What is the best way to quit voluntarily or by agreement. What is better for the employee and the manager - transfer or dismissal

If we compare the dismissal own will and by agreement of the parties, it is possible to distinguish the main differences, namely: Upon dismissal of his own free will, the employee is obliged to notify the employer no later than two weeks before the date of dismissal (with the exception of some cases), the basis document for dismissal is the dismissal order, which is issued on the basis of an employee’s application, severance pay is not provided for by law and the employee has the right to change the decision to dismiss and withdraw his application. The only exception is when another person is invited in writing to take his place, and it is impossible to refuse. For example, if new employee resigned from his previous job due to transfer. The head of the organization cannot unilaterally change the date of dismissal of the employee in comparison with the one indicated in his application.

• 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.

At their own request Simultaneously plus and minus - the need for a notice of dismissal in 14 days.

Prior to the entry into force of the Labor Code, this ground (it was provided for in paragraph 1 of Article 29 of the Labor Code) was used to terminate fixed-term contracts which, in accordance with Art. 32 Labor Code could be terminated at the initiative of the employee only if good reasons. According to the Labor Code, an employee can terminate any employment contract without any reason, therefore, there are statements in the literature that now this is the basis for termination employment contract has lost its meaning. Actually it is not. It is always better when the legal form matches the actual nature of the relationship.
And in this case, with the actual mutual consent of the parties, the formalization of the dismissal, not of their own free will, but by agreement of the parties, provides a number of advantages, and if until recently it was the employee who had the benefits, now this procedure for formalizing the dismissal is more beneficial to the employer.

Resign voluntarily or by agreement of the parties: which is more profitable

An error occurred.

When the employer sets up obstacles (insists on the completion of the project, signing a bypass sheet, etc.) and declares that he will not give your work book, he is wrong and violates the law. Please note that on your own initiative there is an opportunity to quit during the vacation period. There is a choice between two options: to apply to the manager for a vacation and at the same time notify of dismissal, or to send a letter of resignation to the employer while on vacation.
A pensioner has the right to leave the organization without working off from the day when he was assigned a pension. You can also quit your job at will while on maternity leave or parental leave. You are not threatened with any obstacles, and the manager, most likely, will not set two weeks of working off for an absent person.
How is the dismissal process going? You are required to apply.

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 generated. 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 employment 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.

Dismissal by agreement of the parties or voluntarily, which is better

What payments are made in case of dismissal by agreement of the parties, read in our article. Severance pay is provided only by agreement of the parties. This option is preferred by people in high positions, as they are more likely to receive a decent amount. When management asks to resign by agreement of the parties in order to reduce employees, it is unprofitable to agree. This could result in you losing your redundancy payments or receiving a smaller amount.

How best to dismiss at your own request or by agreement of the parties

Upon dismissal on his own initiative, the employee:

1. Must work another 2 weeks at his permanent place.
2. The period when you can get the status of unemployed is delayed by 90 calendar days.

But there are situations when this method is the only one, especially if there is conflict situation. At the same time, the good sides of leaving by agreement are obvious:

1. For 30 calendar days, the worker maintains a continuous work experience.
2. In most cases, you will not need to work out an additional term - you can put forward a condition for leaving just from tomorrow.
3. Obtaining the status of unemployed occurs after a little more than a week. This means that you can receive financial assistance from the state for a longer period of time than when you leave due to your own desire.

What is the best way to quit voluntarily or by agreement

• What does dismissal by mutual agreement mean?
• What documentation should be?
• Care on your own initiative
• What documents need to be collected?
• What is the difference between dismissal by agreement of the parties and voluntarily?
• What is the difference for the employer?
• Benefit for the employee

What does dismissal by mutual agreement mean? The very term "agreement" implies a mutually beneficial arrangement. In our case, the employer and employee must come to a mutual agreement.

Dismissal of one's own free will or by agreement of the parties, which is better

But when applying for dismissal of one's own free will, the following formalities must be observed:

1. The employee must notify about his intentions 14 calendar days before filing an application for dismissal, the company has legal grounds for this. But, by agreement, this period may be reduced.
2. If the boss systematically violated the law regulating working conditions at the enterprise, or if the worker does not have the physical ability to work for the prescribed period, then he has the right to independently determine how many days he will work in the organization, and only then agree on this fact with management.
3. For two weeks, which, according to the law, an employee who quits must work out, he has the right to withdraw the application and continue to work in the same place.

How to quit: at your own request or by agreement of the parties?

You get only what is specified in the agreement and are not entitled to change the terms without agreement with the management. back to content How to get fired more profitably? As for the financial issue, in any case, you get:

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

What payments are made in case of dismissal by agreement of the parties, read in our article. Severance pay is provided only by agreement of the parties.
This option is preferred by people in high positions, as they are more likely to receive a decent amount. When management asks to resign by agreement of the parties in order to reduce employees, it is unprofitable to agree.
This could result in you losing your redundancy payments or receiving a smaller amount.

An employee who decides to leave of his own free will may change his mind before 2 weeks have passed. But if the dismissal occurs by agreement of the parties, in order to change the decision and save workplace requires the consent of both parties.
What is the difference for the employer? What is the difference between dismissal of one's own free will and by agreement of the parties for the employer? The employer often uses the wording "by agreement of the parties" in two cases:

1. If urgent personnel changes are needed, and there is no time to wait 2 weeks for an employee to work out.
2. If the company is expected to reduce staff, and you need to bypass all the formalities about this. When laying off, the legislation prescribes a rather complicated procedure: 3 months before the layoff, you need to warn the workers, check whether they can be laid off by law, draw up and pay all the money due.

What type of dismissal is better: by agreement of the parties or by one's own

Advantages of dismissal of one's own free will and by agreement of the parties

There is also a difference in the conditions of dismissal. So, after a statement of resignation of his own free will, a member of the team is obliged to work for another 2 weeks, and the agreement of the parties implies termination of the contract at any time convenient for all parties. In the first case, one statement from the employee is enough to end the employment contract.

If the contract is terminated by agreement, both parties sign a document that confirms the action. And another difference is the ability to change your mind.

What is the best way to dismiss an employee of your own free will or by agreement of the parties

In addition to the phrase “I ask you to dismiss at your own request”, the employer has the right to ask the employee to indicate two dates in the application. First, the date the application was written. This is necessary to calculate the notice period for dismissal.

Secondly, the date of dismissal with the entry: “I ask you to dismiss of your own free will on May 29, 2008”, so that the last day of work would become the day of dismissal. In addition, the employee should be warned not to use the wording with the preposition “c” when writing the application: “I ask you to dismiss of your own free will from May 29, 2008.” Otherwise, an incident may arise: the last day of work is May 28, 2008, and the day of dismissal is May 29, 2008. An employee has the right to write a letter of resignation both during a business trip, and during a period of temporary disability, and even on vacation (including maternity and childcare leave).

What is better dismissal of one's own free will or by agreement of the parties

The point is that until recent years The legislation associated a number of adverse consequences for the employee with dismissal of one's own free will without good reason. First, in accordance with the Rules for calculating the continuous work experience of workers and employees when assigning benefits for state social insurance, approved. By the Decree of the Council of Ministers of the USSR of 13.04.1973 N 252 (Article 51), the amount of temporary disability benefits depended on the duration of the continuous experience, and the duration of the break in work during which this experience was maintained depended on the grounds for dismissal: general rule- a month, upon dismissal of one's own free will without good reason - three weeks, and upon repeated dismissal during the year, the continuous experience was interrupted regardless of the duration of the break in work (as in case of dismissal for guilty reasons).

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

For all the benefits of dismissal by agreement of the parties, see the video clip: back to content What is the difference? The main difference is in the initiator of the dismissal. It could be you, or it could be the leader. If you leave of your own free will, no one has the right to restrict you.

But if you have chosen a form of care by agreement of the parties, you will need to seek a compromise with the leadership. Under the agreement, you can not tell about your departure for two weeks.

When you need to quit urgently, this option is ideal. Dismissal by agreement of the parties provides an excellent chance to receive good monetary compensation from the organization. It will be especially easy to introduce such a condition if the leader was the initiator. The text in the labor will vary (“dismissed by agreement of the parties” or “dismissed of his own free will”). Both options will not affect your future career in any way.

How best to quit voluntarily or by agreement of the parties

Most experts believe that it is impossible to consider an employee’s forced filing of a letter of resignation of his own free will in order to avoid dismissal at the initiative of the employer for already committed and proven guilty acts. This position is based on the general direction of labor legislation - the protection of the rights and interests of the employee, and dismissal of one's own free will instead of dismissal on a guilty basis, of course, is in the interests of the employee. However, there is another point of view: if an employee was forced to submit a letter of resignation, such a dismissal will be recognized as illegal, regardless of how the employer forced the employee to file a letter of resignation.

How best to dismiss at will or by agreement of the parties

Or vice versa - the employee decided to inform the employer in advance about the upcoming departure, so that the management could find someone for the position. In any case, the main condition is to conclude a mutually beneficial agreement. What documentation should be? For termination labor agreement in this case, you will need a document on the termination of employment, which is signed by a member of the team and the hirer. This document must contain:

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

In accordance with the Labor Code, this dismissal must be formalized in this way.

Online journal for an accountant

What should be the amount of severance pay upon dismissal by agreement of the parties?

Art. 78 of the Labor Code of the Russian Federation states that the employee and the employing company have the right to terminate the employment relationship at any convenient time, if this decision is mutual and voluntary. They draw up a document in which they prescribe the significant conditions for their separation: terms of working off, severance pay upon dismissal by agreement of the parties, and other nuances that do not contradict the law.

What is dismissal by agreement of the parties

Dismissal by agreement of the parties is almost not regulated by the current legislation, which distinguishes it from other reasons for terminating the contract. It is mentioned in Art. 78 of the Labor Code of the Russian Federation, and this is the only article that addresses this issue.

The agreement of the parties is a universal reason. It is used in relation to persons hired under fixed-term and indefinite employment contracts. It can be applied to different categories of hired specialists:

• part-time workers;
• key employees;
• pregnant women and workers with young children;
• disabled people;
• persons of retirement age.

The legislation does not stipulate from whom the initiative to terminate the relationship should come. The main thing is to get a written acceptance of the second party.

Often under the dismissal by agreement, the separation of the employee and the company due to the financial difficulties of the latter is disguised. The procedure for terminating an employment contract in connection with the liquidation of a company or a reduction in staff is filled with nuances and subtleties, ignoring which is fraught with problems with the labor inspectorate, liability. It is much easier to draw up a document confirming the employee's acceptance of a break in relations in exchange for payment of compensation.

The main advantage of dismissal by agreement is that the employee cannot cancel or change it unilaterally.

This option of dismissal is beneficial for the organization. Unlike dismissal by agreement of the parties, upon dismissal of their own free will, the employee has such a right. During the warning period (two weeks), he can withdraw his application and remain working in the organization (part 4 of article 80 of the Labor Code).

Form of agreement of the parties

The current legislation does not provide for a unified form of the agreement and does not formulate requirements for its content. The current jurisprudence shows that in order to avoid disputes with the staff, the employing company needs to take care of the written execution of the decision reached.

The document can be issued in two forms:

1. direct as an agreement;
2. as a statement of the employee, if he is the initiator of the termination of the relationship.

The termination agreement must contain the following provisions:

• details of the parties (name of the company, full name of its representative, full name and position of the dismissed employee);
• reference to the fact that the decision to terminate labor relations is voluntary and mutual;
• reference to articles of the Labor Code of the Russian Federation (77, 78);
• number and date of the contract, the validity of which is terminated;
• date of dismissal of the specialist;
• the amount of compensation, if any, to the employee;
• other significant conditions (for example, on the delivery of previously issued material assets (computer, mobile phone etc.)).

The last paragraph can include the phrase that the parties do not have mutual claims against each other.

The Agreement is drawn up in duplicate, signed by both parties and having equal legal force. One is given to the dismissed person, the second remains in the personnel department and is stored in the archive.

If the company draws up an agreement in the second way, it must, in contrast to the usual letter of resignation, contain the following information:

• reason for termination of the contract - by agreement with the employer;
• date of dismissal;
• the amount of compensation, other special conditions on which an agreement was reached;
• signatures of a specialist and a representative of the employer.

If the employer is not satisfied with the conditions indicated by the employee, for example, the date of leaving the company, the parties enter into negotiations and reflect the compromise reached in a separate agreement.

Preparation of personnel documents

Based on the agreement, issue a dismissal order. The organization may, at its option:

• use the unified form of order No. T-8, if approved by the head of the organization in the order on accounting policy;
• apply a self-developed order form approved by the head (provided that it contains all the necessary details provided for in Part 2 of Article 9 of the Law of December 6, 2011 No. 402-FZ).

Then make an entry about the dismissal in the employee's work book: " Dismissed by agreement of the parties, paragraph 1 of part 1 of article 77 of the Labor Code Russian Federation »

What is included in the calculation upon dismissal

An employee who is dismissed by agreement of the parties is paid a cash settlement, including the following components:

• salary for hours worked;
• bonuses, allowances, if they rely on the terms of the employment contract;
• compensation for unused vacation;
• additional compensation provided by the agreement of the parties.

According to Art. 140 of the Labor Code of the Russian Federation, the accrued amount is sent to the specialist no later than the last working day in the company. It can be paid from the cash desk or transferred to a citizen's bank card.

Art. 78 of the Labor Code of the Russian Federation does not contain an indication that the payment of compensation - required condition for dismissal by agreement of the parties, does not define its minimum or maximum. Practice shows that employees usually refuse to voluntarily leave a position without payment of monetary compensation, the amount of which is agreed upon during negotiations with management or the human resources department.

The amount of compensation and the nuances of taxation

An employee and an employer can prescribe the amount of compensation in one of three ways:

• fixed amount;
• the number of salaries of the employee;
• percentage of average earnings.

The parties are bargaining and come to a consensus on the amount of compensation, the "ceiling" of which is not defined. However, in order to avoid problems with the tax authorities, the company needs to name the amounts within reasonable limits. If the payment turns out to be significantly more than the salaries of specialists in the organization, the funds spent cannot be included in expenses for the purposes of calculating income tax without proving the economic feasibility of the transfer to the Federal Tax Service.

The Ministry of Finance adheres to the position that the amount of compensation paid to an employee dismissed by agreement of the parties is not subject to personal income tax in accordance with paragraph 3 of Art. 217 of the Tax Code of the Russian Federation. This rule applies if the transfer to the employee does not exceed the following limits:

• in the general case - three times the average salary of a specialist;
• for workers in the Far North - six times.

From the amounts paid in excess of the limits, personal income tax is calculated and transferred to the state treasury.

Determining the amount of compensation is the result of "bargaining" between parties with opposite goals. The employee wishes to secure insurance in the event of a long search new job, the firm-employer wants to save money and avoid problems with the tax authorities. The result of the negotiations is necessarily fixed in an agreement signed by the employee and the employer.

Dismissal by agreement of the parties

Dismissal by agreement of the parties in 2018 is a peaceful termination of the employment contract. The only article that is devoted to this issue is recorded in Art. 78 of the Labor Code of the Russian Federation. Often, neither the employee nor the employer understands what conditions must be met and how to formalize this dismissal by agreement of the parties. Let's try to understand this issue and consider the main nuances in our article in more detail.

What is dismissal by agreement of the parties?

Based on the name, one can guess that this dismissal is possible only after reaching a consensus and the goal of the two parties: the employer and the employee. This is the main difference from the possible dismissal at the initiative of the employee or vice versa. Dismissal by agreement of the parties allows the termination of the Employment Contract, both with a fixed-term and an open-ended contract. One of the advantages of this dismissal for an employee is that he can terminate the employment contract at any time, for example, while on vacation or on sick leave.

Also, the benefits of this agreement are those who have a student agreement. It will not be difficult to terminate such an agreement by agreement, and besides, you will not have to work for 2 weeks, as in the case of dismissal of your own free will.

Related articles:

Pros and cons for the employee

Consider the pros and cons of such a dismissal for an employee.

Advantages of dismissal by agreement of the parties:

• when submitting a letter of resignation, you can not indicate the reason;
• there is no time limit for submitting an application;
• the initiative for such dismissal may come from both parties;
• it is possible to terminate an employment contract, both with a concluded fixed-term and open-ended contract;
• you can agree with the employer on the conditions of dismissal (terms, payments, compensation);
• the record of such a dismissal is neutral in the work book and will not interfere with finding a new job;
• dismissal by agreement is a good way out if the employee causes any damage to the organization or if he is guilty;
• continuity of service lasts one more month;
• those who are going to go to the employment center after the dismissal to get registered will have good news - unemployment benefits will be a little more than usual.

Cons of dismissal by agreement of the parties:

• termination of the Employment Contract by the employer may occur at any time, even in cases prohibited by law;
• there is no control over dismissal by agreement on the part of the legislation, which means that going to court on the origin of an unpleasant situation will not lead to success, and the chance to achieve justice is practically zero;
• if the dismissal agreement has already been signed, then it cannot be revoked or change your mind about quitting;
• the employer is not obliged to pay compensation to the employee, unless it is specified in the company's regulatory legal act or is not stipulated in the collective agreement, supplementary agreement. In most cases, the payment of compensation occurs on the basis of the relationship between the parties, and developed over the years that the employee spent in the enterprise.

Registration of dismissal

It is necessary to issue a dismissal in writing in order to certify all the conditions of the drawn up and signed agreement on termination of the employment contract.

The initiator of drawing up such a document can be both parties equally. The document must be necessarily drawn up in 2 copies, one copy for the employer and employee, and also contain all the necessary details.

It is worth noting that if one of the parties does not agree to this agreement, and the dismissal occurs under Art. 78 of the Labor Code of the Russian Federation, then this procedure becomes impossible. In this case, the parties need to come to a consensus on this issue and discuss all their differences.

Procedure for dismissal by agreement of the parties?

The legislation does not prescribe the procedure for dismissal by agreement of the parties. But there is some procedure for the employee if the employer offered to terminate cooperation and terminate the employment contract by mutual agreement. To ensure that the rights of the employee in this situation are not violated, it is necessary to act in order:

1. We draw up a letter of resignation by agreement of the parties in writing. The agreement is made on the terms of both parties. The worker may claim benefits or compensation. True, you should first turn to Art. 349.3 of the Labor Code of the Russian Federation, which indicates the categories of workers who are not entitled to benefits.
2. After the parties have drawn up an agreement, it must be registered. This is usually done by a secretary or clerk in the manner specified in the agreement log or other company document.
3. The agreement is signed in 2 copies - one of which is given to the employee. After receiving his copy, the employee must confirm this on the employer's agreement with his signature or the phrase "I received a copy of the agreement."
4. The employee must write a letter of resignation based on an existing agreement.
5. The employer issues an order, and the employee, having read it, puts his signature.
6. There is a full settlement with the employee.
7. The personnel officer makes a corresponding inscription about the dismissal in the Labor Book.
8. The employee receives the Labor Book in his hands and confirms with his signature in the journal the fact of receipt.
9. The employee takes the certificates he needs at the dismissal in the accounting department.

All documents by agreement of the parties are in the article of the magazine "Simplified" New employee agreement templates from January 1, 2018.

dismissal agreement template

A sample agreement for dismissal should contain:

• mutual agreement of the parties;
• date of termination of employment;
• date of signing the agreement;
• the amount and terms of payment of benefits or compensation (if any);
• employee's passport details;
• TIN of the employer;
• signatures of both parties with decoding.

The agreement is drawn up in duplicate and signed by both the employer and the employee. The contract also indicates the amount of compensation, if it was agreed and agreed in advance, and the conditions for its payment.

Payments upon dismissal by agreement of the parties

The main obligation of the employer upon dismissal of an employee is to pay him off by paying him a certain amount. Of course, it is not the employer himself who is responsible for the payments, but the accounting department, but the responsibility lies first of all on his shoulders. According to Art. 140 of the Labor Code of the Russian Federation, it is necessary to pay off the employee on the day of dismissal, according to the application written by him. The amount paid to an employee includes: wages for hours worked and compensation for unused vacation and termination of the contract, if any.

Compensation upon dismissal by agreement of the parties

Upon dismissal by agreement of the parties, the employee can receive compensation, the amount of which is not fixed by law, which means that it can be any (except for the case when the amount of compensation is fixed in a regulatory legal act).

The main thing in this case is to agree with the employer on the amount that would suit both parties. But it should be understood that the employer is not obliged to pay compensation if this is not enshrined in the regulatory legal act of the organization.

In this case, payments are made only on a voluntary basis at the employer's own request for the employee's merits to the company in which he worked.

To receive compensation, an employee must write a statement that includes:

• Full name of the employee and his position;
• full name of the employer and the name of the organization;
• request for termination of the Employment Contract;
• reference to paragraph 1 of Art. 77 of the Labor Code of the Russian Federation or Art. 78 of the Labor Code of the Russian Federation;
• details of the terminated Employment Agreement;
• the date of the planned termination of the contract;
• a request for compensation;
• date of writing the application;
• signature of the employee with decryption.
• The employer has the right to disagree with the proposed amount of compensation and sign this application only after mutual agreement of the parties on this issue.

What entry is made in the work book

The personnel officer has 2 ways to record this dismissal.

First way:

• the 1st column indicates the record number;
• the 2nd indicates the date of the entry;
• in column 3 it is written: "dismissed by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation";
• date and number of the order of dismissal.

Second way:

• columns 1, 2 and 4 indicate the same information as in the first case;
• in column 3 you can write: "the employment contract was terminated by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation."

Both spellings are legal.

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Dismissal by agreement of the parties, pros and cons, compensation

Along with the usual options for dismissal of an employee, there is dismissal by agreement of the parties. This option arises and quite often and is one of the democratic options for the development of the situation, in addition, for the employee it is not shameful. We will analyze the advantages and disadvantages of this option, what compensation is due to the employee and what documents are drawn up.

What does it mean by dismissal by agreement

The departure of an employee from the company by agreement of the parties is an alternative and sometimes the best option for dismissal, it is used on a number of others, for example, with dismissal of one's own free will, but the semantic load is somewhat different. For comparison, in the first case, the basis will be a mutual agreement between the employee and the employer, and in the second case, the desire of the employee himself.

The initiator of such actions can be both the employer and the employee himself, they part by some kind of mutual agreement, which is regulated by article 78 of the Labor Code. Note that you can terminate the employment relationship at any time, by agreement. According to the labor code, it follows that the employment contract, additions to the contract are drawn up in 2 copies, and the dismissal agreement should be drawn up in the same way.

And although the labor code does not require a certain form of such an agreement and does not even undertake to make it, it is still strongly recommended to draw it up in order to close all issues with the employee and have documentary evidence signed by both parties to the process.

Dismissal by agreement of the parties is initiated by mutual agreement of the parties when compiling a list of conditions.

In addition, this measure can be aimed at repaying the conflict between the parties, for example, if an employee refuses to quit and conducts some offensive actions. Of course, not everyone will be interested in suddenly leaving the workplace at the speculation of the employer, who may have his own thoughts on reducing such a workplace or replacing it with a new candidate.

The employee is the initiator

If such a desire was expressed by the employee, then he must do the following:

• Write a letter of resignation addressed to the manager with the wording by agreement of the parties: “I ask you to fire me or terminate the employment contract from the required date by agreement of the parties” and then describe your requirements

The employer is the initiator

In the event that such a process is initiated by the employer, he must do the following:

• Write a letter to the employee expressing your intentions
• Specify the reason for dismissal
• Estimated date of termination of employment

The Labor Code does not require a specific form of such an agreement, so it can be drawn up in free form what it may contain:

• Indication in it of information about the mutual agreement of the parties, for this, include the wording that it was signed voluntarily, without any coercive measures
• Details of the current employment contract
• The date of termination of employment, which will be the last day of work of the employee, must be agreed upon by both parties
• Conditions are also stipulated, including financial ones, if any, indicating the amounts of compensation. It is necessary to divide the amount of "compensation" from the standard amounts of compensation upon dismissal
• Other essential conditions
• Signatures of the parties to the negotiations

Advantages and disadvantages of terminating the contract by agreement of the parties

Advantage of dismissal by agreement

The advantages include:

• The initiative to terminate the employment contract can come from both the employer and the employee
• You are not required to provide a reason for leaving.
• There are no deadlines for submitting an application, as we say in case of dismissal of one's own free will, when the employee is obliged to notify the employer two weeks in advance, including the need for working off, depending on the agreements reached
• You can terminate the employment relationship during the probationary period
• Agree certain conditions (terms, severance pay, etc.)
• Can be negotiated orally
• Such a record does not spoil the employee's work book
• An employee with this wording has another month of continuous experience
• The amount of the unemployment benefit in this case is more

disadvantages

Of course, there are also disadvantages that are more related to the minuses for the employee, and for the enterprise, of course, pluses:

• Allows you to dismiss an employee who is on vacation (including maternity leave and during pregnancy) or on sick leave
• There is no control over legality by trade union organizations
• There are no guarantees in compensation (compensation), unless it is specified in the agreement
• You can not change your mind or withdraw consent after signing the agreement, only if both parties agree to this
• There is no way to sue and challenge these actions

Dismissal by agreement of the parties to compensation

Along with the possible requirements for the payment of monetary compensation to the employee by the employer, it should be noted that according to the law, upon dismissal by agreement of the parties, monetary compensation is not mandatory. Therefore, the requirements of the employee for "compensation" will not always be satisfied, it all depends on the negotiations themselves. And most likely the employer will go for it more often if the initiative to terminate the employment relationship comes from him, and not from the employee.

But do not forget that according to the law, the employee is entitled to all standard payments upon dismissal of an employee, such as compensation for unused vacation, if there are days off, as well as wage payments for hours worked. All these payments must be calculated and paid to the employee on the day of dismissal. Regarding the "compensation", the agreement may indicate a different date for the payment of this amount.

It should be noted that compensation (compensation) paid by agreement of the parties is also subject to all payroll taxes.

If an employee took vacation in advance (on credit), then it is necessary to calculate the amounts that should be deducted from the salary due to him for the days worked.

Step-by-step actions when dismissing an employee by agreement

Step 1. Draw up an agreement between the parties

The labor code does not describe how an agreement should be drawn up between an employee and an employer - in written or oral form. And also there is no approved form for this document. However, it is recommended to draw up an agreement between the parties in writing: one copy with the signature of the employee about its receipt from the company, and the second from the employee.

The document must contain the following information:

• Date of the final business day.
• Can an employee take a vacation with subsequent dismissal or not.
• Compensation payments, if any.
• Handover procedure.

Step 2. Issue an order to dismiss the employee

The basis for termination of the employment contract is the order to dismiss forts T-8. The document must reflect the details of the terms of termination of employment signed between the parties.

The grounds for termination of the employment contract in this case will be the following entry: "By agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation." In this case, the stipulated conditions are not indicated in the document.

After the order is issued, the document must be registered in the company's order registration book.

Step 3. Familiarize the dismissed person with the order

After issuing the order, it is necessary to familiarize the dismissed employee with it. After reading the document, he must put his signature on the document. Without a signature, it will not be considered that the employee was familiarized with it.

If desired, the employee has the right, upon written request, to make a copy or extract from the order. The employer does not have the right to refuse him such a request.

Step 4. Reflection of dismissal in a personal card

Information about the dismissal must be entered in the personal card of the T-2 form, which is entered when an employee is hired. In the column for the grounds for termination of employment, the details of the order are entered, and the date of dismissal.

After making an entry in the document, the employee must be familiarized with the personal card by putting his signature. If you do not want to sign the document, you must draw up an act in front of witnesses.

Step 5. Making an entry in the work book

An entry in Laborovaya about the reasons for dismissal with reference to the relevant article of the code “Dismissed by agreement of the parties”, clause 1, part 1, article 77 of the Labor Code of the Russian Federation. And without announcing the terms of this agreement.

Step 6. A note-calculation is drawn up in the form T-61 on dismissal

To determine the exact amounts that are supposed to be paid to the employee upon termination of the employment relationship, a calculation is made and entered into the start-up calculation in the T-61 form. Based on this document, the cashier issues money to the dismissed person.

The front of the note indicates information about the place of work and the availability of vacation days unused during work. On the reverse side a calculation of accruals and deductions is made, and the exact amount that is supposed to be handed over.

Step 7. Make a full calculation

The employer is obliged to pay the full payment on the last working day of the citizen:

• Pay wages due to him for the month of dismissal.
• If the annual paid vacation has not been fully used, then pay compensation for unused vacation.
• Pay severance pay (compensation), if stipulated by the collective agreement, labor agreement or agreement between the parties.

Sometimes, for some reason, the employee cannot receive money on the final day of work, for example, is not at the workplace or is ill. In this case, he needs to issue a calculation on the day when he made such a request.

If a dispute arose between the parties about the amount of payments, then the employer is obliged to issue an amount that does not cause disagreement. For the rest of the amount, it is necessary to negotiate or take the case to court.

Step 8. Hand over documents

Together with the calculation, the employer must hand over the following documents:

• Labor book. It must contain a notice of dismissal. At the same time, the dismissed person must put a signature in the labor accounting book that he received it.
• Help in the form 182n for calculating sick leave. It indicates his salary for the last 2 years of work.
• Statement of the amount transferred contributions in the FIU. It can be RSV-1 and SZV-M.
• Help for the employment service on average earnings. Issued within three days of the request by her employee.
• Help on the form SZV-STAZH. New form introduced since 2017. It indicates the length of service of the employee.
• Copies of internal documents, if the employee has made such a request.

Step 9. Notification of the military registration and enlistment office

The employer is obliged to notify the military registration and enlistment office where the employee was registered about his dismissal within two weeks. If he was in the military.

Controversial situations

Often there are some disputes between an employee and an organization, for example, when they want to dismiss an employee without his consent, change to a new one, or make staff reductions, in this case they try to make the employee leave of his own free will, or by agreement of the parties, i.e. to. it saves time and nerves. Let's say, when reducing, it is required to notify the employee 2 months in advance, but here it is not required!

After writing a statement under the agreement and signing the agreement, it is no longer possible to change the article under which the termination of employment occurs. There may also be questions about postponing the date of dismissal. These nuances, including the proposal of one of the parties to terminate the dismissal procedure, are decided at the negotiating table. To do this, you need to send a letter to one of the parties. If both parties have come to new agreements, then this is reflected by the signing of a new agreement or the cancellation of the dismissal and the destruction of orders.

It should also be noted that when signing all agreements and documents, the employer must act as a person who has the right to sign such documents, according to a power of attorney or the charter of the enterprise. Otherwise, such documents can be considered null and void and have no legal force.

The article was written based on materials from sites: dtpstory.ru, law-uradres.ru, buhguru.com, www.26-2.ru, infportal.ru.

"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”.

The procedure for dismissal during the closure of the company The procedure for terminating employment contracts associated with the closure of the company is in many respects similar to the similar process for downsizing. Liquidation Benefit This list includes not only working-age employees, but also pregnant employees who are in maternity leave, women caring for a child, as well as employees during the period of temporary disability due to illness or disability. Together with them, those employees who are on vacation and other categories that are considered protected in other cases of dismissal also fall under the dismissal. The second difference is the allowance for the liquidation of the enterprise, or rather, the rules for its calculation and payment.

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The trade union organization should be informed about the upcoming dismissal of employees in writing, as well as the termination of labor agreements (clause 2, 81 of the Labor Code). Dismissals of a mass number of personnel must be carried out in accordance with the criteria of territorial or sectoral agreements (Article 82). The employer must inform the trade union body of the upcoming dismissal at least three months before the procedure.

• The second stage is the notification of employees about the reduction in staff in connection with the liquidation of the organization.

  
  In the event of liquidation of the company, the dismissal affects absolutely all employees. Therefore, the employer is obliged to inform everyone personally about the dismissal. IMPORTANT! The employer has the right to inform employees about the reduction in any form.

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The Labor Code of the Russian Federation provides for the termination of an employment contract with an employee associated with a reduction in staff or the liquidation of an enterprise, the payment of a severance pay to him, in some cases the payment of additional compensation. Preferential right to stay at work (Article 179 of the Labor Code of the Russian Federation) Dismissal due to the liquidation of an enterprise: the correct organization of personnel work While the liquidation commission is engaged in organizational matters, deals with creditors and sells property, personnel officers are preparing for the most difficult and unpleasant procedure - the dismissal in connection with the liquidation of the enterprise of all its employees. When closing a company, special attention should be paid to correct design termination of the relationship between the employer and staff, strict observance of all necessary procedures and the deadlines established by the Labor Code for their implementation.

What is the difference between liquidation and layoffs for employees

In what cases, in what amount and when it is paid, how to correctly calculate the severance pay, and what taxes and fees are withheld from these payments, Prostopravo.com.ua found out Who is entitled to severance pay The conditions and amount of severance pay upon dismissal are enshrined in the article 44 of the Labor Code (read it here). Thus, a severance pay in the amount of at least the average monthly salary is paid: in case of an employee’s refusal to be transferred to work in another locality together with the enterprise, and also because of the refusal to continue working due to a significant change in working conditions (paragraph 6 of Art. 36 Labor Code); in case of dismissal due to changes in the organization of production and labor, incl.

Attention

If compensation is indicated only in the termination agreement, it does not entail the employer's obligation to transfer payments to the employee. The legislation does not contain special requirements for the form of the agreement and the conditions that may be prescribed in it. The parties themselves determine the term of dismissal. This ground is peaceful and does not adversely affect the employee's ability to find a job in the future.

What is the difference between dismissal on liquidation and reduction

Dismissal by reduction or in connection with liquidation - features of dismissal by reduction General Features layoffs on reduction: The reduction procedure begins with an order for the enterprise or its separate division. The employer is obliged to issue an order to change the staffing table and reduce the number or staff of the organization's employees. This order indicates the reasons (reasons) for the reduction, determines the list of units or individual positions to be excluded from the staff list or to reduce the number of staff units for these positions.
Liquidation of the enterprise: we dismiss employees After the liquidation of the company, none of the creditors will be able to demand the fulfillment of any obligations. All settlements, including those with dismissed employees, must be completed during the liquidation procedure.

This order indicates the reasons (reasons) for the reduction, determines the list of units or individual positions to be excluded from the staff list or to reduce the number of staff units for these positions. The deadlines for the reduction of these positions and the dates for termination of employment contracts are determined. Also, the order must contain information about the persons responsible for the implementation of all personnel activities specified in the order.

If the enterprise has a trade union, then its opinion is necessarily taken into account, and a representative of the trade union is included in the commission. Regardless of the grounds for the reduction, the employer is obliged in accordance with the requirements of Art. 180 of the Labor Code of the Russian Federation, notify the employee about this, whose position is to be reduced, the notification is carried out personally, against signature, no less than two months before the date of termination of the employment contract.

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The decision of the commission is drawn up in writing, and each laid-off employee has the right to familiarize himself with it. If the employee does not agree with the decision of the commission, he has the right to challenge it, both directly with the employer and in court. Dismissal under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation (liquidation of an organization or termination of activity by an individual entrepreneur): You should know that, in contrast to the reduction in staffing during the liquidation of an organization, the employer has the right to dismiss all employees without exception, including those in respect of whom labor code additional guarantees are established in case of dismissal at the initiative of the employer.

In the Russian Federation, the employer is obliged to offer the employee all vacancies corresponding to the qualifications of the employee, including the vacant lower position or lower-paid job that he has in the given locality, as well as vacancies in other localities, if this is provided for by the collective agreement, agreements or labor contract. It is worth noting that that the refusal of the proposed vacancy does not deprive the reduced employee of the right to receive the guarantees and payments established for him by labor legislation. The list of vacancies (if any) is offered only because the employer is obliged to do so. The employee has full right refuse the offered vacancies and terminate the employment relationship under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation.

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Attention

After receiving the signature, the document is recorded in the registration log. Then each employee puts a signature on the original document, which is a confirmation of familiarization with the order.

Important

The owner of the organization, who has the authority to terminate the employment agreement, enters in the book the serial number, date and reason for the reduction of the employee, as well as the reasons for the dismissal. Upon liquidation of an enterprise, dismissal occurs on the basis of the first paragraph of Article 81 of the Labor Code.

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However, in this case, it is necessary to deal with the question of whether this process is the liquidation of the organization. Paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No.

No. 2, it is determined that - the basis for the dismissal of employees under paragraph 1 of the first part of Article 81

The Labor Code of the Russian Federation can serve as a decision on the liquidation legal entity, i.e. a decision to terminate its activities without transferring rights and obligations by way of succession to other persons, adopted in the manner prescribed by law (Article 61 of the Civil Code of the Russian Federation). Repeatedly in my practice, I have come across cases when an enterprise was liquidated in words, but in fact did not stop its activities. Under the guise of liquidation, the name, the composition of the founders, legal address, but in fact the company continued to work just under a different sign.

What is the difference between liquidation and layoffs for employees

You should also attach copies of the documents on the basis of which the liquidation of the enterprise and the mass reduction take place.

• Return of work books to all employees without exception. Books must be returned on the day of departure.
  Also, when the company is liquidated, the employer is obliged to pay severance pay to the staff.
Required Documents First of all, you need an order to dismiss each employee of the organization. The order must be communicated and signed by all employees.
Fill this species document follows in accordance with the form approved federal service state statistics (form T-8). IMPORTANT! When drawing up an order, the employer must take into account that the time interval from the date of the notice of dismissal to the date of direct reduction must be at least two months.
A member of the liquidation commission has the right to sign such an order.

The employer pays the staff monetary compensation in the amount of one day's average earnings multiplied by the number of days remaining before the end of the redundancy notice date. Employer's liability for non-observance of employees' rights a number of other requirements set out in federal laws then he will bear for it administrative responsibility. An employee whose rights have been violated has every right to sue the employer in a judicial authority. If the latter is proved guilty, the court may order the employer to provide the employee with a new job, pay monetary compensation for certain working days, or compensate for moral damage.

What is the difference between dismissal on liquidation and reduction

CZN. It is worth considering that, in accordance with Art. 180 of the Labor Code of the Russian Federation, the employer, by agreement with the employee (with his written consent), has the right to terminate the employment contract with him even before the expiration of the two-month notice period. In this case, the employee is paid additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.

Dismissal under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation (reduction in the number or staff of employees of an organization, individual entrepreneur): in this case, in addition to the mandatory notification of the upcoming reduction in accordance with the requirements of Art.
In my practice, there were cases when employers, reducing the staffing, presented this to the employee as a change in the terms of the employment contract determined by the parties for reasons related to changes in organizational working conditions, and after refusing the offered vacancies, they dismissed the employee under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation without appropriate guarantees and payments. Subsequently, these workers were reinstated in their rights by the court. The procedure for dismissal under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation is explained in sufficient detail in Art. 74 of the Labor Code of the Russian Federation where we are talking about changes in working conditions, for example, schedule, volume, nature of work performed or wages for certain positions, provided that the positions themselves remain in staffing enterprises.
Candidates for dismissal will be the persons whose indicators are the lowest. Here it is worth paying attention to the fact that, due to the specifics of many specialties, it is rather difficult to carry out comparative analysis productivity of employees with similar or similar positions.

The absence of such actions on the part of the employer may be the reason for the cancellation of dismissal in judicial order. See also: Registration, guarantees, payments upon dismissal as agreed by the parties The company is obliged to notify candidates two months before the proposed reduction.

In practice, it is useful to make such a notification to all employees, since over such a long period of time the situation of employees can change significantly and the candidate will have to be searched again. The warning is made in writing against the signature of the employee. The term begins to run from the moment the notice is signed.
Then calculate the number of days until liquidation and multiply by this figure.

• Payments in case of reduction upon liquidation of the enterprise for unused vacation days. According to the regulation on the calculation of vacation pay, average earnings for unused vacation pay is calculated by dividing the employee's salary for the last 12 months by 12 and then by the average number of working days per month (29.3).
• Receiving severance pay, as an average salary.
  The calculation is made by summing up the employee's monthly earnings and then dividing this amount by the number of months.
• Payment upon reduction upon liquidation of the enterprise in case of early termination of the employment contract.

Great Patriotic War and disabled combatants for the defense of the Fatherland; - employees who improve their skills at the direction of the employer on the job. In addition, the collective agreement (if any) may provide for other categories of workers who enjoy the preferential right to remain at work with equal labor productivity and qualifications .In organizations with a large headcount when the contraction affects a large number of workers, including those with a preferential right to stay at work, a redundancy commission is usually created. The task of this commission is to individually consider each employee subject to reduction and make a decision on which of them has more grounds for leaving work, taking into account all the circumstances.
Also, do not forget that the record of dismissal due to staff reduction, although not the worst outcome, can still negatively affect the possibility of finding a job in the future. This is due to the fact that under this procedure, as a rule, employees are fired, whose qualifications and indicators turned out to be lower than those of the rest. A future employer may take this into account. The pros and cons of these grounds for dismissal are summarized in comparative table. Base Positive sides Negative sides Staff reduction