What is the difference between resignation and retirement? We figure out what is better - dismissal by agreement of the parties or at their own request for the employee and employer.

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

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Legal basis

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

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

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

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

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

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

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

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

• from 30.06.06;
• dated 02.07.13

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

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

At the same time, in the text of the article itself there are references to various legislative acts regulating this moment.

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

Pros and cons of voluntary dismissal

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

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

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

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

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

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

To the virtues this method termination of the employment contract can be attributed to the possibility at any convenient time, until the two-week period has expired, to pick up a letter of resignation.

In this case, the employer has no right to refuse his employee in this action. Thus, if with new job something went wrong, you can always change your mind and stay the same.

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

Pros and cons of dismissal by agreement of the parties

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What is better to choose

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

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

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

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

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

• if there is a vacancy in another organization;
• if the employer offers sufficiently substantial benefits.

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

This mechanism differs from other procedures in that the basis for creating an order is an agreement that is signed by an employee and an enterprise. This design has its own nuances.

By agreement, the contract is allowed to be terminated at any time under Art. 78 TK. It is allowed to dismiss an employee, even when he is on vacation or on sick leave.

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

The employment contract may be terminated at any time by agreement of the parties to the employment contract.

This can even terminate student contracts. that are terminated on the basis of the norms of Art. 208 TK .

Article 296 of the Labor Code of the Russian Federation. Termination of an employment contract with employees engaged in seasonal work

An employee engaged in seasonal work is obliged to notify the employer in writing of the early termination of the employment contract three calendar days in advance.

The employer is obliged to notify the employee engaged in seasonal work of the upcoming dismissal in connection with the liquidation of the organization, the reduction in the number or staff of the organization's employees in writing against signature at least seven calendar days in advance.

Upon termination of an employment contract with an employee engaged in seasonal work due to the liquidation of the organization, reduction in the number or staff of the organization's employees severance pay paid in the amount of two weeks of average earnings.

What is the difference?

So, the only thing that is common here is that in both situations the initiative can come from the employee.

And there are many differences:

Of your own accord	By agreement of the parties
Impossible at the request of the employer	Can be initiated by the employer
It is required to draw up an application by the employee, which is allowed to withdraw	A written agreement is concluded, which can be terminated only with the consent of both parties.
2 weeks employee required	You can quit at any time if you agree with the employer

Difference in dismissal

By agreement of the parties

This is a completely “peaceful” method of terminating the employment contract, but it has large quantity pitfalls. According to Article 78 of the Labor Code You can terminate the contract with an employee on this basis at any time.. This means that also during vacation or probationary period.

It all starts with the initiative of one of the parties. The second party is sent an offer in writing. If agreement is reached, then an agreement is made.

There are no special legal requirements for but it is better to write it down. His details are then indicated as the basis for the order. In the agreement, it is important to indicate the date of the upcoming dismissal, the basis for this and the conditions of the parties.

An entry is made to the labor after the order is issued and the employee is familiarized with it with reference to paragraph 1 of part 1 of article 77 of the Labor Code.

As for payments, they are negotiated at the conclusion of the agreement.

Their amount is not limited, but this should be reflected in the document. If this is not the case, then the calculation contains only the funds provided for by the Labor Code.

Of your own accord

Such dismissal requires a statement from the employee. It should contain the date of the upcoming departure from work, the reason (i.e. "of one's own free will"). You also need the date of compilation, as well as the signature of the employee.

The indication of the reason is not an indispensable requirement. But if it is necessary to leave without a 2-week working off, then the reason should be indicated and documented to prove it. In other cases, a letter of resignation is sufficient.

After the submission of the application, an order is formed. The order makes a reference to paragraph 3 of part 1 of article 77 of the Labor Code, the details of the application are indicated. With the order it is required to familiarize the employee under the signature.

With such a dismissal, a salary is paid, funds for unused vacation, including other amounts that are provided for by a collective or labor agreement. If the vacation is "holiday" in advance, then vacation pay is recalculated, and the amount is withheld from payments.

When registering with the central locker after dismissal, by agreement, large sum compensation, but only if the agreement is initiated by the employer.

Pros and cons for the employer

By agreement of the parties

In this situation:

Unilaterally the employee cannot withdraw from the agreement or change the conditions which is beneficial for the employer.

Of your own accord

Such a dismissal has a serious feature, which is a plus for the employer - the employee is required to notify his plans in advance (2 weeks). But distinguishing feature also in the fact that the employee can stay, that is, withdraw the application before the expiration of the 14-day period, and the employer does not have the right to refuse.

Besides, required to pay, in addition to the salary for the last month, compensation for vacation days that the employee did not have time to use.

What is best for the employee?

By agreement of the parties

Benefits for the employee stand out:

• not only the enterprise, but also the employee himself can initiate;
• no deadlines for submission;
• the contract is terminated at any time;
• there is a possibility of "bargaining" - the terms and amounts of payments, etc. are discussed;
• an alternative option in the presence of the employee's fault;
• continuity of experience with this formulation continues for another month;
• if after that you become registered with the central locking house, then the allowance will be higher.

But there are also disadvantages:

• the employer has the possibility of terminating the contract in any situation, even in cases prohibited by law;
• no union control;
• there is no mandatory severance pay, unless it is stipulated in the collective agreement or the agreement itself;
• there is no possibility of withdrawing the application;
• judicial practice is insignificant, it is almost impossible to challenge the actions of the employer.

Of your own accord

At the same time plus and minus - the need for a notice of dismissal in 14 days. And the disadvantage is that for such a period of time you need to work in this place. This problem can be solved if you reach an agreement with the employer, his loyalty. Dismissal by agreement is beneficial to the employee only in a situation where the employer offers impressive amounts of compensation.

The peculiarity of this “development” is also that it is counted even if a person is on vacation or on sick leave, that is, you can apply in advance, and immediately quit when the absence ends.

Another plus is that before the expiration of 14 days, you can pick up the application and stay at the workplace and the employer cannot refuse.

The method of terminating the employment contract (of one's own free will) is the most beneficial for the employee.

In conclusion, it is worth saying that before making a final decision and choosing any of the methods of dismissal, you should think about everything in advance and weigh all the pros and cons.

Sometimes, it is not possible to reach a satisfactory agreement with the employer. But this does not mean that you need to agree to unfavorable conditions. It is important to remember your rights and take into account the peculiarities of the law.

What is the difference between dismissal by agreement of the parties and dismissal of one's own free will and what is its advantage? 09/11/2015

"What is the difference between dismissal by agreement of the parties from dismissal of one's own free will and what is its advantage?"

Formally, voluntary dismissal implies the presence of the will of only the employee, and dismissal by agreement of the parties implies the presence of the will of both parties.

This implies one of the advantages for the employer when terminating the employment contract by agreement of the parties. If the employee wrote a letter of resignation of his own free will, then he has the right to withdraw his application before the expiration of the notice of dismissal (of course, except for the cases established by law, for example, when another employee has already been invited in writing to take his place, who cannot be refused entering into an employment contract). But upon dismissal by agreement of the parties, such an agreement can be canceled only with the mutual consent of the employee and the employer (paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”). An employee will no longer be able to decide unilaterally to continue working. At the same time, we must warn you that recent times in fact, there is a practice of the courts to recognize the right of pregnant workers to unilaterally refuse to be dismissed by agreement of the parties after the signing of the agreement.
See "Pregnant worker changes her mind about dismissal under signed agreement to terminate employment contract"

Another difference, and for some employers - an advantage, is that, by agreement of the parties, the termination of the employment contract is carried out within the time specified by the parties in this document. It is characteristic that the Labor Code of the Russian Federation did not provide for the boundaries of such terms (another gap). Accordingly, the parties are establishing them today. And they may not be equal to the number of days traditionally used for dismissal at the initiative of the employee (Articles 80, 71 of the Labor Code of the Russian Federation, etc.). They can be of any duration, for example, equal to one day or one month from the date of signing the agreement - as agreed by the parties. Sometimes it is inconvenient for management to release an employee after 14 days, but it takes a little more time to find a replacement for him, to make a full-fledged transfer of affairs. Then the agreement on termination of the employment contract is concluded with a more delayed date of dismissal.
See "Working out by agreement of the parties"

Another difference is retirement benefits. Upon dismissal at the initiative of the employee, the employer is obliged to pay the employee all the payments due to him, provided for by law (wages, compensation for unused vacation, etc.). Upon dismissal, by agreement of the parties, in addition to the mandatory payments that must be paid to the employee for any type of dismissal, it is possible to provide for an additional payment, an additional severance pay.
See "Compensation upon dismissal by agreement of the parties can be prescribed in the agreement, but not paid. Legal!"

Agreements on termination of employment contracts in accordance with Article 78 of the Labor Code of the Russian Federation with employees whose categories are indicated in Part 1 of Art. 349.3 of the Labor Code of the Russian Federation cannot contain conditions for the payment of a severance pay to an employee, compensation and (or) the appointment of any other payments to the employee in any form.

Recall that in Part 3 of Art. 349.3 of the Labor Code of the Russian Federation mentions the following categories of workers:

• “managers, their deputies, chief accountants and members of collegial executive bodies who have concluded employment contracts public corporations, state-owned companies, and business companies, more than fifty percent of the shares (stakes) in the authorized capital of which is in state or municipal ownership;

Heads, their deputies, chief accountants of state off-budget funds of the Russian Federation, state or municipal institutions, state or municipal unitary enterprises”.

Arm yourself with knowledge and protect your company! 488 p. This book discusses in detail the popular types of dismissals: dismissals by agreement of the parties, due to the expiration of the employment contract, at the initiative of the employee (own desire), dismissals to reduce the number or staff of the organization's employees, for repeated failure to perform job duties, for a walk.

Each person may face the question of what is better, the dismissal of an employee of his own free will or by agreement of the parties. There are various reasons for the reduction of workers, and this can happen both at the decision of the citizen himself, and at the discretion of the boss. AT work book a mark is necessarily put, which will then affect the ease of employment. If he stands, for example, of his own free will, then there will be no problems. The same can be said about leaving by agreement of the parties. However, you should know how they differ, because the difference really exists.

On voluntary reduction

Each employee may need to leave the organization, and the reasons for this may be different. Perhaps a more promising option for employment has appeared, or conditions are not satisfied at the current place or wage. In any case, you will need to formalize the removal from office.

It is important to know what is the difference between dismissal of one's own free will and dismissal by agreement of the parties. To do this, first of all, consider the advantages and disadvantages of each option. Because there are uncomfortable moments for employees and superiors, and vice versa positive sides particular type of reduction.

When leaving of their own free will, the employee must understand that he will most likely have to work for two weeks. In addition, you need to notify your superiors at least 14 days before the proposed dismissal. Of course, there are cases when a person by law does not need to work, or the company allows you to no longer perform duties. But such issues need to be addressed on an individual basis.

Dismissal by one's own decision can also have a negative impact on those who are going to register with the employment service. If a person did not have good reasons for terminating the contract, then his benefit will be minimal. Moreover, they will pay only after three months. Therefore, those leaving should think about whether they want to immediately get a job in a new place or want to receive benefits.

Of course, for an employee there is positive points. First of all, he can withdraw the resignation letter if he wishes. After all, he is given two weeks before the final payment, and the boss cannot refuse to withdraw the application. The only thing is that they can refuse if another specialist has already been invited to this place. In other situations, you can change your mind about quitting and continuing your activities in this company.

Read also The procedure for drawing up a letter of resignation of one's own free will

Of course, the wording itself is an advantage, because it rarely raises questions in employment. This is much better than if a person was decided to be laid off by the decision of the boss. It is even worse when dismissal occurs for violation of labor rules, for example, for theft at work or for absenteeism. Then it's harder to find a new place.

As for employers, it is also quite convenient for them when they are fired for own decision. This option, by the way, is used during the reorganization or liquidation of a company in order to reduce staff at minimal cost. Given that two weeks are given before an employee leaves, if necessary, the company can try to persuade the person to stay by discussing the reasons for leaving.

Dismissal by agreement of the parties

Often there are such reasons for leaving as of one's own free will and by agreement of the parties. If the first option is clear, then in the second case, people may not yet know what advantages it has. It is convenient that it is possible to accurately prescribe the conditions under which the employment contract will be terminated. Moreover, they are accepted by mutual agreement, therefore, both parties agree with all points. This minimizes the likelihood that litigation will be held due to employee or superior dissatisfaction.

Benefits for the leader:

1. It is possible to reduce the term of dismissal. As you know, you need to notify a person two months before the planned removal from office. However, in this situation, it is not necessary to wait so long.
2. You can reduce costs, because it is possible to stipulate a specific amount of compensation.
3. It is often possible to remove from office someone who does not want to leave. For example, you can assign a profitable payment. It is also possible to fire someone who is on vacation or on sick leave, if the agreement was signed before.
4. In most cases, employees do not go to court. After all, they agreed to the terms and even signed.

Of course, if an employee quits by agreement of the parties, then there will also be positive moments for him. The good thing is that you can pre-negotiate the date of dismissal and before that find another place of employment. You can also try increasing due payments or ask for good references.

Important! When applying to the employment center, a person will receive payments immediately after receiving the status of unemployed. This happens a week after visiting this body.

The employee is advised to carefully read the terms of the reduction, because compensation may not be prescribed there, or an inconvenient period will be assigned. These parts of the dismissal should be clearly established so that you do not have to be upset later. If the employer does not comply with the terms of the agreement, then it will be possible to sue him. Therefore, the employee will be insured against unwanted moments.

Transfer to another position is also a kind of dismissal procedure. However, it differs significantly from other mechanisms in that immediately . However, there are many features here.

The differences between these two types

Classification

Dismissal by transfer is permitted by article 72.1 of the Labor Code. The main difference from other types of care is the guarantee of employment. It can be internal and external.

• - occurs within the organization when an employee remains subordinate to the same hirer, but his duties or structural unit change. This category also includes the movement of an employee to another locality if the enterprise or company has changed its location.
• - the employee changes the employer with the consent of both the former and future employers. In this case, the employee goes only to a permanent job.

Translation implies mandatory consent employee. Exceptions occur only during internal rearrangement and are usually associated with force majeure: accidents, fires, disaster recovery, and so on. Also, if a worker is transferred to the same position and with that report, his consent is not always necessary.

Initiators

The initiator can be either an employee or an employee.

• In the first case the employee is advised to obtain an invitation from a future employer in order to guarantee employment. Then the employee writes a statement, and if the manager agrees, then the dismissal procedure can be started.
• In the second case the hirer must obtain a signed employee agreement for an internal or external transfer.

The transfer of pregnant women, maternity, single mothers or large families at the initiative of the employer is prohibited.

Registration

If the consent of all three parties is reached, which indicates the reason for terminating the employment contract, the name of the company to which the employee is transferred, the details of the documents, and it is also necessarily mentioned that the procedure is carried out with the consent of the employee or.

An entry is made in the labor record, where the article is indicated - clause 5 of part 1 of Art. 77, that is, dismissal on transfer, and the reason is described - or its independent solution. When enrolling in a state at a new place of work, it is noted in the book that the employee was accepted in the order of transfer. The employee must be paid and issued.

If an employee is dismissed in this way, the new employer does not have the right to refuse him employment. However, this agreement lasts only 1 month. If during this time the employee does not have time to transfer - due to illness, for example, then the hirer may refuse to take him to work.

Methods

• - the most common and most unprofitable way for the worker. It does not imply any guarantee of employment or compensation. In addition, he can receive the status of unemployed, as well as due payments, only after 3 months.
• - a better option. At the same time, the seniority is preserved for 1 month, the citizen receives the status of unemployed on the 9th day after registration, the allowance is paid longer. It is also possible to receive compensation if the initiative to terminate the employment relationship came from the manager.
• - does not imply, but guarantees compensation for at least 2 months, and in some cases for 3, if during this time the worker does not find a new job.
• - initiated by the employer, does not involve any benefits and creates an unflattering reputation for the employee.
• – fixed-term contract has a specified end date. If neither the employee nor the employer is eager to extend it, a dismissal is made within this period. Compensation is not stipulated, but the status of an unemployed employee is received in the same way as one who quit by agreement of the parties - from 9 days after registration.

All of the above methods do not imply employment, while this is guaranteed when transferring.

Which is better - transfer or dismissal

The dismissal of the transfer is the result of a tripartite agreement. This is one of the rare situations that is beneficial to all parties to the contract. However, there are some pitfalls here.

For an employee

If the employee is satisfied with the proposed position and salary, then this method of dismissal literally consists of some advantages:

• the contract stipulates a clear date of departure;
• if at the same time the employee needs to move to a new place of residence, he has the right to demand compensation for the move;
• wages are maintained or even increased;
• compensation for unused vacation days is paid by the previous employer;
• an employee accepted by transfer does not pass probation;
• employment is guaranteed, so there is no need to register with the Exchange or look for a job yourself.

The only drawback of this solution is that the guarantee of employment lasts for 1 month. If during this time the employee does not go to a new place, the hirer has the right to refuse him, so that he will not be able to rest before new labor achievements.

For boss

Dismissal by transfer is also beneficial for the employer if he is satisfied with the prospect of losing an employee. The benefits are:

• dismissal on transfer can be initiated by the employer himself. With a reduction in staff or, this is a much more profitable way for the manager, since it excludes compensation and additional payments;
• if the termination of the relationship was initiated by the employee, then by agreement, the hirer can specify the date of dismissal in his own interests: for example, so that the resigning person has time to transfer his official duties to another employee.

The disadvantage is the possibility of losing a valuable employee.

Helpful information

Dismissal by transfer has some features:

• if the procedure is started at the initiative of the employee. He draws up an application of the appropriate form indicating the name of the organization and the position for which he is going to be accepted. A letter of invitation from a prospective hirer is also required;
• if dismissal by transfer is proposed by the boss, a written agreement of the employee for the transfer is necessary - both external and internal;
• a dismissal order is issued only in a unified form T-8;
• the refusal of a new employer to accept an employee who left due to a transfer and arrived before the end of the agreement is a violation of the law. The court at the same time imposes a fine - 10-20 thousand rubles. for an official, and up to 100 thousand for a legal entity;
• it is more profitable for the employee to achieve the conclusion of a tripartite agreement. The execution of such an order is accompanied by relevant documentation. The latter acts as proof of the offer if the future hirer has refused the job and the worker goes to court;
• the labor code prohibits the transfer of young specialists to positions that do not correspond to their qualifications and specialties;
• a transfer may be offered to a worker on probation. Moreover, at the new place of work, a new probationary period is not assigned.

Dismissal by transfer is a somewhat more complicated procedure than leaving at will or by agreement of the parties. However, this option is beneficial to both the entrepreneur and the employee.

How to arrange the transfer of an employee, the video below will tell: