Entry in the shopping mall by agreement of the parties. Order of dismissal. What regulatory documents are relied upon upon dismissal?

The Labor Code of the Russian Federation allows the termination of employment relations between the parties by concluding an appropriate agreement. The fact that the contract was terminated precisely on this basis should be noted in the employee’s work book when it is processed for issue.

How to dismiss by agreement of the parties: entry in the labor record

The Labor Code of the Russian Federation mentions the agreement of the parties as a method of annulment labor relations appears in two articles:

  • Article 77 – this method layoffs goes first in the list of general grounds.
  • Article 78 – it allows termination of the employment relationship at any time by reaching an agreement between the employee and the employer.

When filling out the section on dismissal in the work book, a link is given to Article 77, as required by the Instructions for filling out work books (approved by Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 No. 69).

The rest of the entry follows the general rules:

  • The serial number of the record is indicated.
  • The date of termination of the employment relationship is indicated.
  • The reason for termination of the contract is indicated, always with reference to the Labor Code of the Russian Federation.
  • The basis for recording the dismissal is indicated.
  • The official's signature and seal (if any) are affixed.

Note! You need to indicate not just the article number, but also the corresponding paragraph (subparagraph). The name of the code of laws is also indicated in full.

Example 1

Example 2

Example 3

The unambiguous wording of the record of such dismissal has not been established, but it contains mandatory the reason and reference to the relevant legal norm must be indicated. Abbreviations are not allowed in this entry.

On the basis of which document is an entry made in the labor record?

By agreement of the parties, dismissal is formalized by the following documents:

  • The severance agreement itself. The Labor Code of the Russian Federation does not indicate that it must be concluded in writing, but when formalizing labor relations, only agreements drawn up in writing are valid. It is compiled in free form.
  • Based on the signed agreement, a dismissal order is made. It is this that will serve as the basis for entering information about dismissal into the work book.

The basis is entered in column number 4 of the work book. The following details of this document are indicated:

  • its name,
  • publication date,
  • Document Number.

Note! The basis may be any order of the employer to dismiss an employee (protocol, decision general meeting etc.).

Upon termination employment contract a corresponding entry must be made in the labor record. By agreement of the parties, termination of labor obligations occurs under clause 1 of part 1 of Article 77 of the Labor Code of the Russian Federation. The reason for termination of the contract is also indicated, in in this case This is the signing by the parties of an agreement to terminate the employment relationship.

What is the basis for dismissal by agreement of the parties? What is the difference from dismissal at the initiative of the employee? Can the agreement be revoked? In what order can it be changed? What is the procedure for dismissal by agreement of the parties? Should the condition for the payment of severance pay be established by documents other than the agreement?

By virtue of Art. 78 of the Labor Code of the Russian Federation can be terminated at any time by agreement of its parties. And this is the only article Labor Code, dedicated to this basis for dismissing an employee - on the one hand, the most universal, and on the other, the most “insidious”, primarily because its clear procedure has not been established. However, guided by established practice (including judicial practice), today it is possible to determine the basic rules and procedure for dismissal by agreement of the parties, which we will discuss in the article.

Rules for concluding an agreement.

By and large, the dismissal procedure by agreement of the parties is similar to that at the initiative of the employee, but there are still several differences. First of all, you should determine which document is the basis for dismissal. Article 78 of the Labor Code of the Russian Federation simply states that this is an agreement of the parties, its form is not indicated. That is, it can presumably be concluded orally.

In fact, so that disputes do not arise between the employee and the employer regarding such dismissal (they are not uncommon), the agreement, of course, must be in writing. It may look like an agreement itself, which is preferable, or like a statement from the employee if he initiated the dismissal. Moreover, in contrast to the employee’s application for dismissal due to at will, this statement must contain:

  • the reason for termination of the employment relationship is by agreement of the parties;
  • desired date of dismissal;
  • amount of compensation or other conditions of dismissal (if any);
  • signatures of the employee and employer.

Let us present a sample statement that can be considered as an agreement.

I don't mind. To the director

HR specialist L. Prikazova at the Central Library MBUK

formalize the dismissal on January 20, 2017. M. S. Knizhkina

To accountant O. A. Kopeikina from the librarian

01/20/2017 make calculations for L. M. Formularova

in accordance with labor

legislation.

01/18/2017, Knizhkina

Statement

I ask you to terminate the employment contract with me by agreement of the parties on the basis of clause 1, part 1, art. 77 Labor Code of the Russian Federation January 20, 2017.

Formlyarova /L. M. Formlyarova /

If the employer agrees to dismissal by agreement of the parties, but is not satisfied with the conditions specified in the application, for example the date of dismissal, it is better to try to agree on them and reflect them in a separate agreement.

So, if the employer initiates termination of the contract by agreement of the parties, he must send the employee a written proposal to conclude an agreement. Here is an example of such a proposal.

Municipal state-financed organization culture
"Central Library"

(MBUK "Central Library")

01/18/2017 To the librarian

ref. No. 3/k L. M. Formularova

OFFER

on termination of the employment contract

Dear Larisa Mikhailovna!

I ask you to consider terminating your employment contract No. 12/2014 dated 10/12/2014 in accordance with clause 1, part 1, art. 77 of the Labor Code of the Russian Federation by agreement of the parties on January 25, 2017 with payment of compensation in the amount of one salary. Please inform me about your decision in writing within three days from the date of receipt of this proposal.

Director Knizhkina M. S. Knizhkina

Offer received. Formlyarova /L. M. Formlyarova /

If the employee agrees to be dismissed, he and the employer agree on the terms of the dismissal and enter into an agreement. It must also indicate the basis for termination of employment, the date and other conditions of dismissal.

The agreement is drawn up in two copies, signed by the employee and the employer, and one copy is given to the employee against signature. Let's give a sample.

Agreement

on termination of the employment contract

dated 10/12/2014 No. 12/2014

Voronezh 01/20/2017

1. In accordance with Article 78 of the Labor Code of the Russian Federation, the Employee and the Employer agreed to terminate the employment contract dated October 12, 2014 No. 12/2014 by agreement of the parties (Clause 1, Part 1, Article 77 of the Labor Code of the Russian Federation) on January 25, 2017.

3. On the Employee’s last working day, the Employer undertakes to issue a completed work book and make full payments to him.

4. On the last working day, the Employer undertakes to pay the Employee the wages due to him, compensation for unused vacations, additional monetary compensation in the amount of one salary, and the Employee undertakes to accept the specified amounts.

5. The parties have no mutual claims against each other.

6. This Agreement is drawn up in two copies, equal legal force, – one for each of the Parties.

Employer: Employee:

20.01.2017 20.01.2017

We emphasize that the agreement on the part of the employer must be signed either by the manager himself or by a person authorized by him to do so, otherwise the court will declare the dismissal illegal.

In addition to observing the form of the agreement, the employer should strictly observe one more rule: it is unacceptable to force an employee to enter into an agreement to terminate the employment contract, since the main condition for such dismissal is the mutual voluntary expression of the will of the parties. And if the dismissed employee proves in court that he entered into such an agreement under the coercion of the employer, he will be reinstated.

Rules for cancellation of the agreement.

The main difference between dismissal by agreement of the parties and dismissal at the request of the employee is the impossibility of revoking the agreement. Let us remind you that according to Art. 80 of the Labor Code of the Russian Federation, before the expiration of the notice period for dismissal, an employee has the right to withdraw his application at any time, except for the case when another employee is invited in writing to take his place.

The employer cannot refuse to fulfill the agreement or force the employee to continue working. By virtue of clause 20 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation", if before dismissal one of the parties wants to cancel the agreement or change the term and basis for dismissal, this will not be possible without the consent of the other party. In this case, the parties must enter into a new agreement that cancels the previous one in whole or in part. (We give a sample on page .)

And here you should pay attention to the fact that it is possible to terminate an employment contract by agreement of the parties with any employee: with a woman who has a child under 3 years of age; with a single mother raising a disabled child under the age of 18 or a young child (under the age of 14); with another person raising these children without a mother; with a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under 18 years of age or the sole breadwinner of a child under 3 years of age in a family raising 3 or more young children, if the other parent (other legal representative child) is not in an employment relationship; and also with a pregnant woman.

None of the workers of the listed categories, with the exception of pregnant women, can unilaterally refuse to fulfill the agreement. This conclusion follows from the Ruling of the Armed Forces of the Russian Federation dated September 5, 2014 No. 37-KG14-4, which states that the guarantee in the form of a ban on the dismissal of a pregnant woman at the initiative of the employer, provided for in Part 1 of Art. 261 of the Labor Code of the Russian Federation, is also applicable to relations arising upon termination of an employment contract by agreement of the parties. Moreover, this rule also applies if the employee did not know about her pregnancy at the time of signing the agreement.

If at the time of cancellation of the agreement the employer had already issued a dismissal order, it must be canceled by another order.

Agreement

on cancellation of the agreement to terminate the employment contract

dated 10/12/2014 No. 12/2014

Voronezh 01/23/2017

The municipal budgetary cultural institution "Central Library" represented by the director Marina Stanislavovna Knizhkina, acting on the basis of the Charter, hereinafter referred to as the Employer, on the one hand, and Larisa Mikhailovna Formlyarova, hereinafter referred to as the Employee, on the other hand, collectively referred to as the Parties, have entered into this agreement about the following.

1. The parties agreed to cancel the agreement dated January 20, 2017 on the termination of the employment contract dated October 12, 2014 No. 12/2014.

2. This Agreement is drawn up in two copies having equal legal force - one for each of the Parties.

Employer: Employee:

Director Knizhkina / M. S. Knizhkina / Formlyarova / L. M. Formlyarova /

23.01.2017 23.01.2017

A copy of the agreement has been received. Formlyarova /L. M. Formlyarova /

Dismissal rules.

So, based on the agreement, the employer issues an order. The order reflects the grounds for dismissal and details of the agreement. The employee must be familiar with the order upon signature. The employee’s refusal to sign the order cannot cancel the dismissal if an agreement is concluded between the parties. Therefore, by virtue of Art. 84.1 of the Labor Code of the Russian Federation, in the case where the order to terminate the employment relationship cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it and sign it, a corresponding entry is made on the order.

On the last day of work, it is issued to the person being dismissed. If he refuses to receive it, the employer is obliged to send him a notice of the need to appear for the work book or agree to send it by mail. On the same last working day, the final settlement is made with the dismissed person, in particular, payments stipulated by the agreement are made.

note

Article 178 of the Labor Code of the Russian Federation establishes cases of payment of severance pay, in particular in case of staff reduction, conscription military service. It was established that labor or collective agreement other cases of payment of severance pay may be provided for, as well as their increased amounts may be established.

Thus, if an employment or collective agreement provides for the payment of severance pay or compensation in cases of termination of the employment contract by agreement of the parties, then the employer is obliged to pay them.

When an employer refuses to pay compensation or severance pay, and their payment is established only by agreement, judges differ in their opinions. Some believe that such a refusal is legal, since the payment of benefits or compensation, in addition to the agreement, must be provided for by an employment or collective agreement, others believe that the refusal is unlawful, since the agreement to terminate the employment contract is part of it and may contain conditions that are not provided for by the contract.

In any case, when paying compensation, the employer must comply with the provisions of Art. 349.3 of the Labor Code of the Russian Federation, which establishes a limit on the amount of severance pay, compensation and other payments in connection with the termination of employment contracts for individual categories workers.

In particular, in agreements on termination of employment contracts in accordance with Art. 78 of the Labor Code of the Russian Federation with the heads of the organization, their deputies, and chief accountants, it is not allowed to include conditions on the payment of severance pay, compensation and (or) on the appointment of any other payments to these employees. At the same time, if the payment of compensation and severance pay is provided for by an employment or collective agreement, they are paid, but their amount cannot exceed three times the average monthly salary of the specified employees.

Question

If, before the date of dismissal according to the agreement, the employee grossly violated labor discipline or changed his mind and wrote a letter of resignation of his own free will, on what grounds can we fire him?

If the employer manages to complete the procedure for bringing disciplinary liability before the date of dismissal specified in the agreement, then it is possible to dismiss the employee on the appropriate grounds of Art. 81 Labor Code of the Russian Federation. As for voluntary dismissal, if the date specified in the resignation letter precedes the date specified in another statement, then the employee will have to be fired under clause 3, part 1, art. 77 of the Labor Code of the Russian Federation upon expiration of the warning period. If not, the employee is dismissed by agreement of the parties.

Question

Should we dismiss an employee by agreement of the parties if he is on sick leave?

If an employee is ill on the date of termination of the employment contract, he still needs to be dismissed under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, since this is not dismissal at the initiative of the employer. Moreover, if you do not formalize your dismissal by the date specified in the agreement, the agreement to terminate the employment relationship will be canceled automatically.

To summarize, we highlight the basic rules for dismissal by agreement of the parties:

1. The agreement must be concluded in writing, indicating the grounds for dismissal, the date of dismissal, the amount of compensation, if any, (other conditions), and signed by the employee and the employer (other authorized employee).

2. The agreement is concluded only by the mutual voluntary expression of the will of the parties.

3. The terms of the agreement must not contradict the provisions of the law.

4. The agreement cannot be revoked by the employee (unless the employee is pregnant), changed or canceled unilaterally - only by mutual consent of the employee and employer by concluding a separate agreement.

5. Upon dismissal, the dismissal procedure must be followed and the terms of the agreement must be met.

6. If an employee, having signed an agreement to terminate the employment contract, refuses to resign (did not sign the order, did not receive a work book), he is subject to dismissal and such dismissal is lawful.

7. If the employee is not fired on the day specified in the agreement, it is automatically canceled.

8. Before the date of dismissal, the employee may be dismissed for another reason.

When an employee leaves his position, it is mandatory to make an entry in the work book about the dismissal by agreement of the parties. The absence of this mark indicates that the dismissal did not occur officially, and the employee continues to be on the company’s staff.

What does mutual consent to dismissal mean?

As a rule, when terminating an employment relationship, an employee writes a letter of resignation from the organization of his own free will or by agreement of the two parties. The name of the second option speaks for itself: the employer and employee mutually agree to end the cooperation. Both participants legal relations derive some benefits from this method of dismissal: the employee is compensated in cash equivalent, the employer is given the opportunity to say goodbye to this employee as quickly as possible.

In Art. No. 77 Part 1 of the Labor Code of the Russian Federation states that upon dismissal by mutual consent of the employer and subordinate, the employee is obliged to write a statement. Next, an additional agreement is drawn up, in which it is necessary to specify in detail the exact date of cancellation of the contract and the amount monetary compensation

Sample agreement to terminate an employment contract

A note in the work book (form) indicates that the employee paid off his position not due to conflict situation. The work book, personal card, copy of the order and income certificate are issued to the employee on the last day of work.

How to make an entry correctly?

Each officially employed employee has a personal file and a work book, which are stored in the personnel department. When an employee is dismissed, a HR specialist or the employer himself makes an entry in his employment record in the following sequence:

  • in the left column of the form indicates the number and actual date of the entry;
  • in the right column opposite the number and date, makes a record of dismissal by agreement of the parties;
  • below, after the previous entry, writes the name and number of the order that the employer is obliged to issue before the date of dismissal, since the employee must familiarize himself with its regulations;
  • then the employer certifies the mark with a signature and seal so that the record itself remains legible.

All entries made in the work book must be readable, written in neat handwriting and not have any corrections. If an error is made when completing an entry, it will be completed again.

An entry about dismissal by mutual consent of the employer and employee should be made in the work book on the last working day, since unilateral reinstatement workplace in this case it is impossible - this requires the consent of both the boss and the subordinate.

How to formulate an entry correctly?

Most HR specialists do not know whether there is a standard template for a notice of dismissal by mutual consent between a superior and a subordinate. The manual for registering work records states that the following information must be included in the notice of dismissal:

  • name of the institution;
  • employee's position;
  • reason for cancellation of the employment contract;
  • article of the Labor Code, based on which the dismissal is carried out.

An example of an incorrectly formatted entry:

LLC "Zima" Dismissed from the position of head of the department by agreement of the parties.

This entry does not indicate the article of the Labor Code of the Russian Federation, based on which the employee is dismissed, and the reason for termination of the contract. This wording of the entry does not give it legal force. These requirements are specified in Labor Code Article No. 84.

Considering that the employment contract will be canceled based on Article No. 77, paragraph 1, the notice of dismissal must contain the following:

LLC "Zima" On the basis of Article No. 77, Part 1, Clause 1 of the Labor Code of the Russian Federation, he was dismissed by agreement of the parties. Order No. 13 dated March 16, 2018 (indicated in the far right column).

List of documents that an employee will receive upon dismissal:

  • form (work book);
  • income certificate;
  • duplicate order;
  • private bussiness.

In order for all notes in the work book to have legal force, they must be signed by the employee himself.

Common mistakes when making entries in the work book

A work book (form) is a document containing official information, on the basis of which, once the employee reaches retirement age, insurance payments will be calculated, therefore making mistakes when filling out this document is unacceptable. However, there is such a thing as " human factor“and quite often HR department employees make mistakes such as: incorrectly recording the employee’s full name, the name of the institution (organization), the date of hiring or dismissal. What should personnel officers do in such a situation?

Incorrectly recorded data can be corrected, but only by employees of the organization where the error was made, since the new boss will have the right to make his entries only after receiving official documents from the previous place of work.

Crossing out incorrectly written information is only permissible on the title page; in all other cases it is prohibited. Therefore, after an incorrect entry, it is necessary to indicate that entry No. 13 (for example) is invalid, and duplicate the mark without errors.

Another mistake often made by HR specialists is making entries in the wrong section of the work book. This happens when the pages in the “Employment Data” section run out. This gross mistake can bring a lot of problems to the employee at a new place of work and negatively affect the size pension payments in future.

In this case, an additional insert should be sewn into the last page of the form and a note of dismissal should be made on it. Each insert must have a series and number.

In accordance with Articles 67 and 72 of the Labor Code of the Russian Federation, an entry is made in the Labor Code on the basis of an employment contract (EA) concluded at the time of employment. That is, when hiring a specialist, you will initially reach an agreement that he will become your employee voluntarily, without coercion on your part.

There are no exceptions in this sense. And when terminating industrial relations, the same relaxed interaction should develop between you.

The designated articles of the Labor Code of the Russian Federation state that any changes to the relations established on the basis of TD, based on the good will of the parties, are formalized by the appropriate written certificate. Agreement is a written document stating that agreement has been reached on the cancellation of the TD.

Based Article 78 of the Labor Code of the Russian Federation in this situation, termination of employment relations can be carried out at any convenient time, without hindrance and without complications of a legal or other nature. Mutually conditioned desire is a sufficient reason for stopping inappropriate actions.

Direct entry is made based on clause 1 part 1 art. 77 Labor Code of the Russian Federation.

The paperwork procedure provides for the formation of documentation flow according to routine, with the implementation of rules and regulatory standards. The entry you made in the TC will receive legal force, by observing the basic provisions of the organizational plan:

  1. The agreement to terminate the TD is drawn up in the form of a document, signed and sealed by the organization.
  2. It is based on the provisions, clauses and subclauses of the TD. There are no special requirements for it, but attention should be paid to what may subsequently become the cause of conflict. These points must be foreseen.
  3. The agreement must include all the fragments of activity accompanying the dismissal, including mutual settlements.
  4. Based on the agreement drawn up, a dismissal order is drawn up. The employer is required to sign it.
  5. The order must be issued (registered).
  6. The person leaving must be familiarized with it against signature 3 days before receiving the Labor Code or earlier.
  7. Based on an order completed in accordance with all the rules, an entry is made into the labor record.
  8. When issuing the document in hand, it is entered, which must be stitched and with numbered sheets. How to flash a work record book - read.

If the sequences are not followed or the preliminary documentation is not properly completed, the entry you made in the employee’s work book may be declared invalid, which will entail certain difficulties for both parties. Regulated by law and.

After the procedure for drawing up an agreement and proper preparation order, you have the opportunity to make an entry in the Labor Code. Take this process carefully and carefully double-check all initial information.

When entering, open TC on the page where the last available entry was made. It is likely that you made this entry at the moment when cooperation with the resigning employee began.

Pay attention to the first column, where the next serial number is entered. Accordingly, below you will put the number under which your entry about the cancellation of the TD will appear.

Check that the beginning of its application does not stray from the line you have chosen., the entry must be made exactly. Each column is filled in from the beginning of the same line.

Next, in the second column, enter the date of dismissal of your employee. It includes: date, month, year. An entry in the TC can be made not on the day of issue, but in advance. Please note that the date will correspond to the day of dismissal, and not the entry made.

The basis for entering all information about a person’s working life is the third column. It includes all data on labor movements, as well as the reasons accompanying them. All of them should look standard and reflect the requirements of legal regulations.

The dismissal phrase must be constructed concisely, correctly, based on regulatory framework and when using regulated terms and expressions.

The phrase you literally wrote will be almost word for word: “The employment contract was terminated by agreement of the parties, clause 1, part 1, article 77 of the Labor Code of the Russian Federation.”

Without changing the column, here, but just below, provide information about yourself as the person responsible for making entries in the Labor Code (position, surname, initials). In the fourth column, the order on the basis of which the procedure was carried out is entered. It should contain information:

  • publication dates,
  • serial number.

Conclusion

The indicated method of resolving the issue when interaction in industrial relations did not work out for one reason or another can be called fundamentally effective. Moreover, it has undeniable advantages in comparison with other forms of TD termination.

Experts in the field labor law It is universally recommended to reach an agreement in any, even the most difficult situations.

1. How does dismissal by agreement of the parties differ from dismissal for other reasons?

2. How to formalize the termination of an employment contract with an employee by agreement.

3. In what order are taxes and contributions calculated on compensation paid upon dismissal under an agreement.

An employment contract with an employee can be terminated both at the initiative of the employee himself and at the initiative of the employer, as well as due to circumstances beyond the will of the parties. In addition to these grounds, the Labor Code of the Russian Federation also provides for dismissal by “mutual consent,” that is, by agreement of the parties. However, a situation where both the employee and the employer are simultaneously interested in terminating the employment relationship is extremely rare in practice. As a rule, the initiator is still one party, and most often, the employer. Then why do employers prefer to “negotiate” with employees instead of dismissal, for example, to reduce numbers or staff? You will find the answer to this question in this article. In addition, we will find out what are the features of registration and conduct of the dismissal procedure by agreement of the parties, how it can be beneficial for the employer and employee.

Article 78 of the Labor Code of the Russian Federation is devoted to dismissal by agreement of the parties. And the verbatim content of this entire article is as follows:

An employment contract can be terminated at any time by agreement of the parties to the employment contract

The Labor Code does not contain any more explanations regarding the procedure for carrying out and formalizing the dismissal of an employee by agreement of the parties. Therefore, when terminating an employment relationship with an employee on this basis, one should be guided by established practice, primarily judicial practice, as well as explanations provided by individual departments, such as the Russian Ministry of Labor.

Features of dismissal by agreement of the parties

To begin with, let's determine how dismissal by agreement of the parties is fundamentally different from dismissal for other reasons. These features explain why employers and employees in certain situations prefer to part ways by formalizing an agreement.

  • Simplicity of design.

All that is required to carry out dismissal by agreement is the will of the employee and the employer, documented. Moreover, the entire procedure can take only one day - if the day the agreement is drawn up is the day of dismissal. Neither the employer nor the employee is required to notify each other in advance of their intention to terminate the employment contract. In addition, the employer does not need to notify the employment service and the trade union. Thus, it is obvious that it is much easier for an employer to “part” with an employee by agreement than, for example, by agreement.

  • Possibility to agree on the terms of dismissal.

According to the meaning of the very wording “dismissal by agreement of the parties,” termination of the employment contract in this case is possible if the employee and the employer agreed to the conditions put forward by each other, that is, they reached an agreement. However, the conditions can be very different. For example, the agreement may provide for the payment of monetary compensation to the employee (severance pay) and its amount, as well as the period of work, the procedure for transferring cases, etc. It should be noted that payment of severance pay upon dismissal under an agreement is not a mandatory condition, and its minimum and maximum amount is not established by law. Also, the working period may not exist at all (dismissal on the day the agreement is signed), or, on the contrary, it may be quite long (more than two weeks). It is obvious how these terms of dismissal by agreement affect the interests of the employee and the employer: for the employee, the advantage is the opportunity to receive monetary compensation, and for the employer, the opportunity to set the required period of work and transfer of work to a new employee.

  • Change and cancellation only by mutual consent.

Once an agreement establishing a specific date and conditions for dismissal has been signed by the employee and the employer, it can only be amended or waived by mutual agreement. That is, an employee with whom an agreement to terminate an employment contract has been signed cannot unilaterally “change his mind” about quitting or put forward new conditions for dismissal (Letter of the Ministry of Labor dated April 10, 2014 No. 14-2/OOG-1347). This is one of the main advantages of dismissal by agreement of the parties for the employer compared, for example, with dismissal of an employee at his own request, in which the employee has the right to withdraw his resignation letter.

! Note: In the event that an employee sends written notice The employer should also respond in writing about his desire to terminate or change the previously signed dismissal agreement, justifying his position (to meet the employee halfway or leave the agreement unchanged).

  • The absence of “exceptional” categories of employees who are not subject to dismissal under the agreement.

The Labor Code of the Russian Federation does not provide for any restrictions regarding employees who can be dismissed by agreement of the parties. Therefore, an employee’s being on vacation or sick leave cannot be considered as an obstacle to terminating an employment contract with him on this basis, in contrast, for example, to dismissal at the initiative of the employer (Part 6 of Article 81 of the Labor Code). Under the agreement, employees who have entered into both a fixed-term and open-ended employment contract, as well as employees during a probationary period, can be dismissed.

Also, from a formal point of view, the legislation does not prohibit the dismissal of a pregnant employee by agreement of the parties: such a prohibition is valid only in case of dismissal at the initiative of the employer (Part 1 of Article 261 of the Labor Code). However, when terminating a contract with a pregnant woman, the employer should be especially careful: firstly, consent to terminate the contract must really come from the employee herself, and secondly, if the employee did not know about her pregnancy at the time of signing the dismissal agreement, but found out later and expressed a desire to annul the agreement, the court may recognize her claim as legal (Definition Supreme Court RF dated 09/05/2014 No. 37-KG14-4).

  • No special justification is required for dismissal.

Unlike, for example, dismissal for disciplinary violations, in which the employer must have sufficient evidence that they were committed by the employee, dismissal by agreement is based solely on the will of the parties and does not require any evidence or confirmation (the main evidence is the agreement itself, signed by the parties) . Thus, if the employee is “at fault,” then dismissal by agreement can be beneficial to both parties: the employee will avoid an unpleasant entry in the work book, and the employer will not have to additionally confirm the legality of the dismissal.

These are the main ones distinctive features dismissals by agreement of the parties, which explains its attractiveness for both parties to the labor relationship. Employers especially like dismissal on this basis: it is the fastest and most the right way part with unwanted employees, who practically eliminates the possibility for workers to challenge its legality and be reinstated at work– after all, they personally agreed to terminate the employment contract. Of course we are talking about voluntary consent employee for dismissal, and not about situations where such consent was obtained under pressure or fraudulently (which, however, the employee will have to prove in court).

The procedure for registering dismissal by agreement of the parties

  1. Drawing up an agreement to terminate an employment contract.

Such an agreement between the employee and the employer is the basis for dismissal, so it must be documented. However, the form of the dismissal agreement is not regulated, that is, the parties have the right to draw it up in any form. The main thing is that this document must contain:

  • grounds for dismissal (agreement of the parties);
  • date of dismissal (last working day);
  • written expression of will of the parties to terminate the employment contract (signature).

An agreement to terminate an employment contract can be drawn up:

  • in the form of an employee application with a written resolution from the employer. This option is the simplest, but it is suitable in cases where only the date of dismissal is agreed upon (which is indicated in the application);
  • in the form of a separate document - an agreement to terminate the employment contract. Such an agreement is drawn up in two copies, one each for the employee and the employer. In addition to the required components, it may contain additional conditions agreed upon by the parties: the amount of monetary compensation (severance pay), the procedure for transferring cases, granting leave with subsequent dismissal, etc.
  1. Issuing a dismissal order

An order for the dismissal of an employee by agreement of the parties, as well as for dismissal on other grounds, is drawn up according to the unified form T-8 or T-8a (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1) or according to. In this case, the order states:

  • in the line “Grounds for termination (termination) of the employment contract (dismissal)” - “Agreement of the parties, clause 1, part 1, art. 77 Labor Code of the Russian Federation";
  • in the line “Base (document, number and date)” - “Agreement on termination of employment contract No. ... dated …”.
  1. Filling out a work book

When an employee is dismissed by agreement of the parties, the following entry is made in his work book: “The employment contract is terminated by agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation.”

The dismissal record is certified by the employee responsible for maintaining work books, the seal of the employer, as well as the signature of the dismissed employee (clause 35 of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”). The work book is issued to the employee on the day of dismissal (Part 4 of Article 84.1 of the Labor Code of the Russian Federation), and the fact of its receipt is confirmed by the employee’s signature in the personal card and the log book of work books and inserts in them.

Payments upon dismissal by agreement of the parties

On the day the employee is dismissed, that is, on the last working day, the employer must pay him in full (Article 84.1, 140 of the Labor Code of the Russian Federation). The following amounts are payable:

  • remuneration for hours worked (up to and including the day of dismissal);
  • compensation for unused vacation;
  • severance pay (if its payment is provided for by agreement of the parties).

! Note: The final payment to the employee must be made on the day of termination of the employment contract. Install more late date The employer has no right to make payments (after dismissal), even if the employee himself does not object and such a period is provided for in the agreement on termination of the employment contract (Article 140 of the Labor Code of the Russian Federation).

Calculation and payment wages for days worked and compensation for unused vacation (deduction for vacation used in advance) upon dismissal by agreement of the parties are no different from similar payments upon dismissal on other grounds. Therefore, we will dwell in more detail on the “specific” payment - monetary compensation in the form of severance pay.

As already mentioned, the amount of severance pay does not have any legally established restrictions and is determined only by agreement of the parties. In practice most often The amount of severance pay is determined for the employee:

  • in the form of a fixed amount;
  • based on the official salary (for example, double the official salary established by the employment contract);
  • based on average earnings for a certain period after dismissal (for example, in the amount of average earnings for two months after dismissal).

! Note: If the amount of severance pay is established based on average earnings, its amount is determined in accordance with Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 “On the specifics of the procedure for calculating average wages.” At the same time, the procedure for calculating average daily earnings for the payment of severance pay differs from that used for calculating vacation pay and compensation for unused vacation. Average daily earnings for severance pay are calculated by dividing the amount of payments included in the calculation for the last 12 calendar months preceding the day of dismissal by the number actually spent for this period of days (paragraph 5, paragraph 9 of Resolution No. 922). Thus, the amount of severance pay depends on the number of working days in the period for which it is paid.

Taxes and contributions from severance pay by agreement of the parties

  • Personal income tax on severance pay paid upon dismissal by agreement of the parties

In accordance with paragraph 3 of Art. 217 Tax Code of the Russian Federation, are not subject to personal income tax the following payments related to the dismissal of employees:

  • severance pay,
  • average monthly earnings for the period of employment,
  • compensation to the manager, deputy managers and chief accountant of the organization,

provided that the amount of such payments does not exceed in total three times the average monthly earnings(six times - for employees of organizations located in the Far North and equivalent areas). Amounts exceeding three (six times) average monthly earnings are subject to personal income tax in accordance with the general procedure (Letter of the Ministry of Finance of Russia dated August 3, 2015 No. 03-04-06/44623).

! Note: According to the clarifications of the Ministry of Finance of the Russian Federation, for the purpose of applying clause 3 of Art. 217 of the Tax Code of the Russian Federation, the following must be taken into account:

  • If the severance pay due to an employee upon dismissal by agreement of the parties is paid to him in parts, then in order to determine the amount of the benefit not subject to personal income tax, it is necessary sum up all benefit payments, even if they are made in different tax periods (Letter of the Ministry of Finance of Russia dated August 21, 2015 No. 03-04-05/48347).
  • To determine three (six times) average monthly earnings should be guided by Art. 139 of the Labor Code of the Russian Federation and the procedure for calculating average wages (average earnings), established by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 “On the specifics of the procedure for calculating average wages” (Letter of the Ministry of Finance of Russia dated June 30, 2014 No. 03-04-06/31391) . Average daily earnings are calculated in the following order:

* Billing period – equal to 12 previous calendar months

  • Contributions from severance pay paid upon dismissal by agreement of the parties

By analogy with personal income tax, insurance contributions to the Pension Fund, FFOMS and Social Insurance Fund are not credited for the amount of payments in the form of severance pay and average monthly earnings for the period of employment, not exceeding in general three times the average monthly earnings(six times - for employees of organizations located in the regions of the Far North and equivalent areas) (subclause “e”, clause 2, part 1, article 9 of Law No. 212-FZ, subclause 2, clause 1, article 20.2 of Law No. 125-FZ). Part of the severance pay paid upon dismissal by agreement of the parties, exceeding three times (six times) the average monthly salary, is subject to insurance contributions in the general manner (Letter of the Ministry of Labor of Russia dated September 24, 2014 No. 17-3/B-449).

  • Tax accounting of compensation upon dismissal by agreement of the parties

Employers using both the OSN and the simplified tax system, have the right to include in expenses for wages, the amount of severance pay for employees dismissed by agreement of the parties (clause 6, clause 1, clause 2, article 346.16; clause 9, article 255 of the Tax Code of the Russian Federation). The main condition: the payment of such benefits must be provided for in an employment or collective agreement, additional agreement to an employment contract or an agreement to terminate the employment contract. Severance pay taken into account for tax purposes in full without any restrictions.

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Normative base

  1. Labor Code of the Russian Federation
  2. Tax Code of the Russian Federation
  3. Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund”
  4. Federal Law of July 24, 1998 No. 125-FZ “On compulsory social insurance against industrial accidents and occupational diseases”
  5. Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”
  6. Decree of the Government of the Russian Federation of December 24, 2007 No. 922 “On the specifics of the procedure for calculating average wages”
  7. Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation on labor accounting and its payment"
  8. Ruling of the Supreme Court of the Russian Federation dated September 5, 2014 No. 37-KG14-4
  9. Letters from the Ministry of Labor
  • dated April 10, 2014 No. 14-2/OOG-1347
  • dated September 24, 2014 No. 17-3/B-449

10. Letters from the Ministry of Finance of Russia

  • dated 08/03/2015 No. 03-04-06/44623
  • dated 08/21/2015 No. 03-04-05/48347
  • dated June 30, 2014 No. 03-04-06/31391

Find out how to read the official texts of these documents in the section

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