Author's material: Employee initiative and agreement of the parties to dismiss: how to avoid mistakes?

Dismissal by agreement of the parties, sample agreement

Dismissal by agreement of the parties is mutual agreement to terminate the employment contract. Let's look at how it happens step by step:

1. Negotiations between the employee and the employer on the terms of completion of the contract.
2. Drawing up an agreement that includes compensation for dismissal by agreement of the parties.
3. Writing a letter of resignation by agreement of the parties.
4. The employer creates a dismissal order by agreement of the parties.
5. Making entries in the labor record by HR department employees.
6. Making an entry in the work book of the dismissed person and issuing it.
7. Full calculation of payments.

We add that in addition to wages and compensation for unused vacation, additional money is sometimes paid. This is only possible if a dismissal agreement has been signed by agreement of the parties with compensation.

Sample resignation letter RB

Notes.

1. An application for dismissal from work is required in cases where the initiative to terminate the employment contract comes from the employee. For example, in accordance with Article 40 of the Labor Code of the Republic of Belarus (hereinafter referred to as the Labor Code), an employee has the right to terminate an employment contract concluded for an indefinite period by notifying the employer in writing one month in advance. The employee reflects the corresponding warning in the application.

If the initiative to terminate the employment relationship comes from the employer, the employee’s application is not required.

2. The date of dismissal is the last working day, therefore the preposition c is not used in the application before the date of dismissal.

3. It is necessary to distinguish between the grounds and reasons for dismissal. The grounds for dismissal reflected in the application are indicated in accordance with the wording given in Article 35 of the Labor Code. For example, by agreement of the parties, due to the expiration of the employment contract, at their own request, etc.

4. The reason for dismissal reveals the motives that prompted the employee to contact the employer with a resignation letter. In some cases, indicating the reason for dismissal in the application is mandatory. For example, according to Article 40 of the Labor Code, if there are circumstances that exclude or significantly complicate the continuation of work (health status, retirement age, etc.), as well as in cases of violation by the employer of labor legislation, a collective agreement, the employer is obliged to terminate the employment contract on time, specified in the employee's application.

The unified form of the dismissal order provides for an indication in the text, along with the basis, of the reason for the dismissal of the employee. Article 50 of the Labor Code establishes that upon termination of an employment contract due to illness, disability, retirement due to age, enrollment in full-time education at an educational institution and for other reasons with which the law relates the provision of certain guarantees and benefits, a record of dismissal is entered into the employee’s work book reflecting these reasons. Since the entry in the employee’s work book must correspond to the wording of the order, indicating the reason for dismissal in the order in cases provided for by labor legislation seems necessary.

In cases where labor legislation does not require mandatory reflection of the reason for dismissal in the application, it may not be indicated, for example, when dismissal due to the expiration of the employment contract (clause 2 of article 35 of the Labor Code) or by agreement of the parties (clause 1 of art. 35 of the Labor Code) in the absence of circumstances obliging the employer to terminate the employment contract at the request of the employee, etc.

5. Statements from employees with personal files are included in these files and are stored for 75 years. For applications for dismissal of other employees, a storage period of 3 years is established (clause 224 of the List of standard documents of state authorities and management, organizations of the Republic of Belarus for operational and statistical accounting and reporting, electronic information resources, labor relations, social protection, work with personnel, education , customs control, logistics, administrative and economic activities, office work, work of archives of organizations indicating storage periods (approved by Resolution of the Ministry of Justice of the Republic of Belarus dated December 14, 2006 No. 82)).

Andrey Rybakov, director of the Belarusian Scientific Research Institute

Institute of Documentation and Archival Affairs, Candidate of Historical Sciences

Sample letter of resignation in the Republic of Belarus

Added 12/24/2014 to the Drivers section

Sample letter of resignation in the Republic of Belarus - Sample letter of resignation from an employee by agreement of the parties. Clause 18 of the resolution of the Plenum of the Supreme Court of the Republic of Belarus dated No. 2 O..

Sample resignation letter in the Republic of Belarus Resignation letter download in Word format. In addition, the employee has the right to notify the employer of his desire to resign 1 during the performance of his work duties 2 during vacation or before going on vacation 3 during temporary disability, as well as during other periods of absence from work. At the same time, on the last day of work, the administration is obliged to 1 issue the employee a work book 2 other documents that are directly related to the work 3 make final payments to him.

If, after the expiration of the notice period, the employment contract has not been terminated and the employee does not insist on dismissal. the validity of the employment contract is considered continued. Sample - Application for dismissal from work and release from the position held. For example, in accordance with Article 40 of the Labor Code of the Republic of Belarus, hereinafter referred to as Labor Code...

Dismissal of an employee at his own request is carried out only on the basis of his written application. Warn about this: In this case, the employee is not dismissed if a new employee has not yet been hired in his place in writing. notice period, the employer does not dismiss the employee for an unspecified reason. Sample application for dismissal in the Republic of Belarus What date to indicate in the application for dismissal at the request of the employee. statement of claim Should the employer. In accordance with paragraph 6 of Article 42 of the Labor Code of the Republic of Belarus, the employer has...

Sample letter of resignation in the Republic of Belarus (3.9 mb)

Sample letter of resignation

Content

A resignation letter is a personal document that contains an employee’s request to terminate the employment contract between him and the employer.

How to write a resignation letter correctly

The resignation form has the same structure as a regular application.

The header, in the upper right corner of the document, indicates to whom the application is addressed and from whom: position, name of the organization and full name of the head (in the dative case), as well as the position and full name of the compiler (in the genitive case).

Below, in the middle of the sheet, the title of the document is indicated - Application.

Then comes the text of the application, in which the employee sets out his request for dismissal, indicates the reason (at his own request, by agreement of the parties, by way of transfer, etc.) and the date.

At the end of the document the date of writing the application and the signature of the originator are indicated.

An employee can draw up and submit a resignation letter at any time:

• during work
• during illness
• while on vacation
• while on a business trip.

The employee has the right to withdraw his application before the expiration of the notice period for dismissal, i.e. before the end of the last working day. To do this, you must write a corresponding statement to the employer with a request to consider the submitted application for dismissal invalid. In this case, the dismissal of an employee is not carried out if a new employee has not yet been hired in writing to replace him.

Types of resignation letters

Application for voluntary resignation

Contains a request for dismissal at the initiative of the employee.

The standard deadline for filing such an application is 2 weeks before dismissal.

1 example Application for resignation of one's own free will without work

Contains the employee’s request to resign at his own request without working off due to the inability to continue working.

The deadline for submitting such an application is at any time.

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1 sample Application for dismissal by agreement of the parties

It sets out the employee’s request for the employer’s consent to terminate the employment contract by mutual agreement.

The deadline for filing such an application is any time. In this case, working out is not mandatory.

Application for dismissal by transfer

Contains the employee’s request to terminate the employment contract in order to transfer to another organization. The Labor Code of the Russian Federation does not determine specific deadlines for dismissal on this basis, therefore the deadline for filing such an application and the date of dismissal are agreed upon through negotiations.

Sample letter of resignation

WE DO IT CORRECTLY: DISMISSAL BY AGREEMENT OF THE PARTIES

The agreement of the parties is one of the grounds for termination of any employment contract - concluded for an indefinite period, a fixed-term employment contract, as well as an employment contract with a preliminary test, with part-time workers, etc.

Termination of an employment contract by agreement of the parties is possible at any time and with any category of employees.

Restrictions on dismissal on this basis

The legislation of the Republic of Belarus establishes certain restrictions on the dismissal of workers under Article 37 of the Labor Code of the Republic of Belarus (hereinafter referred to as the Labor Code).

For example, the dismissal of young specialists, young workers (employees) or their transfer to a job that is not related to the acquired specialty (specialty area, specialization) and assigned qualifications before the end of the compulsory work period specified in the certificate of assignment is prohibited, except in cases (Clause 33 of the Regulations on the procedure for distribution, redistribution, assignment to work, subsequent assignment to work of graduates who have received postgraduate, higher, secondary specialized or vocational education, approved by Resolution of the Council of Ministers of the Republic of Belarus dated June 22, 2011 No. 821):

&bull transfer to an elective position (clause 4 of article 35 of the Labor Code)

&bull decision by an educational institution to reassign a young specialist, young worker (employee) or to issue him a certificate of self-employment

&bull enrollment in an educational institution for full-time education at a higher level (stage)

&bull violation by the employer of labor legislation, collective or labor agreement (Article 41 of the Labor Code)

&bull dismissal at the initiative of the employer on the grounds provided for in paragraphs 1, 2, 4-9 of Article 42, as well as for circumstances beyond the control of the parties, provided for in paragraphs 1-3, 5, 6 of Article 44 of the Labor Code.

Dismissal of young specialists who have received higher, specialized secondary or vocational education under the conditions of targeted training before the end of the work period established by the agreement on targeted training of a specialist (worker, employee) is permitted:

1) in case of termination of the agreement on targeted training of a specialist (worker, employee) on the grounds specified in paragraphs 5, 6 of Article 88 of the Code of the Republic of Belarus on Education

2) on the grounds provided for in paragraphs 4, 5, 7-9 of Article 42, paragraphs 1, 5, 6 of Article 44 and paragraphs 1, 2-5 of Article 47 of the Labor Code.

Also, an employment contract cannot be terminated by agreement of the parties if the employee is a person (parent) obligated to reimburse expenses spent by the state on the maintenance of children who are on state support. That is, the obligated person cannot be dismissed from work until the costs of maintaining the children are fully reimbursed, with the exception of the following cases:

&bull due to the liquidation of an organization, termination of the activities of an individual entrepreneur (clause 1 of article 42 of the Labor Code)

&bull inconsistency of the employee with the position held or the work performed due to a health condition that prevents the continuation of this work (Clause 2 of Article 42 of the Labor Code)

&bull theft of the employer's property at the place of work, established by a court verdict that has entered into legal force or a resolution of the body whose competence includes the imposition of an administrative penalty (Clause 8 of Article 42 of the Labor Code)

&bull conscription of an employee for military service (clause 1 of article 44 of the Labor Code)

&bull reinstatement of an employee who previously performed this work (clause 2 of article 44 of the Labor Code)

&bull the entry into force of a court verdict by which the employee is sentenced to a punishment that precludes continuation of work, or a court decision on the employment of an employee obligated to reimburse the costs of maintaining children (clause 5 of Article 44 of the Labor Code)

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&bull death of an employee, recognition by the court as missing or declared dead (clause 6 of Article 44 of the Labor Code)

- commission of guilty actions by an employee directly servicing monetary and material assets, if these actions are the basis for the loss of confidence in him by the employer (clause 2 of article 47 of the Labor Code)

&bull referral of an employee by court order to a labor treatment center (clause 4 of article 47 of the Labor Code)

&bull independent employment of the obligated person to a new place of work with a salary exceeding the salary at the given place of work (part fifteen, paragraph 14 of the Decree of the President of the Republic of Belarus dated November 24, 2006 No. 18 On additional measures for the state protection of children in disadvantaged families, with amendments and additions ).

We reach an agreement!

Mandatory conditions for termination of an employment contract by agreement of the parties are:

1) agreement on a specific date for termination of the employment contract

2) agreement on termination by agreement of the parties.

The initiative to terminate an employment contract by agreement of the parties can come from both the employer and the employee.

Article 37 of the Labor Code does not indicate in what form the agreement of the parties must be reached - oral or written. According to the author, the most preferable and evidentiary form is the written form.

The employee submits an application

If the initiator of dismissal by agreement of the parties is the employee, then he addresses the employer with a statement in which he indicates the date of dismissal and the basis for dismissal - agreement of the parties. If the employer agrees with what is stated in the application, the employer imposes a resolution on dismissal by agreement of the parties on the date contained in the employee’s application.

Sample employee resignation letter by agreement of the parties

Sources: systemaby.com, www.rusnauka.com, working-papers.ru, www.raikiri.by

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Agreement on termination of the employment contract by agreement of the parties in 2021

The employer and employee are equal partners, whose rights and obligations are clearly stated in the contract, which is concluded at the time of employment. The contract is terminated at the request of one of the parties or by mutual agreement.

So what does dismissal by agreement of the parties mean? The agreement of the parties on termination of the employment contract, as a general basis for termination of the employment contract, is included in part 1 of article 77 of the Labor Code of the Russian Federation under paragraph 1. If the dismissal is by agreement of the parties (clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation), then one of the parties must take the initiative to terminate the working relationship. You can do this at any time. After this, the employer and employee begin to discuss the terms of termination of the contract. All agreed terms must be documented.

The dismissal agreement by agreement of the parties must be drawn up in two copies. The employee and the administration represented by the general director put their signatures on it. One copy of the dismissal agreement, by agreement of the parties, is transferred to the resigning employee, the second is stored in the personnel department of the enterprise. It specifies the conditions for dismissing the employee. It also contains information about the last working day and the amount of payments upon dismissal by agreement of the parties.

Read more: Compensation upon dismissal by agreement of the parties

In the last article, we discussed several important nuances that must be taken into account when calculating wages.

In this article we will examine in detail the typical grounds for dismissing an employee, as well as the package of documents for dismissal.

Algorithm of actions for dismissing an employee:

1. Make a decision to dismiss an employee for one reason or another.
2. Calculate the number of unused vacation days for which the employee is entitled to compensation.
3. Draw up an order to dismiss an employee.
4. Calculate the amount of compensation for unused vacation.
5. Carry out all deductions upon dismissal (special clothing, other goods and materials, etc. were not handed over).
6. Make the final calculation.
7. Pay the final payment.
8. Issue a work book.

Making a decision to fire an employee is a matter for the manager.
The task of the accountant and/or personnel officer is to formalize everything correctly.

So, the most popular articles for dismissal:

1. By agreement of the parties.
2. At the end of the fixed-term agreement/contract.
3. Didn't pass the probationary period.
4. At the initiative of the employer.

Other reasons are more rare phenomena. To use them, I recommend that you familiarize yourself with the Labor Code of the Republic of Belarus, as well as carefully read comments and other legislative acts.

I would like to draw your attention to the fact that in this material I do not describe all the nuances of dismissal for different categories of employees.

1 Dismissal by agreement of the parties

According to Art. 37 of the Labor Code, an employment contract concluded for an indefinite period, as well as a fixed-term employment contract, can be terminated at any time by agreement of the parties to the employment contract.

Several important provisions follow from this norm, which distinguish dismissal on this basis from other grounds:

1. By agreement of the parties, any employment contract provided for in Part 1 of Art. 17 of the Labor Code, namely both a fixed-term contract, including a contract, and one concluded for an indefinite period.
2. By agreement of the parties, the employment contract can be terminated at any time, and the employee’s being on vacation or the employee’s temporary disability are not an exception in this case (Article 37 of the Labor Code).
3. The date of termination of the employment contract is determined based on the agreement of the parties. An employment contract can be terminated on any working day from the moment an agreement is reached between the employee and the employer, however, the employer in any case must comply with the requirements for final settlement with the employee (Part 1 of Article 77 of the Labor Code) and the issuance of a work book (Part 6 of Art. 50 TK).

In order for dismissal by agreement of the parties to be carried out legally , two mandatory conditions must be met , such as:

1. Reaching an agreement between the employer and employee to terminate the employment contract. The initiative to terminate an employment contract by agreement of the parties can come from both the employee and the employer. Such an agreement is reached by drawing up a corresponding document by the initiator of termination of the employment contract.
2. Determination by the parties to the employment contract of a specific date, which will be the last day of work. Determining a specific period means that an agreement has been reached between the employee and the employer on dismissal on a specific calendar date, which will be considered the last day of work.

Documentation of dismissal by agreement of the parties:

• Proposal to terminate the contract by agreement of the parties: - application from the employee, if the initiator of dismissal is an employee;

Picture 1. Application for dismissal from an employee, if the initiator of dismissal is an employee

- a proposal to dismiss if the initiator is an employer.

• Order. Picture 2. Order to dismiss an employee

2.1 Dismissal at the end of a fixed-term agreement/contract

The term of the employment contract is the period of time for which the employment contract is concluded. The term of the employment contract is its mandatory condition (clause 5, part 2, article 19 of the Labor Code). If the employment contract does not stipulate its validity period, the contract is considered concluded for an indefinite period (Part 7, Article 17 of the Labor Code). The term of an employment contract can be calculated in months, years or other periods and events. Due to the expiration of the term, only fixed-term employment contracts can be terminated, i.e. listed in clauses 2 - 5, part 1, art. 17 TK. According to the wording of Part 1 of Art. 38 of the Labor Code, an employment contract concluded for a certain period is terminated upon the expiration of its validity period.

1. The contract ends on the last day of its validity, regardless of what day (working day or weekend) it ends. Dismissal of an employee on this basis is not excluded during a period of temporary incapacity for work or while on vacation (clause 16 of Plenum Resolution No. 4).
2. An employment contract concluded for the duration of certain work is terminated from the day of completion of this work (Part 2 of Article 38 of the Labor Code).
3. An employment contract concluded for the duration of the duties of a temporarily absent employee is terminated from the day preceding the day the employee returns to work (Part 3 of Article 38 of the Labor Code).
4. An employment contract with temporary workers is terminated on the last day of its validity.
5. An employment contract concluded for the duration of seasonal work is terminated with the expiration of the season (Part 4 of Article 38 of the Labor Code). Employment contracts with temporary and seasonal workers may also be terminated on other grounds provided for in other articles of the Labor Code.

Note! The expiration of an employment contract does not entail its automatic termination. According to Art. 39 of the Labor Code, if after the expiration of a fixed-term employment contract, the employment relationship actually continues and neither party has demanded its termination, then the employment contract is considered to be continued for an indefinite period.

To terminate a fixed-term employment contract upon expiration, the following conditions must be met:

1. Expiration of a fixed-term employment contract.
2. Request by at least one of the parties to terminate the employment relationship.

These conditions must be met in their entirety, since the mere expiration of the period for which a fixed-term employment contract was concluded is not an unconditional basis for termination of the employment relationship. If the employment relationship actually continues and neither party demands termination of the employment contract, the employment contract will be continued for an indefinite period (clause 2, part 2, article 35, article 39 of the Labor Code).

2.2 Features of contract termination

Termination of a contract due to the expiration of its term has another feature compared to the termination of other fixed-term employment contracts. The legislation establishes that each of the parties who entered into a contract, no later than one month before its expiration, must notify the other party in writing about the decision to continue or terminate the employment relationship (part 3, clause 1-1 of the Decree of the President of the Republic of Belarus dated 12.04. 2000 N 180 “On the procedure for applying the Decree of the President of the Republic of Belarus of July 26, 1999 N 29” (hereinafter referred to as the Decree on the procedure for applying Decree N 29)).

Note! Employers should keep in mind that if for some reason the monthly notice period is missed, it is still more advisable for them to notify the employee of dismissal due to the expiration of the contract. In this case, the dismissal will be carried out in violation of labor legislation, for which administrative liability is established (Part 4 of Article 9.19 of the Code of the Republic of Belarus on Administrative Offenses (hereinafter referred to as the Administrative Offenses Code)). However, such a violation does not entail the employee’s reinstatement at work (part 1, paragraph 12 of Plenum Resolution No. 4) and does not entail a change in the date of termination of the contract.

Documenting:

• Notification (if necessary).
• Order.

3 Dismissal of an employee if he has not passed the probationary period or termination of the employment contract with preliminary testing (Article 29, paragraph 7, part 2, article 35 of the Labor Code)

When concluding an employment contract with an employee, in order to verify the employee’s compliance with the work assigned to him, a preliminary test may be established (Part 1 of Article 28 of the Labor Code).

The maximum period of preliminary testing is established in Part 3 of Art. 28 Labor Code and cannot exceed 3 months. It cannot be increased, because this will be a worsening of the employee’s position compared to the law (Articles 7 and 23 of the Labor Code).

The minimum period of testing is not limited by law, so it can be, for example, a couple of days or a week.

According to Part 4 of Art. 28 of the Labor Code, the condition for preliminary testing must be provided for in the employment agreement (contract). If there is no provision for preliminary testing in the text of the employment contract, this means that the employee was hired without preliminary testing.

According to Part 1 of Art. 29 of the Labor Code, each party has the right to terminate an employment contract with preliminary testing:

1. Before the expiration of the preliminary test period, warning the other party about this in writing three days in advance.
2. On the day of expiration of the preliminary test.

Documenting:

1. Notification: - statement if the initiator is an employee; — notification if the initiator is an employer + sample memo about failure to complete the probationary period.
2. Order.

4 Dismissal of an employee at the initiative of the employer

This section has a lot of reasons, so we will look at the most popular one - absenteeism .

On this basis, employees may be dismissed if they are absent from work without good reason for the entire working day or for more than three hours during the entire working day, continuously or in total, both on the territory of the organization and at a facility outside the territory of the organization, where they, in accordance with with labor responsibilities must perform the assigned work (clause 34 of Plenum Resolution No. 2).

Also, an employee may be dismissed for absenteeism in the following cases (part 2, paragraph 34 of Plenum Resolution No. 2):

1. Leaving work without a good reason without warning the employer about the termination of an employment contract concluded for an indefinite period, as well as before the expiration of the notice period for dismissal (Article 40 of the Labor Code).
2. Leaving work without a valid reason by an employee who has entered into a fixed-term employment contract before its expiration.
3. Unauthorized use of days off, as well as unauthorized going on vacation. The labor legislation of the Republic of Belarus does not establish a list of valid reasons for absence from work. This issue is decided in each specific case, first by the employer, and if disagreements arise, by the court. In practice, valid reasons for absence from work include illness of the employee himself, an unforeseen need to care for a sick family member, absence with the permission of the relevant officials of the employer, etc.

Documenting:

• memorandum from the manager/report of the commission on the employee’s absence from work;
• a written explanation from the employee about the reasons for absence from work;
• act of the commission on conducting an inspection of violations committed by the employee, which are grounds for dismissal;
• order to dismiss an employee under clause 5 of Art. 42 TK.

Dismissal of an employee in Do Delo:

A very common pain point for accountants and personnel officers is calculating the number of unused vacation days for which an employee is entitled to compensation. If an employee went on vacation every year and chose all the days, then it’s easy to calculate. In practice, an employee goes on vacation at his own expense, does not choose all vacation days for the year, etc.

Important calculations upon dismissal

To make our work easier, we use Do the Business, which automatically calculates the required number of vacation days:

And also, thanks to the service, we can easily calculate the amount of compensation for unused vacation days:

Deductions from wages can be made only in cases provided for by law (the list of these cases is closed) (Part 1 of Article 107 of the Labor Code). They are carried out by order of the employer (Part 2 of Article 107 of the Labor Code):

1) to return an advance issued on account of wages; to return amounts overpaid due to accounting errors; to repay an unspent and not timely returned advance issued for a business trip or transfer to another location, for business needs, unless the employee disputes the grounds and amount of the withholding.

Attention! The employer's order to withhold must be made no later than one month from the date of expiration of the period established for the return of the advance payment, repayment of the debt, or from the date of the incorrectly calculated payment (Clause 1, Part 2, Article 107 of the Labor Code).

Moreover, this period refers specifically to the date of issuance of the withholding order; direct withholding can be made after the expiration of the specified period.

If this deadline is missed or if the employee disputes the grounds or amount of the withholding, the collection of amounts is carried out in court.

The deduction can be made at a time or in installments. However, when making deductions, restrictions regarding the amount of deductions must be observed (Article 108 of the Labor Code, subclause 3.6, clause 3 of Decree No. 5):

• for each payment of wages, the total amount of all deductions cannot exceed 20 percent;
• in some cases (for example, according to several executive documents) - 50 percent of the wages due to the employee;
• exceptions to all cases are deductions from wages when collecting alimony for minor children and expenses spent by the state on the maintenance of children who are on state support (at least 30 percent of earnings must be retained for the employee).

Attention! If wages are overpaid to an employee not due to a counting error, but due to some other reasons (for example, due to incorrect application of the law, erroneous application of the bonus provision), then it cannot be recovered back (Part 3 of Article 107 TK);

2) upon dismissal of an employee before the end of the working year for which he has already received labor leave, for unworked vacation days.

At the same time, the legislation contains restrictions on deduction for vacation provided in advance (clause 2, part 2, article 107 of the Labor Code). Thus, this deduction is not made when an employee is dismissed for the following reasons:

• by agreement of the parties (clause 1, part 2, article 35 of the Labor Code);
• due to the expiration of a fixed-term employment contract (clause 2, part 2, article 35 of the Labor Code);
• in connection with a transfer with his consent to another employer or transfer to an elective position (clause 4, part 2, article 35 of the Labor Code);
• in connection with the refusal: - transfer to work in another area together with the employer; — continuation of work due to changes in significant working conditions; — continuation of work in connection with a change of property owner and (or) reorganization (merger, accession, division, spin-off, transformation) of the organization (clause 5, part 2, article 35 of the Labor Code);
• in connection with the liquidation of an organization, termination of the activities of a branch, representative office or other separate division of an organization located in another area, termination of the activities of an individual entrepreneur, reduction in the number or staff of employees (clause 1 of Article 42 of the Labor Code);
• due to incompatibility with the position held or the work performed due to a health condition that prevents the continuation of this work (clause 2 of Article 42 of the Labor Code);
• due to absence from work for more than four months in a row due to temporary disability (not counting maternity leave), unless the law establishes a longer period of retention of a job (position) in case of a certain illness (clause 6 of Article 42 of the Labor Code) ;
• in connection with conscription for military service, assignment to alternative service (clause 1 of article 44 of the Labor Code);
• in connection with the reinstatement of an employee who previously performed this work (clause 2 of article 44 of the Labor Code);
• in connection with the death of an employee, recognition by the court as missing or declared dead, death of the employer - an individual (clause 6 of Article 44 of the Labor Code);
• at will in connection with a referral for training or retirement (clause 3, part 2, article 35 of the Labor Code).

In addition, no deductions are made for the unworked part of the vacation if upon dismissal the employee is not accrued any payments, and also if the employer, having the right to do so, did not make deductions when paying the settlement or withheld only part of the employee’s debt;

3) when compensating for damage caused to the employer through the fault of the employee.

The employee’s financial liability arises in connection with damage caused to the employer and consists in the obligation of the guilty person to compensate it within the limits and procedure established by law.

As a general rule, an employee who causes damage to the employer through his own fault bears full financial liability (Part 1 of Article 402 of the Labor Code). Compensation for damage can be made by the employee on a voluntary basis: in whole or in part (Part 1 of Article 401 of the Labor Code). In this case, it is necessary to take into account cases of full (Article 404 of the Labor Code) and limited liability (Article 403 of the Labor Code).

Damage caused to the employer due to the fault of the employee may be compensated:

1) by order of the employer in the amount of up to three of his average monthly wages by deduction from the employee’s salary (part 1 of article 408 of the Labor Code, subclause 3.6 of clause 3 of Decree No. 5).

Attention! The employer's order must be made no later than two weeks from the date of discovery of the damage caused by the employee and must be executed no earlier than 10 days from the date of notification of this to the employee (Part 2 of Article 408 of the Labor Code);

2) by decision of the body for the consideration of labor disputes (commission on labor disputes (clause 6, part 2, article 236 of the Labor Code), court (clauses 2 and 3, part 1, article 241 of the Labor Code).

Compensation for damages in court is made in cases where: - the employer missed the two-week deadline for issuing a deduction order (Part 2 of Article 408 of the Labor Code);

- the damage exceeds the amount of three average monthly earnings of the employee (part 1 of article 408 of the Labor Code, subclause 3.6 of clause 3 of Decree No. 5);

- the employee does not agree with the deduction made by the employer for damages, or with its amount after compliance with the out-of-court review procedure;

- a labor dispute commission has not been created or has not considered their applications within the established ten-day period;

- the employee is not a member of the trade union and has not applied to the labor dispute commission (subclause d) clause 6 of the resolution of the Plenum of the Supreme Court No. 2).

If, in violation of the established procedure, the employer made a deduction from the employee’s wages, the labor dispute resolution body, upon the employee’s complaint, makes a decision to return the illegally withheld amount (Part 6 of Article 408 of the Labor Code).

Next, you need to make the final calculation upon dismissal, taking into account all the above nuances. The final payment must be paid no later than the day of dismissal, and the work book must be issued on the last working day.

Responsibility for delay in payment on the day of dismissal

The settlement is all undisputed payments due to the employee from the employer.

They usually consist of wages for the last month of work and compensation for unused vacation. In some cases, the calculation also includes other payments provided for by law, collective and labor agreements to which the employee is entitled, for example:

— travel expenses;

— severance pay (Article 48 of the Labor Code);

— compensation for wear and tear of vehicles, equipment, tools and devices belonging to the employee (Article 106 of the Labor Code);

— compensation to the head of the organization for early termination of an employment contract with him by decision of the owner of the organization’s property (Article 259 of the Labor Code), etc.

For the calculation of the final payment, it has no legal significance what specific payments and in what quantity were included in it.

In accordance with Art. 77 of the Labor Code, upon dismissal of an employee, all payments due to him from the employer on the day of dismissal are made no later than the day of dismissal. The day of dismissal is considered the last day of work (Part 6, Article 50 of the Labor Code). The amounts due on the day of dismissal are paid.

If the employee did not work on the day of dismissal, then the corresponding payments must be made no later than the next day after he submits a request for payment (Part 1 of Article 77 of the Labor Code).

Delay in payment on the day of dismissal is a violation of labor laws. Article 78 of the Labor Code provides that in the event of failure to pay, through the fault of the employer, the amounts due on the day of dismissal, the employee has the right to recover from the employer the average salary for each day of delay, and in the event of failure to pay part of the amount - in proportion to the amounts unpaid during the calculation.

However, if the employer is not at fault for the delay in payment upon dismissal, then the employee’s demands for recovery of average earnings for the delay in payment upon dismissal cannot be satisfied.

The right to recover average earnings for a delay in payment belongs to the employee, regardless of the type of employment contract concluded with him, including those working part-time.

Note! A delay in payment for any reason is not allowed (an employee’s refusal to move out of the hostel, lack of funds to pay wages, an employee’s refusal to fill out bypass sheets, and in other cases), since the legislator has clearly defined the employer’s obligation to make a payment no later than the day of dismissal (Art. 77 TK).

Taking into account that a delay in payment on the day of dismissal is a violation of labor legislation, the employer and his officials may be subject to various types of liability, in particular:

- officials of the employer who are directly responsible for the delay in payment or failure to comply with a court decision on the immediate execution of the decision to pay the employee, which resulted in the collection of average earnings (and, accordingly, causing damage to the employer), bear financial liability to the enterprise according to the general rules provided for in Chapter. 37 TK.

Note! According to Art. 409 of the Labor Code and paragraph 50 of the Resolution of the Plenum of the Supreme Court of the Republic of Belarus dated March 29, 2001 No. 2 “On some issues of the application of labor legislation by courts” (hereinafter referred to as the Resolution of the Plenum No. 2), the amount of damage subject to compensation may be reduced by the court taking into account the degree of guilt official, his financial situation and specific circumstances.

- disciplinary liability of the employer’s officials directly responsible for the delay in payment is provided for in Chapter. 14 of the Labor Code, which provides for penalties in the form of reprimand, reprimand and dismissal Art. 198 TK.

- the employer and his officials may also be brought to administrative liability on the basis of Part 1 of Art. 9.19 of the Code of Administrative Offenses, which provides that violation by the employer or his authorized official of the procedure and terms for payment of wages (which occurs when payment is delayed) entails a fine in the amount of 4 to 20 basic units, and for a legal entity - up to 100 basic units.

Liability for delay in issuing a work book due to the fault of the employer

The work book of the established form is the main document about the employee’s work activity. The work book is kept by the employer during the entire period of validity of the employment contract. Upon termination of an employment contract, the employer is obliged to issue the employee a work book on the day of dismissal (last day of work) (Article 50 of the Labor Code). However, it must be properly formatted.

It must contain all records of work activity in this organization:

— on hiring, dismissal of an employee;

- if appropriate circumstances have occurred, then entries are made about transfer to another permanent job, conclusion of an employment agreement (contract), awards and incentives for success in work, information about training, advanced training, internship and retraining, etc. (clause 9 of the Instructions on the procedure for maintaining work books, approved by Resolution of the Ministry of Labor and Social Protection of the Republic of Belarus dated June 16, 2014 N 40 (hereinafter referred to as the Instructions on work books)).

Without a work book, a citizen does not have the opportunity to find a job with another employer at his main place of work, since in this case the work book is one of the mandatory documents that must be presented when applying for a job (Clause 2, Part 1, Article 26 of the Labor Code). In this regard, the employer is responsible for the delay in issuing a work book if the delay was due to his fault (Article 79 of the Labor Code).

Let us remind you that often an employer cannot issue a work book to an employee due to the employee’s absence from work (long absence, etc.) or his refusal to receive a work book. However, labor legislation provides for the procedure for the employer to act in these cases.

So, if an employee is absent from work on the day of dismissal, then the employer must send him a registered letter on the same day with acknowledgment of receipt, indicating the need to appear to receive a work book (Part 1, Clause 74 of the Instructions on Work Books). The work book itself is not sent.

Sending a work book by mail is possible only if the employee has given consent to this in writing (Part 3, Clause 74 of the Instructions on Work Books). To do this, the employee must submit a written application to the employer to send the work book by mail indicating the delivery address. Then, no later than the next day after receiving such an application, the employer sends the work book to the address specified in the application.

In cases where an employee refuses to receive a work book himself, the corresponding fact is recorded in the act indicating the witnesses present (Part 2, Clause 74 of the Instructions on Work Books). If there is a delay in issuing a work book due to the fault of the employer, he is obliged to pay the employee the average salary for the entire period of forced absence. The date of dismissal must be changed to the day the work book is issued (Article 79 of the Labor Code).

Calculation of average earnings during forced absence is carried out in accordance with the norms of Art. 82 - 85 TK.

If the employer refuses to pay the employee the average salary for the period of forced absence and changes the date of dismissal to the day the work book is issued, the employee has the right to go to court.

Note! The legislation does not establish a mandatory pre-trial procedure for consideration of this category of labor disputes. Labor disputes regarding applications from employees regarding payment for forced absences or changing the date of dismissal are considered directly in court (clause 3, part 2, article 241 of the Labor Code).

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In preparing this article, analytical materials from the legal system “Consultant” were used.

Calculation and compensation upon dismissal by agreement of the parties

Payment of severance pay is provided for in a collective or labor agreement between the employee and the employer. As a rule, we are talking about three months' earnings of an employee.

IMPORTANT!

Please note that compensation upon dismissal by agreement of the parties is not subject to insurance contributions in an amount not exceeding three times (for employees of organizations located in the Far North and equivalent areas - six times) the average monthly salary (see Article 422 of the Tax Code of the Russian Federation, letters Ministry of Finance of Russia dated July 18, 2019 No. 03-04-06/53226, dated July 2, 2019 No. 03-04-06/48330).

Upon dismissal by agreement of the parties, the employer makes a calculation certificate and transfers the amount, which consists of wages for the last month worked, compensation for unused vacation, and severance pay, which was agreed upon.

Federation of Trade Unions of Kamchatka

The peculiarity of terminating an employment contract by agreement of the parties is that cancellation of the agreement is possible only with the mutual consent of the parties. The Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” indicated that the annulment of an agreement regarding the period and grounds for dismissal is possible only with the mutual consent of the employer and employee (clause 20). That is, once the severance agreement is signed, neither party can revoke it.

Revocation of a resignation letter is possible only upon termination of the employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation) - and if, in place of the employee resigning at his own request, another is invited in writing, who cannot be refused to conclude an employment contract, then the application for withdrawal a notice of resignation will no longer be a basis for canceling the dismissal. The employee will still be fired.

Since an agreement to terminate an employment contract can be canceled only by mutual agreement of the parties (and there was no such desire on the part of the employer), the organization, having formalized the dismissal on the agreed day, did not commit a violation of labor legislation. Therefore, you should not be afraid of fines.

We also note that the Constitutional Court in its Ruling dated October 13, 2009 N 1091-О-О “On the refusal to accept for consideration the complaint of citizen Anatoly Nikolaevich Preminin about the violation of his constitutional rights by Article 78 of the Labor Code of the Russian Federation” indicated: according to the Constitution of the Russian Federation, labor is free; everyone has the right to freely use their ability to work and choose their type of activity and profession (Article 37, Part 1). Freedom of labor in the sphere of labor relations, as noted by the Constitutional Court in its decisions, in particular in the Resolutions of December 27, 1999 N 19-P and of March 15, 2005 N 3-P, is manifested primarily in the contractual nature of labor, in the freedom of the employment contract. It is within the framework of an employment contract, based on an agreement between a citizen and an employer, that the issue of working in a certain position, profession, or specialty is resolved.

Freedom of labor also presupposes the possibility of terminating an employment contract by agreement of its parties, that is, on the basis of the voluntary and agreed expression of will of the employee and the employer. Reaching an agreement to terminate an employment contract on the basis of a voluntary agreement of its parties allows for the possibility of annulment of such an agreement solely through the agreed expression of will of the employee and the employer, which excludes the commission by both the employee and the employer of arbitrary unilateral actions aimed at abandoning a previously reached agreement. Such legal regulation is aimed at ensuring a balance of interests of the parties to the employment contract and cannot be considered as violating the constitutional rights of the employee.

Application for dismissal by agreement of the parties

Termination of an employment contract by agreement of the parties in 2021 is allowed for open-ended and fixed-term employment contracts. The employee must submit the application in writing. The application form for dismissal by agreement of the parties is free. It is written by hand on a sheet of A4 paper or typed on a computer and printed. Many enterprises use a company form for resignation by agreement of the parties. The document is drawn up in two copies and includes:

• company details (full name, address, full name of the director);
• employee details (full name, position, contact phone number);
• information about the employment contract (details, date of acceptance);
• a request for dismissal by agreement of the parties;
• date of the last working day;
• link to the article of the law;
• date and signature of the employee.

If this is a dismissal by agreement of the parties with payment of compensation, all additional conditions for terminating the employment contract are prescribed:

• the amount of compensation and payment upon dismissal by agreement of the parties;
• number of days of unused vacation,
• if the employee decided to take it before dismissal;
• information about material assets and documentation that the employee is obliged to transfer.

Legal regulation of dismissal by agreement of the parties

Termination of an employment contract by mutual consent is regulated by Article 77 of the Labor Code. The relationship ends at the moment when both parties need it, and the type of contract (fixed-term or indefinite) does not matter.

On April 10, 2014, the Ministry of Labor of the Russian Federation published explanatory letter No. 14-2/OOG-1347, which emphasizes that the agreement between staff and management must be formalized in writing.

The benefits of such a dismissal

Wanting to change jobs, a person writes an application of his own free will. But the method of dismissal by mutual agreement allows you to terminate cooperation without complications and even with some benefit.

For an employee:

• Having determined the timing of his departure, he looks for another job or completes personal matters;
• There is no mandatory two-week work period; you can quit one day and start working in a new place.

For the employer:

• the manager is confident that the employee will not change his mind about leaving and will not decide to withdraw his application;
• severance pay is at his discretion.

ATTENTION! Under the agreement, even protected categories of employees can be fired: pregnant women, minors and those on sick leave. The main thing is to correctly draw up the document in two copies, with the wording correct from the point of view of labor law, and then sign it by both parties.

Dismissal of pregnant women by agreement of the parties

This is a special category of workers whose interests are protected by laws. Dismissal of a pregnant woman at the request of the employer is impossible, except for the liquidation of the organization or the return to work of the main employee (if the pregnant woman was employed during the temporary absence of the main employee). But even in these cases, dismissal by agreement of the parties is applicable. If a pregnant employee in the described situation does not want to resign of her own free will or by agreement of the parties, then the employer has the right (when the main employee leaves) and is obliged (upon liquidation of the organization) to terminate the employment relationship with this employee.