Upon dismissal by agreement. Dismissal by agreement of the parties

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

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

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and WITHOUT DAYS.

It's fast and IS FREE!

If you have any difficulties, it is best to conclude a special agreement to dismiss.

What does it mean

Today, the dismissal procedure can be initiated by any of the parties that have entered into an agreement. But at the same time, it is much easier for the employee to do this himself.

At the same time, the employer cannot do it so easily - in most situations, the Labor Code of the Russian Federation stands precisely on the side of an ordinary employee.

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

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

In this case, a special written agreement is mandatory. This moment is strictly obligatory - especially for the employee himself.

If any disputes arise, it may be necessary to go to court. A duly executed agreement will be a documentary basis for presenting requirements to the employer on a par with an employment contract.

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

But it must necessarily contain the following sections:

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

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

Since often the employer in this way tries to reduce the compensation payment upon termination of the employment contract. It is worth consulting a lawyer first about the content of this type of document.

After dismissal in this way, a corresponding entry is made without fail in the work book with reference to the Labor Code of the Russian Federation.

Subject to the legislation in force on the territory of the Russian Federation, this process of termination of the employment agreement is usually beneficial not only to the enterprise, but also to the employee himself.

Pros and cons for an employee

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

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

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

This is especially true when it is the employer who initiates the termination of the employment contract.

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

You can avoid the need to work off a two-week period - as if you were leaving at will.

Since this method of termination of an employment contract implies the search for a new employee to replace the one who has just quit. And only the employer can decide whether the quitting employee will work.

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

Under certain conditions (liquidation of the enterprise, reduction), the employer can agree to them.

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

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

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

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

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

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

There are many ways to carry out such operations. Therefore, before signing, you should carefully read each paragraph in the agreement. This will reduce the likelihood of cheating.

How to issue a dismissal by agreement of the parties

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

This document must necessarily include the following sections:

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

The only difference from the standard procedure for dismissing an employee of his own free will is precisely the presence of the above agreement.

After the date specified in it, the employer is obliged:

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

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

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

What documents are needed

For dismissal by agreement of the parties, the following documents are required:

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

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

In this case, the application for dismissal itself must necessarily contain the following information:

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

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

It identifies the most important points regarding dismissal, as well as other information. This document can be handed over in person, or by mail, by registered mail.

Are payments subject to personal income tax?

To date, citizens of the Russian Federation, as well as its residents, foreigners, are obliged to pay personal income tax from almost all their incomes - the tax on personal income.

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

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

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

This moment is covered in as much detail as possible in the legislation in force on the territory of the Russian Federation:

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

The situation is similar with deductions in favor of various types of funds. But it should be borne in mind that different regional offices have different interpretations of the legislation affecting this issue.

Position # 1: According to the current laws, various compensation payments related to the termination of an employment contract with an employee are not subject to fees to extra-budgetary funds. (Federal law of 24.07.09).

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

Position number 2: The objects of taxation for the benefit of all kinds of extra-budgetary funds are various payments to individuals in accordance with employment contracts. (Federal law of 24.07.98).

But at the same time, the compensation transferred according to the agreement is not subject to the employment contract concluded with the employee. Accordingly, no fees should be paid.

This moment is quite difficult. That is why the employer must first consult directly with the local offices of the Pension Fund of Russia, FSS. This will avoid the occurrence of various rather serious problems.

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

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

The employee himself needs to know that in this case, the employer will be obliged to pay monetary compensation in addition to the one stipulated by the Labor Code of the Russian Federation in the amount of the average monthly wage.

At the same time, a smaller amount cannot be indicated in the agreement - this is contrary to the legislation in force in the territory of the Russian Federation.

At the same time, obtaining a second salary is possible only if an appropriate agreement is concluded with the employer.

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

For example, if a soldier is reduced, whose work experience is less than 20 years, then exactly 2 salaries are paid to him. With a service life of more than 21 years, the reduction means receiving at least 7 monthly salaries in compensation.

Which is better: dismissal by agreement of the parties or reduction

Most often, the employer offers its employees to quit by agreement of the parties only in the event of the liquidation of the enterprise, reduction.

Termination of an employment contract is an ordinary operation in many large enterprises. From a legal point of view, this procedure is easier to carry out by agreement of the parties, i.e. when the employee and the employer express a desire to terminate cooperation. After termination of the contract, the employee will receive monetary compensation, the amount of which is set based on the number of days worked.

What is an agreement on termination of an employment contract by agreement of the parties

Termination of the relationship between the employer and the specialist can be carried out in different ways. One of them is the termination of an employment contract by agreement of the parties. The procedure is carried out with the written consent of the boss and the employee.... Dismissal by agreement of the parties with payment of compensation is convenient not only for the employer, but also for the employee. The employee with the boss can agree on the amount of compensation payments, the procedure for transferring the work book and other aspects of the procedure.

Compilation rules

The dismissal can be initiated by the boss or subordinate. The party that started the procedure is obliged to inform the other party that it wishes to terminate the contract. For this purpose, a notice is drawn up. The written proposal does not contain the exact date of termination of work, since this point is clarified by the parties when they meet. The document is filled in any form. The following information is entered into the agreement:

• number, date of drawing up the employment contract;
• the expected date of completion of the employee's work with all the details of the company;
• a clearly articulated desire of both parties to voluntarily terminate the employment contract;
• the reason for dismissal with an indication of the article of the labor code;
• additional conditions (the amount of compensation payments, the need to return the equipment provided for the period of operation, etc.).

The agreement is drawn up in two copies. One remains with the initiator of the procedure. When writing a letter of resignation by mutual agreement of the parties, there are always many problems with the formulation of proposals. It is important for an employee not only to express a desire to terminate activities in the company, but also to protect financial interests, therefore, it is necessary to write the amount of compensation payments in the text.

Why is it necessary

The agreement is drawn up to protect the rights of the employee and the employer. After the document is signed, any claims from the outside will be considered invalid. It is impossible to unilaterally change the terms of the agreement. With this type of dismissal, two-week work is not mandatory, but it can be assigned if a similar clause is spelled out in the employment contract. The agreement contains information on payments, on the time of termination of work activities.

Regulatory and legal framework

The procedure for dismissal by agreement of the parties is detailed in article No. 78 of the Labor Code of the Russian Federation (TC). According to the legislation, an employment contract can be terminated at any time if there is the consent of the director and the employee. Compensation for dismissal by agreement of the parties is provided on a mandatory basis. Information on the payment procedure is contained in Articles No. 78, 181, 279, 307 of the Labor Code. The amount and features of the severance pay are specified in the contract with the company. If there is no information about such compensation, then the employer is not obliged to provide it.

Distinctive features

One of the features of this procedure is that it is not regulated by the trade union organization, therefore, all disputes with the employer will be resolved by state bodies in accordance with the judicial procedure for considering labor complaints. Cases related to violations of working conditions are considered by the court of first instance within 2-3 weeks from the date of receipt of the application. Other distinctive features of consensual dismissal:

1. Ease of registration. To terminate the contract, you must obtain a written statement of the will of a hired specialist or employer. There is no need to inform the trade union or the employment service.
2. Termination of the contract takes place by agreement. The very wording of this procedure presupposes that both parties have agreed to the conditions put forward to each other. For example, the CEO decided to grant an employee's request for severance pay.
3. The conditions of the procedure can be canceled or changed with the consent of the two parties. After the employee and the boss have signed the agreement, it cannot be corrected. For this reason, lawyers recommend re-reading it 2-3 times before signing the document. Employers often forget to indicate information about the due payments, and then they provide compensation of the minimum amount, which causes dissatisfaction with the dismissed, but it will not work to change its value even in court after signing the agreement.
4. No justification is required to terminate an employment contract. Unlike being fired for disciplinary offenses, the director does not have to look for evidence of a subordinate's misconduct. With this procedure, the evidence will be an agreement signed by both parties.

Who can initiate

The procedure presupposes the existence of mutual consent to terminate the employment relationship, but often the boss wants to dismiss the subordinate. From a practical point of view, it is beneficial for the director to terminate the contract if there is an agreement, because the employee will not be able to challenge the company's decision, because he himself agreed with him. An employee, by mutual agreement, can resign even in the event of temporary disability or while on a business trip. The union or any other person cannot interfere with the dismissal process.

The procedure for terminating an employment contract

One of the parties is obliged to send a proposal for dismissal. The next step is to obtain written consent for the procedure. The document must contain the signature of the second party, the date of signing. Next, an agreement is drawn up. When drawing up the document, both parties are obliged to participate.... The employee does not have to immediately agree to the employer's demands. A citizen can think for 3-4 days and make a counter offer. After all the nuances are settled, and the agreement is signed, the employer needs to perform the following actions:

1. Issue a dismissal order. The document is drawn up on the day entered in the agreement.
2. To acquaint the employee with the issued order. A citizen is obliged to put his signature on the document. If the employee refuses to sign the order, an act is drawn up.
3. Register information about dismissal in the employee's personal card. The first part of the form No. T-2 is filled in when a specialist is hired at the enterprise, and the second is when the contract is terminated. After making an entry, the citizen must be shown a personal card, and then receive his signature confirming that he has read the document. The form remains in the HR department.
4. Make an entry in the labor book. It is obligatory to refer to the first part of Article No. 1 of the TC. In the work book, the manager, if desired, can add his own feedback, both negative and positive. It will not affect the amount of compensation in any way.
5. Make the final settlement with the employee. The employer is obliged to issue remuneration for the last working month, money for unused vacation, severance pay.
6. Issue the following documents to a citizen:
   • work book;
   • certificate on form 182H for obtaining sick leave;
   • certificate of the amount of contributions to the Pension Fund;
   • certificate SVZH-STAZH with information about the employee's experience (introduced in 2017);
   • a certificate for the employment service about the three-month salary;
   • copies of internal documents of the organization at the request of the employee.
7. Inform the military registration and enlistment office that the citizen was dismissed. This is done if the employee is liable for military service.

Dismissal payments by agreement of the parties

The accounting department gives the employee a salary for the hours worked. The compensation is calculated based on the labor rate. With the piecework form of cooperation, the citizen receives money for the work actually performed. If the field of work provides for the receipt of interest from the transaction, then the accounting department is also obliged to pay them within 2 weeks from the date of dismissal. The employee is entitled to the following types of compensation upon termination of the contract:

• For unused vacation. The amount of compensation is calculated based on the average daily earnings for the past year.
• Severance pay. This compensation is paid by agreement of the parties. The employer sets the amount of the allowance at his own request.
• Payment for hours worked. Compensation is calculated inclusively up to the day of termination of the contract.
• Payment for periods of temporary disability. The money will be provided to the citizen if the citizen was on sick leave in the month of termination of the contract.
• Bonuses, bonuses, allowances stipulated by local regulatory legal acts. Each organization has its own system for calculating this type of compensation.

Deadlines for final settlement with the employee

Algorithm for granting payments depends on the grounds for termination of employment. Compensation for dismissal by agreement of the parties is in any case paid after the issuance of the order. The employer must draw up the document in advance. According to article 140 of the Labor Code, the final settlement with the employee is carried out no later than the day of dismissal specified in the order.

Upon termination of employment, the employee is paid a severance pay equal to the average monthly earnings. If a specialist was not present on the day of dismissal due to the illness of his or a close relative, then, according to the law, his position remains with him until the moment of final settlement. The employee is provided with interest on sales and other additional payments under the contract within 2 weeks.

Is severance pay upon dismissal by agreement of the parties mandatory

This payment refers to additional, i.e. the employer can provide it at will. The decisive factor is the reason for the dismissal. For example, pregnant women are often given severance pay upon dismissal. According to article 178 of the Labor Code, the employer is obliged to provide this payment if the termination of the employment contract occurs for one of the following reasons:

• the employee was called up for military service;
• the enterprise is subject to liquidation;
• there are planned staff reductions;
• the specialist who previously performed this work has been reinstated;
• the citizen refused to continue working due to changes in the terms of the employment contract;
• an individual does not have sufficient qualifications for the position held;
• the employee refused to be transferred to a branch of the organization.

The severance pay is legally equal to two weeks' wages. If the reason for the dismissal is the liquidation of the company or the layoff of staff, then the payment is equal to monthly earnings. In some constituent entities of Russia, severance pay is provided for seasonal workers and employees who quit of their own free will. This legislative norm is in effect in the Far North, in the Republic of Karelia and in settlements with equal status to them. The company will not pay severance pay if it is declared bankrupt.

How is the amount of compensation for dismissal determined by agreement of the parties

The amount of compensation is calculated by the accounting department. The procedure is not uniform, i.e. the head of the enterprise decides for what period the compensation will be presented and how its amount will be established. If the employment contract states that as a result of the dismissal the employee will be paid a fixed amount of money, then it will be so. An exception is situations when the agreement contains information on the provision of compensation. The amount of payments is determined by accountants as follows:

• by average earnings for a certain period of time;
• in the amount of the official salary (double, triple, etc.);
• in the form of a fixed amount specified in the employment contract.

Fixed amount

A number of organizations prescribe a certain amount of compensation in a collective or individual labor agreement. The director can change its size if information about this is present in the concluded agreement. The legislation does not provide for any restrictions on the fixed amount of compensation. It is often equal to the wage rate for one working month.

In the amount of the official salary

The amount of the tariff rate is prescribed in the employment contract. If a citizen has been promoted several times during his work or the salary has been increased, then this is displayed in this document. The compensation will be equal to the salary in the last specialty. Ordinary employees are often given triple pay, but directors and top managers are paid compensation equal to six times the salary.

According to the average earnings for a certain time

With this method, it is important to correctly determine the amount of compensation. The accounting department calculates the amount of payment based on the established monthly salary and the number of days worked per month. For example, a manager has a salary of 25,000 rubles. He will be fired on February 20, 2019. According to the production calendar, this month has 20 working days. For the period from February 1 to February 20, there are only 14. The average earnings of the accountant will be calculated using the following formula: 25,000/20 * 14 = 17,500 rubles.

Taxation of payments upon dismissal by agreement of the parties

Labor costs include any accruals and allowances for employees. Based on article 255 of the Tax Code, compensation provided to an employee upon termination of employment can be included in the tax return. Contributions to the Social Insurance Fund (FSS) and the Pension Fund (PFR) are also withheld from these amounts. Reimbursement for unused vacation is only subject to personal income tax (PIT). Other contributions will not be withheld from this amount.

What amounts are not subject to personal income tax

Under the current legislation, an individual is obliged to pay tax on all types of profits, but upon dismissal, this rule works differently. The unemployed are classified as socially unprotected strata of the population, so the state exempts them from part of the mandatory deductions from wages. Personal income tax will not be charged on the following types of compensation:

• Indemnity, not exceeding three times the monthly salary for ordinary team members and six times for department heads, chief accountant.
• Payments to the head, deputy heads, chief accountant, top manager.
• Average monthly earnings for the period of employment. According to the legislation, a citizen, after registering as an unemployed person, can receive money for 2 months until he finds a job.

Insurance premiums

Severance payments provided by the employer in local documents are not exempt from contributions to the FSS if their value is more than three months' wages. Insurance premiums are not deducted from premiums, bonuses and from financial assistance to an employee, if its amount does not exceed 4000 rubles. No deductions are made to the FSS from benefits for sick leave, pregnancy, childbirth or childcare received before dismissal.

Tax accounting of compensation at the enterprise

All payments to members of the work collective are related to the expenses of the enterprise. When collecting income tax, the money paid to the employee is deducted from the taxable amount, i.e. the company's contributions to the state budget are decreasing. You can add compensation to the list of expenses if it is provided for by a collective / individual labor contract or a concluded agreement.

The tax authority will review the business case for the payments. The amount of compensation must be adequate, i.e. do not exceed six monthly indicators of wages. Large businesses often pay big payoffs to top managers, but similar transactions to an employee of a small company will raise questions from government officials. The tax authority can send a request for the submission of justification for the dismissal if the procedure is initiated by the employer.

Video

(No ratings yet)

Work is an integral part of every person's life. It is work that allows you to apply your knowledge and abilities to obtain both your own benefit and to benefit society.

The overwhelming majority of people change their place of work several times during their lives, and they do so for various reasons. It is the reasons for dismissal from work that often affect how this procedure will take place, in what relationship you will remain with the employer and whether you will be able to return.

Dismissal should be gently approached as responsibly as possible. In most cases, leaving the previous place occurs of their own free will due to the fact that they are not satisfied with any terms of the contract or other circumstances. There are also cases when the employer becomes the initiator of the dismissal due to failure to fulfill the duties specified in the employment contract. The latter option can make it difficult for a resigned person to find a new job. In this regard, the employer and the employee may come to an alternative method, which implies the termination of the contract by agreement of the parties. It is about this option that we will talk about, and also tell you what the pros and cons for an employee is dismissal by agreement.

Dismissal by agreement of the parties is carried out by mutual agreement. In this case, each of the parties has certain benefits that can be forfeited when dismissing in other ways.

You can familiarize yourself with the conduct of this procedure in the Labor Code of the Russian Federation, in article No. 78. According to this article, an employment contract can be terminated at any time.

The use of this method was not very popular until a certain time. This was due to the fact that the workers were poorly versed in the features of this method. It is for better awareness of employees in this article we will tell you in detail about dismissal by agreement of the parties, as well as what are the pros and cons for the employee he has.

The agreement on termination of the TD must be drawn up in two copies, and the text of the agreement itself does not have a strictly defined form. The Labor Code does not oblige to draw up this agreement, but it is advisable for the employee to insist on drawing up an official paper confirming leaving work.

To start drawing up an agreement, each party must put forward its own terms of termination of the employment contract, and if these conditions suit both parties, then you can proceed to drawing up an official paper.

Pros and cons for an employee

This method, in addition to pluses, also has minuses. Consider the positive and negative aspects of dismissal by agreement of the parties for an employee:

• The employee has the right to independently name the date of his dismissal. There are no restrictions and the employment contract can be terminated even after a few days. This allows compulsory service for two weeks upon dismissal of their own accord;
• The resigning person can independently present the conditions on the basis of which he will leave the organization. This allows you to set the conditions for the payment of compensation;
• An entry in the work book confirming dismissal by agreement of the parties does not negatively affect further employment;

There are also certain disadvantages:

• The amount of compensation is set in the course of joint discussion. In this regard, in some situations, the employee will have to make concessions;
• It is impossible to challenge the agreement drawn up and signed by both parties in the judicial authorities;
• The absence of a strictly specified procedure for dismissal in this way in some cases may negatively affect the employee, since he will have to accept the conditions of the employer;
• Unlike dismissal of one's own free will or in connection with non-fulfillment of an employment contract, in this case, dismissal can be made while on vacation. This can negatively affect the amount of compensation or severance pay.

Before leaving by agreement, you need to weigh all the pros and cons. An analysis of each method of leaving work will minimize the negative impact on further employment.

Pros and cons for an employer

This method also has pluses and minuses for the employer, but the number of pluses significantly exceeds the minuses, so this method of dismissal is preferable not only for the employee, but also for the employer.

The benefits include:

• There is no algorithm strictly defined by law. In this regard, each organization can offer its own terms of dismissal by agreement;
• After signing the agreement, the retired employee cannot challenge the employer's actions in the judicial authorities;
• If the employee is not interested in receiving compensation, other payments or he has not put forward his own conditions, then the employer has the right not to reflect this clause in the agreement and, as a result, not to make payments;
• On the basis of the agreement, it is possible to dismiss not only an ordinary employee, but also those who are on vacation or maternity leave. Thus, we can conclude that this method is preferable for the organization.

The disadvantages include:

• Mandatory consent of the employee to the terms of the agreement;
• Compensation is paid only from the amount of net profit.

Dismissal procedure

Each employee should be aware of the procedure for his dismissal. This is necessary to exclude situations when the employer wants to deceive the employee and deprive him of compensation or severance pay.

Dismissal by agreement of the parties takes place in the following order:

• After agreeing on the terms of termination of the employment contract orally, it is necessary to draw up a document confirming the dismissal. The document is drawn up in two copies;
• Recording the agreement in the organization's journals and handing over a copy to the employee for review;
• Based on the agreement, the resigning person must draw up a letter of resignation, which must be signed by the head of the company;
• Drawing up an order and presenting it to an employee for review;
• Calculation of compensation for an employee;
• The personnel department puts a mark on the termination of the employment contract on the basis of an agreement between the parties. Internal documents of the organization are also filled in;
• The employee is given all the necessary documents (starting with a work book and ending with certificates of income and seniority).

Sample agreement

A sample agreement on dismissal by agreement of the parties must contain the following information:

• The date of termination of the employment contract;
• Term of working out. This item may be removed;
• The amount of compensation payments and the period during which they must be made;
• How and when the post will be transferred;
• The presence or absence of claims from both parties.

Each company prepares a sample agreement for itself. For familiarization purposes, you can see a sample dismissal agreement by agreement of the parties at the link below.

Payment of compensation

Particular attention should be paid to the clause concerning payments upon dismissal by agreement of the parties.

According to the Labor Code of the Russian Federation, the employer must calculate compensation payments after the employee is dismissed. An employee has the right to receive:

• Salaries for the worked period of time;
• Compensation for unused vacation;
• Severance pay (if provided for by the internal documents of the organization).

There is no section in the Labor Code that deals with the calculation of compensation payments. In this regard, each organization calculates on the basis of internal documents.

Employment record

After the termination of the employment contract, all the necessary documents must be handed over to the former employee. Particular attention should be paid to what will be written in the work book.

The reason for his dismissal is entered in the employee's work book. If this happened on the basis of an agreement between the parties, then exactly the same wording should be indicated in the work book. It should also indicate the number of the document on the basis of which the dismissal occurred.

The former employee must sign his work record book. This is a mandatory procedure that confirms the correctness of the written reason for terminating the employment contract. Also, the recipient of the carnet must put his signature in the internal documents of the organization, which will confirm its receipt.

An agreement upon termination of an employment relationship is a way of compromise and taking into account the interests of each other, both on the part of the employer and on the part of the employee. Despite the fact that this method of dismissal is the simplest, it has some peculiarities.

From the point of view of the law

The legislation of the Russian Federation in this case is laconic. It only says that the employment contract can be terminated by mutual agreement at any time. This means that such dismissal is possible as when working part-time, etc. even in cases where the dismissal of an employee by the employer is routinely prohibited.

Files

Stages of the procedure

The process of dismissal by agreement can be initiated by both the employee and his employer. The first thing to do is to send the other party a written proposal to end the employment relationship. You can do this orally, but in this case, there will be no evidence on hand that such a proposal took place. If everything goes well and the employer or employee agrees with the initiative expressed by the opponent, it is time to proceed directly to the agreement, which must be drawn up in writing without fail.

Who should execute the agreement

As a rule, the document is drawn up by a representative of the employer - a lawyer of the organization, or a specialist in the personnel department, or, in extreme cases, the secretary of the head. In any case, it must be an employee with at least minimal knowledge of the Labor Code of the Russian Federation, since the document is legally significant and, if necessary, can be used as evidence in litigation. At the same time, regardless of who exactly drew up the text of the agreement, after registration it should be transferred to the head for signature.

Who benefits from the agreement: the employer or his subordinate

A dismissal agreement is called an agreement because it is usually of interest to both parties. For example, an employee can bargain for good "compensation" - their size is not limited by law (it is worth noting that if they are not specifically stipulated in the document, the settlement funds will be paid in the amount stipulated by the legislation of the Russian Federation). The employer, through this document, gets the opportunity to get rid of the "unnecessary" employee, while (which is especially important!) After signing the agreement, the employee will no longer be able to unilaterally refuse to dismiss or change its conditions.

And the most important advantage of the agreement is that the date of dismissal is set based on the interests of both parties: for example, from the moment of drawing up the agreement and until the immediate termination of the employment contract, it may take two days, or maybe two months.

Rules for drafting an agreement

Legislators have not developed a standard generally applicable agreement model, so enterprises and organizations can create a document form at their discretion and guided by their own needs. True, in this case, nevertheless, some norms should be observed, in particular, in the document it is necessary to indicate the full name of the employer, position, last name, first name, patronymic of the employee, record the fact of the agreement reached and write down its conditions in detail. The latter must fit into the framework of the labor code of the Russian Federation.

Usually, the agreement is drawn up at least a few days before the dismissal, but in some companies it is different. The employer does not draw up a document, but instead writes an appropriate resolution with the future date of termination of the employment contract for.

The agreement has two equivalent copies, one of which remains with the employer, and the second is given to the dismissed employee. Each copy must be signed by both parties.

Document header

At the beginning of the document, its name and number are written (according to the internal document flow of the enterprise), just below the information about the employment contract under which the employee works (date of conclusion and number) is indicated. The next line contains the settlement in which the company is registered, as well as the date of the agreement.

Main part

First of all, the full name of the enterprise (in accordance with the constituent documents), position, surname, name, patronymic of the employer's representative (usually here it is on behalf of the director or general director) is entered into it, and all information about the employee is indicated in the same way.

What did we agree on

Here, the provisions of the agreement reached are entered in separate clauses. In particular, they need to record the fact of termination of the employment contract (with reference to the letter of the law) and indicate the date of the last working day of the dismissed. After that, it is necessary to move on to the terms of the agreement: if an employee goes on vacation before dismissal, this needs to be prescribed, as well as in what amount and in what time frame he will be paid severance pay. Conditions that the employee must fulfill during the termination process should also be included in the agreement (for example, on the transfer of cases to another employee).

Then, in the agreement, you need to specify the standard clauses that the parties have no claims to each other and both copies of the document have equal legal force.

In conclusion, the document is first signed by the employee, then by the head of the company.

After drawing up the termination agreement

After the document is drawn up and signed properly, the head of the enterprise issues an order to terminate the employment contract by agreement of the parties, the acquaintance with which the employee must also certify with his signature. The rest of the procedure follows the usual scenario: when the date of termination of the contract comes, first an entry is made in the employee's work book and his personal card, then settlement funds are issued, etc.

Agreeing to leave the parties is in many cases the only way to part with the wrong employee without conflict. This type of termination of labor relations often suits the employees themselves, because in the agreement the parties can agree on the payment of monetary compensation. Labor legislation does not establish strict requirements for the design and content of the agreement, however, when concluding it, one should adhere to the rules that have developed in practice.

By agreement of the parties, both a fixed-term employment contract and an employment contract concluded for an indefinite period can be terminated at any time. To do this, one of the parties (employee or employer) comes forward with a proposal to dismiss by agreement of the parties (clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation). The initiative can be expressed verbally or in writing (for example, a sample of the employer's written proposal to the employee about dismissal by agreement of the parties is presented in the form section on the website https://www.moedelo.org/Pro (Article 78 of the Labor Code of the Russian Federation, paragraph 20 of the Resolution Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004).

How to complete an agreement?

The Labor Code does not indicate in what form an agreement on termination of an employment contract should be concluded (Art. 78 of the Labor Code of the Russian Federation). Since Part 1 of Art. 67 of the Labor Code of the Russian Federation requires that an employment contract be concluded in writing, then the form of an agreement on its termination must be written.

The agreement must be drawn up by analogy with the employment contract: in duplicate, each of which is signed by the parties. One copy of the agreement must be handed over to the employee, the other will be kept by the employer. The employee must sign the copy of the agreement kept by the employer for receiving his copy. For example, in this form: "I received a copy of the agreement. Signature, date" (part 1 of article 67 of the Labor Code of the Russian Federation).

What to include in the agreement?

The agreement of the parties to terminate the employment contract contains the following basic conditions:

• an indication of the mutual desire of the employee and the employer to terminate the employment contract by agreement of the parties. To do this, it is advisable to include in the agreement a separate clause stating that it was signed by the parties (employee and employer) voluntarily, on the basis of their free expression of will and without any coercion;
• details (date and number) of the employment contract that is terminated;
• the date of termination of the employment relationship (the last day of the employee's work).

In addition, the agreement may contain a clause on the return by the employee of material values ​​given to him in connection with the performance of his job duties (for example, a mobile phone, SIM card, voice recorder, etc.).

Also, the agreement can include a condition on the payment of monetary compensation to the employee for termination of the employment contract, its amount and other conditions. Payment of monetary compensation to the employee upon dismissal by agreement of the parties is not mandatory(Article 78 of the Labor Code of the Russian Federation).

If an annual leave is issued with the subsequent dismissal of an employee by agreement of the parties (part 1 of article 127 of the Labor Code of the Russian Federation), it is advisable to include in the agreement a condition on granting the employee a leave with subsequent dismissal.

In the agreement, you must specify the same information that is indicated in the employment contract:

• date and place of the agreement;
• surname, name, patronymic of the employee and the name of the employer who entered into the agreement;
• information about the employee's identity documents;
• TIN of the employer;
• information about the representative of the employer who signed the agreement, and the basis by virtue of which he is endowed with the appropriate powers;
• signatures of the parties to the employment contract (part 1 of article 57 of the Labor Code of the Russian Federation).

You can find a sample agreement on termination of an employment contract in the forms section of the website.

An employer or employee cannot unilaterally cancel or change an agreement concluded between them on termination of an employment contract. Cancellation (annulment) or amendment of the agreement is possible only with mutual consent of the parties (clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004, Determination of the Constitutional Court of the Russian Federation No. 1091-О-О of October 13, 2009).

A comment - In practice, the question often arises: how much time should elapse from the moment of signing the agreement on termination of the employment contract until the employee's dismissal? The question arises in connection with the fact that with regard to dismissal of his own free will, a certain period of warning ("working off") is set for an employee - as a general rule - two weeks (Article 80 of the Labor Code of the Russian Federation). However, in a situation where an agreement on dismissal is concluded between the parties, such a period has not been determined.

The parties to the employment contract themselves set the date for the termination of the employment relationship (the last day of work). If the date of the conclusion of the agreement and the last day of work do not coincide, then the working days between the date of the conclusion of the agreement and the date of termination of the employment contract will be the time that the employee will work before dismissal (for example, the date of the conclusion of the agreement on termination of the employment contract is January 11, and the date of termination labor relations - January 17) (Article 78 of the Labor Code of the Russian Federation, clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004).

We formalize the dismissal

After signing the agreement on termination of the employment contract, a dismissal order is issued, with which the employee must be familiarized with signature. As a basis for dismissal, the order must indicate: "Agreement of the parties, paragraph 1 of part one of article 77 of the Labor Code of the Russian Federation." If the order cannot be brought to the attention of the employee (absent, refuses to read), a corresponding entry is made on it (part 1-2 of article 84.1 of the Labor Code of the Russian Federation).

The dismissal order is the primary accounting document and can be drawn up either in a unified form (No. T-8 or No. T-8a), or in a form independently developed by the employer and approved in his accounting policy. The order form used must contain all the mandatory details listed in Part 2 of Art. 9 of Federal Law No. 402-FZ of December 6, 2011 No.

On the day of dismissal final payment is made with the employee, namely, he is paid:

• salary for hours worked not received by the day of dismissal;
• compensation for unused vacations (if any);
• compensation for termination of the employment contract (if such payment is provided for by the agreement) in the amount determined by the agreement.

If on the day of termination of the employment contract, the employee is absent from work, you need to wait for his application for payment. The calculation in this case is made from the moment the dismissed employee applies (but no later than the next day after the day of the appeal) (part 1 of article 140, part 1 of article 127, part 4 of article 84.1 of the Labor Code of the Russian Federation).

Also on the day of dismissal you need issue the employee with a work book with a note of dismissal, which is entered in column 3 of the section "Information on work" as follows: "The employment contract was terminated by agreement of the parties, paragraph 1 of part one of article 77 of the Labor Code of the Russian Federation." The record of the reason for dismissal (termination of the employment contract) must fully comply with the wording of the Labor Code of the Russian Federation with reference to the relevant article, part and paragraph of the article. All words in the entry must be written in full, without abbreviations (paragraph 2, clause 1.1 of the Instruction, approved by the Decree of the Ministry of Labor of Russia No. 69 of October 10, 2003).

If on the day of termination of the employment contract, the employee is absent from work, you need to send him a notice by mail with a request to appear for the work book. From the moment the notification is sent, the employer is released from liability for the delay in the work book (parts 4-6 of article 84.1 of the Labor Code of the Russian Federation, paragraphs 12, 36, 41