Along with usual options dismissal of an employee, there is dismissal by agreement of the parties. This option arises quite often and is one of the democratic options for developing the situation; in addition, it is not shameful for the employee. Let's look at the advantages and disadvantages of this option, what compensation is due to the employee and what documents are drawn up.
The departure of an employee from the company by agreement of the parties is an alternative and sometimes best option dismissal is used along with others, for example with such as, but the semantic load is somewhat different. For comparison, in the first case the basis will be a mutual agreement between the employee and the employer, and in the second the desire of the employee himself.
The initiator of such actions can be both the employer and the employee himself; they part by some mutual agreement, which is regulated by Article 78 of the Labor Code. Please note that the employment relationship can be terminated at any time by agreement. According to the labor code, it follows that additions to the contract are drawn up in 2 copies, and the dismissal agreement should be drawn up in the same way.
And although the labor code does not require a specific form of such an agreement and is not even obliged to do so, it is still strongly recommended to draw it up in order to close all issues with the employee and have documentary evidence signed by both parties to the process.
Dismissal by agreement of the parties is initiated by mutual agreement of the parties when drawing up a list of conditions.
In addition, this measure may be aimed at resolving a conflict between the parties, say, if an employee refuses to resign and takes some offensive actions. Of course, not everyone will be interested in suddenly leaving workplace according to the conjectures of the employer, who may have his own thoughts about reducing such a job or replacing it with a new candidate.
Attention! IN in this case there is one peculiarity - it is allowed to dismiss an employee who is on maternity leave or during pregnancy, which is strictly prohibited in other cases.
The initiator is the employee
If the employee expresses such a desire, he must do the following:
- Write a letter of resignation addressed to the manager with the wording by agreement of the parties: “I ask you to fire me or terminate my employment.” employment contract from the required date by agreement of the parties" and further describe your requirements
The employee should think through the conditions in advance and possibly use the services of a lawyer when drawing up such a requirement.
The initiator is the employer
If such a process is initiated by the employer, he must do the following:
- Write a letter to the employee expressing your intentions
- Specify the grounds for dismissal
- Estimated date of termination labor relations
If the employee does not agree with the conditions set forth, then he can write a response letter indicating his conditions for terminating the employment relationship. But it is better and faster to resolve these issues “at the negotiating table”; based on their results, it is necessary to draw up a document reflecting the agreements of the parties.
The Labor Code does not require a specific form of such an agreement; therefore, it can be drawn up in any form, which may contain:
- Indicate in it information about the mutual agreement of the parties; for this, include the wording that it was signed voluntarily, without any coercive measures
- Details of the current employment contract
- The date of termination of the employment relationship, which will be the employee’s last day of work, must be agreed upon by both parties
- Conditions are also specified, including financial ones, if any, indicating the amounts of compensation. It is necessary to separate the amounts of “compensation” from the standard amounts of compensation upon dismissal
- Other essential conditions
- Signatures of the negotiating parties
Advantages and disadvantages of terminating a contract by agreement of the parties in 2019
Benefit from dismissal by agreement
The advantages include:
- The initiative to terminate the employment contract can come from both the employer and the employee
- Not required to indicate the reason for dismissal
- There are no deadlines for filing an application, as, say, for dismissal due to at will when the employee is obliged to notify the employer two weeks in advance, including the need to work, depending on the agreements reached
- You can terminate your employment relationship after completing the probationary period.
- Agree on certain conditions (terms, severance pay, etc.)
- You can also agree verbally
- Such an entry does not spoil the employee’s work record book.
- An employee with this wording has another month of continuous service
- The amount of unemployment benefits in this case is greater
Flaws
Of course, there are also disadvantages that are more of a disadvantage for the employee, but of course advantages for the company:
- Allows you to dismiss an employee who is on leave (including maternity leave and during pregnancy) or on sick leave
- There is no control over legality on the part of trade union organizations
- There are no guarantees of compensation (compensation) if this is not specified in the agreement
- You cannot change your mind or withdraw consent after signing the agreement unless both parties agree to it
- There is no possibility to go to court and challenge these actions
Summary of the shortcomings - do not hesitate to draw up agreements signed on paper and countersigned by both parties
Dismissal by agreement of the parties compensation
Along with possible demands for payment of monetary compensation to the employee by the employer, it should be noted that, according to the law, upon dismissal by agreement of the parties, monetary compensation is not mandatory. Therefore, the employee’s demands for “compensation” will not always be satisfied; it all depends on the negotiations themselves. And most likely, the employer will do this more often if the initiative to terminate the employment relationship comes from him, and not from the employee.
Attention! Monetary compensation for such dismissal is not mandatory - it is the subject of an agreement between the employer and employee.
But do not forget that according to the law, the employee is entitled to all standard payments upon dismissal of an employee, such as compensation for unused vacation, if there are days off, as well as payments wages for the time worked. All these payments must be calculated and paid to the employee on the day of dismissal. Regarding “compensation”, the agreement may indicate a different date for payment of this amount.
It is worth noting that compensation (compensation) paid by agreement of the parties is also subject to all salary taxes.
If the employee took the vacation in advance (on credit), then it is necessary to calculate the amounts that should be deducted from the salary due to him for the days worked.
Step-by-step actions when dismissing an employee under an agreement in 2019
Step 1. Draw up an agreement between the parties
The Labor Code does not describe how an agreement should be drawn up between an employee and an employer - in written or oral form. There is also no approved form for this document. However, it is recommended to draw up in writing: one copy with the employee’s signature confirming its receipt from the company, and the second from the employee.
The document must contain the following information:
- Date of the final working day.
- Whether an employee can take leave with subsequent dismissal or not.
- The amount of compensation payments, if any.
- Procedure for transferring cases.
Attention! None of the parties to this agreement can refuse to fulfill the agreed conditions. Changes to the conditions can only occur if the parties mutually agree.
Step 2. Issue an order to dismiss the employee
The grounds for termination of an employment contract are: The document must reflect the details of the terms of termination of the employment relationship signed between the parties.
The basis for termination of the employment contract in this case will be the following entry: “By agreement of the parties, paragraph 1 of part 1 of Article 77 Labor Code Russian Federation" However, the agreed conditions are not indicated in the document.
After issuing the order, the document must be registered in the company's order book.
Step 3. Familiarize the dismissed person with the order
After the order is issued, it is necessary to familiarize the dismissed employee with it. After reading the document, he must put his signature on the document. Without a signature, it will not be considered that the employee has been familiar with it.
If desired, the employee has the right, upon written request, to make a copy or extract from the order. The employer does not have the right to refuse such a request.
Attention! If the employee refuses to sign the order or for some reason cannot do so, a note about this must be made in the document. In the presence of witnesses, it is necessary to draw up an act of refusal to familiarize yourself with the order.
Step 4. Reflection of dismissal in a personal card
Information about dismissal must be entered in the form that is entered when the employee is hired. In the column for the grounds for termination of the employment relationship, the details of the order and the date of dismissal are entered.
After making an entry in the document, the employee must be familiarized with the personal card by putting his signature. If you do not want to sign the document, you must draw up an act in front of witnesses.
Step 5. Making an entry in the work book
An entry in the Labor document about the reasons for dismissal with reference to the relevant article of the code “Dismissed by agreement of the parties,” clause 1, part 1 of article 77 of the Labor Code of the Russian Federation.” Moreover, without disclosing the terms of this agreement.
Step 6. A settlement note is drawn up in Form T-61 regarding dismissal.
To determine the exact amounts that are supposed to be paid to the employee upon termination of the employment relationship, a calculation is made and entered into the calculation note in the T-61 form. Based on this document, the cashier gives money to the dismissed person.
The front part of the note indicates information about the place of work and the availability of unused vacation days during work. On the reverse side, a calculation of charges and deductions is entered, and the exact amount due for handout.
Step 7. Make a full calculation
The employer is obliged to pay the full payment on the citizen’s last working day:
- , due to him for the month of dismissal.
- If the annual paid leave has not been spent in full, then pay.
- Pay severance pay (compensation), if agreed upon by the collective agreement, labor agreement or agreement between the parties.
Sometimes, for some reason, an employee cannot receive money on the final day of work, for example, he is not at work or gets sick. In this case, the payment must be issued to him on the day he made such a request.
If a dispute arises between the parties about the amount of payments, the employer is obliged to pay an amount that does not cause disagreement. The rest of the amount must be negotiated or the case taken to court.
Attention! Compensation for unused rest days is not paid if the agreement stipulates that the employee goes on vacation with subsequent dismissal.
Step 8. Hand over documents
Along with the calculation, the employer must provide the following documents:
- Work book. It must include a record of dismissal. The person being dismissed must put a signature in the labor record book stating that he received it.
- . It indicates his salary for the last 2 years of work.
- A certificate of the amount of contributions transferred to the Pension Fund. This could be RSV-1 and.
- Certificate for the employment service about average earnings. Issued within three days from the date of request by the employee.
- . New form, introduced in 2017. It indicates the employee's length of service.
- Copies internal documents, if the employee has made such a request.
Important! If the employer does not hand over the SZV-STAZH certificate to the dismissed person, he may be fined up to 50 thousand rubles.
Step 9. Notification of the military registration and enlistment office
The employer is obliged to notify the military registration and enlistment office where the employee was registered about his dismissal within two weeks. If he was liable for military service.
Controversial situations
Often, some disputes arise between an employee and an organization, for example, when they want to fire an employee without his consent, replace him with a new one, or carry out staff reductions; in this case, they try to get the employee to leave of his own free will, or by agreement of the parties, i.e. To. this saves time and nerves. For example, when laying off a job, you need to notify the employee 2 months in advance, but here you don’t have to do that!
After writing a statement of agreement and signing the agreement, it is no longer possible to change the article under which the employment relationship is terminated. Questions may also arise about postponing the date of dismissal. These nuances, including the proposal of one of the parties to terminate the dismissal procedure, are resolved at the negotiating table. To do this, you need to send a letter to one of the parties. If both parties have come to new agreements, this is reflected by the signing of a new agreement or by the cancellation of dismissal and destruction of orders.
It should also be noted that when signing all agreements and documents, the employer must act as a person who has the right to sign such documents, in accordance with the power of attorney or the charter of the enterprise. In another case, such documents can be considered void and have no legal force.
Documents on the part of the employer must be signed by a person who has the right to sign such documents for their legal force.
Useful information
What is the basis for dismissal by agreement of the parties? What is the difference from dismissal at the initiative of the employee? Can the agreement be revoked? In what order can it be changed? What is the procedure for dismissal by agreement of the parties? Should the condition for the payment of severance pay be established by documents other than the agreement?
By virtue of Art. 78 of the Labor Code of the Russian Federation can be terminated at any time by agreement of its parties. And this is the only article of the Labor Code devoted to this basis for dismissing an employee - on the one hand, the most universal, and on the other, the most “insidious”, primarily because its clear procedure has not been established. However, guided by established practice (including judicial practice), today it is possible to determine the basic rules and procedure for dismissal by agreement of the parties, which we will discuss in the article.
Rules for concluding an agreement.
By and large, the dismissal procedure by agreement of the parties is similar to that at the initiative of the employee, but there are still several differences. First of all, you should determine which document is the basis for dismissal. Article 78 of the Labor Code of the Russian Federation simply states that this is an agreement of the parties, its form is not indicated. That is, it can presumably be concluded orally.
In fact, so that disputes do not arise between the employee and the employer regarding such dismissal (they are not uncommon), the agreement, of course, must be in writing. It may look like an agreement itself, which is preferable, or like a statement from the employee if he initiated the dismissal. Moreover, in contrast to the employee’s statement of resignation at his own request, this statement must contain:
- the reason for termination of the employment relationship is by agreement of the parties;
- desired date of dismissal;
- amount of compensation or other conditions of dismissal (if any);
- signatures of the employee and employer.
Let us present a sample statement that can be considered as an agreement.
I don't mind. To the director
HR specialist L. Prikazova at the Central Library MBUK
formalize the dismissal on January 20, 2017. M. S. Knizhkina
To accountant O. A. Kopeikina from the librarian
01/20/2017 make calculations for L. M. Formularova
in accordance with labor
legislation.
01/18/2017, Knizhkina
Statement
I ask you to terminate the employment contract with me by agreement of the parties on the basis of clause 1, part 1, art. 77 Labor Code of the Russian Federation January 20, 2017.
Formlyarova /L. M. Formlyarova /
If the employer agrees to dismissal by agreement of the parties, but is not satisfied with the conditions specified in the application, for example the date of dismissal, it is better to try to agree on them and reflect them in a separate agreement.
So, if the employer initiates termination of the contract by agreement of the parties, he must send the employee a written proposal to conclude an agreement. Here is an example of such a proposal.
Municipal budgetary institution culture
"Central Library"(MBUK "Central Library")
01/18/2017 To the librarian
ref. No. 3/k L. M. Formularova
OFFER
on termination of the employment contract
Dear Larisa Mikhailovna!
I ask you to consider terminating your employment contract No. 12/2014 dated 10/12/2014 in accordance with clause 1, part 1, art. 77 of the Labor Code of the Russian Federation by agreement of the parties on January 25, 2017 with payment of compensation in the amount of one salary. Please inform me of your decision in writing within three days from the date of receipt of this proposal.
Director Knizhkina M. S. Knizhkina
Offer received. Formlyarova /L. M. Formlyarova /
If the employee agrees to be dismissed, he and the employer agree on the terms of the dismissal and enter into an agreement. It must also indicate the basis for termination of employment, the date and other conditions of dismissal.
The agreement is drawn up in two copies, signed by the employee and the employer, and one copy is given to the employee against signature. Let's give a sample.
Agreement
on termination of the employment contract
dated 10/12/2014 No. 12/2014
Voronezh 01/20/2017
1. In accordance with Article 78 of the Labor Code of the Russian Federation, the Employee and the Employer agreed to terminate the employment contract dated October 12, 2014 No. 12/2014 by agreement of the parties (Clause 1, Part 1, Article 77 of the Labor Code of the Russian Federation) on January 25, 2017.
3. On the Employee’s last working day, the Employer undertakes to issue a completed work book and make full payments to him.
4. On the last working day, the Employer undertakes to pay the Employee the wages due to him, compensation for unused vacations, additional monetary compensation in the amount of one salary, and the Employee undertakes to accept the specified amounts.
5. Sides mutual claims have no relationship with each other.
6. This Agreement is drawn up in two copies having equal legal force, one for each of the Parties.
Employer: Employee:
20.01.2017 20.01.2017
We emphasize that the agreement on the part of the employer must be signed either by the manager himself or by a person authorized by him to do so, otherwise the court will declare the dismissal illegal.
In addition to observing the form of the agreement, the employer should strictly observe one more rule: it is unacceptable to force an employee to enter into an agreement to terminate the employment contract, since the main condition for such dismissal is the mutual voluntary expression of the will of the parties. And if the dismissed employee proves in court that he entered into such an agreement under the coercion of the employer, he will be reinstated.
Rules for cancellation of the agreement.
The main difference between dismissal by agreement of the parties and dismissal at the request of the employee is the impossibility of revoking the agreement. Let us remind you that according to Art. 80 of the Labor Code of the Russian Federation, before the expiration of the notice period for dismissal, an employee has the right to withdraw his application at any time, except for the case when another employee is invited in writing to take his place.
The employer cannot refuse to fulfill the agreement or force the employee to continue working. By virtue of clause 20 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” if before dismissal one of the parties wants to cancel the agreement or change the term and basis for dismissal, this will not be possible without the consent of the other sides. In this case, the parties must enter into a new agreement that cancels the previous one in whole or in part. (We give a sample on page .)
And here you should pay attention to the fact that it is possible to terminate an employment contract by agreement of the parties with any employee: with a woman who has a child under 3 years of age; with a single mother raising a disabled child under the age of 18 or a young child (under the age of 14); with another person raising these children without a mother; with a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under 18 years of age or the sole breadwinner of a child under 3 years of age in a family raising 3 or more young children, if the other parent (other legal representative of the child) is not a member in labor relations; and also with a pregnant woman.
None of the workers of the listed categories, with the exception of pregnant women, can unilaterally refuse to fulfill the agreement. This conclusion follows from the Ruling of the Armed Forces of the Russian Federation dated September 5, 2014 No. 37-KG14-4, which states that the guarantee in the form of a ban on the dismissal of a pregnant woman at the initiative of the employer, provided for in Part 1 of Art. 261 of the Labor Code of the Russian Federation, is also applicable to relations arising upon termination of an employment contract by agreement of the parties. Moreover, this rule also applies if the employee did not know about her pregnancy at the time of signing the agreement.
If at the time of cancellation of the agreement the employer had already issued a dismissal order, it must be canceled by another order.
Agreement
on cancellation of the agreement to terminate the employment contract
dated 10/12/2014 No. 12/2014
Voronezh 01/23/2017
The municipal budgetary cultural institution "Central Library" represented by the director Marina Stanislavovna Knizhkina, acting on the basis of the Charter, hereinafter referred to as the Employer, on the one hand, and Larisa Mikhailovna Formlyarova, hereinafter referred to as the Employee, on the other hand, collectively referred to as the Parties, have entered into this agreement about the following.
1. The parties agreed to cancel the agreement dated January 20, 2017 on the termination of the employment contract dated October 12, 2014 No. 12/2014.
2. This Agreement is drawn up in two copies having equal legal force - one for each of the Parties.
Employer: Employee:
Director Knizhkina / M. S. Knizhkina / Formlyarova / L. M. Formlyarova /
23.01.2017 23.01.2017
A copy of the agreement has been received. Formlyarova /L. M. Formlyarova /
Dismissal rules.
So, based on the agreement, the employer issues an order. The order reflects the grounds for dismissal and details of the agreement. The employee must be familiar with the order upon signature. The employee’s refusal to sign the order cannot cancel the dismissal if an agreement is concluded between the parties. Therefore, by virtue of Art. 84.1 of the Labor Code of the Russian Federation, in the case where the order to terminate the employment relationship cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it and sign it, a corresponding entry is made on the order.
On the last day of work, it is issued to the person being dismissed. If he refuses to receive it, the employer is obliged to send him a notice of the need to appear for the work book or agree to send it by mail. On the same last working day, the final settlement is made with the dismissed person, in particular, payments stipulated by the agreement are made.
Please note
Article 178 of the Labor Code of the Russian Federation establishes cases of payment of severance pay, in particular in case of staff reduction, conscription military service. At the same time, it is established that an employment or collective agreement may provide for other cases of payment of severance pay, as well as establish their increased amounts.
Thus, if an employment or collective agreement provides for the payment of severance pay or compensation in cases of termination of the employment contract by agreement of the parties, then the employer is obliged to pay them.
When an employer refuses to pay compensation or severance pay, and their payment is established only by agreement, judges differ in their opinions. Some believe that such a refusal is legal, since the payment of benefits or compensation, in addition to the agreement, must be provided for by an employment or collective agreement, others believe that the refusal is unlawful, since the agreement to terminate the employment contract is part of it and may contain conditions that are not provided for by the contract.
In any case, when paying compensation, the employer must comply with the provisions of Art. 349.3 of the Labor Code of the Russian Federation, which establishes a limit on the amount of severance pay, compensation and other payments in connection with the termination of employment contracts for certain categories of employees.
In particular, in agreements on termination of employment contracts in accordance with Art. 78 of the Labor Code of the Russian Federation with the heads of the organization, their deputies, and chief accountants, it is not allowed to include conditions on the payment of severance pay, compensation and (or) on the appointment of any other payments to these employees. At the same time, if the payment of compensation and severance pay is provided for by an employment or collective agreement, they are paid, but their amount cannot exceed three times the average monthly earnings of these employees.
Question
If, before the date of dismissal according to the agreement, the employee grossly violated labor discipline or changed his mind and wrote a letter of resignation of his own free will, on what grounds can we fire him?
If the employer manages to complete the procedure for bringing disciplinary liability before the date of dismissal specified in the agreement, then it is possible to dismiss the employee on the appropriate grounds of Art. 81 Labor Code of the Russian Federation. As for voluntary dismissal, if the date specified in the resignation letter precedes the date specified in another statement, then the employee will have to be fired under clause 3, part 1, art. 77 of the Labor Code of the Russian Federation upon expiration of the warning period. If not, the employee is dismissed by agreement of the parties.
Question
Should we dismiss an employee by agreement of the parties if he is on sick leave?
If an employee is ill on the date of termination of the employment contract, he still needs to be dismissed under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, since this is not dismissal at the initiative of the employer. Moreover, if you do not formalize your dismissal by the date specified in the agreement, the agreement to terminate the employment relationship will be canceled automatically.
To summarize, we highlight the basic rules for dismissal by agreement of the parties:
1. The agreement must be concluded in writing, indicating the grounds for dismissal, the date of dismissal, the amount of compensation, if any, (other conditions), and signed by the employee and the employer (other authorized employee).
2. The agreement is concluded only by the mutual voluntary expression of the will of the parties.
3. The terms of the agreement must not contradict the provisions of the law.
4. The agreement cannot be revoked by the employee (unless the employee is pregnant), changed or canceled unilaterally - only by mutual consent of the employee and employer by concluding a separate agreement.
5. Upon dismissal, the dismissal procedure must be followed and the terms of the agreement must be met.
6. If an employee, having signed an agreement to terminate the employment contract, refuses to resign (did not sign the order, did not receive a work book), he is subject to dismissal and such dismissal is lawful.
7. If the employee is not fired on the day specified in the agreement, it is automatically canceled.
8. Before the date of dismissal, the employee may be dismissed for another reason.
Dismissal due to a reduction in the number of employees (clause 2 of Article 81 of the Labor Code of the Russian Federation) is a complex procedure. The employer needs to warn employees in advance, offer them another job, determine those who have a preferential right to stay, report the layoff to the employment service, and pay severance pay to those fired.
Labor legislation provides for more simple ways separation from employees, in particular dismissal by agreement of the parties (clause 1 of article 77 of the Labor Code of the Russian Federation). It is important to note that dismissal on this basis excludes any pressure or coercion to terminate the employment relationship. If the employee does not agree to resign, this method Termination of an employment contract cannot be applied.
The norm of Article 78 of the Labor Code states that an employment contract can be terminated at any time by agreement of its parties. What follows from this? Labor legislation does not directly indicate what conditions must be met by the employer and employee. We will try to determine them based on the content of other articles of Section III of the Labor Code.
Document flow upon dismissal by agreement of the parties
From the requirements of Part 1 of Article 67 and Article 72 of the Labor Code, it follows that both the employment contract itself and the agreement to change its conditions are drawn up in writing in two copies. The dismissal agreement is drawn up in the same way. But before concluding it, the parties must agree. Let us consider all stages of the dismissal procedure by agreement of the parties.
The employer is the initiator of dismissal
Let us assume that the initiator of termination of the employment contract is the employer. He must express his intention in a letter to the employee (see sample below). The document must indicate the basis for dismissal (by agreement of the parties) and its expected date.
Sample letter from employer regarding termination of employment contract
The employee does not agree
If the employee does not agree to terminate the employment contract on the terms proposed by the employer, he has the right to report this in a response letter and offer his own conditions (see sample below).
In order to avoid lengthy correspondence, it is more effective to sit down at the negotiating table and discuss all the nuances of terminating the employment contract.
Sample employee response letter
Negotiations between employee and employer
As a rule, if it is necessary to dismiss a significant number of employees, negotiations are carried out not with each individual individually, but in the course of general meeting interested parties. Negotiations (meetings) can be conducted not only by general manager, but also any employee authorized by the administration, for example a HR specialist. It is desirable that during the negotiations the parties come to full understanding.
Based on the results of the negotiations, the text of the dismissal agreement is drawn up. Please note: even if the negotiations were held in the form of a meeting, and the conditions for terminating the employment contract were adopted for all those dismissed, the dismissal agreement is drawn up for each employee separately. The documents are signed by the head of the organization, and not by the employee who was authorized to negotiate.
We draw up an agreement to terminate the employment contract
After negotiations, having come to a mutually beneficial solution, the parties must record it in an agreement on termination of the employment contract (see sample below). This document must specify the basis for dismissal (agreement of the parties), the timing, and the amount of severance pay, if there is an agreement on its payment. We advise you to additionally discuss the fact that the amount of severance pay is final, cannot be changed or supplemented, and the parties do not have mutual claims against each other.
The agreement is drawn up in two copies, just like the employment contract. In the event of large-scale layoffs, we recommend assigning a serial number to the agreements, which is then indicated in the text of the dismissal order in the “Base Document” column.
Order of dismissal
After the parties sign an agreement to terminate the employment contract, the HR specialist will have to draw up an order to terminate (terminate) the employment contract (see sample below). Unified order forms (No. T-8 and T-8a) were approved by Resolution of the State Statistics Committee of Russia dated January 05, 2004 No. 1. The wording of the grounds for dismissal will be as follows: termination of the employment contract by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation ), and the basis document is an agreement to terminate the employment contract.
Sample agreement to terminate an employment contract
Entry in the work book
IN work book you need to make a note: “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.” After making a notice of dismissal, the employee must familiarize himself with it and sign the work book. You can ask him to make a note “Acquainted” and put a signature below the personnel officer’s signature, or simply sign. After receiving the work book, the employee must also sign in the work book and their inserts in the form approved in Appendix No. 3 to Resolution No. 69, and on the last page of the personal card ( unified form No. T-2 approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1).
Sample entry in a work book
Payments to a dismissed employee and their taxation
Payments upon dismissal by agreement of the parties
Wages. Upon dismissal by agreement of the parties, the employee is entitled to pay wages accrued up to and including the last day of work.
. This payment is guaranteed by labor legislation (Part 1 of Article 127 of the Labor Code of the Russian Federation). It is calculated in the usual manner in accordance with the provisions of Articles 127 and 139 of the Labor Code.
Upon dismissal by agreement of the parties, the employee has the right to take leave with subsequent dismissal (Part 2 of Article 127 of the Labor Code of the Russian Federation). Let us remind you that the provision of such leave is not the obligation of the employer, but its right. Accordingly, if you provide the dismissed employee with vacation in full, taking into account all previously unused days, compensation for unused vacation will not have to be paid. Vacation pay will be paid instead.
The condition for granting leave with subsequent dismissal can be stated in the agreement on termination of the employment contract (see sample below).
Compensation. In addition to wages, the parties may provide for the payment of severance pay (Part 4 of Article 178 of the Labor Code of the Russian Federation), that is, compensation. The procedure for calculating this payment should be provided for in the collective agreement, labor agreement, regulations on remuneration, or recorded in the agreement on termination of the employment contract, if they are not provided for by the remuneration system.
Fragment of an agreement on termination of an employment contract
Taxation of payments to an employee upon dismissal by agreement of the parties
Personal income tax. If the employment relationship is terminated before the end of the calendar month, the date of actual receipt of income in the form of wages is recognized as the last day of work for which the income was accrued (clause 2 of Article 223 of the Tax Code of the Russian Federation).
Personal income tax on the income of a resigning employee must be paid to the budget:
No later than the day of receipt of funds from the bank or the day of transfer of money to his account;
No later than the day following the day of dismissal, if the payment is made from the proceeds received at the cash desk (clause 6 of Article 226 of the Tax Code of the Russian Federation).
Please note that the compensation amount is subject to personal income tax general procedure as income received from a source in the Russian Federation (subclause 10, clause 1, article 208 of the Tax Code of the Russian Federation).
Income tax. In relation to wage amounts, the provisions of paragraphs 1, 2 and 3 of Article 255 of the Tax Code apply. Payments accrued in accordance with these rules fully reduce the taxable base for income tax.
Compensation for unused vacation is recognized as labor costs that reduce the taxable base for income tax, based on paragraph 8 of Article 255 of the Tax Code.
WITH compensation the situation is more complicated. If this payment is not provided for by the enterprise’s remuneration system and is not guaranteed by an employment contract, it does not reduce the taxable base for income tax (clause 21 of Article 270 of the Tax Code of the Russian Federation).
If the amount of compensation is established by a collective (labor) agreement and is included in the enterprise’s remuneration system, it is recognized as part of labor costs that reduce the taxable base for income tax on the basis of paragraph 25 of Article 255 of the Tax Code. But its size must correspond to the criterion of economic justification of costs in accordance with paragraph 1 of Article 252 of the Tax Code. How to prove that the costs of paying compensation are economically justified? In our opinion, it is enough to reduce the amount of this payment in comparison with the severance pay guaranteed by labor legislation upon dismissal due to staff reduction (Part 1 of Article 178 of the Labor Code of the Russian Federation).
UST, pension contributions. Payments provided for by labor (collective) agreements, which reduce the taxable base for income tax, are subject to Unified Social Tax (clause 1 of Article 236 of the Tax Code of the Russian Federation) and pension contributions (clause 2 of Article 10 of the Federal Law of December 15, 2001 No. 167-FZ) .
In the event that the payment does not reduce the taxable base for income tax (compensation outside the remuneration system), it is not subject to Unified Social Tax (clause 3 of Article 236 of the Tax Code of the Russian Federation) and pension contributions. Compensation for unused vacation is not subject to the Unified Tax (Subclause 2, Clause 1, Article 238 of the Tax Code of the Russian Federation).
Contributions for injuries. Contributions for injuries are not subject to accruals in favor of the employee, which are clearly named in the List of payments for which insurance contributions to the Social Insurance Fund of the Russian Federation are not charged (approved by Decree of the Government of the Russian Federation dated July 7, 1999 No. 765).
In paragraph 1 of this document, of the above payments, only monetary compensation for unused vacation. For the amount of wages (including all its components) and the amount of compensation (regardless of the source), contributions for injuries should be calculated (clause 3 of the Rules for the calculation, accounting and expenditure of funds for the implementation of compulsory social insurance against industrial accidents and occupational diseases, approved by the resolution Government of the Russian Federation dated March 2, 2000 No. 184).
Cancellation of an agreement to terminate an employment contract
If the intentions of the parties have changed: the employer has found an opportunity to keep the employee or the latter has found a compelling argument not to fire him, the agreement can be annulled only upon reaching mutual agreement. In this case, the initiator of cancellation must notify the other party about this in writing.
Sample application for cancellation of agreement
If the other party agrees with this proposal, it is necessary to cancel both the agreement to terminate the employment contract and the dismissal order. A sample cancellation order, which is issued in any form, is given below.
Sample agreement
Sample order for cancellation of dismissal order
No agreement. If the other party does not agree, the dismissal remains in effect and cannot be reversed. This is stated in paragraph 20 of the resolution of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”: “Annulment of an agreement regarding the period and grounds for dismissal is possible only with the mutual consent of the employer and employee.”
But a situation may arise when a quitter begins to violate labor discipline. The employer will not be envied here - he will no longer have the right to fire the violator for other reasons.
Advantages of dismissal by agreement of the parties
As we see, dismissal by agreement of the parties in modern conditions beneficial to the employer. Let's summarize what has been said.
Everyone can take the initiative. Termination of an employment contract can be initiated by either party: both the employee and the employer. Such a dismissal suits both parties; it is a kind of compromise.
Cause. The initiator of termination of the employment contract is not obliged to explain the reason or indicate it in any documents.
The warning period is not defined. When dismissing by agreement of the parties, there is no need to comply with notice periods for dismissal, as is required, for example, when dismissing due to staff reduction. The parties themselves agree on the date of the last day of work. For example, it could be the next business day.
The opinion of the trade union is not taken into account. The employer does not need to take into account the opinion of the trade union organization, and when dismissing minor employee the consent of the relevant state labor inspectorate and the commission for the affairs of minors and the protection of their rights is not required, since the requirements of Article 269 of the Labor Code apply only to dismissals at the initiative of the employer.
Probation period is not a hindrance. An employment contract can be terminated by agreement of the parties both during the employee’s probationary period and upon concluding a fixed-term employment contract.
Any conditions. Upon dismissal, by agreement of the parties, it is possible to determine special conditions for terminating the employment contract, agree on the timing, size and procedure of compensation payments (severance pay or compensation) and other circumstances.
Simple procedure. The parties can agree orally and draw up one document. Many active employees, without waiting for the dismissal deadline due to reduction and not wanting to have a record of reduction in the work book, take compensation and begin searching new job. A record of dismissal by agreement of the parties does not spoil the work book. This wording in the work book does not cause a negative reaction from the future employer, and in times of crisis characterizes the candidate with positive side as able to compromise and not conflict with the employer.
More unemployment benefits. In case of dismissal by agreement of the parties, and not of one’s own free will or for violation labor discipline the employee can receive benefits in larger size. Unemployment benefits for those dismissed by agreement of the parties are established as a percentage of the average earnings calculated over the last three months at the last place of work (Clause 1, Article 30 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On Employment in the Russian Federation”). Note that employees dismissed of their own free will or for guilty actions can count on unemployment benefits calculated as a multiple of its minimum amount. For 2009, the minimum amount of unemployment benefits is 850 rubles, the maximum is 4900 rubles. (Resolution of the Government of the Russian Federation dated December 8, 2008 No. 915).
The fired person will not return. Cancellation of an agreement regarding the period and grounds for dismissal is possible only with mutual consent of the employer and employee. Neither the court nor the labor inspectorate will support him in the event of complaints from a former employee.
Amount of severance pay. Upon dismissal by agreement of the parties, the amount of severance pay is determined by mutual agreement.
The Labor Code of the Russian Federation allows the termination of employment relations between the parties by concluding an appropriate agreement. The fact that the contract was terminated precisely on this basis should be noted in the employee’s work book when it is processed for issue.
How to dismiss by agreement of the parties: entry in the labor record
In the Labor Code of the Russian Federation, reference to the agreement of the parties as a method of annulment of labor relations is present in two articles:
- Article 77 - this method of dismissal comes first in the list of general grounds.
- Article 78 – it allows termination of the employment relationship at any time by reaching an agreement between the employee and the employer.
When filling out the section on dismissal in the work book, a link is given to Article 77, as required by the Instructions for filling out work books (approved by Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 No. 69).
The rest of the entry follows the general rules:
- The serial number of the record is indicated.
- The date of termination of the employment relationship is indicated.
- The reason for termination of the contract is indicated, always with reference to the Labor Code of the Russian Federation.
- The basis for recording the dismissal is indicated.
- Signature is placed official and seal (if available).
Pay attention! You need to indicate not just the article number, but also the corresponding paragraph (subparagraph). The name of the code of laws is also indicated in full.
Example 1
Example 2
Example 3
The unambiguous wording of the record of such dismissal has not been established, but it must necessarily indicate the reason and a reference to the relevant norm of law. Abbreviations are not allowed in this entry.
On the basis of which document is an entry made in the labor record?
By agreement of the parties, dismissal is formalized by the following documents:
- The severance agreement itself. The Labor Code of the Russian Federation does not indicate that it must be concluded in writing, but when formalizing labor relations, only agreements drawn up in writing are valid. It is compiled in free form.
- Based on the signed agreement, a dismissal order is made. It is this that will serve as the basis for entering information about dismissal into the work book.
The basis is entered in column number 4 of the work book. The following details of this document are indicated:
- its name,
- publication date,
- document number.
Pay attention! The basis may be any order of the employer to dismiss an employee (minutes, decision of the general meeting, etc.).
When terminating an employment contract, a corresponding entry must be made in the employment contract. By agreement of the parties, termination of labor obligations occurs under clause 1 of part 1 of Article 77 of the Labor Code of the Russian Federation. The reason for termination of the contract is also indicated, in this case it is the signing of an agreement by the parties to terminate the employment relationship.
The company management and the employee decided that they no longer wanted to cooperate and agreed to terminate the employment contract by agreement of the parties. Like any dismissal, this must be properly formalized and the correct entry made in the work book. Let's figure out exactly how.
The most peaceful and convenient way termination of relations between employee and employer is provided for Article 78 of the Labor Code of the Russian Federation and it is called dismissal by agreement of the parties. This means that the employee and employer can agree to terminate the contract and discuss all the conditions. It is noteworthy that this article of the Labor Code of the Russian Federation is very laconic; it does not contain any special conditions and requirements. From its direct interpretation it follows that the company’s management and any employee can terminate the contract at any time: probationary period, while on sick leave, during pregnancy of an employee or planned changes in the organization (downsizing). Let's look at how best to document the planned changes.
Agreement, application and other documents
To formalize dismissal by agreement of the parties, someone must be the first to take the initiative. This can be either an employee or the management of the organization. ABOUT the decision taken can be communicated orally or in writing. The second method is preferable, because a paper or electronic notice can then serve as proof of who was the initiator.
A traditional letter of resignation in this case is also not necessary, but you can write one. The main document in this procedure is the agreement of the parties to terminate the employment contract. None special requirements Russian legislation does not require the content of this document, so it can be compiled in any order, depending on the situation. The main condition is that it must be in writing and certified by the personal signatures of the employee and the employer. In fact, this paper will be proof of the consent of both of them to the legal termination of the relationship. It is this document that will appear in the order to dismiss the employee. In addition, it must take into account all agreements that have been reached, such as the amount of severance pay and the procedure for its payment.
Mandatory details of this document:
- date of dismissal;
- duration and time of vacation (by agreement);
- amount of severance pay (by agreement);
- compensation and other payments;
- other conditions;
- signatures and details of the company and employee.
This document might look like this:
The agreement has legal force from the moment it is signed, and it can only be canceled if both parties change their minds about terminating the employment contract. After signing the document, the company management issues an order, and then the personnel officer makes an entry about the dismissal by agreement of the parties in the employee’s work book.
Making a record
Based on the dismissal order (the employee must be familiarized with it and signed), the HR specialist makes an entry about the accomplished fact in the work book. This situation is subject to general rules registration The entry must be made without errors and certified by the signature of an authorized person, usually a personnel officer.
As the basis, you must indicate clause 1, part 1 Article 77 of the Labor Code of the Russian Federation. This is what the work entry might look like:
dismiss by agreement of the parties on the basis of clause 1, part 1, article 77 of the Labor Code of the Russian Federation.
Or as in the example:
After which the employee must sign, and the employer is obliged to calculate it in accordance with current legislation and agreements reached between them. The full payment and work book must be handed over on the last working day. At the same time, the dismissed person must be paid severance pay, if it was provided for in the agreement.
