Severance pay upon dismissal by agreement of the parties. What severance pay is due upon dismissal by agreement of the parties?

Often, an employer pays its employee compensation upon dismissal by agreement of the parties. The amount of compensation depends on several factors.

An agreement between the parties is the easiest and fastest way to quit. It benefits both the employer and the employee. This formulation is used in various situations of dismissal - from staff reduction to liquidation of the enterprise.

In Art. 78 of the Labor Code of the Russian Federation states that the employer and employee can terminate the employment contract at any time if they agree among themselves. This is called “dismissal by agreement of the parties.” You can resign in this way during vacation, during illness, and in other cases when the law prohibits the employer from dismissing an employee on his own initiative.

Dismissal at the initiative of the employer is always a complex and “paper” procedure. Therefore, it is more profitable for the employer to agree with the employee on dismissal by agreement of the parties with payment of compensation.

The amount of compensation will depend on the grounds on which the employee was supposed to be dismissed. Most often, severance pay upon dismissal by agreement of the parties should not be less than 3 average earnings of the given employee per month.

Compensation upon dismissal, by agreement of the parties, is paid on the day of dismissal, as well as other mandatory payments to the employee.

How to resign by agreement of the parties with payment of compensation

To resign on such a basis as an agreement of the parties, it is necessary to follow a certain procedure:

• one of the parties must take the initiative to dismiss. Most often, it comes from the employer, who then invites the employee “not to delay” the dismissal procedure, but to “take the easy path” and resign by agreement of the parties, with the payment of additional compensation.
• then you need to draw up the text of the dismissal agreement, which will clearly indicate what payments are due upon dismissal by agreement of the parties to this employee;
• the agreement must indicate the amount and procedure of payments, the last day of work, and the amount of compensation. The employer must pay the employee a number of mandatory payments, the amount of which does not in any way affect the amount of severance pay under the agreement. This:
  • the employee’s salary for the working days actually worked in the month of dismissal;
  • compensation for missed vacation;
  • compensation for dismissal, which may be provided for in a collective or employment agreement. This is stated in Art. 178 Labor Code of the Russian Federation.

The agreement must indicate the basis on which the employment contract is terminated. In this case, it is an “agreement of the parties.” The agreement is drawn up in 2 copies. The parties put their signatures on both documents. On the employer’s copy, the employee must write “I have received my copy of the agreement.” Such an agreement cannot be canceled or its terms changed unilaterally. This is a big plus for both the employee and the employer. The employee can be sure that the employer will not deceive him and will pay him the due and agreed compensation. The employer can be sure that the employee will not change his mind about resigning at the very last moment, and will not withdraw his application, as is possible when resigning at his own request;

• after the agreement is signed, the employer must issue an order based on this document. The order will indicate the details of this agreement;
• the employee must familiarize himself with the order, putting his signature on it and the date of familiarization;
• after signing the order, the employer must issue a certificate - calculation, which will indicate all payments, including compensation by agreement of the parties on dismissal;
• after this, the employer must make a full settlement with the employee, according to this certificate. All payments to the employee are made on the day of dismissal, that is, on the date specified in the dismissal agreement. On the same day, the employer is obliged to issue a work book. Which will be filled out in full accordance with personnel procedures and the labor code. The entry “Dismissed by agreement of the parties” must be entered in the work book. The employee signs the work book, thereby indicating that he has read and agrees with the entry;
• If the employee makes such a demand, the employer must provide him with copies of all documents that are directly related to the work activity of this employee. If the employer or employee violates the terms of the agreement, the other party has the right to sue. A severance agreement is not just a document that “insures” the parties. This is an official document that confirms the parties’ agreement on the terms of termination of the working relationship.

Video on the topic

Dismissal by agreement of the parties - compensation for 2018, calculated by employers on this basis, is an actively discussed topic. The reason for this is numerous court proceedings and letters from the Ministry of Finance. In this material, we will consider some of the nuances of dismissing an employee with mutual consent of the parties, the principles of payment of compensation, and analyze the tax aspects of such payments.

Article 78 of the Labor Code of the Russian Federation “Dismissal by agreement of the parties”, sample agreement

The law provides for several grounds for termination of an employment contract, one of which is the agreement of the parties. The norm allowing it is contained in clause 1, part 1, art. 77, art. 78 Labor Code of the Russian Federation.

If there is mutual agreement to terminate cooperation, it is not necessary to draw up a separate document. You can get by with an executive visa for statement from a resigning employee , in which he indicates the reason for dismissal and necessarily refers to the mutual agreement between the parties. As a result, the employer receives significant evidence of the employee’s good will to terminate the contract, which sometimes helps in labor disputes.

However, in most cases, employers prefer to issue a document signed by the employee. The agreement then carries an additional information and legal burden, and in addition to the main provisions, it fixes the procedure for transferring cases, determines the amount of compensation, etc.

Below is a sample of such an agreement to terminate an employment contract.

The agreement can be signed any day before the employee’s dismissal. But once a document is endorsed on both sides, it is no longer possible to revoke the signature, no matter which party was the initiator (with rare exceptions). Therefore, it is more profitable for the employer to terminate the employment contract in accordance with the provisions of clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, especially if you have to fire a “difficult” employee.

IMPORTANT! If the employee submits a certificate from the antenatal clinic about pregnancy, then she has the right to revoke the dismissal agreement.

Compensation upon dismissal by agreement of the parties

In ch. 27 of the Labor Code of the Russian Federation provides the types of compensation payments that an employer must issue to a resigning employee, and the grounds for such issuance.

Read how compensation is calculated upon dismissal.

If dismissal occurs by agreement of the parties, then only one type of compensation must be paid - for unused vacation. The right to other types of compensation is determined provisions of Art. 178 Labor Code of the Russian Federation . Such payments can be listed in detail separately in a collective or employment agreement.

It should be borne in mind that as soon as compensation obligations are included in the termination agreement, the employer may be held liable for indiscipline. This means that the defaulting employer will have to pay interest to the dismissed employee for the delay in the amounts due under the agreement.

However, in practice there are many lawsuits, as a result of which employees were denied severance pay, even when they were specified in the employment contract. For example, if a company goes bankrupt, judges recognize such terms of an employment contract as invalid. You should not provide an excessively high amount of compensation upon dismissal. This type of compensation does not create additional motivation for work; therefore, the court may refuse to pay an employee if there are negative financial consequences for the enterprise proven by the employer.

Let's consider what features of calculating taxes and insurance premiums exist for compensation payments upon dismissal by mutual consent.

Taxes and insurance premiums in connection with the payment of compensation upon dismissal

Upon dismissal from compensation amounts (except for payments for unused vacation), personal income tax is not calculated up to a certain limit. In accordance with the norms of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, as soon as the amount of compensation exceeds 3 times the average monthly earnings, obligations to calculate this tax come into force. For persons who worked in the Far North, this threshold is set at 6 times monthly earnings (letter of the Ministry of Finance of Russia dated April 4, 2017 No. 03-04-06/19710, definition of the RF Armed Forces dated June 16, 2017 No. 307-KG16-19781).

When issuing a 2-NDFL certificate:

• the amount of compensation is not included in the document if it is not subject to personal income tax;
• if the amount of compensation exceeds the amounts specified in paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, then in terms of excess it is given with income code 4800.

Read more about the procedure for filling out a certificate in form 2-NDFL in the section “Certificate 2-NDFL in 2017-2018 (form and sample)” .

As for income tax, amounts paid as part of dismissal by mutual agreement are classified as labor costs (clause 9 of Article 255 of the Tax Code of the Russian Federation). At the same time, the letter of the Ministry of Finance of the Russian Federation dated February 12, 2016 No. 03-04-06/7530 draws attention to the following conditions for recognizing these payments as expenses:

• payments are determined in the employment or collective agreement, an additional agreement to the employment contract or directly in the agreement on termination of the contract;
• the criteria of Art. 252 of the Tax Code of the Russian Federation.

IMPORTANT! One of the main criteria for recognizing expenses for profit tax purposes, set out in Art. 252 of the Tax Code of the Russian Federation, is economic feasibility.

Therefore, in order to avoid the risk of additional income tax charges, it is worth taking care of a reliable economic justification for payments. First, set payments in reasonable amounts. Secondly, try to justify the dismissal of the employee on this basis. For example, the need to hire a more highly qualified specialist due to the increasing complexity of tasks.

How much dismissal pay is safe to write off as expenses, see.

When an employee is dismissed by mutual consent, compensation payments are not subject to insurance contributions within the same limits as established for personal income tax (3 times and 6 times average earnings). And also, by analogy with personal income tax, the exception is compensation paid for unused vacation; this amount is included in the base for calculating insurance premiums. The non-taxable limit is established in paragraph. 6 subp. 2 p. 1 art. 422 Tax Code of the Russian Federation, art. 20.2 of the Law “On compulsory social insurance against accidents at work and occupational diseases” dated July 24, 1998 No. 125-FZ.

Results

Dismissal by agreement of the parties today is perhaps the most popular basis for terminating an employment relationship. What should you remember when dismissing an employee on this basis?

1. In case of disputes with employees, it is important to have evidence that both parties acted by mutual consent.
2. When drawing up an agreement to terminate a contract, it makes sense to determine the amount of compensation and fix the procedure for transferring cases. When setting the amount of compensation, take care of the economic justification for the costs in order to avoid disputes with the tax authorities.

In addition to dismissal at the initiative of the employee or employer, the employment contract may be terminated by agreement of the parties in accordance with Art. 78 of the Labor Code of the Russian Federation at any time and on the terms agreed upon by the parties. Often the parties agree on the payment of severance pay upon dismissal by agreement of the parties.

Registration of dismissal by agreement of the parties

Unlike other grounds for termination of an employment contract, dismissal on this basis is practically not regulated by law. The main condition is that the parties must voluntarily come to an agreement to terminate the employment relationship.

As a rule, a separate agreement is drawn up, which specifies the conditions for termination of the employment contract, but it can also be drawn up in the form of an application from the employee who requests to terminate the employment contract by agreement of the parties, indicating the period of such termination, and an order from the employer.

However, if the parties agree on any conditions regarding the payment of compensation upon termination or other conditions, it is recommended to formalize an agreement so that the parties can subsequently confirm the agreed conditions.

At the same time, the term of termination of the contract and the conditions of termination can be almost any. Dismissal can happen either the next day after the agreement is concluded or several months later.

An essential feature of dismissal by agreement of the parties is that changes to the agreement are also possible by agreement of the parties. Unlike, for example, dismissal at the initiative of the employee, where the employee can withdraw his resignation letter up to the last day, when dismissing by agreement of the parties, the employee cannot “change his mind” and report that he refuses to quit. It is necessary that the employer accepts such a refusal and agrees to terminate the agreement. Even in court, it is difficult for an employee to terminate an agreement; this is only possible if coercion to sign such an agreement or other unlawful actions of the employer are proven.

Amount and taxation of dismissal benefits by agreement of the parties

A frequent condition for dismissal by agreement of the parties is the payment of compensation to the employee, while the amount of such payment is not regulated - neither minimum nor maximum, payment is made in the amount agreed upon by the parties. To formalize the payment, there is no need to indicate the amount in the dismissal order, but the amount of payment must be indicated either in the local act, or in the employment contract, or in the termination agreement.

Compensation can be established:

• in a fixed amount,
• depending on salary,
• depending on the employee's average earnings.

Calculations are made on the last day of work (Article 140 of the Labor Code of the Russian Federation).

But for tax purposes, the size of the payment matters. In the event of a reduction, severance pay is taken into account as part of expenses, however, it is necessary that the payment be economically justified, and if compensation is paid in a significant amount, clearly exceeding normal payments in such circumstances, then the organization will have to prove the feasibility and necessity of the payments (Letter of the Ministry of Finance of the Russian Federation dated 03/09/2017 N 03-04-06/13116).

According to the position of the Ministry of Finance of the Russian Federation, expressed in a number of letters, compensation paid upon dismissal by agreement of the parties is exempt from personal income tax in accordance with clause 3 of Art. 217 of the Tax Code of the Russian Federation, but only in a certain amount - the benefit is limited to three times the average earnings, regardless of the employee’s position (

Labor legislation provides for termination of an employment contract by agreement of the parties, when both parties (both employee and employer) are not against termination of cooperation.

general information

In Art. 78 of the Labor Code of the Russian Federation states that the employer and employee can terminate the employment contract at any time if they agree among themselves. Agreement of the parties is a mandatory condition for voluntary termination of an employment contract.

If the employee does not express his consent to dismissal, the employer does not have the right to dismiss the employee.

An agreement can be reached orally, but to enter into legal force it must be must be recorded in writing.

At the same time, labor legislation does not provide a specific model according to which an agreement between an employee and an employer should be drawn up.

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How an agreement is drawn up

The employee has the right to write a letter of resignation, in which the consent of the parties to terminate the employment contract may be indicated as the reason. When considering the application, the employer may make its own amendments regarding the timing of termination. But only if the employee agrees to such amendments.

As a rule, to achieve consensus between the parties draw up an agreement on termination of employment relations in two copies, where the following points are stated:

• termination period;
• amount of compensation and severance pay;
• rules for using vacation time off.

Sometimes, if it is necessary to carry out an inventory or transfer affairs to another person, then these conditions are also stated in the agreement.

Dismissal benefits, by agreement of the parties, can be included in the contract if it is not taken into account in the original employment contract or amendments to it.

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What does the contract provide?

The main difference between dismissal by agreement and dismissal at will is that the employee cannot change his mind and withdraw the application. That is, if an agreement is drawn up and signed, then it is enforceable, even if one of the parties changes its mind.

It is impossible to unilaterally terminate a dismissal agreement, however, if the employee and employer come to a new agreement to continue the employment relationship, then the primary contract can be legally terminated.

When dismissed by prior agreement, the employee does not have to work the statutory period of 2 weeks (14 calendar days). The procedure for terminating an employment relationship can be carried out within 24 hours, if there is consent of the employer and employee.

Compensation and severance pay

Labor legislation does not establish mandatory benefits or compensation upon contractual termination of employment relations.

That is, if the employer and employee do not indicate the amount and period of payments in the agreement, then there will be no transfers to the employee’s account, with the exception of those required upon dismissal.

If the employee has unpaid holidays, he can submit an application before dismissal for their time off. But the employer is not obliged to provide rest days before terminating the employment relationship. Providing leave is an employer's right, not an obligation.

Mandatory payments upon dismissal relate:

• calculation of wages at the time of termination of the employment relationship;
• compensation for vacations not taken;
• other payments provided for in the employment contract.

If the employment contract does not provide for compensation upon dismissal by prior agreement, then the provision of such compensation remains the right and not the obligation of the employer.

Severance pay: taxation and amount

All payments to a citizen who leaves his position must be made no later than the last working day. Including agreed upon severance pay, if any.

Taxation

To organize the payment of severance pay upon termination of employment relations by mutual agreement of the parties, one of expense items, which affects the entire tax base for calculating the organization’s profit. That is, due to such benefits, the tax rate is usually reduced when determining income tax.

Payments of compensation to dismissed employees do not bring significant costs, including tax, to the employer.

An employee receiving severance pay gets it in full. The insurance contribution to the Pension Fund of the Russian Federation is not deducted from compensation if the amount of compensation does not exceed three official salaries (for the Far North - 6 salaries).

Exception to the rules - payments for vacations not taken. They are subject to all taxes like wages.

Benefit amount

The employer independently sets the amount of compensation upon dismissal by agreement. That is, he may not indicate any payments at all, which is his legal right. The exception is compensation specified in the employment contract.

That is, if the contract that was concluded at the beginning of the employment relationship, or amendments to it, indicate payments that an employee can receive upon termination of the relationship by prior agreement, then they are binding on the employer.

The employee cannot insist on payments. However, as practice shows, if the employer proposes to terminate cooperation when the organization faces a reduction in the employee’s position, compensation is still assigned.

Examples of compensation

Typically, severance payments are made in the amount of three official salaries. This amount is not subject to income tax and insurance contributions.

In this case, the official salary is taken into account as specified in the employment contract, without additional payments or compensation for special working conditions.

For example, an employee’s “bare” salary is 5,201 rubles, compensation is 3 salaries. In this case, the amount of the dismissal benefit by prior agreement will be: 3*5201=15603 rubles.

No taxes or deductions are taken from this amount.

How to formalize dismissal correctly

Exists two options for dismissal by prior agreement: by drawing up an agreement or by accepting an application from the employee by the employer. Most often, organizations use the second option, but the first is not excluded.

The principle of registration of termination of employment relations When concluding a contract, the following is implied:

1. One party sends the other a written notice with a proposal to terminate cooperation and the form of the agreement. For example, an employer may offer its employee to stop working on a certain date after receiving compensation.
2. The party that received the proposal gets acquainted with the documents. Prepares a written response. For example, indicating the clauses of the contract that are not satisfactory for some reason.
3. The parties come to a mutual agreement, which is enshrined in writing.
4. The employer issues a dismissal order, which is transmitted to the accounting and personnel departments.
5. The employee works until the date indicated as the last working day according to the agreement.

The dismissal order has the established form No. T-8, where the basis is the mutual consent of the employee and the employer, and the details are the agreement number. An entry is made in the work book, a seal is placed on it only if the organization has its own seal.

From November 27, 2016, an employer who does not have a seal has the right to make entries without seals in the work book of a dismissed citizen. This is not a violation or an error.

Controversial cases

A dispute may arise between a citizen and an organization when receiving compensation or payments due upon dismissal.

Thus, the law establishes that the employee must receive all funds on the last working day, even if he is incapacitated and absent from the workplace.

If the employee is on legal vacation, then the last working day, by agreement of the parties, is the last day of vacation. The person does not return to his position, and must receive the funds due no later than the last day of rest.

When drawing up a termination agreement, both parties can insist on terms that are beneficial to each of them. In this case, the agreement is drawn up when the participants have reached mutual understanding.

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Dismissal of an employee by agreement of the parties

December 21, 2016, 20:18 March 3, 2019 13:50

A fairly common occurrence lately is the dismissal of an employee by agreement of the parties. This reason for terminating the employment relationship is beneficial to both parties. To the employee- since when leaving work, he will be able to register with the employment exchange without any problems, and he will retain work experience for a period of 1 month until he enters service in another organization. A to the employer- there is no need to coordinate the dismissal procedure with the trade union.

In addition, when leaving work by agreement of the parties, it is not at all necessary to work 14 days; you can quit on the day agreed with the employer.

When leaving work by agreement of the parties when registering as unemployed, unemployment benefits will be issued in a higher amount than when terminating the contract on general grounds.

Even the court will not be able to reinstate the employee. Only the parties by mutual consent can invalidate an agreement on such grounds for dismissal.

What payments are provided?

Dismissal compensation is the payments that are due to the employee in connection with the termination of the contract.

Moreover, it is worth paying special attention to the fact that it is paid to the employee regardless of the basis of the Labor Code on which he is dismissed.

The calculation must be made on the employee’s final day of work at the enterprise. Along with receipt, the accounting department must issue all payments due. According to Article 78 of the Labor Code These amounts include wages, vacation pay, and other compensation and payments.

But at the same time, Article 178 gives the employer the opportunity to provide for possible additional compensation in connection with the termination of the employment relationship between him and the employee.

These types of additional assistance may be specified in the institution's Collective Agreement. In this case, the text of the collective agreement indicates the amount expressed as a specific number in monetary terms or in the number of official salaries. Example: “In case of dismissal by agreement of the parties, an employee has the right to receive additional compensation in the amount of 3 salaries.”

Procedure and amount of payments

Dismissal on this basis occurs in the following order:

1. The person being dismissed, addressed to the head of the institution with a request to be released from office by agreement of the parties, puts a date and signature.
2. The head of the institution issues an order to dismiss the employee.

The parties may enter into a termination agreement, which will, among other things, indicate additional compensation upon dismissal, not provided for by the labor code, but available in the regulations of the institution.

The amount of additional compensation is not regulated by law.

The parties, however, can independently determine the amount of payment received. It is reflected in the payment card in form T-61.

Rules for taxation of these payments

Based on Article 217 of the Tax Code, compensation payments to employees upon dismissal are exempt from personal income tax.

Thus, if the amount of the benefit does not exceed three average earnings, it is not subject to personal income tax.

Exception consists of payments to employees of the Far North. For them, the amount should not exceed six times the amount.

Income tax on amounts that exceed these amounts will have to be withheld. Moreover, such a relaxation applies to all employees institutions, regardless of what position they occupy.

To apply these provisions of the law in calculations, it is necessary to sum up all due payments and exclude.

If we turn to Article 255 of the Tax Code, it states that these payments must be included when determining income tax, since they are included in the remuneration of employees. The amount of payments in this case is unlimited.

With compensation-compensation the situation is more serious.

If neither the labor legislation nor the regulatory documents of the enterprise provide for this payment, it cannot reduce the profit of the enterprise.

If such a payment is specified in the contract, then in order to include it in income tax accounting, it must be less than the severance pay.

Is it necessary to pay insurance premiums?

The employer does not need to pay insurance premiums on severance pay upon dismissal by agreement of the parties. This is discussed in the letter of the Ministry of Labor of the Russian Federation No. 17-3/B-448 dated September 24, 2014. Moreover, the amounts from which this payment will not be deducted should not exceed three times the average earnings, and in case of dismissal in the Far North - no more than six.

You can learn more about payments upon dismissal of this kind from the following video: