contract at any time - if the employee and his employer were able to find a compromise, agree.

This method of termination of the employment contract has a large number of advantages over all the others. Also, both designated methods of dismissal are considered in Article No. 77 of the Labor Code of the Russian Federation.

At the same time, in the text of the article itself there are references to various legislative acts regulating this moment.

If possible, you should study the legislative norms indicated above in as much detail as possible. Often, the employer takes advantage of the fact that his employees simply do not know their rights and do not complain to the relevant authorities if they are violated.

Pros and cons of voluntary dismissal

Dismissal of one's own free will has one important feature, which is both a plus and a minus - in order to terminate the contract in this way, it is necessary to warn the employer about this in advance. This period of time is as much as 2 weeks.

The disadvantages include the need to work during all this time, to fulfill their immediate duties - laid down by the employment contract.

This is often the main problem. Often, an employee quits because he has found a new job that needs to be started immediately.

But this situation can be resolved quite simply if the employer is loyal to his employee who decides to quit. The dismissal itself can be completed even before the expiration of the two-week period - with the consent of the employer.

The so-called working off has one important feature - it continues even if the employee for some reason is absent from his workplace for a good reason (sick leave, vacation or otherwise).

Thus, you can avoid having to work for the previous employer for 14 days before leaving.

The advantages of this method of terminating an employment contract include the possibility at any convenient time, until the two-week period has expired, to withdraw a letter of resignation.

In this case, the employer has no right to refuse his employee in this action. Thus, if something went wrong with a new job, you can always change your mind and stay at the same one.

Taking into account all the above factors (both positive and negative), voluntary dismissal is the most profitable way to terminate an employment contract for an employee.

Pros and cons of dismissal by agreement of the parties

Dismissal by agreement of the parties is one of the ways to terminate an employment contract, using which a special document is drawn up by the employee and the employer.

It specifies the conditions under which the employment contract is terminated. At the same time, this method of terminating an employment relationship has both its pluses and minuses.

The disadvantages of dismissal by agreement of the parties in the first place include the following main points:

the employee will not be able to appeal the agreement signed by him (except in exceptional cases);
termination of the agreement concluded between the two parties unilaterally is not allowed;
in itself, the dismissal of the type in question does not provide for any compensation payments to the employee;
the formed agreement is not regulated by the legislation and has no established format.

If the employee signed a dismissal agreement, then this document implies the termination of the employment relationship in any case.

Even if the employee has lost his ability to work, is on sick leave, or other difficult circumstances have arisen.

At the same time, it is impossible to unilaterally change the terms of the agreement or completely refuse it. This is the most important drawback of this method of terminating an employment contract.

The mere fact of concluding this agreement does not imply any compensation paid to the employee. There will be no "automatic" payments.

All transfers from the employer to the employee must be indicated in the text of the agreement. In the event of a reduction or dismissal at the initiative of the management, the employee can always count on cash payments.

By agreeing to be fired in this way, the employee in some cases takes quite a risk. Since not all employers are decent and many form an agreement to the detriment of their employees.

That is why it is necessary to familiarize yourself with all the available clauses in as much detail as possible before signing. The best solution would be to first show the agreement to a qualified lawyer.

At the same time, termination of an employment contract by agreement has some important advantages. These include the following:

the employee can independently choose the date of dismissal - in a week, a month or even a year;
when dismissed in this way, the employment center pays much more compensation.

In fact, the only advantage of dismissal by agreement of the parties is the ability to terminate the employment contract at the most convenient time for you. Of course, at the same time, the employer himself must agree with the date proposed by the employee.

If the employee quit by agreement of the parties, then when registering with the employment center, he is paid a large amount - but such a bonus can only be beneficial if the employer himself has offered to terminate the employment relationship.

What is better to choose

Each method of terminating an employment relationship has both its advantages and disadvantages. It is worth choosing a specific one based on the existing relationship with the employer.

But there are cases when neither one nor the other way is beneficial for the employee. For example, when an enterprise is liquidated or an agreement is held.

In such a situation, the employer offers the employee to quit of his own free will or by agreement. At the same time, the employee must remember that when terminating the employment relationship in this way, monetary compensation is not expected.

If the dismissal is carried out by agreement, then the employer is obliged to provide guarantees and compensation in accordance with the Labor Code of the Russian Federation.

It is best to leave by agreement in the following cases:

if there is a vacancy in another organization;
if the employer offers sufficiently substantial benefits.

It is worth terminating an employment contract by agreement of the parties only if a new job has already been found. Since the agreement is not subject to cancellation unilaterally. In this case, first of all, the employee should be guided by his own personal benefit.

The Labor Code of the Russian Federation has such a basis for terminating an employment contract as an agreement of the parties (Article 78 of the Labor Code of the Russian Federation). The Labor Code of the Russian Federation formulates this basis succinctly: "The employment contract can be terminated at any time by agreement of the parties to the employment contract."
By agreement of the parties, the employment contract can be terminated at any time, and the law does not establish any term for “working off” or warning.
Moreover, by agreement of the parties, the employment contract can be terminated on any day agreed by the parties, including while on vacation and while on sick leave.
Both the employee and the employer can initiate dismissal by agreement of the parties. Usually, at this point, the employment contract is terminated when both parties want to finish the job quickly and painlessly. The initiator of the termination of the employment contract - the employee or the employer - sends his proposal to the other party, and if the parties come to an agreement, then an agreement is signed to terminate the employment contract.
Cancellation of the agreement reached is possible only with the mutual consent of the parties to the employment contract (clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On Certain Issues of the Application of Legislation by the Courts of the Russian Federation in Resolving Labor Disputes”).
The agreement defines the conditions for termination of employment, payment of compensation, etc.
However, 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 you leave, you will be paid:
Salary accrued on the last day of work;
Compensation for unused vacation (part 1 of article 127 of the Labor Code of the Russian Federation).
If you first go on vacation, and then quit (part 2 of article 127 of the Labor Code of the Russian Federation), you will also be entitled to vacation pay. The day of dismissal will be considered the last day of vacation.
In addition to salary and compensation for unused vacation, the agreement may also provide for severance pay. In this case, it must also be paid on the day of dismissal.
Upon dismissal of his own free will (Article 80 of the Labor Code of the Russian Federation), the employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance.
The specified period begins on the day after the employer receives the letter of resignation. By agreement between the employee and the employer, the employment contract may be terminated even before the expiration of the notice of dismissal.
On the last day of work, the employer is obliged to give the employee a work book, other documents related to work, at the written request of the employee, and make the final payment.
Upon dismissal of one's own free will, the following is paid:
Salary accrued up to the last day of work;
Compensation for unused vacation.
If an employee was on a probationary period in the organization and during it quit of his own free will, then he is also entitled to compensation for unused vacation.
In this case, if the working year is not fully worked out, vacation days for which compensation must be paid are calculated in proportion to the months worked.
Surpluses that make up less than half a month are excluded from the calculation, and surpluses that make up more than half a month are rounded up to a full month (letter of Rostrud dated 12/18/08 No. 6966-TZ).
Upon dismissal due to the termination of a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation), the employee must be warned in writing at least three calendar days before dismissal. In this case, the employer must pay wages for hours worked and compensation for unused vacation.
Upon dismissal at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation), the employee is provided with certain guarantees and compensations (see Chapter 27 of the Labor Code of the Russian Federation).
Upon termination of the employment contract in the event of liquidation of the organization or reduction in the number or staff of the organization's employees (clauses 1 and 2 of article 81 of the Labor Code of the Russian Federation):
The employee is paid severance pay in the amount of average earnings;
The employee retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay) (paragraph 1 of article 178 of the Labor Code of the Russian Federation).
Moreover, 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 the employee applied to this agency within two weeks after the dismissal and was not employed by him (paragraph 2 of article 178 TC RF).
In addition to the severance pay, the employee is paid compensation for unused vacation (Article 127 of the Labor Code of the Russian Federation).
The employer is obliged:
Warn employees about the upcoming dismissal in person and against signature at least two months in advance (paragraph 2 of article 180 of the Labor Code of the Russian Federation);
Offer the employee another available job (vacant position) (part 3 of article 81 and paragraph 1 of article 180 of the Labor Code of the Russian Federation);
Comply with the requirements for the preferential right to leave at work employees with higher labor productivity and qualifications (paragraph 1 of article 179 of the Labor Code of the Russian Federation).
According to paragraph 2 of Article 179 of the Labor Code of the Russian Federation, with equal labor productivity and qualifications, preference in leaving work is given to:
Family - if there are two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood);
Persons in whose family there are no other self-employed workers;
Employees who received an industrial injury or occupational disease while working with this employer;
Disabled veterans of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
Employees who improve their skills in the direction of the employer on the job.
Also, in accordance with Article 178 of the Labor Code of the Russian Federation, severance pay is paid to an employee in the amount of two weeks of average earnings upon termination of an employment contract due to:
With the refusal of the employee to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or with the lack of an appropriate job for the employer (subclause 8, part 1, article 77 of the Labor Code of the Russian Federation );
With conscription for military service or assignment to alternative civilian service (subclause 1, part 1, article 83 of the Labor Code of the Russian Federation);
With the reinstatement of an employee who previously performed this work (subclause 2, part 1, article 83 of the Labor Code of the Russian Federation);
With the refusal of the employee to transfer to work in another locality together with the employer (subclause 9, part 1, article 77 of the Labor Code of the Russian Federation);
With the recognition of the employee as completely incapable of working in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation (subclause 5, part 1, article 83 of the Labor Code of the Russian Federation);
With the refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (subparagraph 7, part 1, article 77 of the Labor Code of the Russian Federation).
As you can see, the “most beneficial” of all is dismissal upon liquidation of the organization or reduction in the number and staff (clauses 1 and 2 of article 81 of the Labor Code of the Russian Federation). That is why employers in such a situation often offer employees to write a letter of resignation of their own free will. Or by agreement of the parties.
However, if the employee proves in court that in fact there was a forced suspension from work, then, according to Article 234 of the Labor Code of the Russian Federation, the organization will be obliged to pay this employee the earnings that he did not receive for the entire time of illegal dismissal, and also restore him to his previous place of work.
Dismissal by agreement of the parties has its advantages. And cons.
First, the consent of the parties, i.e. the employee and the employer, is required. It does not matter who first put forward the proposal to terminate the contract - it is important that the other party agrees to this proposal.
For example, an employee received a better offer from another organization. Or, on the contrary, the employee is excellent, qualified, but relations with colleagues are categorically not getting better. There is no reason to fire him, but there is no point in keeping him at work. If the employee also believes that it is impossible to maintain further labor relations, then there are no problems, article 78 of the Labor Code of the Russian Federation to help.
The Labor Code of the Russian Federation does not regulate in any way how an employee and an employer agree on a civilized "divorce". Depending on the situation and (or) the desire of the parties, they can agree:
About the date of dismissal;
Compensation (if the termination of the contract is initiated by the employer);
Relocation allowances, etc.
Anything that does not contradict the law is suitable - the main thing is that both parties agree.
This is the most “marketable” basis for dismissal, since the Labor Code of the Russian Federation does not interfere in any way in the relationship between the employee and the employer.
It is assumed that the employee and the employer will hold peaceful negotiations, draw up an agreement to terminate the employment contract, in which all conditions will be stipulated - and everyone is free. You can leave by agreement of the parties at any time. In any - this means both during illness and during vacation.
This can be reflected in the work book in two ways, both of which are correct:
"Fired by agreement of the parties - paragraph 1 of the first part of Article 77 of the Labor Code of the Russian Federation";
"Fired by agreement of the parties - Article 78 of the Labor Code of the Russian Federation."
There is no violation here: both clause 1 of part one of Article 77 of the Labor Code of the Russian Federation and Article 78 of the Labor Code of the Russian Federation regulate precisely the dismissal by agreement of the parties.
And yet, what is more beneficial for the employee?
Upon dismissal of their own free will, the employer has the right to demand that the employee work for another two weeks (if the dismissal does not occur during the employee's probationary period). And if you have already found a new job, if they are already waiting for you there?
Dismissal by agreement of the parties does not provide for the need for working off, you can agree on a specific date for dismissal.
However, voluntary dismissal can also take place before the 14 days have elapsed.
In both cases, the period of working out can be reduced or not set at all if you manage to negotiate with your employer.
There is another side of the coin: you do not want to spoil relations with the employer and put him before the fact of his dismissal. However, you want to be able to freely, without hassle, attend courses, trainings, interviews. You can agree on dismissal by agreement of the parties even after a few months.
The employer will be able to easily find a replacement for you, and you can complete and transfer the cases.
Here is such a civilized way to leave beautifully ... you just need to remember that if you applied for dismissal of your own free will, then you have the right to change your mind (before the expiration of the working period). Of course, there will be no former idyll with the employer, but from a legal point of view, you are impeccably clean.
But with the dismissal by agreement of the parties, such a number will not work. After you have signed an agreement with the employer to terminate the employment contract, you will not be able to change your mind and stay, even if you agreed to leave after a long time.
However, you can try to negotiate with the employer. However, he is not obliged to agree with you, as in the case of dismissal of his own free will.
Perhaps these are the main differences.
Now with regard to the differences between dismissal by agreement of the parties and reduction.
We constantly have to deal with the fact that the employer offers employees, instead of dismissal due to a reduction in staff or to reduce the number of personnel, to quit by agreement of the parties. Should I agree to this? I don't think so, and here's why.
We look at article 81 of the Labor Code of the Russian Federation. When making redundancies, the employer must:
Notify the employee at least two months in advance of the upcoming reduction;
Analyze the data of all laid-off workers;
Identify those who, according to the law, cannot be reduced;
Identify those who have the preferential right to remain at work during the reduction;
Upon dismissal, pay wages for the period worked, compensation for unused vacation days, as well as severance pay in the amount of average earnings.
Furthermore. As a rule, after the dismissal within two months (or maybe three, if the employee registered with the employment authorities within two weeks after the dismissal and could not find a new job during this time), the employer is obliged to pay compensation to the employee.
The question is, why does the employer need all this?
Dismissal by agreement of the parties is much simpler, it's just two steps:
Get the employee's consent to terminate the employment contract;
Fulfill the agreed conditions.
By the way, with this design option, the likelihood of litigation and, moreover, the reinstatement of a dismissed employee tends to zero. The logic, in principle, is clear: “We are all adults, did you yourself agree on what basis to restore you?” But here's the money question!
It has already been said above that the laid-off employee receives tangible compensation. And it makes no sense to go for dismissal by agreement of the parties, if it is more beneficial to the employer. Now, if the employer puts forward really impressive arguments (for example, not three, but five average earnings plus good recommendations), then why not agree to quit by agreement of the parties?
And one more plus of dismissal by agreement of the parties. In order to receive compensation from the employer, you will have to not get a job for at least two months (I mean officially), otherwise the payment of benefits will stop.
If you leave by agreement of the parties, then you receive all compensation, regardless of whether you get a job or not.
I only ask you very much: never, under any circumstances, believe verbal promises. All promises must be clearly spelled out in the termination agreement.
Remember that after you sign this document, the employee will no longer be able to terminate it unilaterally or refuse it (unless the employer agrees, which is unlikely).
An agreement that has been signed and has entered into force (as a rule, this happens after signing) is almost impossible to challenge. If at all possible.
From this the conclusion is: never, under any circumstances, "enter the position of the company", refusing financial compensation or agreeing to a lower compensation. The entrepreneur in this case is your employer, it was he who should have thought about not getting into a difficult financial situation. And let him not try to shift his problems onto your shoulders.
So. It is beneficial to quit by agreement of the parties if:
It is necessary to choose a convenient time for dismissal;
There is a real, documented opportunity to receive more attractive compensation from the employer;
You want to register with the employment service after your dismissal (and receive a larger allowance and a longer period of time than when you leave of your own free will without good reason).
Now the cons:
You can be fired even when you are on vacation or on sick leave. Strictly speaking, this is not entirely a disadvantage, after all, you are not obliged to agree. Moreover, if you get good compensation, then why not;
Dismissal by agreement of the parties is uncontrolled. No unions (if you remember what they are), no special conditions;
Dismissal by agreement of the parties does not provide for any additional compensation (unless otherwise provided in the employment or collective agreement). Get only what is written in the agreement with the employer. There will be no automatic payments;
You can't change your mind. You will not be able to unilaterally revoke consent and refuse dismissal;
Forget legal protection. It might sound harsh, but in the vast majority of cases, you won't be able to challenge your dismissal in court.
Here is a summary of what you need to know about the termination of the contract by agreement of the parties. Obviously, this is a progressive way of regulating labor relations, which requires considerable maturity and personal responsibility.
IMPORTANT:
Few people understand the difference between dismissal by agreement of the parties (Article 78 of the Labor Code of the Russian Federation) and dismissal of their own free will (and employers quite often use this ignorance to their advantage).
If the employee, during the probationary period, came to the conclusion that the job offered to him was not suitable, he has the right to terminate the contract at his own request, notifying the employer in writing three days in advance (Article 71 of the Labor Code of the Russian Federation).
If the employee proves in court that in fact there was a forced suspension from work, then according to Article 234 of the Labor Code of the Russian Federation, the organization will be obliged to pay this employee the earnings that he did not receive for the entire time of illegal dismissal, as well as reinstate him at his previous place of work.
In addition, monetary compensation for non-pecuniary damage is collected in favor of the employee, the amount of which is determined by the court (Article 394 of the Labor Code of the Russian Federation).
After you have signed an agreement with the employer to terminate the employment contract, you will not be able to change your mind and stay, even if you agreed to leave after a long time.
After you sign this document, the employee will no longer be able to terminate it unilaterally or refuse it (unless the employer agrees, which is unlikely).
Anna MATSERAS, lawyer

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Perfect competition: features and distribution;

What is competition: types and types, functions, significance for the economy and society as a whole;

Information to be included in the sample;

Method of financial ratios The analysis of financial ratios is;

The main financial ratios for the analysis of the enterprise's activities Analysis of financial indicators and ratios of the enterprise;

The concept of a social group;

Shortened working day;

Training and improvement of the sales manager;