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Metinvest dismissal of an employee by agreement. Dismissal by agreement of the parties, payments, entry into labor and other nuances

Termination labor relations between the employee and the employer by mutual agreement, means the dismissal of the employee by agreement of the parties. Despite the apparent clarity and transparency of this "peace" agreement, there are a number of features and nuances. The contract-agreement is terminated at any time, complete freedom of action. The procedure for dismissing a woman during maternity leave is especially difficult, and especially if she does not agree, as is most often the case.

Legislatively (Article 78 of the Labor Code of the Russian Federation) regulates the fact of termination of the contract-agreement with the consent of the employer and employee.

What does the word "agreement" mean? This is an agreement between an employer and a subordinate on specific conditions for terminating a working relationship without mutual claims.

An important point is the time of mandatory working off, which is canceled or reduced. There are agreements with provisions on different nuances termination of labor relations. If there is more than one condition in the standard dismissal procedure, then any action to cancel the contract is considered to be an agreement.

Like any termination of agreements, the dismissal of an employee by agreement of the parties has its own procedure:

  • Submission by an employee of an application for termination of employment.
  • The administration of the enterprise issues a dismissal order.
  • Based on the submitted document, the former employee receives personal documents, cash.

With regard to the phrase "agreement", different conditions can be accepted at each stage of the described process. The faster this is done, the easier the dismissal procedure, the less you need to fix, the more significant the benefits for everyone. But it is better to discuss everything before starting the application for termination of employment in the organization. Including to avoid problems with dates.

By law, after submitting an application, a resigning employee is required to work for two weeks, which is reflected in the official act. If, by mutual agreement of the parties, a decision is made to change the time of working out, or liquidation, this is reflected in the numbers put down.

Cases of non-compliance with the originally fixed deadline imply rewriting of documents. For this reason, it is advisable to initially negotiate, then write down the deadline in the official documentation. An application for the dismissal of an employee by mutual agreement must include a note on the termination of employment by mutual agreement of the parties, Article No. 78.

Legal Features

Official dismissal of an employee by agreement of the parties - termination of working relations on favorable terms for both parties. The main issue is the time of mandatory working off, which increases or decreases.

Also very common is the phenomenon of dismissal due to staff reduction. In today's crisis, this is not surprising.

Let's discuss other points, pluses and minuses for the employee. Agreements are often verbal between superiors and subordinates. Since there is no legally regulated form of mutual agreement, such a position is understandable.

But agreements must be fixed in writing at any level of trust:

  • Cases are different, no one is immune from anything that pushes to break verbal promises.
  • Helps to avoid fuss in the process of dismissal.

Documents are drawn up in two versions (for the employer, for the resigning employee). The text is filled in in any form, the agreed points are fixed, signatures are put on both sides, sealed with the seal of the organization. Signatures of witnesses are desirable, but not required.

The agreements include a clause on the mutual consent of the parties and the absence of claims on all issues. The procedure for dismissal of an employee by agreement of the parties implies the impossibility of restoring job position, in case of refusal of the departing employee from the intention to leave work.

If, under the standard procedure, the employer has the right to refuse reinstatement in the previous position, then by mutual agreement, the employer refuses the position by signing the agreement.

A formal order to terminate an employment relationship by consent is issued by standard form T-8. It contains the wording “dismissal by agreement of the parties”, a certified document may not be attached to an official order. Within three days, the former employee of the organization must familiarize himself with the order, certify his actions with a signature with a transcript.

If for some reason something did not suit the employee, record the entry “I have read it, I refuse to sign”.

Types of compensation for an employee

With the end labor activity former employee enterprises issued employment history with notes on experience, qualifications, the article for which the dismissal occurred. The remaining payments, with a certificate of income, the dismissed employee receives later.

The procedure for dismissal by agreement of the parties implies monetary compensation, including:

  • Remaining salary.
  • Allowances stipulated by the Labor Code, coefficients.
  • Lost premiums.
  • Cash compensation for unused, paid vacation days.
  • Compensation for unpaid food, travel allowances, travel allowances, etc.

Cases of obtaining overalls that provide for a deposit after the dismissal of an employee require the return of the deposit after the surrender of overalls. The moments at which the departing employee had debts are compensated from the amount of cash payments provided to him.

If you are not going to be fired, demand an extension of the employment contract.

The basic procedure for dismissal by agreement of the parties does not provide for payment for severance pay.

Exception - a sum of money is paid in the amount of two official salaries, in the case of a preliminary agreement between both parties. If there is a provision for additional payments to the salary, this money is issued in any case. Except for a serious violation within labor discipline at the enterprise.

“Remuneration in an envelope” is always possible with the agreement of the parties, the pros and cons are obvious: it is not documented, and verbal promises are violated by both parties, but simply to receive a substantial amount of money.

Features of dismissal by agreement of the parties

Do not take risks, complicate your life, adhere to the law. Basically, dismissal by agreement of the parties on the direct initiative of the employee is the same termination of the employment contract-agreement on own will, but with great chances to bargain with the employer for favorable terms of care.

But in this case, "there is no turning back" - the employee will not be able to change his mind and return back, without the desire of the employer. Dismissal at the initiative of the employer implies a desire to get rid of the worker. To do this, a proposal for termination is provided. labor agreement in writing with the number of leaving the organization, company, firm.

The employee may refuse the proposed actions, under whatever conditions they are offered. The employer does not have the right by law to dismiss a person, except in cases of a change in the owner of an enterprise, firm, organization, which has the right to change the composition of employees, workers, etc.

All illegal actions, according to the employee, can be appealed in court.

Pluses for the employee in this case - the employer does not bring the situation to litigation, you can count on monetary compensation, other "bonuses".

Having formalized the employment relationship, you can be calm that on another beautiful day you will not be thrown out into the street without a salary and benefits.

Many legal regulations Labor Code Russian Federation look simple and transparent to use. However, their close study and analysis lead to the conclusion that it is possible to implement the prescribed provisions only after overcoming numerous difficulties. One of the striking examples is Article 78 of the Labor Code of the Russian Federation, which establishes the procedure for dismissal by agreement of the parties. She got the palm thanks to the very summary, after all, explaining it documentation does not contain any normative document.

The Labor Code of the Russian Federation provides the employee with great privileges - he has the opportunity to quit at any point in time that is beneficial only to him (Article 77 of the Labor Code of the Russian Federation). It can even be vacation time or sick leave. The employer, in the presence of the above conditions, can terminate the contract on his own initiative only in exceptional cases: liquidation of the enterprise or termination of activities. Trade union organizations do not show any control. The same way to end the relationship is also possible under a student agreement.

About legal grounds and correct execution of documents

The provision of the Labor Code, which allows ending an employment relationship by agreement of the parties, states that this will require only a properly executed addition to the contract, signed by the employee and the employer.

Approximate course of action:

  1. The employee writes to the director of the enterprise, in which he asks to terminate in accordance with the mutual agreement reached by them.
  2. The employer reviews the application and either signs it, or proceeds to discuss with the employee the date of termination of the contract that satisfies both parties.
  3. The procedure is completed by a properly executed supplementary agreement to the employment contract, which has one purpose - to terminate the last document.

The reverse situation is also possible - the employer offers the employee to terminate the employment relationship by mutual agreement by sending him an appropriate notice with the dates indicated in it, the amounts of monetary compensation and other important conditions. Information on the date of termination, on the procedure for transferring cases, on the timing of inventories, on compensation payments and other important points can be entered into the supplementary agreement.

The fact that the contract has been terminated is evidenced by order in the form No. T-8 and an entry in the employee's work book.

What are the benefits for the employer of terminating the contract by agreement of the parties?

An employee who plans to quit on the basis of his own desire is given the opportunity to withdraw his application at any time. And in case of termination of labor relations by agreement of the parties, such a privilege is not provided. Cancellation of the signed agreement is possible only with the consent of the opposite party. That is, unilateral termination is not possible.

The conclusion that the termination of an employment relationship on the basis of an agreement is beneficial for the employer can be made based on the following points:

  • legal opportunity to take the initiative to terminate the employment relationship;
  • no need to explain the true reason for such a decision and worry about meeting the deadlines established by law. For example, if the reason for dismissal is a forced reduction in staff, then the dismissal of an employee is impossible without observing the deadlines for notifying him;
  • independent setting of the date of dismissal, including at the end of the current working day. This moment is especially important when dismissing an employee who has an individual liability, since the employer has every right to indicate in the agreement the period that is necessary for a thorough inventory of material assets;
  • the absence of the employer's obligation to coordinate the dismissal with the trade union committee;
  • the dismissal of an employee cannot be prevented either by the issuance of a sick leave, or by going on vacation, or by the employee probationary period;
  • the agreement of the parties provides for the establishment of special conditions, as well as the term, procedure and amount of the compensation payment (severance pay or compensation);
  • there are no special requirements for documenting the agreement;
  • some active employees who do not want to quit on a reduction and make such an entry in their work book often agree to receive compensation and start looking for a new employer who, having seen the entry in the work, will come to the conclusion that his future employee is an absolutely non-conflict person ready to find a compromise solution even in difficult times of crisis.

Are employees entitled to any benefits or compensation?

Labor legislation has long defined situations in the event of which an employee receives upon dismissal. Their clear example is the liquidation of the company or the reduction in the number of employees. But in some cases, the amount of this benefit can be included in the labor or collective agreement.

Mutual agreement for termination of employment provides for a number of favorable conditions for both sides. An employee leaving for such a reason can count on receiving the so-called "compensation", the amount of which depends on the outcome of the negotiations between the parties.

The legislation does not set any limits on this payment. The amount can only be secured by signing a termination agreement.

Standard payments and compensations include:

  • wages, which is calculated taking into account the last working day;
  • cash payment for the number of days of unused vacation. If the resigning employee decides to fully use his vacation, then there can be no question of any compensation. Then only .

For more information about payments, you can watch the following video:

Calculation of their size

and wages must be paid to each departing employee. If the employee used more vacation days than he was entitled to this moment time, the payment of all these days will be deducted from the salary. The amount of compensation is calculated based on the employee's full vacation, due to him for a full year of work, or on the number of months actually worked.

To talk about a specific amount of compensation upon dismissal, you need to specify them when signing a mutual agreement.

Taxation of payments

All amounts paid to an employee are subject to the following contributions:

  • Personal Income Tax. Under the normal mode of operation, this tax is paid only at the end of the calendar month, and the dismissal procedure provides for slightly different conditions, namely the actual receipt of wages individual. After the dismissal of an employee, personal income tax should be paid to the budget:
    • on the day of receipt Money in the bank or on the day when this money was transferred to the account;
    • the next day if the settlements with the dismissed are made from the proceeds received by the cashier.
  • income tax. Salary, or rather its amount, is clearly monitored in accordance with paragraphs 1-3 of Art. 255 of the Tax Code of the Russian Federation. Compliance with these rules is very important point, because if they were based on them when calculating salaries, then the taxable income tax base will be reduced by the entire amount of wages and compensation for unused vacation.
  • UST and contributions to the pension fund. Payment of this tax is obligatory in case of reduction due to the payments established in the labor (collective) agreement, the taxable income tax base. Compensation and monetary compensation for unused vacation is not subject to UST and contributions to the pension fund.
  • Contributions for injuries.

FAQ

Is it possible to terminate the contract by agreement of the parties with the implementation of the provisions of Part 2 of Art. 127 of the Labor Code of the Russian Federation the right to use vacation?

If the dismissal is not related to the occurrence of the employee's guilty actions, then you can take leave with subsequent dismissal. Competent documentation in this case provides for the following sequence:

  1. Issuance of an order that the employee went on vacation.
  2. Signing by the parties of an additional agreement on termination. In this case, the termination date must coincide with the last day of the vacation.
  3. Issuance of an order to terminate the contract, the date of which must correspond to the last working day before the start of the vacation.
  4. Making an entry in the work book.

Does the employer have the right to refuse the employee who applied to him with an application to terminate the employment relationship by agreement of the parties?

The Labor Code of the Russian Federation did not provide a clear answer to this question. Based on the wording of Art. 78 of the Labor Code of the Russian Federation, which allows terminating the contract by agreement of the parties, we conclude that the employee has no reason to demand consent from the employer. You can resort to another option - to terminate the employment contract on your own initiative (clause 3, part 1, article 77 of the Labor Code of the Russian Federation).

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

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Legal basis

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

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

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

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

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

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

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

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

  • from 30.06.06;
  • dated 02.07.13

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

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

At the same time, in the text of the article itself there are links to various legislative acts that govern the moment.

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

Pros and cons of voluntary dismissal

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

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

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

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

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

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

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

At the same time, the employer does not have the right to refuse his employee this action. Thus, if with new job something went wrong, you can always change your mind and stay the same.

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

Pros and cons of dismissal by agreement of the parties

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What is better to choose

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

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

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

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

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

  • in the presence of vacant position in another organization;
  • if the employer offers sufficiently substantial benefits.

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

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

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

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

Dismissal strategy by agreement of the parties

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

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

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

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

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

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

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

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

Pitfalls of dismissal by agreement of the parties

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

Can an employee be reinstated at work if he believes that the dismissal by agreement of the parties was signed by him under pressure from the employer?

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

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

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

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

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

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

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

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

Can the employer change the grounds for dismissal if the employee refused to quit by agreement of the parties?

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

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

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

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

Is it legal to dismiss an employee by agreement of the parties if he signed such an agreement, but then demanded to cancel it?

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

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

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

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

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

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

Is dismissal by agreement of the parties legal if the dismissal agreement is not drawn up in a separate document?

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

Is it permissible to dismiss an employee by agreement of the parties during the liquidation of the organization?

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

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

Is the employer obliged to pay compensation to the employee upon termination of the employment contract by agreement of the parties?

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

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

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

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

Wrong position of ships

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

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

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

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

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

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

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

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

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

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

The correct position of the courts

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

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

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

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

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

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

There can be any number of reasons for dismissal - this is moving to a new place of residence, getting a new highly paid position and others. However, this process is not always quick and easy. Dismissal by agreement of the parties can be considered the best option if the employee entered into an employment contract (TD) with the employer, but at the same time, few people are aware of whether any payments are provided in this case and how to properly follow all the stages of the procedure for terminating labor relations.

What does dismissal by agreement of the parties mean?

Already from the expression itself, it is clear that the termination of the contract is possible only if agreements are reached between the two parties - the employer and the employee. This is the main feature and difference between the procedure and dismissal of one's own free will. The rupture of the TD is possible with the conclusion of an urgent or open-ended contract. The main feature of the procedure should be called the fact that each of the parties is obliged to notify the other of such a decision.

At the initiative of the worker

If we turn to practice, we can see that more often the termination of the contract occurs at the initiative of the employee himself. If you decide to terminate the employment relationship with the employer, you must notify the authorities of your desire by writing a statement. After that CEO imposes a resolution on the consent of the management. If the employer does not agree, the subordinate can write another statement, for example, of his own free will.

At the initiative of the employer

The employer can also offer to terminate the contract before the expiration date. This method is relevant when management wants to fire an employee, but there is no good reason for this. To do this, the employee is sent a written notice, which reflects the expected date of termination of cooperation. For its part, the subordinate, in case of disagreement, may refuse or indicate his own conditions. They can be set out in writing or reach consensus through negotiation.

Regulations and laws

If we turn to the legislation, then we will not be able to find any exact recommendations regarding the termination of employment relations between the employee and employers by mutual agreement. All questions lying in this plane relate to the practice that exists in a single enterprise. Only in the Labor Code there is a small chapter number 78, which says that cooperation can be terminated at any time. In addition, it says that the initiator of the dismissal can be either one or the other side of the contract.

Termination of TD

Termination of TD by mutual agreement in Lately gain popularity. This is due to the fact that for the procedure there is no need to prepare a large package of documents. The consent of the parties to the agreement is the only condition of the procedure. Termination of the contract gives a person the opportunity to resign in as soon as possible without unnecessary bureaucratic delays.

Simplicity and convenience of design

If, for other reasons, the procedure for terminating cooperation between the employer and employees is not always simple and can take a long time, then in the event of termination of the contract by agreement, it is easy to resolve this issue, but only when the two parties agree to sign. In addition, the legislation does not establish any deadlines, so dismissal is possible even on the day of notification.

As for the convenience of the procedure, it should be noted here that neither the employee nor the employer are required to notify each other in writing of their intention to terminate cooperation. However, lawyers advise to stick to documenting your desire. This will help subsequently resolve issues regarding mutual claims and disputes in court, where the drawn up document will be provided as evidence.

Negotiation of the terms of the procedure

The wording itself contains the main meaning - in order to terminate the TD, the parties must come to a mutual agreement. They can put forward their demands both in writing and orally. Achieving optimal conditions gives good opportunity get the most out of the procedure. Thus, compensation may be provided for an employee, and management, for example, may put forward conditions for the mandatory working out of a certain period of time to transfer cases to a new employee or eliminate existing debt.

Modification and cancellation only by mutual agreement

Termination of relations by consent of the participants in the TD has distinguishing feature- there is no turning back. This means that the agreement cannot be cancelled. However, in some cases, changes are possible, but only if, again, both parties agree. This circumstance distinguishes the procedure from leaving work at will, when the employee can withdraw his application.

As for the very process of changing the agreements reached earlier, here it is desirable to observe some formalities. So, for example, if an employee sends his management a proposal to amend the agreement in writing, then the employer is recommended to respond to him in writing, where he expresses his disagreement with the conditions put forward or expresses his willingness to make concessions.

The possibility of dismissal of employees of any category

If you turn to legislative framework, you can see that you can terminate cooperation with an employee at any time, regardless of whether a fixed-term or open-ended contract is concluded with him. This circumstance does not prevent the dismissal of a subordinate during the vacation period or if he is on sick leave, but for this his consent must be obtained. The employer cannot unilaterally dismiss them.

Dismissal from office by agreement of the parties is often used when a TD is broken with an employee who has committed a disciplinary violation. This is beneficial to both parties, since the employer gets rid of an objectionable employee who receives a work book that does not indicate that he was fired "under the article." In addition, it is possible to be reinstated in office only by a court decision, which will be unrealistic to obtain, because the citizen himself gave his consent.

It should be specially noted that the employer can also dismiss a pregnant woman, but (!) only if she herself expresses such a desire - there can be no other exceptions. When such a proposal is received, the employer must be careful, because if the woman was not aware of her situation before signing the agreement, but found out about it later, she has the right to withdraw her resignation letter, and the court of first instance will be on her side.

What payments are due

Russian legislation no compensation payments are provided for when signing a mutual agreement. However, this does not mean that leaving work by agreement of the parties does not give any privileges to the subordinate, since you can always put forward your own requirements, especially if the initiative comes from the employer. In addition, the management of the organization must fully pay off the departing employee, and the deadline for payments is considered to be the last day before leaving.

Pay for hours worked

To receive money, or rather wages for the time actually worked, including the last day of being at the workplace, as already mentioned, the employee must no later than last day before leaving, which is specified in the agreement. This also applies to other accruals that are due to a person according to collective agreement. This can be various kinds of additional payments, annual financial assistance, etc.

In case of non-payment due to the fault of the employer of the funds due within the time limits established by the Labor Code, the employee must first contact the employer and request written guarantees for the transfer of money within a month. In addition, it is necessary to file a complaint with the Commission on labor disputes at the enterprise. If none of the above has brought results, each citizen can apply to the court with a request to collect the debt in the prescribed manner.

Compensation for unused vacation

According to article 115 of the Labor Code, the minimum paid leave is 28 days. If by the time of dismissal the employee has not taken the vacation due, the management of the enterprise is obliged to pay him compensation for each day. The calculation of the payment is no different from the standard calculation for any employee. Provided that part of the vacation is spent or the employee has worked for less than a year, the days are calculated in proportion to the hours worked.

severance pay

Most of the questions arise with the payment of severance pay. If, upon downsizing or liquidating an organization, an employee is entitled to a certain amount specified by law, then by agreement of the parties, the law does not establish any requirements for this procedure. This suggests that the employer may not pay anything to the resigning employee at all, especially if the agreement is reached as a result of a disciplinary sanction.

If an agreement is reached, or if such a clause is available in the TD, the employer pays a certain amount. The remuneration can be set regardless of any circumstances and amount to any amount. To calculate it, you can use:

  • average monthly salary;
  • a certain amount of salaries, etc.

Procedure steps

The legislation does not prescribe the process of dismissal from work by mutual agreement. The employer has the right not to notify the employment service, trade union organization on the termination of the TD and not pay the dismissed severance pay, unless otherwise specified by the labor / collective agreement or other local regulatory legal acts. As a rule, they are guided by the practice established at the enterprise.

The procedure is not lengthy and consists in performing a certain procedure:

  • agreements are reached;
  • an order is drawn up for the enterprise and given to the retiring person for familiarization;
  • within the period specified by the parties, a full settlement with the employee takes place and he is issued a work book.

Drafting an agreement to terminate an employment contract

Since the consent between the parties to the contract is the basis for dismissal, it is drawn up and signed by both participants in the TD. As for its form, there are no exact instructions here, so the form can be any, but it must be indicated there:

  • grounds for termination of labor relations (the agreement of the parties);
  • date of dismissal;
  • signatures of both parties.

The agreement itself can be in the form of a statement from a retiring specialist (worker), which necessarily indicates the date of termination of cooperation determined by the parties. The resolution of the employer is superimposed on it. In addition, a separate document can be drawn up. It prescribes all the conditions, and the agreement itself is drawn up in two copies - for each participant in the agreement. Approximate form looks like that:

Dismissal order

According to the resolution of the State Statistics Committee of Russia No. 1 dated 01/05/2004, an order for dismissal is drawn up according to unified form T-8 or T-8a. It is standard for everyone, however, each enterprise can develop its own order form, which should contain the following items:

  • grounds for termination (termination) of the employment contract - Agreement of the parties, clause 1, part 1, art. 77 of the Labor Code of the Russian Federation;
  • the document on the basis of which the decision was made - the Agreement on termination of the employment contract with the number and date.

Familiarization of the dismissed person with the order against signature

After registering the order, the resigning person should familiarize himself with the content. Without fail, he must sign, which will indicate agreement with all the points set out. In addition, he can receive a copy of the document or an extract from the order. If a person refuses to sign a document or cannot do so due to temporary disability, a note about this is put in the order, and in the presence of witnesses an act is drawn up on the refusal of the employee to familiarize himself with the contents of the order.

Entry in a personal card and work book

When a person is hired, a personal card is created for him, in which all changes related to official duties. For this, the approved T-2 form is used. It is also necessary to make a record of dismissal by agreement of the participants in the trading house, the details of the order and the date. The personnel department inspector puts his signature, and after familiarization, the resigning must put his own.

The following entry is made in the workbook: Employment contract terminated by agreement of the parties, paragraph 1 of the first part of Article 77 of the Labor Code of the Russian Federation. It is certified by the signature of the responsible employee, the seal of the employer and the signature of the resigning person. The book itself is in hand on the day of dismissal, which is recorded in a personal card and a special journal.

Drawing up a note-calculation in the form T-61

From the moment of signing the dismissal order, the organization is obliged to make the final settlement with its employee. To do this, you need to draw up a note in the prescribed form T-61. It is first filled in by the personnel department, which brings in everything necessary information and then bookkeeping, making up the calculation. The form of the document was developed by the statistical authorities, however, each enterprise has the right to have its own version, taking into account the specifics of labor activity.

Full payment on the last day of work of the employee

As already noted, the settlement with the employee must be made before he leaves his place of work. An important aspect is that the entire due amount is paid immediately - management cannot apply any installments. The only payment that can be paid after a person leaves is bonuses, which are calculated based on the results of the enterprise's work for the previous period.

What documents are handed out

When leaving with the consent of the participants in the TD, an employee of the organization receives a certain set of documents in his hands:

  • work book with a record of dismissal;
  • certificate in form 182n, which provides information about wages employee for the last two years, which are necessary for calculating sick leave payments.
  • certificate containing information on contributions to Pension Fund(RSV-1 or SZV-M);
  • certificate of average earnings, if a person becomes registered with the Employment Service;
  • certificate in the form of SZV-STAZH indicating the length of service;
  • copies internal documents, if such were requested by the retiring.

Features of taxation of severance pay

Provided that the amount of the severance pay determined by the agreement, the average monthly earnings for the period of employment, monetary compensation to the manager, his deputies and the chief accountant does not exceed three times the average monthly earnings or six months for an employee of the regions of the Far North and areas equated to them, are not subject to personal income tax. Anything above that amount will be subject to income tax. This rule also applies to insurance contributions to the Pension Fund and other organizations.

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