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What is dismissal by agreement of the parties. Dismissal by agreement of the parties: pros and cons for the employee. Care on your own initiative

11.09.2019

Articles Labor Code The Russian Federation provides for several grounds for terminating the contract with an employee.

One of them is settlement by agreement of the parties.

In this article, we will understand: what does the termination of relations by mutual agreement mean, the pros and cons of this type of dismissal, what is the procedure for carrying out the procedure and its features.

What does this procedure mean?

It is determined by agreement between the parties and can be any. Here the law does not establish any restrictions.

Pros and cons for employee and employer

Advantages and disadvantages for each side of the gap labor relations let's look at it in the form of a table:

Employer		Worker
pros	Minuses	pros	Minuses
	it is impossible to cancel the agreement and withdraw the application without the consent of the employee	opportunity to take the initiative	the employer will not pay severance pay unless agreed in the agreement
	there is no way to challenge the agreement in court	no reason given for dismissal	unilateral withdrawal of the application is not possible
submission deadlines are not limited	must pay compensation for dismissal, if this is stipulated by the agreement	application deadlines are not limited	it is almost impossible to challenge the dismissal in court
simplified procedure for dismissal, unlike downsizing		you can "bargain" with the amount of compensation and terms of dismissal
allowed to be fired on probation		the record does not spoil the work book
		No mining
		alternative dismissal option if there is fault

Typically, such a termination procedure is used when an employee of the organization is no longer needed, and the reduction process is wants to avoid due to paperwork and its lengthy implementation.

Indeed, when reducing, the employer is obliged to first notify the employee of the upcoming dismissal 2 months in advance.

When using the convention, everything is made much easier and faster.

At the same time, the employee does not lose money and even has the opportunity to “bargain” for more compensation.

Restrictions on the amount of severance pay are set only for managers and chief accountants.

The order of actions at the request of the employee

If an employee wants to benefit and quit by agreement of the parties with a severance pay, he needs to follow a certain procedure.

How is the termination procedure employment contract by agreement of the two parties, if the initiator is the employee:

Step 1. The employee writes an application and submits it to the employer.

The application form is not established at the legislative level. Therefore, it is written in free form.

Director of Vasilek LLC

Demin A.A.

from worker

Ivanova P. R.

Statement

I ask you to terminate the employment contract No. 25 dated January 15, 2017 by agreement of the parties under Art. 77 of the Labor Code of the Russian Federation with payment of compensation in the amount of two salaries for a period of September 20, 2019.

Until I receive your written consent, I reserve the right to withdraw the application.

Step 4. The next step is for the parties to sign the agreement. From this moment on, it is no longer possible to terminate the agreement unilaterally.
Step 5. By the date of dismissal, the company publishes. The use of other forms established by the company is also permitted. With the order it is necessary to acquaint the dismissed employee with the signature.

Step 6. On the date specified in the agreement, the employer makes a full calculation of the employee and gives him a work book with a record.

In the hands of each of the parties remains a copy of the agreement on termination of the employment contract. It is this that serves as the basis for terminating the employment contract.

Read about the termination of the contract by agreement of the parties.

How to dismiss an employee at the initiative of the employer - step by step instructions

The process of calculating an employee by agreement at the initiative of the employer is identical to the procedure described above (at the expressed desire of the employee himself).

The only peculiarity is that the employer offers the employee to resign in writing by agreement of the parties, and prescribes the amount of compensation for dismissal, as well as the date of calculation.

The employee has the right to agree or refuse the proposed conditions. Also, the employee has the right to offer his conditions for dismissal.

After reaching a general agreement, a written agreement is drawn up in two copies.

From this moment, the dismissal procedure acquires standard form: a dismissal order is issued, on the day of dismissal, the employee receives a full calculation and a work book with a record of the calculation under article 77 of the Labor Code of the Russian Federation.

That is, the termination of an employment contract by agreement of the two parties at the initiative of the employer is possible in the following order:

Step 1. The employer draws up a written proposal to terminate the contract by agreement.
Step 2. With the consent of the employee, a bilateral agreement is drawn up on the conditions for terminating the employment relationship.
Step 3. The drafted document is signed by both parties.
Step 4. On the day of dismissal, indicated in the agreement, a dismissal order is prepared, produced, personal documents are handed over to the employee along with the calculation.

Useful video

The procedure for dismissal by agreement of the parties is described in detail in this video:

conclusions

On this topic, we will make several main conclusions:

Settlement by agreement of the parties provides for an advance agreement between the two parties.
The initiative for this type of termination of the contract may come from both the employer and the employee.
Once the agreement is signed, the application cannot be withdrawn.
Such agreements are almost impossible to challenge in court, except for privileged categories of citizens.
The reasons for termination of employment relations are not specified in the agreement, order or work book.
The main advantage for the employee is the payment of compensation for leaving the company and the lack of working off, and for the employer there is no paperwork and the need to wait to hire a new employee.
The sample agreement is not approved at the legislative level. But it is necessary to include all the conditions of dismissal in it and set the date of calculation.
This type of termination of the contract is made on the date specified in the concluded agreement.
The procedure for completing the procedure at the initiative of the organization and at the request of the employee is identical.

The reached consent or agreement between the employer and the employee is one of the grounds for termination of labor relations. But in order to understand what is dismissal by agreement of the parties, it is necessary to analyze the norms of the current labor legislation, and the general legal nature of the concept of "agreement", to understand the essence of contractual legal relations.

The very procedure for dismissal according to this wording is not spelled out either in the Labor Code of the Russian Federation, or in any clarifying legal act. What happens, it is necessary to take into account not only labor, but also civil legislation when dismissing, because it is it that determines the concept and procedure for concluding agreements. At the same time, it is important to take into account the established procedural acts of judicial practice.

When and how to dismiss an employee by agreement of the parties

The Labor Code indicates to us that the employer and employee have the right to terminate the employment contract on mutual agreement. Only one single article 78 of the Code regulates such a right. As for the categories of employees, or other requirements, normative act does not install. Based on this, we can conclude that any dismissal due to the agreement reached will be considered a priori correct.

But the existence of this consent must have an evidence base - documentation, correspondence, which indicates that, nevertheless, this agreement took place. And for this, it will not be superfluous to request from the employee himself a letter of resignation by agreement of the parties. Since there is no unified approved form, it is compiled arbitrarily. An essential feature is that the employee can submit such an application not only while at the workplace, but also during the vacation period, and during the period of sick leave.

Termination of the employment contract can also occur during the absence of the employee at the place of work for a number of good reasons. Therefore, dismissal occurs at any time specified by the parties in the agreement and in the application. The above statement must contain information on reaching the consent of the employee and the enterprise regarding the dismissal, as well as an indication of the norm of the article. It should also reflect in the application the date from which the employment contract is terminated.

Benefits of leaving by agreement

When terminating an employment contract by mutual agreement, there are advantages to the benefit of both the employer and the employee. Dismissal by agreement of both parties takes place according to a more simplified procedure than, say, dismissal at the initiative of the enterprise, or for reasons beyond the control of the parties.

The employee does not need to work out the two weeks required by law. Therefore, by writing a statement on the termination of employment for precisely this reason, he saves his time. The employer, on the other hand, is relieved of the obligation to coordinate the dismissal of an employee with the trade union body, as if he were carrying out the procedure under article 81 of the Labor Code.

Also, for the enterprise, a clear plus is the termination of the employment contract by mutual will due to the fact that it is possible to dismiss both employees on maternity leave and during pregnancy, which is absolutely impossible in other cases when the enterprise needs to terminate labor relations with such categories of employees. For example, with the upcoming reduction, workers on maternity leave cannot be fired, but by agreement of the parties, there is no ban.

How to properly terminate an employment contract

Since it regulates dismissal by agreement of the parties, Art. 78 of the Labor Code, but the general grounds for termination of labor relations include article 77, which must be referred to in the work book and in the order, defining paragraph 1 of this article in the documents.

But, as mentioned above, a simple reference to the norm of the article is not enough. A supporting document of such a motive for terminating the employment contract must be available. That is, in order for an agreement to be reached between the parties to the legal relationship, it is necessary that one party receives an initiating document from the other party. An enterprise can send a letter to an employee about the need for negotiations, as a result of which such a decision will be made.

The employer may also send a letter to the employee with a proposal to consider the issue of early termination of the employment contract by agreement of the parties, in accordance with paragraph 1 of Art. 77 of the Code. But the employee also has every right to ask him to be dismissed by agreement of the parties, referring in his application to the same Noma of the Code.

As already mentioned, labor legislation does not provide clear instructions and additional articles governing the dismissal of an employee by agreement of the parties. Therefore, upon termination labor agreement general design guidelines should be followed.

An important role in the very concept of an agreement is played by the voluntariness of indicating all the points that are not standardized in the Code. Take, for example, severance pay. Its legislator does not oblige to pay the dismissed person according to such a wording. And yet, the company has the right to pay, by agreement, severance pay, which must be indicated in the agreement. The amount of such benefits should also be spelled out in the decree and in the agreement. Do not forget to calculate personal income tax from it, since this is an additional benefit that is taxed, in contrast to the cases and amounts that are directly prescribed in the Labor Code.

Dismissal by agreement - step by step instructions

There is a certain general procedure for terminating an employment contract, taking into account the specifics that the procedure for reaching agreement by both parties to the legal relationship implies.

p> As you can see, from general order such a procedure is distinguished by the agreement of the parties on the possibility of terminating the employment contract, as well as the need to consolidate the agreement reached in writing in the form of a separate document. Attached is the specified supplementary agreement to the order of dismissal by agreement of the parties. There are no special requirements for the preparation of this additional agreement, but when drawing up it, one should take into account General requirements Civil Code Russian Federation on the rules for concluding contracts and additions to them.

Many employers are thinking about whether it is necessary to draw up such an agreement at all, because Article 78 of the Labor Code does not establish it, and in general, all labor legislation does not oblige to reach agreement in writing. And, often, this stage of the procedure is ignored by the company with which the employee terminates the employment relationship. This situation can lead to unpleasant “surprises” in the future, since it will be extremely problematic to prove the fact of consent, as well as the fact that the employee received the amount of severance pay if he does not put his signature on the statement of receipt of funds.

Agreement on termination of the employment contract - important nuances

What should the employer and employee pay attention to when choosing this method of terminating cooperation:

The employee has a continuous seniority within a month after leaving the position at this enterprise;
The worker receives more unemployment benefits than what he would receive if he quit own will;
Employer dismissal by agreement of the parties, in accordance with paragraph 1 of Art. 77 of the Labor Code of the Russian Federation, gives the right not to ask permission for dismissal from the trade union body;
For an enterprise, this is perhaps the most legitimate and painless article in order to say goodbye to an objectionable specialist with whom an employment contract has been concluded indefinitely;
According to this wording, you can fire a woman, even during the period of the decree, or pregnancy.
An employee cannot “change his mind” about quitting, as he could do it, quitting on his own initiative.

The agreement reached by the parties can be terminated only by mutual agreement of both the employee and the enterprise. Even if the circumstances of each party have changed, unilaterally, the agreement cannot be canceled. Unless, of course, in court, the employee proves that the contract was drawn up due to difficult circumstances for him or under duress, with pressure, by the employer.

Dispute Resolution

Often, in order not to fire their specialists due to layoffs, employers resort to tricks and ask employees to write a statement on their own, or by agreement of the parties. And it saves a lot of time, and nerves to the enterprise itself. After all, you don’t need to warn two months in advance, but you can dismiss on any day specified in the agreement.

If the employee refused to be fired by agreement of the parties, the company can carry out a reduction after the proposal of the agreement of the parties. And, in this case, there will be no significant violation of the law if the employer complies with the deadlines statutory. Knowing that he is facing redundancy, there is a chance that the employee will choose the agreement. After signing the agreement, it is no longer possible to dismiss under another article, including due to a reduction in the number of staff.

Another common problem and contentious situation is setting deadlines in the agreement. Sometimes, one of the parties wants to change them. This will not be a problem if the parties again sign an addendum to the agreement, in which they indicate the need to clarify the terms, and put their personal signatures.

Not many employees, and even employers, know that the parties concluded legal document will not be valid if an unauthorized representative signed the contract on behalf of the employer. In order for the powers to be valid, the functional official duties employer's representative or statutory documents enterprises, must contain a clause stating that such a representative has the right to dismiss staff, conclude contracts and agreements with an employment contract with them.

HR records management

Keywords:

1 -1

In itself, a job change is a very positive thing, but it is always preceded by a delicate, controversial and sometimes unexpected moment of dismissal. The most peaceful legal instrument for breaking off labor relations is, perhaps, dismissal by agreement of the parties. However, each employee qualifies this ground for dismissal in their own way, often surrounding it with myths and conjectures. However, despite the simplicity 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 working people imagine it to be? What risks does dismissal by agreement of the parties actually carry, what threatens the employee, how does it go 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 the parties to an employment relationship to use this basis to terminate the relationship at any time. It turns out that this basis allows you to part both during vacation or sick leave, and during the employee's test. The initiative to terminate the employment contract on this basis can be expressed by both the boss and the employee, and the legislation does not regulate the form of such a proposal - it can be either a written or an oral statement. In practice, in order to fix mutual desire, the parties draw up a written agreement that regulates the conditions for 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 dismissal "on one's own"? According to Art. 80 of the Labor Code, for dismissal at the initiative of the employee, he, if the employer wishes, will have to work 2 weeks. At the same time, the employee is given the right to withdraw the letter of 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 of the parties, since the dismissal procedure can be carried out within one business day.

The absence of any normative 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 activities, does not indicate the presence of disciplinary sanctions or the low efficiency of his work. In fact, this procedure allows you to refuse to fix the reason for dismissal and the motives for terminating the employment contract.

At the same time, the range of these very reasons and motives can be very wide: a change of leadership, a conflict with superiors, a desire to informally reduce staff, a disciplinary offense, or an employee’s desire to quickly switch to another job. And this, of course, is a plus for those employees who would like to hide the reasons for 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 an employee, and in most cases it will. But not when the employer is trying to reduce their own costs in this way. For example, if an employee is fired due to redundancy or as a result of the liquidation of the company, by virtue of Art. 178 of the Labor Code, he can claim a severance pay in the amount of average salary, kept for him for a 2-month period, but until 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 together with them, if the initiative to part “by agreement” came from the employer, the employee can claim some kind of compensation. In practice, such payments will take place if they are referred to 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 authorities offered to leave.

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

It should be noted that one of the obvious advantages - lack of regulatory deadlines layoffs can be an obvious disadvantage for the employee. In particular, he can be fired on a day off, on vacation, on sick leave, and sometimes even retroactively. It does not matter even the existence of grounds for any benefits. And after signing such an agreement, it will no longer be possible to withdraw your signature. Keep this in mind when following the employer's lead and quitting "by agreement of the parties."

When applying for a job

Separately, it is worth noting the risks that may materialize after the dismissal - when looking for a new job. So, being a candidate dismissed by agreement of the parties, the applicant may face a reduced interest in his own person, in connection with which 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 "non-working candidate". Many employers consider the applicant's employment to be one of the most important indicators of his demand, and therefore professionalism. The lack of work in the search process, if there is a dismissal “by agreement of the parties” in the work book, scares off individual 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 a great chance to prepare for possible questions about this.

It is important to understand that the agreement of the parties indicated as a reason in the work book is not an explanation of the reason for leaving. The agreement of the parties is the 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 flaunts in your work book. It is necessary to immediately dispel the doubts of the employer, indicating that the wording does not hide misconduct and disciplinary action(it is about them that the HR will think first of all, do not hesitate). If they did take place, do not be shy - come up with a legend about professional downtime, financial problems etc. True, in this case, one should hope that the potential employer will not ask for recommendations from the previous bosses ...

You should not talk about the presence of 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 there was, they say, such a situation that the authorities offered a mutual option.

Summarizing, we note that dismissal by agreement of the parties is far from the most harmless option for dismissal, especially when you consider that he can hide the illegal motives of the employer and thereby violate the rights of dismissed employees. In some cases, the features of such a 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 yourself.

Many employees are wary of the wording "fired by agreement of the parties", preferring the old and "time-tested" wording "fired of their own free will" to it. How do these types of layoffs actually differ? What are the pros and cons of dismissal by agreement of the parties?

V recent years the wording “dismissed by agreement of the parties” is becoming more and more common. But many employees are afraid of such a record, because they do not understand what is behind this wording. With the dismissal of one's own free will, everything is clear: he wanted to quit - and quit. At least, this is how they perceive this wording “at the household level”. And dismissal by agreement of the parties seems incomprehensible: did the employee want to leave, or did they decide to fire him? Was it a neutral dismissal, or was there some kind of conflict behind it? Therefore, employees often refuse to be fired by agreement of the parties, they try to stay "out of harm's way";)

Dismissal by agreement of the parties, like the usual dismissal of one's own free will, has its pros and cons.

If you clearly understand the difference between these two types of dismissal, it will be clearer with which wording in your particular situation it will be more profitable for you to quit.

Difficult simple wording

Where did this wording come from? Why does she raise so many questions? First of all, because this is a relatively new ground for dismissal. It appeared only in the new edition of the Labor Code, which was adopted in 2001 and has been in force in Russia since January 2002 - just over ten years. Prior to that, the code did not provide for the possibility of dismissal by agreement of the parties. By the way, there are similar formulations in foreign labor codes - and they are very actively used in practice.

It is worth noting that such a “mystical halo” around the wording “helps” is also an extremely concise definition given in the Labor Code - the legislators did not bother with detailed explanations. Article 78 of the Labor Code of the Russian Federation is called Termination of the employment contract by agreement of the parties. And the text under this heading looks like this: "The employment contract can be terminated at any time by agreement of the parties to the employment contract." And it's all. There are no explanations or interpretations.

Therefore, for some time, not only employees, but also personnel officers puzzled over this wording. This was another (perhaps the most important) reason for distrust of this type of dismissal. But over the decade of using the new Labor Code, many points have become clear, and now it is already possible to speak more confidently about the pros and cons for the employee (and also for the employer) in such a formulation, and when it makes sense to use it.

Let's find out what is behind the legal formula "fired / fired by agreement of the parties." Already from the title of Article 78 of the Labor Code of the Russian Federation, it is clear to us that in order to terminate an employment contract, the consent of the parties is necessary. The parties to an employment contract, as you know, are the employee and the employer. Therefore, both the employee and the employer must agree to terminate the employment relationship. They can come to this decision either mutually or on the initiative of one of the parties. It turns out that the initiative to dismiss can come from both the employee and the employer. But it is important that the other party eventually agrees with this proposal - otherwise there will simply be no "agreement of the parties".

It turns out that such a wording is possible both in the case when the employee of his own free will decided to leave the company (for example, he received a more promising offer from another organization), and in the case when the employer wants to get rid of the employee, but there are no “unfriendly” articles of the Labor Code. cannot or does not want to use the code for dismissal of an employee. And here, too, there can be many reasons: the employee was unable to establish relations with colleagues and / or management, the level of qualification turned out to be insufficient, the quality of the employee’s work is not satisfied ... This may simply be the result of a rethinking of business goals, as a result of which some position turned out to be unnecessary, or - the result of a complex economic situation companies. In the latter case, behind the desire to get rid of the employee is the desire of the employer to reduce the cost of paying wages and maintaining the employee's workplace. In this case, the employer wants to veil the reduction in the number of staff or the organization's staff with the wording of dismissal by agreement of the parties (we will talk about this in more detail below).

How the employee and the employer will come to a general agreement, how they will encourage each other to agree to such a decision - the Labor Code does not describe. These are already, as they say, "personal problems" of the employee and the employer. They can simply agree on the date of dismissal (we will also talk about this in more detail a little later), or about some kind of “compensation” and compensation that the company will pay to the employee (if it was the employer who initiated it), or about something else - it will be entirely depend on the situation and the wishes of the parties. Simply put, they can agree to any conditions of separation that do not contradict Russian laws– with the proviso that BOTH parties must agree to these conditions.

We can say that, providing for the possibility of dismissal by agreement of the parties, the Labor Code gives the employee and the employer maximum independence, refusing to interfere in their affairs and agreements. Simply put, it allows them to negotiate the termination of labor relations "on market terms."

Based on the results of negotiations between the parties, an “Agreement on termination of the employment contract” is drawn up. There is no special form for such a case, so the parties usually enter into a standard agreement. At the same time, it may either mention additional conditions that the employee and the employer have agreed on, or not. In Russia, companies most often take the first option as a basis. But in Western companies, on the contrary, they try to describe in as much detail as possible everything that the employee and the company receive as a result (compensation to the employee and the employee's obligations to the company). Foreign agreements may include specific amounts of compensation, specific models of laptops and cars issued to an employee in the form of compensation, amounts for repayment of housing and communal expenses, etc. It must be said that from the point of view of the law, a detailed and precise enumeration of the conditions is, of course, preferable.

As can be seen from the text of Article 78 of the Labor Code of the Russian Federation, you can quit by agreement of the parties at any time. To do this, you need to sign the "Agreement on termination of the employment contract" (we already mentioned it above). At any time - this means that you can quit both during vacation (any, including during study leave), and during illness.

From the point of view of the law, the wording “fired / dismissed by agreement of the parties” is no worse for an employee than the wording “fired of his own free will”. Both records only confirm the fact that the employee left the company. As in the case of voluntary dismissal, on the last day of work, the employee must receive the final payment and work book. In the work book, dismissal by agreement of the parties is usually drawn up in one of two ways:

The first option: "Fired by agreement of the parties - paragraph 1 of the first part of Article 77 of the Labor Code of the Russian Federation."

The second option: "Fired by agreement of the parties - article 78 of the Labor Code of the Russian Federation."

Both formulations are correct, because both paragraph 1 of the first part of Article 77 and Article 78 of the Labor Code regulate precisely the dismissal by agreement of the parties.

Dismissal by agreement of the parties or dismissal of one's own free will

Some of the differences between these two formulations have already been noted above. Here we will focus on a few more important features.

Usually, upon dismissal of their own free will, the employer has the right to require the employee to work for another two weeks (there are exceptions - for example, if the dismissal occurs during the employee's probationary period). Suppose that the specialist has already found new job and he needs to urgently move to a new place. Dismissal by agreement of the parties just gives him such an opportunity: this wording does not provide for the need for working off, you can agree on a specific date for dismissal (recall, you can terminate the contract under this article at any time - even right on the day the agreement is signed). Naturally, this is possible if you can agree on this with your employer.

(However, it should be noted that upon dismissal of his own free will, the employer has the right to demand from the resigning work, but may agree to a shorter work, and also not require work at all.)

Now imagine the opposite situation: an employee has decided to quit and wants to warn 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 job. Suppose an employee is sure that within a month and a half he will definitely find a new job. Again, dismissal by agreement of the parties gives him the opportunity to agree on any date for dismissal - even after a few months. The following can be used as an argument to convince the employer: such a “delayed” date of dismissal gives the company the opportunity to find a quality replacement for the employee without haste, and the resigning specialist will be able to slowly complete all important work tasks. How separate condition You need to discuss with the employer the possibility of the employee to attend interviews during the remaining period of his work.

Another important feature that must be remembered: by submitting a letter of resignation of his own free will, the employee has the right to “change his mind” - before the expiration of the working period. Then he can simply "withdraw" his application. It is unlikely that after this his relationship with the employer will remain the same, but from a legal point of view, his work will continue in exactly the same way as before - until the filing of a letter of resignation.

With dismissal by agreement of the parties, this option will not work. Once both parties have signed the "Agreement to Terminate the Employment Contract", the employee can no longer "change his mind" and stay - even if his dismissal date does not come until a few months later. The only option is to negotiate with the employer and persuade him to take you back. That is, the success of these actions will depend on " good will» Employer - from the point of view of the law, he is not obliged to take you back - after all, it was an equal agreement on both sides.

Dismissal by agreement of the parties or dismissal by reduction

Often, the employer offers employees to quit by agreement of the parties instead of dismissal due to a reduction in staff or to reduce the number of staff. From a legal point of view, there are completely different reasons behind these formulations, and the procedure for terminating an employment relationship will also be different.

But what does this mean for the worker? And which option to choose? To answer this question, you need to compare what he receives in one case, and what - in another.

When laying off workers (the reduction is regulated by Article 81 of the Labor Code of the Russian Federation), the employer needs to perform a rather complicated procedure: notify the employee at least two months in advance about the upcoming reduction, analyze the data of all laid-off workers, identify those who cannot be laid off by law, as well as those who has advantages in case of reduction, in case of dismissal, pay in full to the laid-off employee wages for the period worked, compensation for unused vacation days, as well as severance pay, in the amount of average earnings. After the dismissal within three months, the employer is obliged to pay the employee financial compensation if the employee is registered with the employment authorities and could not find a new job during this time.

Thus, staff reduction is a procedure that always comes from the employer, and he is forced to take full responsibility for its implementation. Why is it beneficial for the employer to replace the reduction with dismissal by agreement of the parties?

First of all, because of the simpler dismissal procedure - instead of a multi-stage procedure, there are, in fact, two steps:

- negotiations with the employee, during which the parties agree on the conditions of "parting" (they are fixed in the "Agreement on termination of the employment contract");

- fulfillment of these conditions by both parties.

That is, dismissal by agreement of the parties is an “easier” form of termination of employment relations. In addition, the likelihood of litigation in this case is minimal (unlike layoffs due to redundancy). The employee practically cannot challenge the dismissal in court by agreement of the parties - after all, he was a full participant in this agreement and had to clearly understand what he was agreeing to.

But there is still the issue of financial compensation - perhaps the most important for the employee. This is where the full-fledged “market” begins: if an employee correctly represents his rights upon dismissal for a reduction, then he can easily calculate what level of compensation (from minimum to maximum) he can receive from the employer in this case. It is clear that it makes no sense for him to refuse severance pay and other payments for the sake of some ephemeral benefits. Therefore, he will not go to dismissal by agreement of the parties “just like that”. And without his expressed consent and his signature, this agreement simply will not happen.

Therefore, if an employer wants to simplify his life, and instead of laying off employees by agreement of the parties, he will have to convince the employee with “financial arguments”. There are no clear rules in the law on this matter, it all depends on what amounts and conditions the employee and the employer can agree on. That is, there are no legal obligations to offer the employee "compensation" upon dismissal by agreement of the employer's side. Usually the employer does this for the sake of economic expediency - that is why we are talking about full-fledged market negotiations between the employee and the employer.

When should an employee agree to such a proposal - to quit by agreement of the parties instead of being laid off for redundancy? Only if the company offers really more attractive conditions compared to the amounts of official redundancy compensation (as we have already noted, they should be at least three of the employee's average earnings, and as a maximum of five such average earnings). Therefore, if a company offers you to quit by agreement of the parties instead of layoffs, and at the same time offers the same three average earnings, then there is not much point in making such an agreement. A common market practice (the Moscow labor market) is that in this case, the offer to the employee of compensation is approximately 1.3 - 1.5 times more than he would receive in the event of dismissal due to redundancy.

If you have been offered a really attractive financial compensation as an alternative to downsizing, then it makes sense to consider such an offer. Especially if the agreement also contains additional clauses (for example, the employer undertakes to give the employee good recommendations etc.).

It is highly recommended not to rely solely on verbal promises and to record in detail in "Agreement to terminate the employment contract" all the conditions that you eventually agreed with the employer. This is really important - especially when you consider that after both parties sign the agreement, the employee will no longer be able to terminate it unilaterally or refuse it - unless the employer agrees to his proposal, which in such a situation is rather doubtful . The agreement has full legal force from the moment of its signing. In this case, the agreement of the parties, as a rule, cannot be challenged in court. Judicial practice in this matter is quite stable: the agreement of the parties is called so because it is decided and signed together, and is very rarely subject to cancellation.

There is another important argument that makes dismissal by agreement of the parties more attractive for the employee compared to the reduction (if, of course, the amount of payments to the employee is attractive enough). This moment is connected with further financial and career prospects. If an employee wants “to the maximum” to receive financial compensation in the event of a reduction, then he needs to register with the employment authorities, and then not get a job anywhere for at least two months (at least officially), otherwise the payment of benefits will stop. And in the case of dismissal by agreement of the parties, the employee receives all the compensation prescribed in the agreement (usually a few average earnings), regardless of whether he got a new job or not, and how quickly this happened. Therefore, you can get a new job immediately after dismissal - your financial income will not only not fall, but will even be significantly higher for some time.

There are also cases when in no case should you agree to dismissal by agreement of the parties instead of dismissal due to redundancy. First of all, if the employer, offering such a wording of dismissal, does not offer you any financial compensation, asking you to "enter the position" of the company, or offers compensation lower than you will receive in the event of a reduction - for example, we are talking about compensation in total less than three average monthly earnings of an employee. In this case, the employer does not just want to make life easier for himself, but actually tries to shift the financial burden of the reduction on the shoulders of employees. Therefore, it makes sense to study your rights and not succumb to provocations;)

Pros and cons of dismissal by agreement of the parties

So, let's sum up. In what cases is it more profitable for an employee to quit by agreement of the parties?

- if it is important to choose a time of dismissal convenient for you (for example, you need to quit instantly or, conversely, in a month, two, etc.);

- if it is possible to receive more attractive compensation from the employer than you would receive in the case of other forms of dismissal (for example, the company is ready to pay higher compensation than the employee would have received through redundancy);

- if the employee is going to register with the employment service after dismissal - in this case, he will be paid a larger allowance and a longer period of time than if he was dismissed of his own free will without good reason.

Now we list the disadvantages of dismissal by agreement of the parties (for an employee):

- Article 78 of the Labor Code of the Russian Federation allows you to dismiss an employee even when he is on vacation or on sick leave. When terminating the contract at the initiative of the employer (with rare exceptions), the employer does not have such an opportunity. However, this moment cannot be fully considered a disadvantage, because the employee is not obliged to agree to such an initiative of the employer - because we are talking about the agreement of the parties. If the employee received sufficient compensation from his point of view for his consent, then such a dismissal may even be beneficial for him.

- 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 employees. Therefore, such a decision on the part of the employee should be as balanced and responsible as possible: he must take care of his own interests.

- Dismissal by agreement of the parties in itself does not provide for any compensation and guarantees to the employee (unless it is directly indicated in the employment or collective agreement). That is, all compensation to the employee is regulated only by his agreement with the employer - there is no need to rely on "automatic" payments. It all 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 on termination of the employment contract enters into force immediately after it is signed by both parties.

- The employee will not be able to challenge such a dismissal in court (in the vast majority of cases). The last two points, again, mean that the employee must make a balanced decision to dismiss, weighing all the pros and cons. However, an adult must responsibly make a decision to dismiss, regardless of its legal form;)

If you plan to leave the organization in the most beneficial way, worth considering everything existing species layoffs. In most cases, those leaving leave opt for the most popular form - "of their own free will."

The option of dismissal by agreement of the parties looks unusual and dangerous. However, there are situations in which it is more preferable.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

If you want to know how to solve exactly your problem - contact through the online consultant on the right or call by phone free consultation:

Let's start with the laws governing situations related to dismissal. The first thing to do is to study Article 78 of the Labor Code of the Russian Federation– on termination of the employment contract by agreement of the parties and 80th article- on termination of the employment contract at the initiative of the employee.

If you have any questions regarding cash payments, go to Art. Art. 84.1, 140 of the Labor Code of the Russian Federation, and you may also find it useful Decree of the Government of the Russian Federation dated December 24, 2007 No. 922"On the peculiarities of the procedure for calculating the average wage."

All the features and nuances of dismissal

Of your own accord

According to Russian law, every person is free to choose labor activity and change jobs. The condition for leaving the organization may be employee initiative.

Who should apply? It depends on the rules set in your organization. Somewhere the application is submitted to the head, somewhere to the personnel department, and somewhere through the reception.

If a conflict situation arises, for example, they don’t want to sign your application, lose it, destroy it, you can protect yourself from trouble. Make a statement in two copies.

One is for the manager, and hand the second to the HR specialist or secretary - you need the date on the application when it was received, the position and signature with a transcript.

Sometimes even this method does not help, but there is another loophole: send an application by mail. Please note that the letter must be registered, with a notice and description of the attachment. Now you can easily prove in court that you filed an application, because you have a document from the post office.

If you want to leave without work, and the employer asks you for documents proving that you have the serious reason he has the right to do so. Present a document or perform your job duties a couple more weeks.

If it so happened that you fell ill, the period of work due to you is not interrupted. You will receive the money and labor due to you while on sick leave.

After applying you have the right to change your mind, unless a new person has already been invited to your position. However, you cannot be replaced by a new employee against your will.

Make sure that the correct entry has appeared in the work: with the correct designation of the article and the reason for your departure. It must contain a link to Art. 77 Labor Code of the Russian Federation and the text that you were dismissed of your own free will or at the initiative of the head.

All words are written in full, without abbreviations and abbreviations. If you see an inaccuracy in the labor, insist that a new entry be made. Before it, you need to make an indication that the previous one is invalid.

Find out more about the dismissal of your own free will by watching the video:

By agreement of the parties

The most attractive difference of this type of dismissal is processing speed. You must agree to leave with management and get the agreement in writing, but you are not required by law to give advance notice of your departure.

Any party can initiate your departure: both the employer and you. If you are acting as an initiator, you do not need to justify your departure.

Both parties have the right to put forward different conditions to each other. For example, it is possible to agree on receiving compensation (severance pay) for the resigning person up to a specific amount, the duration of working off, the transfer of duties to another person, and so on. Important to remember, that all conditions are fixed in the document, otherwise they are considered invalid.

The employer may reject your initiative if he is not satisfied with the conditions. In such a situation, no one can force the other side, everyone is in an equal position. Neither you nor your employer you don't have the right to suddenly "change your mind" without the consent of the other party.

You can quit this way while on vacation, during illness or on probation. For employees employed by fixed-term contract, the same rules apply as for those who entered into an open-ended contract.

A pregnant employee also has the right to leave the position by agreement of the parties. True, if on the day the document was drawn up she did not yet know that she was pregnant, and then decided to remain in the organization, her actions are legal.

How is the dismissal process? In the body of the application, write that you are leaving by agreement of the parties. Refer to the details of the agreement, otherwise your document is invalid. Please note that you must be notified in writing that the agreement has been drawn up. The document is signed by both parties.

You can download a sample letter of resignation by agreement of the parties.

Don't hesitate to ask for severance pay when management suggests you quit. Please note that the organization is not required to pay it, and the law does not provide for any minimum amount of payment. This also applies to processing.

Accordingly, if you manage to reach a compromise with management, you can get a good amount of money, and the employer - to protect themselves by setting the conditions for your departure. In any case, you will receive money for unused vacation and salary.

If you, together with the employer, have drawn up and signed a mutually beneficial agreement, and after some time one of you decided to introduce new conditions, it will be possible to change the text of the document only by common agreement.

If you have committed a violation, the most favorable option for you and the employer would be just dismissal by agreement. You will not spoil the reputation, and the management will not have to justify the legitimacy of their decision.

Make sure that the text appears in the labor "dismissed by agreement of the parties, part 1 of article 77 of the Labor Code of the Russian Federation."

For all the benefits of dismissal by agreement of the parties, see the video clip:

What is the difference?

The main difference is in the initiator of the dismissal. It could be you, or it could be the leader. If you leave of your own free will, no one has the right to restrict you. But if you have chosen the form of care by agreement of the parties, you will need seek compromise with management.

Under the agreement, you can not tell about your departure for two weeks. When you need to quit urgently, this option is ideal.

Dismissal by agreement of the parties provides an excellent chance to receive from the organization good monetary compensation. It will be especially easy to introduce such a condition if the leader was the initiator.

The text in the labor will vary (“dismissed by agreement of the parties” or “dismissed of his own free will”). Both options will not affect your future career in any way.

What is better to choose?

The choice of one or another option depends on life circumstances. Situations when it makes sense to prefer personal care:

there is a possibility that you will change your mind about quitting;
you are interested in going through the dismissal procedure quickly and easily;
you are satisfied with the due payments and guarantees;
you are on vacation or sick leave.

Disadvantages: you do not receive any additional cash payments, you must notify management in advance of your desire to quit.

It's better to get away by agreement of the parties, if:

you need to leave the organization as soon as possible (for example, you have already been invited to another place);
you are firmly convinced that you will not change your mind;
there is an opportunity (fixed in writing!) to receive a large sum of money from the organization;
you plan to contact the employment service.

The main disadvantages of this type of dismissal: if you remain unhappy with something, the court is unlikely to take your side. You get only what is specified in the agreement and are not entitled to change the terms without agreement with the management.

What's the best way to quit?

Concerning financial issue , in any case, you get:

salary for the period worked (including the date of dismissal);
holiday compensation if you did not use it.

What payments are made in case of dismissal by agreement of the parties, read in ours.

severance pay provided only by agreement of the parties. This option is preferred by people who occupy high positions, because they have more likely to get a decent amount.

When management asks to resign by agreement of the parties in order to reduce employees, it is unprofitable to agree. Doing so may result in you losing your redundancy payments or get a smaller amount.

If it so happened that you made a serious violation at work and are afraid of being fired under the article, dismissal by agreement of the parties can be a real salvation for your reputation.