DISMISSAL BY AGREEMENT OF THE PARTIES:

6. Familiarization of the employee with the order(order) of the employer to terminate the employment contract against signature.

In the event that the order (instruction) on termination of the employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, on the order (instruction) needs to be done corresponding entry (part 2 of article 84.1 Labor Code of the Russian Federation).

7. Design notes-calculation upon termination (termination) of an employment contract with an employee (dismissal).

8. Payment to the employee.

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment. In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article (Article 140 of the Labor Code of the Russian Federation).

12. Confirmation of the fact that the employee has been issued his work book. The employee confirms with his signature the fact of receipt of his work book in the book of registration of the movement of work books and inserts in them. The form of this book is approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69 “On approval of the Instructions for filling out work books.”

13. Issuance of a certificate/certificates regarding the amount of earnings(clause 3, part 2, article 4.1 of the Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”).

If an employee refuses to familiarize himself with the order (instruction) to terminate the employment contract, it is also advisable to draw up an act on the employee’s refusal to familiarize himself with the order (instruction), which is signed by the originator and the employees present at the refusal (the law in this case does not require drawing up an act, but in the event of a lawsuit dispute act may be useful as additional evidence that the employer is right). The act is registered in the manner prescribed by the employer in the appropriate registration journal.

If one day you get tired of your job, you may think about how to quit by agreement of the parties. To find out, you can look at the Labor Code or go through sites on the Internet, looking for the necessary information. Or you can just read our article and become familiar with all the nuances and pitfalls.

Provisions of the Labor Code

According to the set of articles of labor legislation, the initiator of termination of labor relations can be either the employer or the employee. The latter has more advantages and, accordingly, more opportunities to terminate the employment contract. If the employer must either wait for the contract to expire or hope that the employee will commit misconduct, then the employee can decide to leave the enterprise on any day at his discretion, if he agrees with his boss on how best to do this for mutual benefit. This is called an agreement between the parties. This issue is set out in detail in Article 78 of the Labor Code.

How to formalize dismissal by agreement of the parties

By and large, termination of an employment relationship by agreement of the parties is dismissal of one’s own free will, since the initiator is also the employee and only him. The difference is that when leaving the company of his own free will, the employee must work for two weeks and nothing else. That is, if a person needs to be relieved of his position on the twentieth of August, he must submit an application no later than the sixth of August - otherwise he will not have time.

The situation is completely different if the parties enter into an agreement. In this case, if the boss does not object, you can leave even on the same day when the application is written. True, in this case it will be difficult to make the final payment to the employee, as required by law, on the last working day, but this can also be agreed upon.

Actually, the article of the code states that, by agreement of the parties, the employment contract can be terminated at any day, the main thing is that this suits everyone.

How does the procedure for voluntary dismissal work?

As in general cases, when the initiator of termination of work is an employee, the following conditions must be met:

• writing a resignation letter;
• issuance of an order for the enterprise;
• full settlement with the employee.

The only difference is that between the application and the order, the employee and his boss negotiate the conditions for terminating the working relationship and fulfill them - this can affect the timing of dismissal, work, as well as the amount of payments.

How does dismissal occur by agreement of the parties under a fixed-term employment contract?

Here we should immediately make a reservation that there are two types of employment contracts: fixed-term and unlimited. With the latter, everything is clear: they are concluded for an indefinite period, and work on them continues until the employee retires, decides to leave the enterprise, or until the enterprise itself is liquidated. And such contracts are concluded in most cases, since fixed-term employment contracts - documents that indicate the end date of work - are allowed to be concluded only in some cases.

For example, if part-time students or students are hired. Or if the work is seasonal, for a certain period - but not less than two to three months. In such cases, the document may not contain a specific date, but the wording “until the completion of work”, “until a permanent employee enters the workplace.”

Naturally, the question arises: if the document indicates the exact date (or its equivalent), does the employee have the right to submit a letter of resignation without waiting until the contract expires? The answer to this is: of course, the employee has such a right.

The text of the article of the Labor Code leaves no doubt: you can quit at your own request and quit by agreement of the parties on any day.

Required documents

Since the procedure for terminating a working relationship is structured in the same way as a similar procedure in the general case, the documents required for its execution are standard.

Employee statement

Having decided to leave the company of his own free will, the employee must write a statement about this addressed to his immediate superior. Bearing in mind the mandatory fourteen days of work, he must indicate in the application the date taking into account this work.

p>In the event of dismissal by agreement of the parties, if an agreement has been concluded with the boss to reduce this period, the application indicates the agreed date.

Severance agreement

There is no approved form for such a document, and most participants in the work process prefer to conclude it only in words. On the one hand, this position is quite understandable: it allows you to bypass some legal norms, for example, taxes. On the other hand, if the employer makes a big promise, he may well subsequently renege on his promises, and the employee will not be able to recover compensation in court. Therefore, it is recommended to write down all agreements reached and seal them with the organization’s seal.

Agreements may relate not only to terms of service, but also to payments on the last working day - for example, an employer may assign additional compensation not provided for by law, consultations that a former employee will provide to his replacement, and so on. A written agreement also protects the employer if the employee wants to renege on his obligations.

Order for the enterprise

When terminating an employment contract, the enterprise issues an order to this effect. The document is drawn up in form T-8 based on the application. It mentions dismissal by agreement, but does not describe the terms of the agreement. Records of the agreements reached can be attached to the order if desired. The employee must sign the order, indicating that he is familiar with its points. Three days are allotted for this.

Entry in the work book

When terminating an employment contract, an entry must be made in the work book with reference to the relevant article of the code. When dismissing under Article 78, the entry “dismissed by agreement of the parties” is made; the terms of the agreement are not written down. The employee must certify with his signature the entry in the work book and in the personal card. After this, the book is handed over to him

Payments upon dismissal as agreed by the parties

On the last working day, the employer also makes final payments to the employee. That is, it must give him:

• wages and bonuses earned by this date. All required bonuses and coefficients are also paid;
• compensation for all unused calendar vacation days.

If an employee took vacation in advance during his working years, on the contrary, previously issued vacation pay will be withheld from him. It is also necessary to withhold expenses for travel, food and special clothing, if any were spent on the employee. Payment of severance pay is not provided, but since the parties additionally stipulate the conditions, they can agree on benefits in an amount that suits both. The agreement may also provide for other deadlines for final payment - for example, a week or two days before dismissal.

Some nuances

When dismissing by agreement of the parties, as well as when dismissing at his own request, the employee can think about it and withdraw his application before the end of his service. Unless the employer has already promised someone his position in writing, the employee can continue to perform his duties as if nothing had happened. If the dismissal period has passed, but the employee continues to come to work and work, the employment contract is considered to be extended by default and not terminated. If at the same time the employee still needs to leave the company, he will need to re-write the application and work it out.

All of these terms apply only if the written agreement does not indicate otherwise.

If on the last working day the employee was not given a work book and was not paid off, he still has the legal right not to appear at the enterprise again, and to demand what is due to him in court. Therefore, it is good to immediately draw up the agreement in two copies - one will remain at the enterprise, and the second will be in the hands of the employee.

We hope that in our article you have found answers to all your questions about the procedure that is carried out upon dismissal by agreement of the parties.

Despite the fact that the Labor Code of the Russian Federation (LC RF) has been in force for over 4 years, it contains legal norms that at first glance seem unremarkable and not at all difficult to apply. However, upon closer study and analysis of their text, the implementation of the provisions contained in them raises significant difficulties. Thus, Article 78 of the Labor Code of the Russian Federation, which regulates dismissal by agreement of the parties, in terms of brevity, confidently holds the palm among its “neighbors” under the Labor Code. The procedure for terminating an employment contract on this basis is not prescribed in any regulatory document, so our practical recommendations for documentation should come in handy.

Features of dismissal by agreement of the parties

Dismissal by agreement of the parties has its own characteristics.

Firstly, VIn accordance with Article 78 of the Labor Code of the Russian Federation, an employment contract can be terminated on this basis at any time. This means that Article 78 of the Labor Code of the Russian Federation allows fire an employee both during the period of his being on vacation, and during the period of his temporary disability, which cannot be done upon termination of the contract at the initiative of the employer (except in cases of liquidation of the organization or termination of the activities of the employer-individual). At the same time, no control on the part of trade union organizations is provided for the dismissal of workers on this basis.

Secondly, so way not only the employment contract, but also the student contract may be terminated, which, according to Article 208 of the Labor Code of the Russian Federation, is terminated on the grounds provided for termination of an employment contract.

Technique for terminating a contract by agreement of the parties

Please note the following point. Article 78 of the Labor Code of the Russian Federation regulates dismissal by agreement of the parties. But the Instructions for filling out a work book require reference in this case to paragraph 1 of Article 77 of the Labor Code of the Russian Federation. Since the basis for making an entry in the work book is an order, it must also contain a reference to clause 1 of Art. 77 Labor Code of the Russian Federation. For the same reason, we indicate this article in all possible documents preceding the issuance of the order.

Now we will try to explain the procedure for carrying out such a dismissal. Before terminating an employment contract in this way, one of the parties (employee or employer) must offer to do so.

Initiating document

Let's first imagine what it is the employee expressed a desire break up by mutual agreement. In this case, he should send unilateral offer to the employer about termination with him labor relations, in terms of civil law, an offer , which can be accepted (“approved”) by the employer or not. The proposal is submitted in the form of an application.

This is where problems arise with writing the text of a document. A fairly common mistake is to use the following formulation:

Which sides? Reading such a statement, you think that, secret from the employee, the employer will be forced to let him go on all four sides only after concluding an agreement with some mysterious third party.

It seems that it would be more correct to compose the text of the statement in one of the following ways:

Please note the following point. To terminate the employment contract by agreement of the parties, the employee’s request must be expressed in one of the above ways (Examples 2 and 3). If the employee wrote a statement asking fordismissing him at his own request, even if the employer expresses consent, it does not automatically transform into an agreement of the parties.

An example of a correct application is presented in Example 4.

If the initiator termination of the contract is the employer, then he will have to send an offer to the “unhappy” employee. When drafting the text of this document, it should be remembered that the employer is not obliged to motivate his proposal in any way.

Proposal to terminate the employment contract may look like Example 5.

Agreement and order to terminate the employment contract

After the parties reach a consensus, it is necessary to draw up the agreement on termination of the employment contract.

Convenient if initially conditions for termination of an employment contract on this basis were introduced V text of the section of the employment contract, providing the grounds for its termination. A fragment of the employment contract in this case may look like this:

Procedure for termination of employment relations on this basis can also be stipulated in the collective agreement between employees and the employer.

When drafting an agreement, you can use the language presented in Example 7.

It is worth noting that the text of Article 78 of the Labor Code of the Russian Federation does not say about the need for written form agreement between the parties at termination of an employment contract. For this reason, often the employer and employee, not having any claims against each other and not being interested in each other, do not formalize this “agreement” in writing. However, according to the author of the article, this is not entirely true. An agreement must be drawn up in any case. Based on this, an order is issued. Completed form dismissal order by agreement of the parties is given in Example 8.

“Advantages” of dismissal under paragraph 1 of Article 77 of the Labor Code of the Russian Federation

Both for the employee and for the employer there are advantages of applying paragraph 1 of Art. 77 Labor Code of the Russian Federation.

The “advantages” for the employee in this case are as follows:

• continuous service is maintained for one month after dismissal, and not for three weeks, as in the case of termination of an employment contract at one’s own request without good reason;
• if a person registers with the employment service, the benefit will be paid to him in a much larger amount and for a longer period of time than in case of dismissal of his own free will without good reason.

Employer benefits:

• there is no requirement to coordinate the dismissal with the trade union body, and in cases with employees under eighteen years of age - with the state labor inspectorate and the commission for minors;
• no compensation or other guarantees are provided for termination of employment relations with an employee(unless this is expressly stated in the employment or collective agreement).

The very term “agreement” implies a mutually beneficial agreement.

In our case, the employer and employee must come to a mutual agreement.

However, Russian legislation does not provide a specific explanation of the exact conditions under which an employment contract should be terminated by mutual agreement.

It is only clear that these conditions must suit both the employee and the hirer.

The process of dismissal by agreement is regulated by the Labor Code, namely Article 78. It states that the employment contract can be terminated at any time determined by both parties to the employment relationship.

Labor Code of the Russian Federation, Article 78. Termination of an employment contract by agreement of the parties

An employment contract can be terminated at any time by agreement of the parties to the employment contract.

The initiator can be either a worker or an employee.

Dismissal by agreement is often used in such cases.:

• if it is necessary to terminate a fixed-term contract;
• if you need to terminate a contract concluded for an indefinite period.

Thus, this wording for dismissal can be used if the employee decides to quit urgently without working for 2 weeks after writing the application. Or, on the contrary, the employee decided to inform the employer in advance about his upcoming departure so that management has time to find someone for the position.

In any case, the main condition is to conclude a mutually beneficial agreement.

What documentation should there be?

To terminate the employment agreement in this case, you will need a document on termination of the employment relationship, which is signed by the team member and the hirer.

This document must contain:

• consent of both parties to terminate the contract on terms favorable to them;
• number and date of the terminated contract;
• date of the employee's last working day;
• date of conclusion of the document;
• employee’s passport details and name of the organization;
• TIN of the hiring company;
• signatures of both parties.

In accordance with the Labor Code, this dismissal must be formalized in this way. The dismissal order must be drawn up in Form N T-8.

The text of the order states that the employment relationship is terminated on the basis of paragraph 1 of part 1 of Article 77 of the Labor Code of the Russian Federation.

The employee must read and sign the order.

The employee’s work book indicates the reason for leaving with reference to Article 77 of the Labor Code (clause 1 part 1).

Cash payments are issued to a team member on his last day of work.

Care on your own initiative

This formulation is one of the most popular in labor practice. The initiative comes from a member of the team and does not imply the approval of the hirer. After all, according to Russian legislation, an employee cannot be forced to work.

If it turns out that the worker wrote the statement “of his own free will” under the coercion of the employer, the Labor Inspectorate or the court may declare such a statement illegal.

Worth paying attention. The self-initiated care mechanism regulates.

It contains several provisions:

• the employee is obliged to notify about leaving at least 2 weeks before the day of dismissal (however, the company can shorten this period);
• if the employer violated labor laws or the employee, for good reasons, cannot continue to work, such employee has the right to set the deadline when agreeing to terminate the employment contract at his own request;
• until the 2-week period before dismissal has expired, the employee can withdraw his resignation letter if the company has not found a replacement for the vacant position;
• if 2 weeks have passed, but the contract has not yet been terminated, the working relationship between the hirer and employee can continue.

What documents need to be collected?

To dismiss an employee at his own request, first of all, his application is necessary.

It is issued in a certain form:

• the document states the date of dismissal and the reason - “at one’s own request”;
• The employee's signature and the date the application was written must be included.

It is not necessary to indicate the reason for leaving work voluntarily. But if you need to quit without working, you will have to write down the reason and confirm it with the appropriate document.

The employee submits the application to the HR department. After this, the company administration draws up a dismissal order. As a rule, a single form of such an act is used (namely form No. T-8). It was approved by a decision of the State Statistics Committee in 2004.

The order must also be completed correctly.:

• in this document you need to refer to clause 3, part 1, article 77 of the Labor Code of Russia;
• indicate the details of the employee’s application;
• the employee must read the order and sign it.

If a member of the team refuses to sign or is absent, this should be stated in the order.

Employees are paid on their working day.

What is the difference between dismissal by agreement of the parties and at your own request?

Many workers before dismissal do not think that these two methods of dismissal are significantly different from each other.

So, what is better: dismissal by agreement of the parties or at your own request?

Dismissal on one’s own initiative implies that it will be possible to register with the Labor Exchange and receive payments no earlier than 90 days after the date of dismissal.

By mutual agreement, you can obtain unemployed status already on the 9th day after leaving work. This process is enshrined in Articles 78 and 80 of the Labor Code of Russia.

Another difference is that dismissal of one’s own free will is initiated solely by the employee, but by agreement of the parties, the initiative can be taken equally by both the employee and the employer.

There is also a difference in the conditions of dismissal. So, after announcing his resignation at his own request, a team member is obliged to work for another 2 weeks, and the agreement of the parties involves terminating the contract at any time convenient for all parties.

In the first case, one application from the employee is sufficient to terminate the employment contract. If the contract is terminated by agreement, both parties sign a document that confirms the action.

And another difference is the ability to change your mind. An employee who has decided to leave of his own free will may change his mind until 2 weeks have passed.

But if the dismissal occurs by agreement of the parties, in order to change the decision and save the job, the consent of both parties will be required.

What is the difference for the employer?

What is the difference between dismissal at one's own request and by agreement of the parties for the employer?

An employer often uses the wording “by agreement of the parties” in two cases:

1. If you need urgent personnel changes, and there is no time to wait 2 weeks for an employee to work.
2. If the company is expecting a reduction in staff, and you need to bypass all the formalities in this regard.

   When making redundancies, the legislation prescribes a rather complicated procedure: 3 months before the layoff, you need to warn workers, check whether they can be laid off according to the law, register and pay all the money due.

   If the dismissal occurs by agreement of the parties, the main question is the amount of compensation. Here the employee has the opportunity to achieve benefits.

Sometimes an employer uses an agreement between the parties to terminate relations with an unscrupulous employee without resorting to dismissal under the article.

If the dismissal is made by mutual agreement, the employer is not obliged to coordinate its decision with the trade union organization.

Benefit for the employee

What is the difference between dismissal by agreement of the parties and voluntarily for an employee?

Dismissal on personal initiative is not a very favorable formulation for an employee, so it is used only if the employer refuses to formalize the procedure by mutual agreement.

Voluntary withdrawal requires a two-week commitment.

In addition, the time when a citizen can receive unemployed status is being delayed.

But often this option is the only one if the employee has expressed a desire to leave work. He does not need to seek the employer's consent.

The benefits of dismissal by agreement for the worker are obvious:

• the employee maintains continuous work experience for 1 month after dismissal;
• there is no need to notify the employer of your departure 2 weeks in advance;
• you can quickly obtain unemployed status, register with the Labor Exchange and receive greater benefits for a longer period of time;
• the employee can indicate any terms for leaving if the employer agrees with them, and thus he can slowly look for a new position at another company.

  For example, you can indicate in the application that a team member wants to leave in a month or even two.

So, everyone chooses for themselves what is beneficial to them. However, in most cases, experts advise employees to choose the wording “by agreement of the parties” if the employer does not object.

Employers also often benefit from dismissal by mutual agreement. However, like any other procedure, it must be properly completed. This is worth paying attention to.