It can be fired by agreement of the parties. Dismissal by agreement of the parties. Sample agreement. Registration of written consent

Dismissal by agreement of the parties is suitable for the company in almost all cases, even when the initiative for dismissal comes from the employee. In the agreement, you can specify all the conditions of dismissal: the period of dismissal, the amount of amounts to be paid to the employee in connection with the dismissal, the procedure for transferring the work record book, the amount and procedure for compensation for material damage caused by the employee.

There is always a risk of lawsuits, but this case it is less likely than with dismissal on the initiative of the employee, and even more so on the initiative of the employer. There is a possibility that the employee will go to court to challenge the termination agreement employment contract, if the terms of such an agreement are clearly illegal, violate or infringe on the rights of employees.

An agreement on termination of the employment contract is concluded with the employee, in which it is recommended to stipulate: the term of termination of the contract, the terms of payment and the amount of compensation paid upon dismissal, the conditions for compensation for material damage, the procedure for issuing a work book to the employee, the condition that the employee has no claims against the employer, including including the amount of compensation to be paid.

To get saved for him average earnings for the second month, the employee submits to the employer a corresponding application and a work record book, which does not contain a record of employment at the end of the second month from the date of dismissal.

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it. An employee may initiate dismissal by agreement of the parties under any circumstances. In practice, the initiative in most cases comes from the employer.

To minimize the demotivational effect on the remaining employees, you need to show loyalty to them, encourage them, hold events that support the corporate spirit in the company, and generally behave like human beings.

Anton Tolmachev, General Director of the legal company "YurPartner"

According to, an employment contract can be terminated at any time by agreement of the parties. Thus, both the employee and the employer can initiate dismissal on this basis. Such dismissal is formalized either by an employee’s statement with the employer’s resolution, or by a separate document - an agreement to terminate the employment contract. Each party must have the original or a certified copy of this agreement in hand. In addition, the employer is obliged to issue a dismissal order and familiarize the employee with it against signature.

When terminating an employment contract by agreement of the parties, the most important thing is that the fact of dismissal and its conditions suit both the employee and the employer. The agreement of the parties, as a rule, contains the employer’s obligations to pay severance pay, provide vacation, and assistance in further employment. In addition, this document may stipulate the employee’s obligation to conduct an inventory, hand over financial statements, transfer certain documents or release workplace. I believe that the more detailed the agreement is drawn up, the easier the dismissal itself will be.

From a procedural point of view, dismissal by agreement of the parties is the simplest and fast way“say goodbye” to the employee: in this case, there is no need to send advance notice of dismissal, offer to transfer to another job, or exercise the preferential right to remain at work. In addition, it is possible to terminate an employment contract by agreement of the parties with a minor, with a pregnant woman, and with an employee on vacation or sick leave. Therefore, employers often “disguise” other methods of dismissal under the agreement of the parties.

For example, you don’t like this or that employee, but there is no reason to fire him “under the article.” Inform him of your desire to terminate the employment contract by agreement of the parties, offer good recommendations, free schedule during the search new job or a small monetary compensation - and the problem can be solved. If your company is planning a staff reduction that partners and competitors should not know about, agree with the candidates for dismissal to terminate the contract by agreement of the parties. The main thing is to ensure that the agreement includes conditions that are beneficial to both you and the employee. This can only be done through negotiations.

Sometimes the employee himself is happy to initiate the termination of the employment contract by agreement of the parties. It is especially “beneficial” for an employee to terminate the employment relationship in this way if he has committed an offense for which he faces dismissal: he was absent without good reason for the entire working day, appeared in a state of intoxication, or committed theft at the place of work. So you shouldn’t think that if a person was fired by agreement of the parties, his former employer is necessarily hiding something or pursuing bad goals.

Ultimately, the parties may decide to terminate the employment contract by agreement and without any reason. So this wording is no worse than the entry “dismissed due to own will". And some employers even believe that the dismissal of an employee from his previous job by agreement of the parties indicates his loyalty, non-conflict behavior and willingness to compromise, which is very much valued in difficult times of crisis.

Alexander Yuzhalin, leading lawyer of the Department of Labor Law of the Institute of Professional Personnel

The initiator of termination of an employment contract on this basis can be either the employee or the employer. At the same time, the key feature of this basis for terminating an employment contract is the expression of the will of the two parties. Accordingly, if one of the parties objects to the conclusion of such an agreement, termination of the employment contract on this basis cannot be applied.

A distinctive feature of this procedure is that the employment contract in the case under consideration can be terminated at any time. The legislation of the Russian Federation does not define the procedure for drawing up and concluding an additional agreement. In practice, a proposal to terminate an employment contract on this basis can be drawn up by a party in writing, indicating the conditions under which the employment contract will be terminated. If the second party agrees, it is subsequently drawn up and signed.
additional agreement in writing, indicating the negotiated conditions.

It is necessary to pay attention to two conditions for terminating an employment contract: the date of termination of the employment contract and the payments that the employer undertakes to make upon dismissal. These conditions are not regulated by law, so the parties must agree on this themselves. As practice shows, the conditions for payment to the employee of a certain amount of money upon dismissal are key when deciding whether to agree to terminate the employment contract or refuse. In this case, the employee and the employer must decide on the appropriateness of such payments and make a decision for themselves - to agree or refuse the conditions proposed by the other party.

If the employer needs to terminate the employment contract with the employee on this basis, and the employee is against such termination, the only way to achieve the desired result is to offer the employee more favorable conditions, under which he will agree to terminate the employment contract. It is quite problematic to name the average amount that is usually paid in such cases. This is due to the fact that each case of termination of an employment contract on this basis is individual character. The size of the payment may depend on the financial condition of the employer; on the amount of wages the employee receives; from the position held by the employee; on the reason that served to put forward the initiative to terminate the employment contract.

Svetlana Lenkova, HR Director at TNG GROUP

It is most suitable for a company to dismiss employees by agreement of the parties, when the employer wants to get rid of the employee, but cannot or does not want to use any “unfriendly” articles of the Labor Code to dismiss the employee.

Dismissal by agreement of the parties does not provide for any control on the part of trade union organizations. The employer is not obliged to coordinate his decision with anyone, even if we are talking about minor workers. Therefore, such a decision on the part of the employee must be as balanced and responsible as possible: he must take care of his own interests.

Dismissal by agreement of the parties does not in itself provide any compensation or guarantees to the employee (unless this is expressly stated in the employment or collective agreement). That is, all compensation to an employee is regulated only by his agreement with the employer - there is no need to rely on “automatic” payments. Everything depends on the results of negotiations between the employee and the employer.

The employee will not be able to unilaterally withdraw his consent and “cancel” his dismissal - the agreement between the employee and the employer to terminate the employment contract comes into force immediately after it is signed by both parties.

The procedure for terminating an employment contract upon dismissal by agreement of the parties:

• The employee is asked to sign the document “Proposal to terminate the employment contract”, on which the employee writes by hand “I have read the proposal”.
• The employee writes by hand the consent to dismiss by agreement of the parties and the date of termination of the contract.
• The dismissal agreement is signed.
• A dismissal order is issued.
• The employee signs the dismissal order and receives a work book and a paycheck.

If dismissal by agreement of the parties occurs on the part of the employee, then the procedure is the same, only the employee brings the proposal, and the employer writes the consent.

An employee can initiate dismissal by agreement of the parties when he urgently needs to quit without working for two weeks. Dismissal by agreement of the parties gives him just such an opportunity: this formulation does not provide for the need to work off, it is possible to agree on specific date layoffs.

The following situation is also possible: an employee has decided to quit and wants to notify the employer about this in advance in order to be able to attend interviews more freely, but would not like to leave until he finds a new position. For example, an employee is sure that within a month he will definitely find a new job. And dismissal by agreement of the parties gives him the opportunity to agree on any date of dismissal - even after a few months.

The employee is asked to sign the document “Proposal to terminate the employment contract”, on which the employee writes by hand “I have read the proposal”. If the dismissal occurs in order not to dismiss the employee under the article, then compensation is not provided. If the dismissal is due to other reasons, the compensation, as a rule, is two to three salaries.

Changing jobs in itself is a very positive thing, but it is always preceded by the delicate, contradictory and sometimes unexpected moment of dismissal. Perhaps the most peaceful legal instrument for severing employment relations is dismissal by agreement of the parties. However, each employee qualifies this reason for dismissal in his own way, often surrounding it with myths and speculation. However, despite the simplicity of regulatory regulation, the dismissal procedure by agreement of the parties has a lot of pitfalls, which the parties to the employment contract are not always aware of.

Employees are afraid of the presence of this article in their own work book- this, they say, indicates a forced departure from the employer. But is everything as the workers imagine? What risks does dismissal by agreement of the parties actually entail, what are the risks for the employee, how does it proceed and how is it formalized? Careerist.ru tried to understand the intricacies of labor legislation, the peculiarities of the psychology of workers and employers.

What does the law say?

The law in this case is laconic: Art. 78 of the Labor Code allows parties to labor relations to use this basis for terminating the relationship at any time. It turns out that this basis allows separation both during vacation or sick leave, and while the employee is undergoing testing. The initiative to terminate an employment contract on this basis can be expressed by both the boss and the employee, and the law does not regulate the form of such a proposal - it can be either a written or oral statement. In practice, to record mutual desire, the parties draw up a written agreement that regulates the conditions of the upcoming dismissal, the absence of mutual claims and other nuances. Based on this document, an internal dismissal order is issued, after which an entry is made in the work book.

What is the difference from voluntary dismissal? According to Art. 80 of the Labor Code, in order to be dismissed on the initiative of an employee, he, if the employer wishes, will have to work for 2 weeks. In this case, the employee is given the right to withdraw his resignation before the end of 2 weeks, while “by agreement” this will require the desire of both parties. In some cases, this is convenient for each party, since the dismissal procedure can be carried out within one working day.

The absence of any regulatory regulation of the dismissal procedure “by agreement of the parties” makes such a basis neutral. It does not carry any positive or negative assessments of the employee’s performance, does not indicate the presence of disciplinary sanctions or low efficiency of his work. In fact, this procedure allows you to refuse to record the reason for dismissal and the reasons for terminating the employment contract.

At the same time, the range of these very reasons and motives can be very wide: a change in management, a conflict with superiors, a desire to informally reduce staff, a disciplinary offense, or the employee’s desire to quickly move to another job. And this, of course, is a plus for those employees who would like to hide the reasons for their dismissal. But only when there is something to hide from the future employer - in other cases this entails certain risks and unnecessary questions from potential employers.

Hidden Risks

At first glance, an amicable dismissal may seem harmless to the employee, and in most cases it will be. But not when the employer is trying to reduce its own costs in this way. For example, if an employee is dismissed due to layoffs or as a result of liquidation of the company, by virtue of Art. 178 of the Labor Code, he can qualify for severance pay in the amount of the average salary, retained for him for a 2-month period, but before official employment. If these reasons are hidden behind the wording “by agreement of the parties,” the employee can only count on compensation for unused vacation and other standard payments.

There is an opinion that along with them, if the initiative to leave “by agreement” came from the employer, the employee can claim some kind of compensation. In practice, such payments will take place if they are discussed in the notorious “agreement of the parties” - the law does not oblige the employer to pay compensation. In this regard, it is logical to raise the issue of compensation even when the management proposed to separate.

But financial question– is far from the only drawback that an employee may encounter. Thus, when registering a dismissal “by agreement,” there is no control on the part of the trade union, which, however, does not always take the position of the employee. In addition, if the reason for dismissal is unlawful and there is no written agreement, it is almost impossible to challenge this in court. The only option is if former employee will prove the lack of their own will to sign the notorious “agreement of the parties.” But only a few succeed in this and only in cases where such agreements were signed en masse - in otherwise cases, supervisory and judicial authorities take the side of the employer.

It should be noted that one of the obvious advantages is The absence of a statutory deadline for dismissal can be an obvious disadvantage for the employee. In particular, he may be fired on a day off, on vacation, on sick leave, and sometimes even retroactively. In this case, it does not even matter whether there are grounds for any benefits. And after signing such an agreement, it will no longer be possible to withdraw your signature. Take this into account when following your employer’s lead and resigning “by agreement of the parties.”

When applying for a job

It is also worth noting the risks that can materialize after dismissal - when looking for a new job. Thus, being a candidate dismissed by agreement of the parties, the applicant may face reduced interest in himself, and therefore the employment process risks being delayed. It may be related both with the reason for termination of the employment relationship and with the status of a “non-working candidate”. Many employers consider an applicant’s employment status to be one of the most important indicators of his demand, and therefore his professionalism. The lack of work during the search process, if there is a dismissal “by agreement of the parties” in the work book, scares off some employers, since such a reason is considered suspicious. But they will not be able to find out about its presence before the interview, which is why the candidate gets an excellent chance to prepare for possible questions on this matter.

It is important to understand that the agreement of the parties indicated as the reason in the work book does not constitute an explanation of the reason for leaving. An agreement between the parties is a result, the achievement of which was facilitated by individual corporate circumstances, personal motives or the initiative of the employer. So, in order not to scare off a potential employer, you should come up with a competent explanation of why this particular reason for dismissal appears in your work book. You need to immediately dispel the employer’s doubts by pointing out that the wording does not cover misconduct or disciplinary sanctions (this is what HR will think about first, don’t doubt it). If they did occur, don’t be shy - come up with a legend about professional downtime, financial problems etc. True, in this case, you should hope that the potential employer will not ask the previous boss for recommendations...

There is no need to talk about having your own motivation - in this case, you would obviously quit “of your own free will,” and recruiters are well aware of this. You can emphasize that you yourself were not against leaving the company, but a situation arose that the management offered a mutual option.

To summarize, we note that dismissal by agreement of the parties is far from the most harmless option for dismissal, especially considering that it can hide the illegal motives of the employer and thereby violate the rights of dismissed employees. In some cases, the features of such dismissal can still play in favor of the employee, but the consequences can be unpredictable. So don’t neglect your own labor rights for the sake of corporate interests - no one will protect them better than you yourself.

An employment contract can be terminated by agreement of the parties at any time (Article 78 of the Labor Code of the Russian Federation). The benefits of using this ground for dismissal for the employer:

• guaranteed dismissal of a specific employee. Having signed the agreement, the employee no longer has the right to change his mind or withdraw the application, as is established when dismissing at his own request;
• you can determine any period of “working off”, and not two weeks, as in the case of dismissal “on your own”. It is convenient if an employee quits who, for one reason or another, did not do what he was supposed to do. It can be delayed until it is completed;
• These types of agreements are very rarely challenged in court. Especially if the agreement itself states that the parties have no mutual claims against each other, that they acted voluntarily, in the absence of pressure.

As for the employee and his benefits, the main one, perhaps, is the opportunity to retain a good relationship, get recommendations and, in general, agree on some preferences.

Thus, dismissal by agreement of the parties is the most painless option for both the employer and the employee. However, not many people are aware of the risks that arise as a result of incorrect execution of an “amicable” dismissal. Meanwhile, it is worth remembering about them so that later it will not be excruciatingly painful.

Withdrawal of consent requires verification of motives

The agreement to terminate the employment contract by agreement of the parties is a final agreement. It cannot be withdrawn, unlike the employee’s statement upon dismissal “on his own” (Part 4 of Article 80 of the Labor Code of the Russian Federation).

Any cancellation of reached agreements is possible only with mutual consent of the employee and the employer (clause 1, part 1, article 77, article 78 of the Labor Code of the Russian Federation, clause 20 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code RF").

Unilateral refusal of reached agreements is not allowed, which is aimed at preventing abuses. Neither the employee nor the employer has the right to take any arbitrary unilateral actions aimed at abandoning a previously reached agreement (determination of the Constitutional Court of the Russian Federation dated October 13, 2009 No. 1091-О-О).

However, the employee may challenge the withdrawal of consent, citing the fact that he initially did not have consent to resign on this basis. Therefore, the employer will have to take into account specific circumstances and at least find out the reasons for the recall.

Especially when it comes to women. So, if, by agreement of the parties, a pregnant woman is fired, and she subsequently challenges the dismissal, then the court will most likely interpret any doubts in her favor.

Thus, the employer and employee agreed to terminate the employment contract by agreement of the parties. Two months later, the employee filed a refusal to fulfill the agreement, but was still fired. The woman filed a lawsuit for reinstatement at work, indicating that on the day the agreement was signed, she was pregnant, but did not know about it (the fact of pregnancy was confirmed by a certificate from the antenatal clinic). The court sided with the woman, pointing out that:

at the time of signing it, the woman believed that she was not pregnant;
termination of the employment contract if she is pregnant entails such damage for her that it significantly deprives her and the unborn child of what she had the right to count on while maintaining an employment relationship with the defendant;
risk of pregnancy labor law is not the responsibility of the employee.

The employer, without checking the reasons for withdrawing consent, issued an unjustified dismissal order. The cassation court rejected the employer's argument that cancellation of the agreement regarding the period and grounds for dismissal is possible only with mutual consent of the employer and employee, which is absent, since in accordance with Article 3 of the Labor Code of the Russian Federation, discrimination in the field of labor is prohibited (determined by the St. Petersburg City Court dated September 28 .09 No. 12785).

To the employer: don’t be tricky

The reason for challenging the dismissal (and, most likely, the employee’s victory) is often the dishonest behavior of the employer, who misleads the employee with various “innocent” tricks.

Thus, the dismissed person went to court, indicating that he was informed that he had to report to work (he was on parental leave) and receive notice of termination of the employment contract due to the upcoming reduction in staff. The employee was given:

• notice of upcoming dismissal, where he was informed that his position was being reduced, and therefore he was subject to dismissal in two months;
• proposal to terminate the employment contract by agreement of the parties.

After the end of the vacation, the employee was called to the personnel service, where, without explanation or familiarization, he was forced to sign documents (“a simple formality,” as he was told), and was also informed that he was “settled” (i.e., no payments would be made to him will not).

Only at home the employee discovered that the employment contract was terminated not due to staff reduction, but by agreement of the parties, although he did not give consent to terminate the contract by agreement of the parties.

The court took into account that:

• the employee had no intention to terminate the contract by agreement of the parties;
• the signing of this agreement was forced;
• the employee did not want to quit his job by agreement of the parties;
• he did not write a letter of resignation;
• the employee has four dependent minor children, and the agreement did not provide for any compensation for the employee;
• By signing papers under duress, he assumed that he was signing documents to reduce staff.

In general, the court found that there was no agreement between the parties to terminate the employment contract (ruling of the Supreme Court of the Republic of Tyva dated 10/11/11 in case No. 33-853/2011).

About the form of agreement

That is why other options for executing such an agreement are possible. For example, by putting the manager’s resolution on the employee’s application.

The possibility of formalizing agreements in this form is confirmed by judicial practice.

So, the employee filed a lawsuit for reinstatement at work. He indicated that the administration offered him to resign by agreement of the parties and he wrote a statement of termination of the contract by agreement of the parties, and also signed the dismissal order.

When he came to the employer to sign the agreement, the personnel handed him a draft agreement, the terms of which he did not agree with and immediately wrote a statement to withdraw his resignation by agreement of the parties.

The court rejected the employee’s claim, indicating that (ruling of the St. Petersburg City Court dated October 18, 2010 No. 33-14177/2010):

• agreement of the parties is the achievement of agreements, a joint and mutual expression of the will of the parties to perform certain actions or to refrain from performing them;
• the agreement may be oral or written;
• the employee’s failure to indicate in the application the conditions under which he is ready to resign, including the amount of severance pay, does not indicate that the agreement did not take place, that is, the employee should have indicated these conditions immediately in the application;
• the agreement can be drawn up not only in the form of a single document, but also in the form of a statement from the employee with the employer’s resolution affixed.

Silence is not always a sign of consent

The employee's tacit consent is NOT an agreement.

That is, if the employer simply told the employee that he was fired, but the employee remained silent, then this is NOT dismissal by agreement of the parties. Even if the employee stopped working within the period prescribed by the employer.

Thus, in refusing to reinstate the employee at work, the courts referred to the fact that the termination of the employment relationship took place by agreement of the parties, since after the dismissal the plaintiff actually agreed to the termination of the employment contract.

However, the Supreme Court of the Russian Federation indicated that it is inadmissible to justify illegal dismissal by the fact that the employee “does not object.” An employment contract can be terminated on the basis of Article 78 of the Labor Code of the Russian Federation only after reaching an agreement between the employee and the employer.

However, the employee did not apply to the employer to terminate her employment relationship, and no evidence was provided indicating her consent to the upcoming termination of the employment contract.

Thus, the tacit consent of the employee to the unilateral termination of the employment contract by the employer cannot be interpreted as an agreement of the parties (determination of the Supreme Court of the Russian Federation of May 14, 2010 No. 45-B10-7).

About additional payments

By the way, about silence. The agreement on termination of the employment contract should indicate that its terms are confidential, especially if it provides for additional payments.

At the same time, the fact that the employee was not paid the funds provided for in the agreement is not a basis for recognizing the termination of the employment contract by agreement of the parties as illegal. If an agreement is signed, but the employer does not pay compensation, then this is not a reason for reinstating the employee at work - it is a reason for collecting these amounts.

By the way, the Labor Code of the Russian Federation does not contain any instructions on the need to make any payments in connection with the termination of an employment contract by agreement of the parties. But since the Labor Code of the Russian Federation provides that an employment or collective agreement may provide for other cases of payment of severance pay in addition to those provided for in Article 178 of the Labor Code of the Russian Federation (Part 4 of Article 178 of the Labor Code of the Russian Federation), then, as a rule, employees agree to dismissal under on this basis, subject to good severance pay.

Severance pay. To pay or not?

Must an employer pay severance pay if payment is only provided for in the agreement? Judicial practice has developed two approaches.

Approach #1: Must. Since dismissal by agreement of the parties presupposes that the employee agrees not only to resign, but to resign under certain conditions reflected in his application (or agreement). Therefore, the employer is obliged to pay the compensation agreed with the employee, since otherwise the employee would not have given consent. Thus, upon termination of an employment contract by agreement of the parties, the employer is obliged to pay the monetary compensation established in the agreement, regardless of whether it is provided for by local regulations (appeal rulings of the Moscow City Council dated 09/06/12 in case No. 11-19912).

Approach #2: Not required. Some courts refuse to pay severance pay under an agreement to terminate an employment contract, citing the fact that severance pay is paid if it is provided for in the employment or collective agreement. That is, if severance pay is provided only in the agreement on termination of the employment contract (which is not an employment contract), then such payments are not made (decision of the Supreme Court of the Republic of Udmurtia dated February 16, 2011 in case No. 33-492).

The maximum amount of severance pay, including additional by agreement of the parties, is not established in Article 178 of the Labor Code of the Russian Federation, therefore it is considered that the parties have the right to indicate any amount in the employment contract. However, if the severance pay paid is clearly disproportionate, this can lead to conflicts. Thus, the agreement to terminate the employment contract provided for severance pay in the amount of twelve employee salaries. The court found that the costs that the employee could have incurred when resigning at his own request were clearly disproportionate to the amount of severance pay and the consequences of paying it from the employer.

The amount of severance pay was several times higher than the authorized capital of the employing company, and the director of the company had no right to enter into large transactions without the consent of the founder.

Therefore, the court considered the actions of the director and employee who entered into such an agreement to be an abuse of right (decision of the Moscow City Court of January 31, 2012 in case No. 33-2405).

About the fate of the prizes

Often employees agree to dismissal by agreement of the parties only on the condition that they are paid a bonus for the period worked. The difficulty is that the payment period may occur after dismissal and the exact size of such a bonus is unknown.

The Labor Code of the Russian Federation does not prohibit such payments. And it is absolutely not necessary to indicate the exact amount. The agreement can specify the calculation procedure and terms for accruing the bonus and indicate the details by which the money will be transferred to the employee.

Of course, compliance with this condition will depend on the good faith of the parties. However, the very method of terminating the contract presupposes a sufficient degree of mutual trust and good faith between the parties.

Dismissal by agreement of the parties is the most painless option for both the employer and the employee. However, not many people are aware of the risks that arise as a result of incorrect execution of an “amicable” dismissal.

As a rule, an agreement to terminate an employment contract is drawn up in the form of a single document, since there are no requirements for the form of an agreement between the parties to terminate an employment contract in the law.

The tacit consent of the employee to the unilateral termination of the employment contract by the employer cannot be interpreted as an agreement of the parties.

The Labor Code of the Russian Federation provides that an employment or collective agreement may provide for cases of payment of severance pay in addition to those provided for in Article 178 of the Labor Code of the Russian Federation.

Karina YERANOSYAN, lawyer

Dismissal by agreement is always the most profitable option for a subordinate and his boss who could not find mutual language when carrying out work activities, and want to complete their joint work activities by mutual agreement. In this case, the employer is obliged to pay the employee in full, as well as make additional payments to him, if this is provided for by the termination agreement itself or other regulations of the organization.

Mutual agreement

It is possible to end the employment relationship between a subordinate and his boss by mutual agreement only if both parties wish to do so. In the event that one of the parties does not agree to conclude such an agreement, its preparation will be impossible, and otherwise it will even be illegal.

Dismissal of a person on this basis also provides for corresponding payments. By agreement of the parties upon dismissal, which was agreed upon between the two parties, the employer pays his subordinate:

• money earned by the latter during the entire period of work;
• compensation for vacation if the employee was not on vacation;
• severance pay, if it is specified in the employment or collective agreement and is binding.

Additional payment

Mutual agreement on the dismissal of an employee is very good in that, along with all the payments due to the employee, the employer can provide in such an agreement an additional payment upon dismissal by mutual agreement.

Article 178 of the Labor Code provides for severance pay not only for those persons who leave the organization due to layoffs or liquidation, but also in cases where such monetary compensation is provided for in an employment or collective agreement. This basis is also directly related to dismissal by agreement of the parties with payment of compensation, which is established by the employer independently or can be agreed upon even with the employee, so that the latter does not have any financial claims against the former employer.

Formalization of the agreement

There is no specific model of agreement on mutual termination of employment relations in the Labor Code. Therefore, this agreement can be drawn up in absolutely different ways, the main thing is that it is drawn up in writing and in duplicate, and in compliance with all necessary conditions. A sample of such an agreement can be found below.

On labor relations No. ____ dated ___ year

Tensnib LLC, represented by the General Director _______, acting on the basis of a Power of Attorney, hereinafter referred to as the “Employer” and _______, hereinafter referred to as the “Employee”, have entered into this Agreement as stated below:

1. Terminate employment contract No. ___ of the year, on the basis of clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation.

2. Last working day ______.

3. The employer undertakes:

• pay wages for the entire period of work and monetary remuneration for vacation that was not used;
• pay a compensation benefit in the amount of 15,000 rubles;
• pay all the money to the employee on the last day of his work, and also hand over the employment record with a note of dismissal by mutual agreement.

4. By this agreement, the parties confirm the absence of mutual claims, which is certified by its signing.

5. The mutual agreement is drawn up in two copies, which each party receives in hand.

6. Signatures of the parties.

The main thing that an employee needs to know about the termination of the employment relationship in this case is that dismissal by agreement of the parties with payment of compensation is an agreement in which all points are determined by the parties independently, including the amount of payment of the compensation itself, which is not mandatory.

Positive aspects of dismissal by agreement

Everywhere has its pros and cons, but in a situation involving the termination of an employment relationship by mutual agreement, there are quite a lot of positive aspects.

For the employee, the advantages are as follows:

• the length of service will be considered continuous for a whole month from the date of dismissal;
• when registering with the employment authorities, the benefit will be small bigger size than when dismissing on the employee’s own initiative;
• in the event of a conflict with the employer, it is possible to disperse peacefully without mutual reproaches and disagreements.

There are also benefits for the employer:

• no approval is required from the trade union or the state labor inspectorate if the employee is a minor, and it is also possible to determine the deadline for dismissing a subordinate independently;
• the amount of payments upon dismissal by agreement of the parties is established by the employer independently, with the exception of mandatory amounts due to the employee;
• the most convenient way in the case when it is necessary to break up with an unnecessary employee and avoid unpleasant consequences.

Payment terms

Even in the case when the employment relationship is terminated due to the signing of an agreement on mutual consent of the two parties and sealed with the signatures of the subordinate and the employer, the latter must not forget that all cash, due to the employee, must be paid within the time limits specified by law.

Article 140 of the Labor Code provides for the payment of all money due to an employee on the last day of his work with a given employer. Accordingly, the same rule applies to the calculation of payments upon dismissal by agreement of the parties, which means that on the last day of the employee’s work activity specified in such an agreement, the employer must pay all the money he last earned.

If the employee was not on vacation, he is entitled to a cash payment for the vacation that he did not use.

Required payments

In the event of termination of the employment relationship, by agreement between the parties, the employer is obliged to pay the subordinate:

• salary for all time worked by the employee;
• compensation for vacation that was not used;
• severance pay, but only if this is regulated by an employment or collective agreement, which states that compensation payments upon dismissal by agreement of the parties are necessary and subject to execution by the employer.

Benefit amount

Citizens dismissed from the organization by agreement of the parties may be paid the appropriate severance pay, but only if this is specified in the employee’s employment contract or in the collective agreement of the entire organization. Moreover, the amount of severance pay may be completely different and not depend on the amount of other mandatory payments due to the employee upon his dismissal.

Additional payments to an employee upon dismissal by agreement of the parties are mainly the initiative of the employer himself, and it is done so that the employee retains a good impression of his former boss and does not speak badly about him.

The amount of severance pay can be:

• fixed;
• in the amount of salary;
• made up of average wages.

In this case, what will matter is not even the amount itself, but the very fact of payment of benefits upon dismissal by agreement of the parties, which in the future will allow the employer not to lose its reputation and remain honest in the face of new employees.

Benefit tax

Taxation of severance pay is not provided for by law only if its amount does not exceed three times the employee’s monthly earnings, otherwise the tax must be paid by the employer. Therefore, if the additional payment upon dismissal by agreement of the parties is significantly a large amount, than monthly earnings for three months, then personal income tax is subject to payment.

Algorithm of actions upon dismissal by mutual agreement

Correct and consistent dismissal of an employee by agreement of the parties is, first of all, time saving for the employee and employer who do not want to continue working together. Therefore, you need to do everything accurately, correctly and quickly.

First, you need to draw up the agreement itself on the termination of the labor relationship between the parties, including all the necessary conditions that will suit each party. An important question here is what kind of dismissal payments, by agreement of the parties, will be due to the employee upon termination of the employment relationship with him. To complete this procedure more quickly, this issue must be addressed first.

An agreement on dismissal by agreement of the parties can also be reached during an oral conversation, by writing an application by the employee addressed to the employer indicating the date of dismissal, after which the boss will put his signature on it and give it to the personnel department for execution. After this, an order will be written and an entry will be made in the labor record.

When issuing an order, the basis for dismissing an employee should only be a mutual agreement of the two parties; it would be illegal to specify other grounds in the order. That is why the employee, before signing the order, must read it carefully and then sign it.

All required payments upon dismissal by agreement of the parties are specified only in the agreement itself; their mention in the order is not allowed. The work book should contain the following entry: “Dismissed by agreement of the two parties, in accordance with clause 1 of part 1 of Article 77 of the Labor Code of the Russian Federation,” indicating the order number and the date of completion of the work record, which is confirmed by the signature of a personnel specialist and the seal of the organization.

Only after compliance with all the described formalities can this dismissal procedure be considered completed.

Appealing agreements

After the employment contract has been completed by mutual agreement of the parties, and all controversial issues between the employee and his former boss have been resolved, situations often occur when, after a short time, many of the former employees begin to think that their dismissal was illegal, and this is even despite the fact that they themselves gave their consent to it.

Many of these citizens are dissatisfied precisely because the payments by agreement of the parties upon dismissal on terms mutually beneficial for both parties turned out to be not as large as we would like, and different ways they are trying to put pressure on the former employer to pay more money than has already been received. Based on this, appeals to the court begin.

An example from judicial practice

The employee suggested that the employer terminate their employment relationship because he was not satisfied wage, and he had already found another job, especially since interpersonal relations with the boss had not been going well for a long time, to which the employer agreed with him. The employer drew up an agreement, which stated the conditions under which dismissal would take place by agreement of the parties, what payments were due to the employee in this case, the latter agreed with everything and signed this agreement. As a result, it turned out that his employment contract stated a condition that upon dismissal, by agreement of the parties, he should be paid compensation in the amount of 15,000 rubles and no more, but the former boss paid only 11,000, with which the former employee agreed.

At the court hearing, the dismissed employee stated that he was forced to sign this agreement or was threatened with dismissal “under the article”, because the boss had long ago appointed another person to take his place, and persistently proved the fact that the dismissal was illegal. He also asked the court to reinstate him at work and to recover additional money from the employer to compensate him for moral damage.

The court, having examined the case materials and the agreement itself, having heard the testimony of witnesses, came to the conclusion that there were no violations of labor law in the actions of the employer, all payments by agreement of the parties upon dismissal of the said employee were made to him, including the payment of benefits , stipulated by the agreement concluded with the former boss. Therefore, at the court hearing, the said citizen’s claims were completely denied.

The court also pointed out the fact that all employees on mutually beneficial terms are carried out by the employer on the basis of the law, which provides for the mandatory payment of wages and compensation for vacation and does not take into account in this case the strict payment of benefits.

It often happens that the employee and the employer, for whatever reason, do not want to continue cooperation.

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The best way out in this situation would be parting under paragraph 1 of Art. 77 of the Labor Code of the Russian Federation - agreement of the parties.

This method of terminating work is quite common, and therefore it is worth understanding its features.

What does the law say?

Dismissal by mutual agreement of the parties is based on Article 78 of the Labor Code of the Russian Federation.

It says that such a separation from the employer is possible at any time. For this, a special document is drawn up: an agreement to terminate the contract, confirming the voluntary decision to part with both parties.

If additional payments are provided upon dismissal, this should be indicated in the agreement, as well as exact date payments.

The obligatory nature of such payments upon separation by agreement of the parties is not established by law - this is the result of agreements between the parties.

When and with whom is it possible?

This type of termination of the contract is possible if both parties do not object to the termination of the employment relationship.

This is confirmed by the signing of an agreement to terminate the contract by both parties.

Mutual consent of the parties is a universal way of dismissal, it is suitable for all types of contracts and the characteristics of employees and employers.

• main employees and part-time workers;
• temporary workers;
• minor employees and pensioners;
• disabled people;
• pregnant women and persons with children.

How is dismissal by agreement of the parties formalized?

Documentation

The document confirming the termination of the contract by agreement of the parties is a document signed by the employee and the employer.

Sample document:

Sample agreement on termination of an employment contract by agreement of the parties

This document can be drawn up both in advance and on the day of dismissal.

The date of parting, which is also the last day of work, must be written in the document. It also indicates the conditions for terminating the relationship: compensation, additional payments, if any, and the period for their transfer.

The agreement form can be downloaded here:

Information about such an agreement is recorded in the registration log.

Document example:

Sample log of registration of an agreement to terminate an employment contract

The second document may be a statement that an employee writes with a request to fire him but this article, but you can do without it.

In the order to terminate the contract under Art. 77 clause 1 (consent of the parties) there are several differences from the order initiated by one party:

• the basis is the agreement of the parties;
• article - paragraph 1 of article 77 of the Labor Code of the Russian Federation.

The employee gets acquainted with the order under the signature in the usual manner.

Order example:

An example of an order to terminate an employment contract

How to enter in the work book?

If the contract is terminated by agreement of the parties, the following entry is made in the work book: “Dismissed by agreement of the parties, clause 1, part 1, art. 77 of the Labor Code of the Russian Federation”.

This option is also possible: “The labor contract is terminated by agreement of the parties, clause 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation”.

As in other cases of dismissals, the employee must familiarize himself with the record under the signature.

An example of a work book:

Sample entry in the work book

When an employee is dismissed under such an article, the employer retains one copy of the agreement, the original order, and the employee’s statement, if any.

Payments and compensation

Upon termination of cooperation by agreement of the parties, as with any other, the employer pays the employee the usual calculation upon dismissal - payment for days worked and.

Very often, in order to reach a mutual agreement, the employer and the employee agree on the payment of an additional allowance upon dismissal by mutual agreement.

It is worth noting that this payment is not mandatory and is not provided for by law.

Payment terms

Just as in other cases, the calculation of the dismissed employee must be made on the day of dismissal, either by transferring funds to the employee's current account, or in cash through the cash desk of the enterprise.

If the agreement provides for additional payments, the term for their transfer should be indicated in the text of the agreement.

Can a termination agreement be cancelled?

A feature of dismissal under such an article is the mutual consent of the employee and the employer.

When concluding an agreement on termination of cooperation, both parties act, therefore, the cancellation of the agreement is possible only by mutual agreement.

Example:

Foreman Mikhailov did not work well with the head of the facility. Constant conflicts interfered with normal work. In agreement with the management of the company, he was offered to resign by agreement of the parties with the payment of one salary. Mikhailov agreed by signing an agreement to terminate the employment contract. However, the very next day he changed his mind and turned to the personnel department with a statement about the cancellation of the agreement.

His request was denied, and the dismissal took place.

Neither party has the right to unilaterally revoke the agreement after it has been signed.

Dismissal of pregnant women

Pregnant women are protected by law in their rights, and their dismissal always raises many doubts.

However, by agreement of the parties may be dismissed.

To confirm the woman’s voluntary desire to quit under this article, you should receive her handwritten application with a request to dismiss her and an explanation of the reason for such a decision - this may be the inability to work in this position for health reasons, relocation or a decision to work at home for another employer.

Example:

Painter Krasnova, being pregnant, decided to stop working and quit. The employer offered her to transfer to easy work with the same average earnings, but she refused because it was difficult for her to get to work due to health reasons. Krasnova turned to the employer with a request to dismiss her by agreement of the parties with a payment in the amount of three average salaries. The employer considered it possible to satisfy the request, and Krasnova was fired.

Important: Dismissal by agreement of the parties is not a case of dismissal at the initiative of the employer, therefore, pregnant women can also be dismissed in this way.

Annual leave followed by dismissal

Vacation, after which the contract is terminated, is also possible if the parties agree.

If an employee wants to exercise his right to take a vacation before dismissal, he must write an appropriate application.

The application is drawn up addressed to the general director with the following text: “I ask you to provide me with paid leave from March 1, 2019 for 15 calendar days, followed by dismissal by agreement of the parties.”

In this case, the date of dismissal becomes the date last day his vacation.

Before the vacation, the employee must return the work book and pay all the funds due to him.

Can such an entry in the labor force affect further employment?

If you were fired on the basis of "agreement of the parties", this usually does not cause much suspicion during interviews. But, nevertheless, one must be prepared to answer questions about the reasons for such a decision and about who was the initiator.