No agreement of the parties. Difficult simple wording

Natalia Plastinina, practicing lawyer

Not as common as being fired own will, such a “peaceful” basis for dismissal is an agreement of the parties, still no, no, but entails a litigation.

1. Dismissal by agreement of the parties and dismissal of their own free will

Quite often, disputes arise on empty place: only because of the delusions of the dismissed employee. The employee mistakenly believes that he could, as in the case of dismissal of his own free will, “change his mind” in time and make the dismissal invalid. But in the application of the basis in question, such annulment of the termination agreement employment contract possible only in the same order - by agreement of the parties. The fact that the dispute is based in advance on a delusion does not diminish the work of the judge, and the problems of the employer. This is the most frequent type of dispute arising from dismissals by agreement of the parties. In order to clearly present at least the main differences between these two grounds for dismissal, we present a comparative table.

characteristic	voluntary dismissal	dismissal by agreement of the parties
filing an application	always - the employee's own desire. In this case, the opinion of the employer is not taken into account by labor legislation and in no way affects the rights of the employee and the guarantees provided to him by the Labor Code of the Russian Federation	Always mutual desire. At the same time, it is not forbidden for the employer to initiate the agreement, and for the employee to agree to terminate the employment contract.
Base shape	Employee's personal written statement	Formally, the form of the agreement of the Labor Code of the Russian Federation is not established. It can be either an employee's statement with the employer's resolution, or an agreement as a single document.
Dismissal order		There is. Published in a unified form.
Possibility to cancel the desire to terminate the employment contract	Yes, it is possible unilaterally	No, the party to the employment relationship has no right to “change its mind” unilaterally. Only - by mutual agreement of the parties.

Employers in most cases know this difference. However, employees still confuse the grounds for dismissal, and then go to court. The court does not consider the position of the employee correct. Basically, the employee is denied satisfaction of the requirements.

Practice (withdrawal of the agreement on termination of the employment contract can be carried out only by both parties to the employment relationship):

N.L.A. appealed to OJSC Severalmaz for reinstatement, recovery of wages for the time of forced absenteeism, monetary compensation for non-pecuniary damage. In support of the stated requirements, she indicated that she was dismissed by agreement of the parties under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation. However, she considers the dismissal illegal, as she signed the dismissal agreement under pressure from the employer, which consisted of a threat to fire her for absenteeism. The employer did not react to her withdrawal of the agreement and dismissed her on the above grounds. The court considered the plaintiff's arguments not based on the law, and did not satisfy her requirements.

The court pointed out that when terminating an employment contract on the grounds under consideration, a joint expression of the will of its parties is necessary, aimed at ending the employment relationship. However, this does not exclude the manifestation of the corresponding initial initiative by the employee or employer. Such an initiative on the part of the employee can be expressed in his written statement with a proposal to terminate the employment contract by agreement of the parties from a certain date. On the other hand, the employer himself can take a similar initial initiative by offering the employee for signing a draft agreement on termination of the employment contract by agreement of the parties. The court concluded that the plaintiff's will to terminate the employment contract was voluntary, no evidence of the employer's compulsion to do so was established, therefore the plaintiff's arguments that the application was written by her under pressure were found untenable by the court. Illegal dismissal unjustified dismissal or committed with gross violation the procedure for dismissal in accordance with Article 394 of the Labor Code of the Russian Federation, which was not established in this case (decision of the Oktyabrsky District Court of the city of Arkhangelsk dated February 10, 2011 in case No. 2-760 / 2011) .

2. What is actually hidden by the "agreement" of the parties or why it is beneficial for the employer.

Worker, mainly goes to dismissal by agreement of the parties for:

1) receiving compensation in connection with the termination of an employment contract (often used when dismissing executives of an organization).
2) to exclude the possibility of his dismissal for a disciplinary offense.
3) really under some psychological pressure from the employer, practically unprovable.

Employer while offering to conclude such an agreement on termination of an employment contract with an employee, he often proceeds from not very honest thoughts:

1) Dismiss the employee as soon as possible, even if paying him compensation for terminating the employment contract.
2) Get rid of the objectionable employee if other methods are unacceptable or have not yielded results.
3) cases of dismissal of an employee - beneficiary.
4) Covering the true downsizing - to speed up the procedure.
However, cases of cover-up are opened by the regulatory authorities, which, within the framework of their powers, require the elimination of the identified violations of the rights of workers.

Example (the employee is protected by the prosecutor's office):

As the Attorney General noted, speaking about the impact of the crisis on labor relations, some employers, realizing that people depend on them, send employees on leave without pay, or force them to quit of their own free will. or by agreement of the parties. IN Kursk region, for example, at the request of the prosecutor of the Medvensky district, 100 employees of Chermoshnoye LLC were reinstated, and the head who illegally dismissed them was brought to administrative responsibility .

It is in connection with the employer's covering up the true state of affairs that disputes often arise. special kind: on the recovery of severance pay and compensation upon dismissal.

3. Severance pay or compensation upon termination of the employment contract by agreement of the parties

4.1. The main types of severance pay are provided for in Art. 178 of the Labor Code of the Russian Federation. In most cases of litigation, we are talking about a severance pay paid upon termination of an employment contract in connection with the liquidation of an organization (clause 1 of part one of Article 81 of the Labor Code of the Russian Federation) or a reduction in the number or staff of the organization's employees (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation). However, disputes over the payment severance pay upon termination of the employment contract by agreement of the parties.

Practice (simple solution: the employer recognized the obligation to pay severance pay upon dismissal by agreement of the parties):

X. filed a lawsuit against Medvezhya Gora LLC for the recovery of wage arrears, indicating in support of the claim that on 14.04.2010 the employment contract with him was terminated by agreement of the parties, which also provided for the payment of a severance pay to the plaintiff in the amount of ... .. rubles. Meanwhile, upon dismissal of the plaintiff severance pay not paid. Also wages for April 2010 were not paid in the amount of …. rub. Accordingly, the Plaintiff seeks to recover these amounts from the Defendant. The defendant admitted the claim in full; said that the consequences of the recognition of the claim, including the fact that the recognition of the claim entails its satisfaction, were explained and understood to him. Recognition of the claim is declared voluntarily. The court believes that the recognition of the claim by the defendant does not contradict the law, due to the fact that the plaintiff really worked at Medvezhya Gora LLC, on 14.04.2010 he was dismissed by agreement of the parties. The amount of unpaid wages and severance pay to the plaintiff is confirmed by the agreement on termination of the employment contract dated April 14, 2010, the pay slip and the explanations of the parties. Based on the foregoing, Kh.'s claim was satisfied by the court in full (decision of the Medvezhyegorsk District Court of the Republic of Karelia dated 06/21/2010) .

4.2. Part 4 of Article 178 of the Labor Code of the Russian Federation provides that employment contract or collective agreement other cases of severance payments may be provided, as well as increased amounts of severance payments. Misinterpretation of this possibility and inaccurate reading of the article of the law lead to unexpected court decisions.

Practice (very interesting conclusions of the court: employees dismissed under paragraph 1 of part 1 of article 77 of the Labor Code of the Russian Federation were denied the collection of severance pay provided for by the agreement on termination of the employment contract):

Several employees filed lawsuits against CJSC Insurance Group U... for the recovery of severance pay and compensation for non-payment of severance pay on time. In support of all claims, it was indicated that on 04.06.2010 between the plaintiffs and the employer agreements were signed on termination of employment contracts on 31.08.2010, with the payment of a severance pay to each of the employees in the amount of four monthly salaries. By orders, the employees were dismissed under paragraph 1 of part 1 of article 77 of the TF. The court of first instance satisfied the claims of the former employees, and the amount of benefits and compensations for non-payment of benefits on time was recovered from the employer.

The court of first instance, satisfying the claims, proceeded from the fact that agreements were concluded with employees by an authorized person, providing for the payment of severance pay upon dismissal. The obligation to pay severance pay upon dismissal by the employer has not been fulfilled.

The Judicial Collegium for Civil Cases annulled the decision of the court of first instance, adopting a new decision, which was denied in the claims of the employees, indicating the following. Part 4 of Art. 178 of the Labor Code of the Russian Federation, it is provided that an employment contract or a collective agreement may provide for other cases of payment of severance pay, as well as establish increased amounts of severance pay. Thus, the basis for the payment of severance pay upon dismissal of an employee is the presence in the employment contract with the employee or the collective agreement of the conditions for the payment of severance pay. Other agreements between the employee and the employer do not give rise to the obligation of the employer to pay the employee a severance pay upon dismissal. From the materials of the case, it is seen that in employment contracts with employees and additional agreements to such contracts, there are no conditions for paying severance pay to employees upon dismissal. The collective agreement was not submitted to the court, which means that the plaintiffs did not prove their right to receive severance pay in accordance with the terms of the collective agreement.

In addition, on 04.06.2010, the employer concluded agreements on termination of employment contracts with employees, which provide for the payment of severance pay on the last day of work in the amount of 4 monthly salaries. It follows from the content of these agreements that the employee and the employer agreed on the terms of dismissal, the grounds for dismissal, and the procedure for dismissal. Such agreements, the parties to labor relations are concluded in accordance with Art. 78 of the Labor Code of the Russian Federation, which provides for the termination of an employment contract by agreement of the parties.

An agreement on termination of an employment contract cannot be identified with the employment contract itself, since such an agreement contains only the conditions for terminating an employment contract, which does not comply with the provisions of Articles 56, 57 of the Labor Code of the Russian Federation.

Thus, an agreement to terminate an employment contract cannot be the basis for collecting severance pay from the employer.

In view of the foregoing, the panel of judges canceled the decision of the court of first instance, and with its new decision denied the plaintiffs to recover severance pay in connection with dismissal and interest for the delay in paying this allowance (decision of the Oktyabrsky District Court of Izhevsk dated December 2, 2010; cassation ruling of the court Collegia for Civil Cases of the Supreme Court Udmurt Republic dated February 16, 2011 in case No. 33-492) .

4.3. But most often there is confusion between severance pay and compensation. We have just discussed the types of severance pay. With regard to severance pay, the Labor Code of the Russian Federation contains imperative norms, allowing for the additional establishment of types of severance pay only in part 4 of Art. 178 of the Labor Code of the Russian Federation. With regard to the payment of compensation upon termination of the employment contract, there is only one imperative norm in the Labor Code of the Russian Federation - Art. 279 of the Labor Code of the Russian Federation, which we will discuss a little later. Compensation component labor law has a more flexible basis: the parties to the employment contract have the right to provide for almost any amount of compensation upon dismissal. In our case, upon dismissal by agreement of the parties. Which is very often used, for example, when top managers of giant companies are fired.

Practice (the employee was denied the recovery of severance pay due to the reduction, since he received compensation provided for by agreement of the parties upon dismissal under paragraph 1 of article 77 of the Labor Code of the Russian Federation)

I. filed a lawsuit against Municipal institution"Customer Service Krestetsky municipal district» about changing the wording of the reason for dismissal, collecting severance pay, compensation for delayed payment upon dismissal and compensation for non-pecuniary damage. In support of the claim, he indicated that he was dismissed from work under clause 1, part 1, article 77 of the Labor Code of the Russian Federation by agreement of the parties. In fact, his dismissal was made in connection with the reduction in the number of employees in an abbreviated manner, before the expiration of the two-month notice period for the upcoming reduction, in the manner prescribed by Part 3 of Article 180 of the Labor Code of the Russian Federation. He was promised all the severance pay provided for current legislation when reducing the number or staff of employees. The severance pay in the amount of the average monthly salary was not paid to him due to the impossibility of such payments upon dismissal of the employee by agreement of the parties. The court found that from the agreement concluded between the plaintiff and the defendant, it can be seen that the parties reached an agreement to terminate the employment contract by agreement of the parties, in connection with a reduction in the staff unit, with the payment of two months' average earnings to the employee. By order of I., he was dismissed under clause 1, part 1, article 77 of the Labor Code of the Russian Federation with the payment of a two-month average salary. The court, when making its decision, indicated that the possibility of paying a severance pay in cases other than those specified in the law, as well as in an increased amount, is allowed in accordance with Article 178 (part 4) of the Labor Code of the Russian Federation and is not indisputable evidence of the plaintiff's dismissal due to a reduction in staff or the number of employees. According to staffing The defendant's staff unit of the plaintiff has not been reduced and is available on the day of the hearing. The plaintiff's reference to the agreement as a basis for considering his dismissal on the basis of a reduction in the number of employees cannot be taken into account, since the agreement indicates the dismissal of his own free will, in connection with a reduction in the staff unit. However, the staffing unit occupied by the plaintiff has not been reduced. The plaintiff's arguments that the number of employees was reduced in his person are unfounded, since the reduction in the number of employees implies a reduction in the number of employees of one specialty. According to the staffing table, the defendant's staff has one unit of the position occupied by the plaintiff, this unit has been retained. Thus, there are no legal grounds for paying the claimant a severance pay in accordance with Article 178 of the Labor Code of the Russian Federation as an employee dismissed due to a reduction in the number or staff of employees. In this connection, the court refused I. to satisfy the claims (decision of the Okulovsky District Court of the Novgorod Region dated September 29, 2011) .

4.4. In contrast to the severance pay provided for in Art. 178 of the Labor Code of the Russian Federation, in relation to the head of the organization, the Labor Code of the Russian Federation also establishes situations of the obligation to pay compensation. According to Art. 279 of the Labor Code of the Russian Federation, in the event of termination of the employment contract with the head of the organization in accordance with paragraph 2 of Article 278 of the Labor Code of the Russian Federation in the absence of guilty actions (inaction) of the head, he is paid compensation in the amount determined by the employment contract, but not less than three times the average monthly earnings. In this case, the grounds for dismissal “by agreement of the parties” are also quite often used, according to clause 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation. And in the most additional agreement to the employment contract, the parties already provide for the amount of the above type of compensation. In the absence of an indication of it, the obligation to pay compensation from the employer does not disappear anywhere, and is subject to recovery (in the event of a dispute) in court - but in the amount of three times the average monthly earnings.
Disputes of this category of dismissed people are not so rare in practice. In most cases, they end with a court decision to recover the specified type of compensation from the employer. However, directly opposite solutions are also not uncommon.

Practice (the plaintiff was denied the recovery of severance pay due to the fact that the employer signed an addendum to the employment contract by an unauthorized person):

D. filed a lawsuit against ROPP "***" for the recovery of severance pay and wage supplements. In support of the claim, she indicated that, according to an additional agreement to the employment contract, she was given a bonus, and also provided for the payment of a severance pay in the amount of 100 official salaries in the event of termination of the employment contract with the employer when the owner of the organization's property changed, the organization's jurisdiction changed or its reorganization, liquidation. She asked to recover from the defendant a severance pay in the amount of 1,200,000 rubles and a wage supplement. The court found that by decision of the Conference of the regional branch of 12.04.2008, T.'s powers as Chairman of the Council of the regional branch were terminated ahead of schedule. After analyzing the provisions of articles 47, 59, 72 of the Labor Code of the Russian Federation, Art. 31 of the Federal Law "On Political Parties", Charter of a Political Party, Regulations on the System executive bodies party, model provision on the apparatus of the Bureau of the Council of the Regional Branch, the court of first instance came to a reasonable conclusion that the Chairman of the Council of the Regional Branch did not have the authority to independently determine the amount of severance pay and the conditions for remuneration of employees. In addition, there was a very controversial expert opinion, which did not confirm the coincidence of the signing by the parties of the specified additional agreement in terms of time. In connection with the foregoing, the court refused to satisfy D.'s claims due to the failure to prove the existence of the very condition for the payment of severance pay (decision of the Sovetsky District Court of the city of Tula dated February 15, 2010; cassation ruling of the Judicial Collegium for Civil Cases of the Tula Regional Court dated May 13, 2010 to Case No. 33-1373) .

5. Additional terms of the agreement

5.1. The condition for the subsequent payment of wages.

Quite interesting is the question of using the type of grounds for dismissal in the interests of the employer. Here we are talking about the mistake of the employer, assuming that the agreement of the parties on dismissal will cover certain types of violations of labor laws.
Question: Is it possible to provide for a condition in the agreement on termination of the employment contract to defer the payment of both the final settlement and wage arrears?
Answer: No, such an agreement in terms of establishing these conditions is void, as it does not comply with the law. Article 140 of the Labor Code of the Russian Federation establishes the terms for calculating upon dismissal - on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment. The establishment of other terms, including by agreement of the parties, is not provided for by the Labor Code of the Russian Federation for any situation and circumstances.
In the event of a dispute about the amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by the employee on the last day of the employee's work.

5.2. The condition for the subsequent payment of the premium for the year.

Not the last question that interests an employee leaving by agreement of the parties: a bonus for an incompletely worked year. The answer cannot be unambiguous, since different employers various conditions accrual and payment of bonuses, fixed in the local acts of the organization. In general, subject to the provisions of Art. 135 of the Labor Code of the Russian Federation, the conditions for calculating and paying bonuses can be fixed both in the local act of the organization, in the collective agreement, and separately in the employment contract. In each specific case of a dispute, the court will take into account the circumstances of a particular case and a specific supplementary agreement to the employment contract (including its termination). An unambiguous answer to the question of the legitimacy of fixing in the agreement on termination of the employment contract the right of the employee to a part of the annual bonus and the consequences of such an agreement cannot be given. The parties have the right to provide for such a right of the employee and the corresponding obligation of the employer. When it is performed on a voluntary basis, there will be no questions: there is a reason, there is an action. In a disputable situation, it is quite possible both to satisfy the requirements of the employee based on an agreement, and to refuse to satisfy them.

6. On the form of the agreement and its content.

The agreement must still be in writing. And that's why.
Art. 77 of the Labor Code of the Russian Federation provides, as a basis for the termination of an employment contract, including the agreement of the parties - clause 1 of part 1 of this article (for details - article 78 of the Labor Code of the Russian Federation). Upon reaching an agreement between the employee and the employer, an employment contract concluded for an indefinite period or a fixed-term employment contract may be terminated at any time within the period specified by the parties. Of course, you can also express your will to terminate the employment contract and accept an agreement on this verbally by performing legally significant actions, but this immediately increases the risk of contesting the dismissal and making a court decision that is unfavorable for the employer to reinstate the employee at work. In practice, there are cases when the court recognized the agreement on termination of the employment contract as valid even in the absence of written confirmation of this. However, it is extremely difficult to prove your arguments to the employer in this case.

Therefore, the requirement for a written confirmation of the agreement as valid is, in fact, advisory in nature. But strongly recommended. Regarding the requirement to draw up a single document or two different ones, there are no imperative norms of the Labor Code of the Russian Federation here.

In the vast majority of cases, written confirmation of the existing agreement of the parties to terminate the employment contract is found in two versions:

1) a written application of the employee with a request for dismissal on a certain date by agreement of the parties with the resolution of the head of the employer on consent to dismissal on the conditions specified in the application. A confirmation of the agreement that has taken place will be the issued dismissal order under clause 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation. Signed by both manager and employee.

2) a written agreement to terminate the employment contract, or additional agreement to an employment contract signed by both parties to the contract. Confirmation - again, a dismissal order.

6.1. As practice shows, employees who apply to the court with claims to recognize the dismissal by agreement of the parties as illegal, first of all, put forward an argument about signing the specified documents (or writing - in the case of the first option for processing the termination of employment) under pressure from the employer . However, most often, they do not take into account the complexity of proving their arguments.

Practice (the fact of pressure on the employee when signing the dismissal agreement was not established by the court):

V. filed a lawsuit against OAO Rossiyskiye railways» on the recognition of the dismissal order by agreement of the parties and reinstatement at work, the recovery of wages for the time of forced absenteeism and compensation for non-pecuniary damage. In support of the stated requirements, he indicated that by order No. *** he was dismissed from his position by agreement of the parties. He does not agree with this order, since the letter of resignation by agreement of the parties was written by him under the compulsion of the employer, whose representatives explained to him that if the employment relationship continues, he will be brought to liability for the material damage caused by him as a result of the cut of the arrow, which is estimated in the millions. The court, having studied the materials of the case, did not find grounds for satisfying the claims of the dismissed worker. As follows from the statement of V., he asked to terminate the employment contract with him by agreement of the parties on 21.01.2011. The said application contains the employer's resolution on the dismissal of B, which indicates the employer's consent to terminate the employment contract with the plaintiff on the conditions specified by him in his application for dismissal. The order to dismiss the plaintiff by agreement of the parties was issued and signed by a person having the authority to conclude and terminate employment contracts with employees.

The court concluded that when the plaintiff was fired, the defendant did not violate labor laws, since, based on its provisions, when an agreement is reached on the termination of an employment contract between the parties to the contract, it terminates at the time specified by the parties. V.'s argument about the possible bringing him to liability in the millions also did not find its confirmation. From the documents submitted to the case file, it follows that in connection with the plaintiff's violation of the procedure for securing the rolling stock, the brake shoe was lost, which was found in the track of the ninth track, in connection with which V. was deprived of a yellow warning coupon and sent for an extraordinary check knowledge. There is no evidence that this violation caused material damage in the case file. From the explanations of the defendant's representative, it follows that Russian Railways OJSC does not have any documents on this fact, and therefore it is not possible to verify the indicated circumstance and reliably state that material damage was caused by the actions of V. Russian Railways OJSC. In connection with the foregoing, the court did not find the unlawfulness of the dismissal of the plaintiff proven and refused to satisfy his claims. The Judicial Collegium agreed with the conclusions of the Court of First Instance (decision of the Leninsky District Court of Murmansk dated March 22, 2011, cassation ruling of the Judicial Collegium for Civil Cases of the Murmansk Regional Court dated May 18, 2011 in case No. 33-1388-2011) .

6.2. A popular ground for challenging dismissal by agreement of the parties is also the argument that the representative of the employer does not have the authority to sign this type of agreement with employees. However, in this case, as a rule, after a thorough check, the court concludes that the claims are unfounded due to the discrepancy between the arguments of the dismissed employee and the actual circumstances of the case.

Practice (the compulsion to sign the agreement has not been proven by the employee; the authority of the employer's representative to sign the agreement has been verified and confirmed during the trial):

Popov A.V. filed a lawsuit against Bamtonnelstroy-Gidrostroy LLC for reinstatement in the position of head of the legal department, recovery of wages for the time of forced absenteeism, compensation for non-pecuniary damage and transport costs. In support of the claim, he indicated that he was forced to sign an agreement to terminate the employment contract, as well as that the person who signed this agreement on the part of the employer did not have the appropriate authority.

The court found that the plaintiff was dismissed on 02.08.2010. By the decision of the Kuraginsky District Court dated February 8, 2011, he was reinstated at work due to the fact that the fixed-term employment contract was recognized as concluded for an indefinite period. After the reinstatement at work on 08.02.2011, an agreement was concluded between the parties to the employment relationship to terminate the employment contract, which provides for the payment of compensation to the claimant in the amount of four salaries. The plaintiff received full payment, compensation and work book in a timely manner. The court did not agree with the employee’s arguments regarding the compulsion on his part to sign a controversial agreement, indicating that the proposal of the employer’s representative to conclude an agreement to terminate the employment contract and “part in peace” cannot be assessed as psychological coercion, since the initiative to terminate the employment contract by agreement of the parties may come from from any party (employer or employee). The consent of the employee to dismissal by agreement of the parties has legal significance. Such consent on the part of the plaintiff at the time of signing the agreement took place. The plaintiff's argument that the chief engineer had no authority to sign an agreement to terminate the employment contract was also not confirmed during the consideration of the case. The powers of the chief engineer as a representative of the employer were confirmed by a power of attorney, an order on the assignment of duties CEO for the period of the latter's business trip, an order to send the general director on a business trip and a travel certificate, a copy of the order registration book. The plaintiff's arguments about the possibility of issuing order No. 59/1 retroactively, since the number of the order contains a fraction, are conjectural. In accordance with the copy of the registration book of orders submitted by the defendant, it can be seen that the company has adopted the numbering of orders on the assignment of duties to temporarily absent employees through a fraction with a unit, these are orders: No. 4/1, No. 5/1, No. 36/1, No. 55/1 No. 59/1, and all 17 orders during the absence of the General Director were signed by the Chief Engineer. Thus, the court did not legal grounds to satisfy the claims of Popov and refused to satisfy the claim (decision of the Kuraginsky District Court dated 08.08.2011) .

6.3. The claims of the employee may be based not on the form, content of the agreement on termination of the employment contract and the powers of the signatory, but on and non-compliance by the employer with the prohibitions and restrictions established by the Labor Code of the Russian Federation. Surprisingly, the awareness of employees about the almost unlimited possibility to go to court without any grounds (lawsuits for labor disputes are not subject to state duty, which sometimes gives ample opportunities for abuse of the right) is adjacent to the legal illiteracy of the disputers. So, for example, employees often decide that they cannot be dismissed on the basis of clause 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation during the period of illness or vacation. In this case, there is a classic confusion of dismissal at the initiative of the employer (it is in relation to them that prohibitions are established on dismissal during the period of vacation or temporary disability of the employee) and other grounds for dismissal that are not related to the initiative of the employer.

Practice (the date of dismissal by agreement of the parties is not subject to change even if the employee is temporarily unable to work on the date of dismissal):

G. filed a lawsuit against the Svetlogorsk social and health center "Mechta" to change the date of dismissal, collect temporary disability benefits, compensation for unused vacation. In support of the claims, she indicated that she was dismissed by agreement of the parties. However, due to the fact that on the day of dismissal she was unable to work, she believes that the date of dismissal should have been postponed to the first working day after her release after illness. However, her application for the postponement of the date of dismissal due to illness was not satisfied by the head of the employer, which she considers illegal. The court found that<дата>a dismissal agreement was signed with G. by the employer, and an order was issued for her dismissal by agreement of the parties under paragraph 1 of Art. 77 of the Labor Code of the Russian Federation, with which she was acquainted on the same day. As established by the court, during the period of her incapacity for work until the day of her dismissal, the plaintiff continued to perform labor functions without informing the employer of her illness, which is confirmed by the register of the arrival and departure of employees, the register of the movement of work books, the testimony of a witness, the time sheet.<Дата>the inventory of the warehouse was transferred from G. to another employee. The plaintiff was at work all day, no statements were received from her that she was on sick leave, in connection with this, she asked to postpone the date of dismissal. On the day of dismissal, the plaintiff was issued a work book. According to the certificate of incapacity for work submitted by the plaintiff G. in the period<период>was on outpatient treatment due to illness. The temporary disability allowance was paid by the defendant to the plaintiff, which was confirmed by the parties at the hearing. The plaintiff's arguments about the need to change the date of dismissal due to her temporary incapacity for work on the day of dismissal, the court considers untenable due to the fact that the prohibition established by Article 81 of the Labor Code of the Russian Federation on dismissal of an employee during a period of temporary incapacity for work does not apply to the case in question; dismissal by agreement of the parties is not dismissal at the initiative of the employer. In addition, the court did not satisfy the plaintiff's claims for temporary disability benefits for<период>on another certificate of incapacity for work, since more than 30 calendar days. In view of this circumstance, based on the provisions of paragraph.3 Article. 13 of the Federal Law of the Russian Federation of December 29, 2006 N 255-FZ of the Russian Federation "On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood", the insured (employer of the Mechta SSSOC) is released from the obligation to assign and pay former employee G. temporary disability benefits in<период>. G.'s claims against the employer were dismissed (decision of the Svetlogorsk city court of the Kaliningrad region dated November 11, 2010 in case No. 2-723/2010) .

7. The main motives and goals of litigation.

Based on the analysis judicial practice among the purposes of applying to the court dismissed under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation (by agreement of the parties) can be distinguished some of the most popular destinations:

1. Reinstatement at work and recovery of average earnings during forced absenteeism.

2) Recovery of shortfall upon dismissal (severance pay, compensation upon dismissal, wage arrears, bonuses, etc.).

3) On changing the date of dismissal to the date of the court decision and the recovery of average earnings for the time of forced absenteeism.

4) On changing the wording of the grounds for dismissal. In the case of a request for a change to “dismissal due to redundancy under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation "- the recovery of the amounts of severance benefits provided for in Art. 178 of the Labor Code of the Russian Federation.

Define motives workers going to court is much more difficult. In total, they can only be divided into:

The desire to restore their rights and achieve justice.
- “playing” on the mistakes of the employer and abusing his right to obtain additional payments for himself.
- eliminate the consequences of your "bad" behavior - correct an unfavorable entry in your work book.

In addition to disputes arising from dismissal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation, very close to them are disputes about changing the wording of the “bad” grounds for dismissal to “agreement of the parties”. Most often, if the employer knows all his mistakes made by him in the application disciplinary action in the form of dismissal, he agrees to a settlement agreement. After all, it is much easier to change the basis for dismissal and make an appropriate entry in the work book than to expect the dismissal to be recognized as illegal and endure the restoration of an employee who has been guilty of work.

Practice (the amicable agreement on changing the bad grounds for dismissal to the agreement of the parties was approved by the court):

Ch. filed a lawsuit against the municipality of Pskov “Pskovskiye teploye seti” for reinstatement at work, recovery of wages for the time of forced absenteeism, and compensation for non-pecuniary damage. The plaintiff was dismissed for repeated non-performance by an employee without good reasons labor obligations under paragraph 5 of article 81 of the Labor Code of the Russian Federation. At the court session, at the initiative of the plaintiff, the parties entered into a settlement agreement under which Ch. renounces the claim in full, and the defendant undertakes to change the date of dismissal to the date of approval of the settlement agreement (07/14/2006), change the reason and grounds for Ch.'s dismissal from "repeated non-fulfillment by an employee without good reason of labor duties” clause 5 of article 81 of the Labor Code of the Russian Federation to “by agreement of the parties” article 78 of the Labor Code of the Russian Federation; pay remuneration for forced absenteeism and make appropriate entries in the work book of Ch. The settlement agreement was approved by the court, the proceedings were terminated (Determination of the Pskov City Court of the Pskov Region dated July 14, 2006 in case No. 2-2244 / 2006) .

Despite all the above examples, which show that the court is far from always sure that the employee is right, and after a thorough check of the circumstances of the case, it completely recognizes his wrongness, the number labor disputes arising from dismissal by agreement of the parties, alas, does not decrease. Each employee, when applying to the court, if he does not consider himself right, then at least hopes that the court will reveal such circumstances that “will play into his hands”. In this regard, I would like to advise all employers, regardless of the form of ownership and popularity in their company, to dismiss by agreement of the parties, to be extremely careful and not allow even the slightest violations (including, for example, the lack of formalized authority of the employer's representative to conclude agreements on termination of labor contracts). And then, in the event of a dispute, the employer is waiting for the same positive solutions that we have given in this article. http://okulovsky.nvg.sudrf.ru/modules.php?name=bsr&op=print_text&cl=1&id=53600111111210947408581000059154

Dismissal by agreement is always the most profitable option for a subordinate and his boss who could not find a common language in the course of their work and want to complete a joint labor activity by mutual consent. At the same time, the employer is obliged to pay the employee in full, as well as to make additional payments to him, if this is provided for by the contract on termination of labor relations or other regulatory acts 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 it. In the event that one of the parties does not agree to the conclusion of such an agreement, its preparation will be impossible, and otherwise it will even be illegal.

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

• last money earned for the entire time of work;
• vacation compensation if the employee was not on vacation;
• severance pay, if it is prescribed in the employment or collective agreement and is mandatory.

Additional payment

A mutual agreement on the dismissal of an employee is very good because, along with all 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 a severance pay not only for those persons who leave the organization for reduction or in connection with liquidation, but also in cases where such monetary compensation is provided for by an employment or collective agreement. This ground is directly related to the dismissal by agreement of the parties with the payment of compensation, which is established by the employer independently or can even be agreed with the employee so that the latter does not have any financial claims against the former employer.

Registration of the agreement

In the Labor Code, there is no specific model of an agreement on the mutual termination of employment relations. Therefore, this agreement can be drawn up in absolutely different ways, the main thing is that it be drawn up in writing and in two copies, as well as in compliance with all necessary conditions. An example of such an agreement can be found below.

On labor relations No. ____ of ___ 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 on the following:

1. Terminate the 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 time of work and monetary compensation for vacation that was not used;
• to pay a compensatory allowance in the amount of 15,000 rubles;
• pay all the money to the employee on the last day of his work, as well as transfer the labor with a record of dismissal by mutual agreement.

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

5. The mutual agreement is drawn up in two copies, which each of the parties receives in their hands.

6. Signatures of the parties.

The main thing that an employee needs to know about the end of an 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.

Benefits of leaving by agreement

Everywhere there are pluses and minuses, but in a situation associated with the termination of labor relations by mutual agreement, there are a lot of positive moments.

The benefits for the employee are:

• seniority will be considered continuous for a whole month from the date of dismissal;
• upon registration with the employment authorities, the allowance will be slightly larger than upon dismissal own initiative employee;
• 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 union approval required state inspection labor in the event that the employee is a minor, and it is also possible to determine the term for the dismissal of a subordinate independently;
• the amount of payments upon dismissal by agreement of the parties is established by the employer independently, with the exception of the mandatory amounts due to the employee;
• most convenient way in the case when it is necessary to break with an unnecessary employee and avoid unpleasant consequences.

Payment terms

Even in the event that the employment relationship is terminated due to the signing of an agreement on the mutual consent of the two parties to this and is sealed by the signatures of the subordinate and the employer, the latter should 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 the money due to the employee on the last day of his labor activity at this 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 labor activity specified in such an agreement, the employer must pay all the money earned by the latter.

In the event that 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 the termination of the employment relationship, as agreed between the parties, the employer is obliged to pay the subordinate:

• salary for all the time worked by the employee;
• compensation for vacation that was not used;
• severance pay, but only if it 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. At the same time, the amount of severance pay can be completely different and not depend on the amounts 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 the former boss and does not speak badly about him.

The amount of the severance pay can be:

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

In this case, not even the amount itself will matter, 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 his reputation and remain honest in the face of new employees.

Benefit tax

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

Algorithm of actions upon dismissal by mutual agreement

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

First you need to formalize the agreement itself on the completion of labor relations between the parties, with the introduction of all the necessary conditions that will suit each party. An important issue here is the question of what payments upon dismissal by agreement of the parties will be due to the employee upon termination of employment with him. For a faster completion of this procedure, this issue must be reflected 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 that, an order will be written, and an entry will be made in the labor.

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

Everything due payments upon dismissal by agreement of the parties, they are prescribed only in the agreement itself; their mention in the order is not allowed. The work book should contain an entry of such a plan: "Fired 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 date of filling out the work, which is confirmed by the signature of the personnel specialist and the seal of the organization.

Only after all the described formalities have been observed, can this dismissal procedure be considered fully formalized.

Appealing agreements

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

Many of these citizens are dissatisfied precisely with the fact that the payments under the agreement of the parties upon dismissal on mutually beneficial terms for both parties turned out to be not as large as we would like, and different ways trying to put pressure on former employer so that he pays more money than has already been received. Based on this, lawsuits begin.

Example from jurisprudence

The employee offered the employer to end their employment relationship, because he was not satisfied with the salary, and he had already found himself another workplace, especially since they didn’t get along with the boss for a long time interpersonal relationships to which the employer agreed. The employer drew up an agreement in which it was prescribed under what conditions the 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 contained 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, and the former boss paid only 11,000, with which former employee agreed.

At the court session, the dismissed employee stated that he was forced to sign this agreement or threatened to be fired "under the article", because the boss had long ago scheduled another person to take his place, and stubbornly argued that the dismissal was illegal. He also asked the court to reinstate him at work and collect additional money from the employer to compensate him for non-pecuniary damage.

The court, having considered 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 specified employee were made to him, including the payment of benefits due under the contract concluded with the former boss. Therefore, at the court session, the claims of the said citizen were completely denied.

The court also pointed out the fact that all employees on mutually beneficial terms are committed 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.

What compensation is due upon dismissal by agreement of the parties (1st paragraph, 1st part of article 77 of the Labor Code of the Russian Federation)? How does such a termination of the contract go, and how do you independently calculate all the necessary compensation?

Features of dismissal by agreement between the parties

Article 78 of the Labor Code of the Russian Federation.

Article 78 of the Labor Code of the Russian Federation says that you can terminate a contract with a person in this way at any time - even during the probationary period.

In order to dismiss a person on such a basis, it is necessary that one of the parties (employer or subordinate) express their readiness to carry out this procedure. That is, if the boss proposes to terminate the contract in this way, and the subordinate does not agree, then this is his right.

Important! Under Article 78, such termination of a contract can only be waived by mutual agreement of the director and employee. If only one of the parties is ready to cancel the agreement, then its desire is not taken into account.

Dismissals under Art. 77 are suitable for those who do not want to work 14 days, or have disagreements with their superiors. Often, leaving by agreement of the parties under article 77 occurs when the director warned the employee late about the reduction.

Making a written agreement allows you to pay the subordinate all the necessary compensation to compensate for the delay. But one way or another, the person must indicate the requirement of appropriate compensation in his application for termination of the contract.

Termination of employment relationship

Article 77 of the Labor Code of the Russian Federation.

Care on this basis is convenient for the employee and the director. But how should the dismissal be properly executed by agreement of the parties under the Labor Code of the Russian Federation?

The procedure for stopping labor relations under article 77:

1. The employee or boss expresses a desire to terminate the contract by agreement.
2. A dismissal agreement is drawn up by agreement between the parties (preferably in writing).
3. The agreement drawn up is recorded in a special journal for such documents.
4. The subordinate is given his copy of the agreement against signature.
5. Drafting and issuing notices of dismissal.
6. The order is recorded in the journal.
7. A person is notified of the content and execution of the decree against signature.
8. On the designated date, the employee is fired and a settlement is made with him.

At the same time, it must be remembered that for some employees (managers, chief accountant, and so on) it is not necessary to indicate the condition for the payment of severance pay and other compensation (part 3, article 349.3 of the Labor Code of the Russian Federation).

There are no clear requirements for the execution of the agreement, so the director can draw up his own form of this document. Also, the manager may not sign the application for leaving the subordinate, if full mutual understanding has not yet been reached and the final text of the transaction has not been drawn up.

If it is impossible to familiarize the dismissed person with the order (he changed his mind about leaving, or did not come to work), then you need to draw up an act stating that the person refused or there is no way to show him the order. The same paper must also be issued if the employee has not taken his work book and the due cash compensation.

What payments are required by law?

Dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation) involves the accrual of compensation provided for by the contract to terminate the contract between the boss and the employee.

Important! If the subordinate does not agree with the head about the amount of compensation, then the director must charge him the right amount, which is indicated in the 140th article of the Labor Code of the Russian Federation, which he cannot challenge.

What compensation is due for this termination of the contract:

• compensation for all unused holidays (for the entire period of work);
• unpaid earnings (for the last month and all amounts withheld for the entire time of the device);
• compensation for termination of the contract (if it is provided for by agreement between the parties).

The last amount is paid only if its accrual is provided regulations organization, and its extradition was spelled out in the agreement. Then the employee can sue the manager.

Important! The standard amount of compensation is equal to 3 times the average salary of a subordinate. But at the same time, the manager and the employee can agree on a lower or higher amount of compensation.

Upon dismissal by agreement between the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation), difficulties arise with the calculation of compensation for unused vacations. To calculate this amount, you must first find out the size of the average earnings.

Monthly payroll calculation

This value is used to calculate most of the compensation that is due upon leaving. Only for the correct result, you need to remember to subtract sick days, weekends and vacation days from the total time of work in this organization.

Calculation procedure:

1. Find out how many days a person has worked in the company.
2. Add up all the salaries that the subordinate received for the entire period.
3. Divide earnings by days worked.

The result is a value that is used to find out the amount of other refunds.

How to calculate the amount of compensation for unused vacation?

This compensation is due only to those who have left unspent leave.

Calculation procedure:

1. Find out how many unused days are left for the entire period of work.
2. Calculate your average monthly income.
3. Multiply salary by vacation days.

The result is the amount that the boss is obliged to give to the subordinate.

What entry will be in the work book?

Sample record.

This document must be issued to the subordinate on the day the dismissal order is issued. But what should be put in the book when the contract is terminated by agreement?

What should be included in the document:

• number and number of record;
• under what article the person was dismissed (point one, part 1, 77th article of the Labor Code of the Russian Federation);
• issue date and order number.

If the employee could not receive this document, then he can come for it later, or authorize in writing to be sent by mail.

IN personnel department must make a record of the issuance of the work book to the owner in case he loses it, and file a claim with the former employer.

Today, the law provides for several ways to terminate labor agreement. At the same time, each has its own advantages and disadvantages.

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If any difficulties arise, it is best to conclude a special agreement on dismissal.

What does it mean

Today, the dismissal procedure can be initiated by any of the parties that have entered into an agreement. But at the same time, it is much easier for the employee to do this himself.

At the same time, the employer cannot make it so easy - in most situations Labor Code Russian Federation stands precisely on the side of a simple worker.

The considered method of termination of labor relations is provided for by the Labor Code of the Russian Federation. It should be used with the current editions of 07/13/15.

The basis for the termination of employment relations is the wish of any of the parties to the contract.

In this case, a special agreement is necessarily concluded in writing. This moment is strictly obligatory - especially for the employee himself.

In the event of any dispute, it may be necessary to go to court. An agreement drawn up in an appropriate way will be a documentary justification for making claims against an employer on a par with an employment contract.

Moreover, the format of this agreement is not fixed in the legislation in force on the territory of the Russian Federation.

But it must contain the following sections:

• pre-agreed conditions;
• date of preparation of the document and dismissal of the employee;
• employee's signature;
• reason for dismissal.

The employee needs to be as careful as possible and before signing the agreement of the type in question, it is necessary to carefully read its conditions.

Since often the employer thus tries to reduce the compensation payment upon termination of the employment contract. You should first consult with a lawyer about the contents of this type of document.

After dismissal in this way, a corresponding entry is made in the work book with reference to the Labor Code of the Russian Federation.

Subject to the legislation in force in the territory of the Russian Federation, this process of terminating an employment agreement is usually beneficial not only to the enterprise, but also to the employee himself.

Pros and cons for the employee

Dismissal by agreement of the parties has some advantages and disadvantages. The positives include the following:

• it is possible to independently designate the date of dismissal, to avoid working off;
• demand compensation from the employer - if the employment contract is terminated on his initiative;
• when registering with the employment service, increased social assistance is paid.

The most important advantage of an agreement of this type is the ability to terminate the contract at the most convenient time.

This is especially true in situations where it is the employer who initiates the termination of the employment contract.

In this case, the employee himself has the opportunity to set conditions. And this applies not only to the date of dismissal, but also to the amount of monetary compensation.

You can avoid the need to work out a two-week period - as with dismissal of one's own free will.

Since such a method of terminating an employment contract involves finding a new employee to replace the one who has just quit. And only the employer can decide whether the resigning employee will work.

In some individual cases the employee has the right to demand an increase in monetary compensation - in addition to what is required in accordance with the Labor Code of the Russian Federation.

Under certain conditions (liquidation of the enterprise, downsizing), the employer may agree to them.

If the dismissal ambassador is registered with the labor exchange, then if there is a document confirming the dismissal by agreement of the parties, the employee has the right to receive an increased social assistance. This moment is enshrined in the current legislation.

Also, dismissal by agreement of the parties has its serious disadvantages. These should include:

• the inability to terminate this agreement unilaterally, or change its provisions;
• there is a high probability of being deceived by the employer.

For example, having written a letter of resignation of his own free will, an employee has the right to pick it up at any time convenient for him - even on the last day before the date of the final termination of the employment contract.

At the same time, having drawn up an agreement with the employer and signed it, the employee will in any case be dismissed within the specified period. Cancellation of the agreement is possible only in case of mutual consent of the parties.

Often, employers take advantage of the legal illiteracy of their employees - they draw up contracts in such a way that the amount of monetary compensation will be minimal.

There are many ways to carry out such operations. Therefore, before signing, you should carefully read each clause in the agreement. This will reduce the chance of cheating.

How to issue a dismissal by agreement of the parties

The registration process by agreement of the parties takes a minimum amount of time. A prerequisite for the completion of this operation is the presence in writing of a special agreement drawn up.

This document must include the following sections:

• date of the agreement;
• place of conclusion of the agreement;
• surname, name and patronymic, as well as other details:
  • employee;
  • employer;
• passport details of the officially employed worker;
• individual tax number of the employer;
• signatures of the parties who have previously concluded an employment contract (based on the Labor Code of the Russian Federation).

The only difference from the standard procedure for dismissal of an employee of one's own free will is precisely the existence of the agreement indicated above.

After the date specified in it, the employer must:

• make an appropriate entry in the work book and give it to the employee, his authorized representative (or send it by mail);
• on the day of dismissal (maximum - on the next) to pay the compensation indicated in the agreement, as well as the compensation required in accordance with the Labor Code of the Russian Federation.

Violation of the settlement date is punishable by a fine of 1/300 of the refinancing rate on the day established central bank Russian Federation.

At the request of the employee, the accounting department is also obliged to issue a certificate of wages received over the past two years.

What documents are needed

For dismissal by agreement of the parties, the following documents are required:

• an employee's resignation letter;
• a written agreement;
• notice of the proposal to terminate the employment contract by agreement of the parties.

There is one important nuance regarding the preparation of a letter of resignation. If, upon termination of the employment contract at the initiative of the employee, there is no need to indicate the reason for dismissal, then upon termination by agreement of the parties, it will need to be indicated.

In this case, the application for dismissal must contain the following information:

• surname, name and patronymic:
  • employee;
  • CEO or other official authorized to sign the application;
• a clearly articulated request for dismissal;
• date of dismissal;
• employee's signature;
• employer's signature.

If the initiative to terminate the employment contract in this way comes from the employer, then he needs to draw up an appropriate notification.

It identifies the most important points regarding dismissal, as well as other information. This document can be handed over in person, or by registered mail.

Are income tax payments subject to

Today, citizens of the Russian Federation, as well as its resident foreigners, are required to pay personal income tax, a tax on personal income, from almost all their income.

Moreover, this fee affects almost any income. Its value is 13% for citizens of the Russian Federation and other persons.

With the compensation paid by the employer upon dismissal by agreement of the parties, personal income tax is charged not on the entire amount, but only part of it:

• not exceeding three times the average monthly salary;
• not exceeding six times the average monthly wage if the employee was employed in the Far North or in regions equivalent to it.

This point is covered in as much detail as possible in the current legislation on the territory of the Russian Federation:

• letter of the Ministry of Finance dated 06/26/14;
• Letter from the Ministry of Finance dated April 7, 2014

The situation is similar with deductions in favor of various kinds of funds. However, it should be taken into account that different regional offices I interpret the legislation affecting this issue in different ways.

Position #1: According to current laws, fees to off-budget funds are not subject to various compensation payments related to the termination of an employment contract with an employee. ( the federal law dated July 24, 2009).

But at the same time, the payment transferred by the employer by agreement of the parties is not established by the legislation itself, it is not mandatory. That's why insurance premiums on it in should be charged in any case.

Position #2: Objects of taxation with fees in favor of all kinds off-budget funds various payments are recognized individuals according to labor contracts. (Federal law of 24.07.98).

But at the same time, the compensation transferred according to the agreement does not fall under the scope of the employment contract concluded with the employee. Accordingly, fees should not be paid.

This moment is quite complicated. That is why the employer must first consult directly with the local offices of the PFR, the FSS. This will avoid the occurrence of various rather serious problems.

Features of dismissal by agreement of the parties with the payment of two salaries

Often, dismissal by agreement of the parties is carried out when layoffs are coming.

The employee himself needs to know that in this case the employer will be obliged to pay monetary compensation in addition to the one stipulated by the Labor Code of the Russian Federation in the amount of the average monthly wage.

At the same time, a smaller amount cannot be indicated in the agreement - this is contrary to the legislation in force on the territory of the Russian Federation.

At the same time, receiving a second salary is possible only if an appropriate agreement is concluded with the employer.

Since neither the Labor Code of the Russian Federation nor federal legislation obliges to pay the second wages even when reduced. But there are exceptions to this.

For example, if a serviceman whose service is less than 20 years is being reduced, then exactly 2 salaries are paid to him. With a service life of more than 21 years, the reduction means receiving at least 7 monthly salaries as compensation.

Which is better: dismissal by agreement of the parties or reduction

Most often, the employer offers his employees to quit by agreement of the parties only in the event of the liquidation of the enterprise, reduction.

Mandatory payments upon dismissal by agreement of the parties are the employee's salary for hours worked and. In addition, the employer must pay the employee a severance pay if the condition for this is specified in the employment contract with him or the collective agreement (Article 178 of the Labor Code of the Russian Federation). If none of these documents contains such a condition, then the dismissal by agreement of the parties occurs without payment of compensation.

However, the employee and the employer may agree on the payment of severance pay in the termination agreement itself. And as the Supreme Court of the Russian Federation pointed out, such an agreement “is an act containing labor law norms, and all employers are obliged to be guided by the provisions of labor legislation and other acts containing labor law norms” (Articles 5, 11 of the Labor Code of the Russian Federation, Ruling of the Supreme Court of the Russian Federation of 05.17. 2013 N 14-KG13-2). In other words, if the agreement on termination of the employment contract contains a clause on the payment of severance pay to the employee in a certain amount, the employer cannot unilaterally refuse to comply with this clause. After all, if the employee decides to challenge such actions of the company's management, the court is likely to be on the side of the employee.

Severance pay

Among all payments due to an employee by agreement of the parties, severance pay is the most uncertain in terms of its amount. The Labor Code of the Russian Federation does not establish any minimum values ​​\u200b\u200bfor it. So this question is completely at the mercy of the employer and the employee: how much they agree on, how much they will have to pay.

Calculation upon dismissal by agreement of the parties

When terminating an employment contract with an employee by agreement of the parties, all dismissal payments must be paid to him strictly on the day of dismissal (