Dismissal by agreement of the parties - article of the Labor Code of the Russian Federation 2021

Dismissal made by agreement of the parties is a fairly common practice between employees and employers. And this is a good sign, since reaching agreement on dismissal means, on the part of the employee, remaining on good terms with his superiors, receiving good recommendations, and for the employer, it is a guarantee of security against the risk of challenging the legality of dismissal.

What are the nuances of this process, how it happens and what documents are supported, we explain in this article.

Question: A decision has been made to liquidate a legal entity and a liquidator has been appointed. Can he sign the work book when dismissing an employee by agreement of the parties? View answer

Legal regulations

This type of dismissal is described in Article 78 of the Labor Code of the Russian Federation, and this article contains only two lines without additional explanations, indicating only the possibility of terminating the employment relationship at the mutual desire of the parties at any time. The procedure for dismissal is set out in more detail in the previous Article 77. Article 36, paragraph 1. The Labor Code provides generally accepted rules for such dismissal.

Question: How is the payment of compensation (severance pay) to an employee upon dismissal by agreement of the parties in an amount exceeding three times the employee’s average monthly earnings taken into account? According to the additional agreement to the employment contract on the termination of employment relations, by agreement of the parties, the employee is paid compensation (severance pay) in the amount of 240,000 rubles, which is 60,000 rubles. exceeds three times the employee’s average monthly earnings. The compensation is transferred to the employee's bank account. For profit tax purposes, the accrual method is used. View answer

That is why personnel officers and those being dismissed often have questions regarding this basis:

the employee leaves or is fired;
whose initiative prevails;
what should be the working period;
what to include in the application;
what monetary payments are due, etc.

FOR YOUR INFORMATION! Fearing "pitfalls", employers and employees sometimes prefer dismissal for other reasons, whereas it is worth familiarizing yourself with all the advantages and disadvantages of the method, and only then making a final decision.
Remember, the devil is not nearly as scary as he is painted.

Features of dismissal of different categories of workers

Some categories of workers have certain guarantees due to their work schedule or special status. Let's consider how to terminate the employment relationship with them.

Pregnant women

Women on maternity leave have a number of rights, including when terminating an employment contract. If an agreement is concluded to terminate the contract at the mutual request of the parties, no benefits apply (all payments and compensation are indicated in the additional agreement, otherwise the pregnant woman will not receive them).

Pensioner and pre-retirement

Infringement of the rights of citizens in connection with reaching a certain age is prohibited by Article 3 of the Labor Code of the Russian Federation; the procedure is carried out in the same manner as in relation to other employees; pressure or other coercion is prohibited.

Part-timer

The dismissal procedure by agreement of the parties is carried out in the same manner, but the dismissal will be recorded at the main place of work.

Good aspects of the agreement between the parties for the employee

A resigning employee should consider the agreement of the parties as a reason for dismissal, because:

the application can be submitted at any time during the term of the employment contract;
the reason for leaving is not required in the application;
the moment of leaving is discussed with the employer, there is no mandatory service;
you can agree with the employer on the conditions of care – terms, compensation, etc.;
neutral entry in the work book;
an excellent alternative in case of threat of dismissal for guilty behavior;
the length of service is not interrupted for another month after leaving on this basis;
When registering with the Employment Center, the benefit will be higher.

Is it possible to terminate an employment contract with an employee by agreement of the parties while the employee is on vacation ?

Positive and negative sides

An employee may benefit from dismissal on this basis for the following reasons:

No obligation to motivate your decision.
There is no need to notify the employer in advance. This means you can quit in one day.
Possibility to exclude the obligation to work for two weeks.
The ability to use this basis if there is fault on the part of the employee by agreement with management.
By agreement, you can leave yourself time to look for a new job.
When mutual obligations on this basis are eliminated, the continuity of service increases by a month.
Opportunity to receive increased unemployment benefits.
This basis does not reflect negatively on the employee’s reputation. On the contrary, in today's conditions, a new employer may consider the employee more loyal, and therefore more willing to accommodate.

What does the employee risk?

The disadvantages of this formulation of the basis include the following points:

the contract can be terminated in any situation, even on sick leave, on vacation, or if the employee belongs to a preferential category;
if an employee changes his mind about quitting, it will no longer be possible to withdraw the application signed by his superiors;
the union does not control such dismissals;
It is impossible to challenge the employer's actions in court.

Is there an upper limit for severance pay when dismissing an employee by agreement of the parties?

When and with whom is termination possible?

The legislation does not contain any exceptions regarding categories of employees who cannot be dismissed by agreement of the parties. Even if the employee is on vacation or sick leave, the contract with him can be terminated by agreement. Whereas, for example, at the initiative of the employer, the contract is not terminated during the specified period.

An employment contract can be terminated by agreement of the parties with any employee: with a woman on maternity leave for a child under 3 years old, with a single mother who has in her care a disabled child under 18 years of age or a young child under 14 years of age.

From a formal position, the legislation does not contain a ban on dismissal of a pregnant woman by agreement of the parties, while at the request of the employer it is directly prohibited to dismiss her. But if at the time of signing the agreement the woman did not know about her pregnancy, then she has the right to later cancel the agreement, and the court may recognize her claims as justified.

Also, when dismissing by agreement of the parties, the employer is not required to provide any special justification for dismissal . In particular, when dismissing for disciplinary violations, the employer must have a sufficiently strong evidence base. Whereas in this case, the fact of an agreement signed by the parties is sufficient for dismissal.

Many employers formalize dismissal by agreement of the parties if the employee has committed some kind of misconduct in order to give him the opportunity to find a job in the future.

Why does an employer benefit from an agreement between the parties?

An employer often recommends this form of grounds to a dismissed person because it is beneficial: the agreement does not provide for the payment of additional severance pay unless this is specified in the collective agreement. There is no need to consult with the trade union organization for such dismissals. Another important point is that by agreement of the parties, a pregnant woman, a minor employee, an employee on maternity leave, and other preferential categories can be dismissed. This makes it convenient to terminate student contracts. And finally, the most important thing is insurance against litigation.

Question: Is it possible to dismiss an employee at his own request or by agreement of the parties on his day off during a shift work schedule? View answer

Compensation payments due to an employee

Before dismissal on this basis, it will be useful for the employee to know what they must pay for termination of the contract. He can count on the following compensation:

For days of unused vacation.
Salary for each day, including the last.
For termination of the contract, if such payments are provided for in it.

Important! If the parties establish any payments directly in the agreement itself, this entails the obligation of the employer to make them. The agreement cannot change the provisions of the main contract, so the employee has the right to count only on receiving the funds specified in the original document. If the parties wish to establish an obligation to pay compensation, they should enter into an additional agreement regarding this, which will be an annex to the main agreement.

The Tax Code allows you not to withhold personal income tax from all types of payments, with the exception of compensation for days of unused vacation. However, this rule applies only within three average salaries. All money transfers over this limit are subject to taxation in general at a rate of 13 percent.

The employer is obliged to make a full payment to the employee on the last day of the employment contract. If this day falls on a weekend, the management of the enterprise must wait for the employee to request payment of the due funds, after which the payment is made no later than the next day.

Everything is relative

If an employee is thinking about which reason to choose for leaving, it makes sense to compare the features of the parties’ agreement and other popular reasons.

Your own desire or agreement? When choosing one of these methods, it is worth taking into account the main differences:
the date of departure is determined at will, and by agreement it can be set for mutual convenience;
the employee can withdraw the application at his own request, and the agreement of the parties provides for the will of the employer;
material unemployment compensation for someone who left on their own initiative is lower than for someone who entered into an agreement with the employer.
Agreement or reduction? Here the initiative often belongs to the employer: if the employee still has to be fired, you can invite him to indicate another reason for this; the advantages for management are obvious. But should the employee agree?
Another possible advantage of choosing an agreement for the employer is preferences for future employment. To receive maximum compensation from the Employment Center, a registered dismissed employee must not be employed for 2 months. And if the agreement of the parties provided for any compensation, they will be paid to the employee regardless of his future plans, so he can not waste time and immediately get a new job.

NOTE! In order for all the promises of the entrepreneur to be guaranteed to be fulfilled, the agreement must not be oral, but drawn up in writing and signed in 2 copies, although the Labor Code of the Russian Federation does not insist on a specific form: a sample agreement for dismissal by agreement of the parties.

Brief summary

The procedure for dismissing an employee by agreement of the parties is simple, but it is important for the employer to collect a complete package of documents:

employee statement;
a written and personally signed agreement to terminate the relationship between the employee and the employer;
order to terminate the working relationship;
availability of notes on the issuance of the necessary papers to the dismissed employee.

On this basis, the employee, if there is a compromise with the employer, has the right to leave at any time - as written in Article 78 of the Labor Code of the Russian Federation and confirmed by paragraph 20 of the resolution of the plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

And although this procedure for terminating relations has advantages for the employee and the employer (it is possible to agree on any conditions and record them in writing), it also has disadvantages. The employee should prepare for the fact that during subsequent employment he will be asked uncomfortable questions, including for what specific reason he decided to part ways with his former employer. You will have to think carefully about what to answer.

Whose initiative?

Despite the fact that the term “agreement” implies equality of the parties, the initial initiative necessarily comes from one person. The law does not differentiate between them: it is enough to obtain written notification from one party and consent from the other (also written).

In practice, most often the application for dismissal by agreement of the parties is written by employees, even if the verbal initiative belongs to the employers. This makes it easier to keep records and insure yourself against challenges and litigation.

Benefits and risks for the employer

There are advantages to dismissal by agreement of the parties and for the employer:

simplicity of the dismissal procedure;
lack of obligation to indicate the reason for termination of cooperation;
the ability to minimize the negative consequences of parting with an unwanted employee (especially when there is a risk of leaking valuable information);
the opportunity to negotiate the most convenient conditions for both parties;
the opportunity to reduce staff, get rid of an unwanted employee;
challenging such an agreement in court is quite problematic.

The only risk is that pregnant women have the right to withdraw their own application, as court practice states.

How does dismissal occur by agreement of the parties?

The procedure for such dismissal takes place in the following order:

Oral initiative of either party, negotiation of the terms of dismissal, reaching agreement.
The resignation letter is in free form, but must contain:
a request to terminate the employment relationship under Article 77 or 78 of the Labor Code of the Russian Federation;
details of the employment contract;
expected date of departure;
date of application;
applicant's signature.
Visa “I agree” from the employer on the application.
Written agreement, signing and registration. It must indicate all the conditions of dismissal, which cannot be changed unilaterally. Required elements:
details of the contract that will be terminated;
the last day of work of the dismissed person;
the amount and conditions for calculating compensation (if any);
ID details of the departing employee;
name of the organization and TIN of the head;
signatures of both parties.
Issuance of the order on the basis of a signed agreement, familiarization with the employee’s signature in the usual manner.
Entering into the work book the entry “Dismissed by agreement of the parties, clause 1, part 1, article 77 of the Labor Code of the Russian Federation” or “The employment contract was terminated by agreement of the parties, clause 1, part 1, article 77 of the Labor Code of the Russian Federation.”
On the day of departure - the employee’s calculation of wages, sick leave and compensation for vacation, if it was not used. Issuance of a work book and a copy of the order to the outgoing employee.

Peculiarities

And yet: how to resign by agreement of the parties without problems for all participants in the process, if there are some specifics? The procedure for such termination of labor obligations is reminiscent of the procedure for terminating an employment contract at the citizen’s own request, but there are differences. Specifics of the process of terminating a contract on this basis:

simplicity of design. The law only indicates the fact that there is an agreement, but the form is not defined. But in order to avoid legal disputes, and proceedings in the field of labor law in judicial practice are considered one of the most difficult, it is recommended to follow a written form. And yet, dismissing an employee by agreement of the parties is usually not difficult; only a clearly expressed and documented expression of the will of the participants in the process is necessary;
there is an opportunity to propose and agree on the terms of termination of the relationship. The employer and employee have the right to establish the period of work or the fact of its absence, the procedure for transferring cases, additional compensation, etc.;
the desire must be mutual, pressure is unacceptable;
the main difference from leaving voluntarily is the inability to revoke the decision to dismiss. It is not possible to terminate this agreement unilaterally, since the document is signed by two persons at once. In this case, a separate document must be drawn up. There is one point here: the administration has the right to terminate the contract by agreement with any employee, even single mothers or pregnant women. But pregnant women have the right to refuse to fulfill such an agreement unilaterally: this is judicial practice based on the opinion of the highest judicial authorities (determination of the Supreme Court of the Russian Federation dated September 5, 2014 No. 37-KG14-4).

Dismissal of pensioners and pre-retirees

Working pensioners and pre-retirees also have the right to resign by agreement of the parties to the employment contract. But there are nuances here too.

As in other cases, the conclusion of the agreement must be voluntary. Otherwise, the pre-retirement person will be reinstated at work, the company will be fined (Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation), and its manager may be brought to criminal liability (Article 144.1 of the Criminal Code of the Russian Federation).

Taxation and payment of insurance premiums when settling with a resigning person

When thinking about how to calculate the amount that a resigning employee will receive, it is necessary to take into account personal income tax and insurance premiums. According to the Tax Code of the Russian Federation, the employer pays a tax at a rate of 13 percent to the state treasury on wages not previously transferred and compensation payments for unused vacation. They are also subject to insurance premiums. Severance pay is exempt from deduction of income tax if its amount does not exceed the average three salaries, and for the regions of the Far North and equivalent - 6 average salaries. Insurance contributions are not deducted from severance pay if it does not exceed this limit. The amount of compensation above this threshold is subject to taxation, and an insurance fee is also paid from it.

The Ministry of Finance of the Russian Federation and the Federal Tax Service explained that an enterprise’s expenses for paying severance pay can be used to reduce the profit tax base. This is possible if such compensation transfers are provided for in an employment contract, an additional agreement to it or a collective contract. The additional agreement must contain a note indicating that it is part of the main agreement. Otherwise, the Federal Tax Service may challenge the reduction of the tax base due to the costs of severance pay.

In what cases can you do without working out?

The legislation does not establish a special procedure for dismissal on this basis, but there is an established practice.

If they wish to terminate an employment contract, the parties must proceed as follows:

Notice to the other party.
The employer or employee notifies the other participant of the desire to enter into such an agreement. It is advisable to formalize this stage with a written notice, which should indicate significant points, such as the date of dismissal, conditions and expression of will aimed at terminating mutual obligations.
Agreement of conditions.
The parties agree on all conditions of dismissal.
Drawing up an agreement.
The legislation does not contain special requirements for its form, so it is practiced both in the form of a written document and in the form of an employee application with a manager’s resolution.
Drawing up a dismissal order.
Compliance with all terms of the agreement preceding the moment of termination of the employment contract.
The employee and employer fulfill all the terms of the agreement regarding which an agreement has been reached. Such conditions may include the transfer of cases to another employee.
Registration of a work book.
On the day of dismissal, a corresponding entry is made in the employee’s work book.
Calculation.
The employer makes a full payment to the dismissed employee on his last working day.

At the same time, the procedure for dismissing certain categories of employees may have its own characteristics. For example, when mutual obligations with the general director are terminated, a meeting of the founders should be held, during which a decision on this issue should be adopted and recorded in the minutes.

In some cases, by agreement of the parties, you can quit without working. Such cases include:

dismissal if an employee or his family members move to other regions or countries;
dismissal upon retirement of an employee, if such a pension is assigned due to old age or length of service;
if the application is written before going on annual paid leave or unpaid leave;
if the employee who is about to resign has gone on sick leave for a period of at least fourteen calendar days. In this case, the employer does not have the right to sign a dismissal order until the employee’s sick leave is closed and it is submitted to the personnel department in order to make a final settlement with the resigning employee.

However, in order for the work to not be carried out, it is necessary to first discuss this option of dismissal with the employer.

In order to

dismissal

was carried out without work, this point must be discussed with the employer (with the exception of cases using paid leave or leave without pay, and also if the application is submitted during the period of use of the certificate of incapacity for work).

If an agreement is reached between the employer and employee on dismissal without work, events will develop in two ways:

the work will actually be carried out, but from the point of view of legal registration, such work will be absent, since the application will be submitted on the day that should be considered the actual last day of work in a particular organization;
there will be no working off either actually or legally, since an agreement was reached between the employer and his employee on actual dismissal without working off, since it is possible to settle all legal and financial issues on the same day when the employee submits his resignation. Most often, this path is followed by those companies that have the opportunity to redistribute the responsibilities of one employee to others, and also have the financial means to make all final settlements with the employee.

Each specific case of dismissal by agreement of the parties will have its own nuances, however, the legislation in force in the Russian Federation allows in some cases to do without working for two weeks or another period established by the employer. To do this, it is necessary to discuss all possible options for such dismissal with the employer.

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The reasons for dismissal by agreement of the parties can be very diverse: for an employee it may be a desire to find a new job for the soul, an inability or unwillingness to work in the current conditions, a conflict situation with team members.

Important! An employer fires someone when there is dissatisfaction with the result of a particular employee’s work, a desire to hire a more qualified specialist instead of an existing one, or optimization of the labor process by reducing staff.

In any case, by agreement of the parties, neither the employer nor the employee is required to indicate the reasons for dismissal. The main thing is that the proposal of one side is approved by the other.