What is dismissal by agreement of the parties: ask questions to a lawyer

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. 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.

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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.

Pros and cons of such dismissal

The main advantages of such a “deal” for the employee are the following:

the application can be submitted at any time - at least six months before the desired date of dismissal;
Knowing the date of your departure in advance, you will have enough time to find a new place;
no need to work additional days (as, for example, when leaving at your own request);
the opportunity to remain on good terms with your former boss (this can be very useful when applying for a new job);
You can negotiate with management on payment of compensation.

The disadvantages are as follows:

you may be fired even if you are on vacation (including maternity leave) or sick leave;
there is no control over the legality of the employer’s actions by the trade union committee;
if this is not expressly stated in the agreement, you will not receive any compensation;
you will not be able to change your mind after signing the agreement and cancel all agreements with the employer unilaterally;
You cannot go to court and challenge the dismissal.

Here you can highlight the pros and cons of such dismissal for the employee. The advantages include:

the initiative to terminate the contract can come from both the employee and the employer;
the reason for dismissal may not be indicated in the application;
There are no deadlines for submitting an application;
You can terminate an employment contract at any time, even in cases prohibited by law;
you can “bargain” with the employer - discuss with him the terms, the amount of severance pay, etc.;
a record of dismissal by agreement does not “spoil” the work book;
may be an alternative to dismissal if the employee is at fault;
with this wording of dismissal, the continuity of service lasts another 1 calendar month;
If you then register with the employment center at your place of registration, the unemployment benefit will be slightly higher.

But there are also disadvantages. They are considered disadvantages for the employee. This:

the employer can terminate the contract at any time, even in cases prohibited by law;
there is no control over the legality of dismissal on the part of the trade union;
the employer is not obliged to pay the employee severance pay unless this is stipulated in the collective agreement, additional agreement or other local regulation;
you cannot unilaterally change your mind and withdraw your resignation letter if the agreement has already been signed;
Judicial practice in such cases is scanty, since it is almost impossible to challenge the actions of the employer.

An employee resigning by agreement of the parties must not forget about certain circumstances:

If the dismissal initiative comes from the employer, you can safely demand severance pay. Moreover, the amount is not limited either by the Labor Code of the Russian Federation or by any other act.
Upon dismissal by agreement of the parties, no work is required. You can resign any day, without waiting two weeks.
But unlike voluntary dismissal, the employee cannot withdraw the application and continue working. If the management does not agree, the dismissal will take place in any case.
The dismissal agreement must be drawn up in writing - and it is highly advisable that two copies be drawn up. The employee has the right to take one of them for himself. This will be useful in case of possible disputes in the future.
Some employers prefer to spell out possible termination conditions in the employment contract itself. This is not prohibited, but in this case, when dismissing, you should read the contract as carefully as possible.
The termination agreement must clearly indicate the date of termination of the employment contract. After it, the employee has the right to stop working, but leave work early; the employer will be able to fire the employee not by agreement, but for absenteeism.
Illness and other circumstances that prevent work are not reflected in the date of dismissal. If by this time the employee was on sick leave, he will still be fired. The only difference is that in this case the work book will be issued to him after recovery or, with his consent, sent by mail.
Finally, an entry must be made in the work book indicating paragraph 1 of Art. 77 Labor Code of the Russian Federation.

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.

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.

What is the difference between dismissal by agreement of the parties and voluntarily for an employee?

Dismissal on personal initiative is not a very favorable formulation for an employee, so it is used only if the employer refuses to formalize the procedure by mutual agreement.

We invite you to read: Dismissal for violation of labor regulations

Leaving at your own request requires a two-week commitment.

In addition, the time when a citizen can receive unemployed status is being delayed.

But often this option is the only one if the employee has expressed a desire to leave work. He does not need to seek the employer's consent.

The benefits of dismissal by agreement for the worker are obvious:

the employee maintains continuous work experience for 1 month after dismissal;
there is no need to notify the employer of your departure 2 weeks in advance;
you can quickly obtain unemployed status, register with the Labor Exchange and receive greater benefits for a longer period of time;
the employee can indicate any terms for leaving if the employer agrees with them, and thus he can slowly look for a new position at another company.
For example, you can indicate in a statement that a team member wants to leave in a month or even two.

So, everyone chooses for themselves what is beneficial to them. However, in most cases, experts advise employees to choose the wording “by agreement of the parties” if the employer does not object.

This will provide the person with additional monetary benefits in social benefits. It is advantageous to quit at your own request if the citizen does not plan to register with the Labor Exchange and has already found a new place of work.

Employers also often benefit from dismissal by mutual agreement. However, like any other procedure, it must be properly completed. This is worth paying attention to.

Divorce by mutual consent

Divorce by mutual consent is the simplest option for dissolving a marriage. The procedure is carried out through the registry office, provided that the couple does not have minor children. The advantage is that the divorce is carried out in the shortest possible time, there is no need to deal with legal proceedings.

It should be understood that such mutual consent to divorce will cost much less.

In case of divorce, the following documents are submitted to the registry office:

identification;
marriage certificate;
a divorce petition written jointly by both spouses;
receipt of payment of state duty.

In fact, such special cases are not “divorce by mutual consent”, but do not require the agreement of the other partner, if the second spouse:

officially declared missing;
was sentenced to at least 3 years;
was declared incompetent in accordance with the procedure established by law.

Also, by mutual consent, the division of jointly acquired property of spouses can occur.

Sample and contents of the agreement

It should contain the following information:

mutual content of the parties;
details of the employment contract that needs to be terminated;
date of termination of employment, that is, the date of the last working day;
the amount and terms of payment of monetary compensation to the employee, if provided;
date and place of his imprisonment. Without this information, the document will be considered void;
position and full name of the employee;
full name of the employer indicating the organizational and legal form;
position and full name of the person who represents the interests of the employer and has the authority to sign documents;
passport details of the dismissed employee;
employer's tax identification number;
Signatures with transcripts.

The agreement is signed by both parties. The document can provide for monetary payment of compensation to the employee for termination of the contract (compensation for dismissal by agreement is not a mandatory condition for such termination of the contract).

Risks and benefits for employees

An employee who begins such a dismissal procedure should highlight certain aspects:

there are no clear deadlines for filing such an application;
no need to look for ways to reach an agreement with your superiors;
it is possible to agree on the conditions of dismissal (for example, after preparing reports on all completed work tasks and linking the deadlines to the salary date).

However, the lawyer also reminded us of the other side: behind such grounds for dismissal there is often hidden a deep conflict and pressure on the employee, which creates a situation of the need for a “quick” dismissal without work. This fact can be attributed to certain risks for the employee, as well as the fact that the resignation letter by agreement of the parties is irrevocable, and the trade union in this case “will not help,” since this method of leaving work is within all areas of his control.

“As for payments, they need to be agreed upon in advance, or the local regulations of the organization must first be studied so that there is no deception on the part of the employer,” lawyer.

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.

What is the difference between dismissal at one's own request and by agreement of the parties for the employer?

An employer often uses the phrase “by agreement of the parties” in two cases:

If you need urgent personnel changes, and there is no time to wait 2 weeks for an employee to work.
If the company is expecting a reduction in staff, and you need to bypass all the formalities in this regard.
When making redundancies, the legislation prescribes a rather complicated procedure: 3 months before the layoff, you need to warn workers, check whether they can be laid off according to the law, register and pay all the money due.
If the dismissal occurs by agreement of the parties, the main question is the amount of compensation. Here the employee has the opportunity to achieve benefits.
Read also: Specifics and subtleties of drawing up a gift agreement for a garage

Sometimes an employer uses an agreement between the parties to terminate relations with an unscrupulous employee without resorting to dismissal under the article.

If the dismissal is made by mutual agreement, the employer is not obliged to coordinate its decision with the trade union organization.

Dismissal by agreement of the parties is a fairly rare procedure, so many employers make mistakes when concluding it. Let's look at the most common ones:

The employer requires the employee to write a letter of resignation. In fact, as already mentioned, this is not necessary: the management of the enterprise can also take the initiative.
The employer tries to unilaterally change the terms of dismissal: for example, he demands to work a few more days, submit a report, or tries to force the employee to do something else that was not mentioned in the agreement. This is absolutely illegal, the employee will have the right to appeal to regulatory and supervisory authorities - and the employer risks receiving a fine.
Some employers openly confuse dismissal at their own request and by agreement of the parties. In this case, you can observe the following picture: the employee submits an application with a request to consider concluding a dismissal agreement, and the head of the enterprise issues a visa: “Dismiss at his own request.” In this case, if the employee then decides to protest the dismissal, he may well win the case in court and receive compensation for forced absence. Therefore, the employer must always clarify what exactly the employee is proposing: to resign of his own free will or to enter into an agreement to terminate the employment contract.

Risks and benefits for the employer

As the lawyer told us, for the employer, such a reason for dismissal, which the employee asks for, in general, does not create any special problems, since the written form of the application, negotiations and the decision made are simple actions that any manager can take. In relation to such an employee, the employer does not need to search for the reason for dismissal: “they decided, that means they decided.” If there is still a conflict with an employee, then dismissal will be in the good will of both parties. For example, from the moment an employee submits such an application, his work email is blocked and he loses access to corporate information. In this case, the employer is not obliged to explain the reason for the blocking, because the basis is the submitted application. Before dismissal, it is possible, like the employee, to agree on further conditions, for example, transferring all matters to another employee, but not looking for a replacement - this is already the responsibility of the employer.

“One of the negative things that can be found quite often in judicial practice is the employer’s actions to force the dismissal of an “undesirable” employee, reduction of staff, which is illegal according to the procedure itself, and challenging such dismissal does not lead to positive consequences for the employee, because the application he wrote it himself,” the specialist shares.

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.

We suggest that you familiarize yourself with: Permissible noise level in an apartment norm

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.

Compensation upon dismissal by agreement of the parties

Our legislation does not provide for any special additional payments upon dismissal. But this does not mean at all that leaving work by agreement of the parties does not give you any privileges at all.

Do not be afraid to ask for additional compensation (within reasonable limits) when leaving by agreement of the parties - it is quite possible to receive it.

The employer must list the following types of payments:

wage;
monetary compensation for dismissal. Such payment may be provided for by the terms of a collective or individual employment contract (Article 178 of the Labor Code of the Russian Federation);
financial compensation for days of vacation not taken.

Note!

The amount of mandatory payments does not in any way affect the amount of benefits under the agreement.

If in the event of a staff reduction or the closure of a company, everything is crystal clear - you are entitled to a guaranteed payment, the amount and procedure for calculation of which is clearly specified by law - then, by agreement of the parties, the legislator does not establish any requirements for this procedure at all.

If the employment contract does not specify the amount of compensation upon dismissal by agreement of the parties, its purpose is the good will of the employer. But the agreement is just that: an agreement that it is possible to reach a mutual consensus on any issues, including the amount of severance payments.

The law does not limit possible payments upon dismissal, so theoretically an employee can ask the employer for any amount. Depending on how profitable it is for the latter to let the employee go, a “bargain” may occur, after which the parties will agree on an acceptable amount. Most often, it does not exceed the amount required for staff reductions - three (maximum five) standard salaries.

To be able to claim a “severance” amount, you need to ask your employer about it in writing. To do this, the departing person writes a statement asking for compensation. The application requires the following essential details:

Full name and position of the employee;
Full name of the head;
Name of the organization;
expression of intention to terminate the Employment contract (indicate its number and date of conclusion) by agreement of the parties;
link to article 78 of the Labor Code of the Russian Federation or clause 1 of Art. 77 Labor Code of the Russian Federation;
planned date of termination of work;
a request for compensation (preferably indicating the amount);
date of writing;
personal signature, transcript.

The employer may not satisfy the request for the stated amount of compensation in whole or in part. The signing of the statement will occur only after reaching consensus.

ATTENTION! It is advisable to include in the statement or agreement a final phrase stating that the parties have no claims against each other.

In any case, upon leaving by agreement of the parties, the employee will necessarily receive the following payments on his last working day:

calculation of wages for hours worked;
compensation for unused vacation days;
allowances and bonuses, if they were due under the employment contract.

The amount of compensation is not specified in the law. She can be anyone! Its size may be specified in a collective agreement or local regulation. The main condition is that the employee and employer can agree. As a rule, the amount of compensation is no less than for dismissal due to staff reduction - a maximum of 3 average employee salaries. This is what HR practice shows. The employee has the right to ask for more, the employer has the right to offer less.

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What should consent to sex be like?

Consent to sex must be mutual, informed and voluntary. Both partners of their own free will, knowing about the characteristics, illnesses, preferences, status and any other points that may influence the decision, agree to enter into sexual relations.

Manipulation, sanctions for refusal and threats are a sign of an involuntary relationship. It is also worth remembering that at any moment each of the partners can say “stop” and leave . If your partner is not attentive to your wishes, this is a reason to stop the process.

The decision to engage in sexual contact must be conscious. If a person is young or has an altered consciousness, he or she cannot be aware of his or her actions.

The decision to engage in sexual contact must be sexual: a person wants sex, and not something else: attention, communication, saving his life, etc.

Independence during decision making is another definition of consent. This means that in relationships people are on equal terms, no one depends on the power of the other. At this point, ethical principles are important and should not be violated.

Partners do not have to say all of the above points out loud . It is important to see your partner's reaction to the initial action. Signs of excitement cannot be imitated.

Whose initiative?

This formulation is one of the most popular in labor practice. The initiative comes from a member of the team and does not imply the approval of the hirer. After all, according to Russian law, an employee cannot be forced to work.

If it turns out that the worker wrote the statement “of his own free will” under the coercion of the employer, the Labor Inspectorate or the court may declare such a statement illegal.

Worth paying attention. The mechanism of leaving on one’s own initiative is regulated by Article 80 of the Labor Code of Russia.

It contains several provisions:

the employee is obliged to notify about leaving at least 2 weeks before the day of dismissal (however, the company can shorten this period);
if the employer violated labor laws or the employee, for good reasons, cannot continue to work, such employee has the right to set the deadline when agreeing to terminate the employment contract at his own request;
until the 2-week period before dismissal has expired, the employee can withdraw his resignation letter if the company has not found a replacement for the vacant position;
if 2 weeks have passed, but the contract has not yet been terminated, the working relationship between the hirer and employee can continue.

To dismiss an employee at his own request, first of all, his application is necessary.

It is issued in a certain form:

the document states the date of dismissal and the reason - “at one’s own request”;
The employee's signature and the date the application was written must be included.

It is not necessary to indicate the reason for leaving work voluntarily. But if you need to quit without working, you will have to write down the reason and confirm it with the appropriate document.

The employee submits the application to the HR department. After this, the company administration draws up a dismissal order. As a rule, a single form of such an act is used (namely form No. T-8). It was approved by a decision of the State Statistics Committee in 2004.

The order also needs to be completed correctly:

in this document you need to refer to clause 3, part 1, article 77 of the Labor Code of Russia;
indicate the details of the employee’s application;
the employee must read the order and sign it.

If a member of the team refuses to sign or is absent, this should be stated in the order.

The employee is paid on his/her working day.

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.

What entry is made in the work book?

Upon dismissal by agreement of the parties, a record of dismissal is made in the work book.

Moreover, according to the instructions for filling out work books (approved by Resolution of the Ministry of Labor of the Russian Federation No. 69 of October 10, 2003), the entry must contain a reference to the general article on dismissal (Article 77 of the Labor Code of the Russian Federation), and not to Art. 78 of the Labor Code of the Russian Federation, which specifically refers to dismissal by agreement of the parties.

The record must indicate the reason for the dismissal and there must be no layoffs. Therefore, the entry in the work book should look something like this: “Dismissed by agreement of the parties, part 1 of Article 77 of the Labor Code of the Russian Federation.”

Many are afraid that an entry in the work book will ruin their reputation and make it difficult to find a new job. Such concerns are associated with two common myths:

Myth No. 1
If you are fired by agreement of the parties, it means that you were actually kicked out due to violation of labor discipline.
Myth No. 2
If you interrupted your employment relationship in this way, it means that you are not competent enough at work, and the company got rid of you in this way.

Registration of the Europrotocol in case of an accident

Another example where the term “by mutual consent” is used is the case of drawing up the Euro Protocol in case of an accident. At its core, it is a notification to traffic police officers without the need for them to go to the scene of an incident and investigate it.

It is possible to draw up a Euro Protocol if both parties agree on the cause of the accident and the existing damage, if there were only two participants, the damage was caused only to vehicles and there were no casualties. Registration of the Europrotocol greatly simplifies the process, but has its pitfalls. It is quite difficult to correctly draw up such a protocol without knowing the details, which is why it may subsequently be declared invalid by the court, which will lead to serious problems.

Thus, in jurisprudence there are several situations that involve reaching agreements by mutual consent. The specifics in each case are governed by different federal laws.

How does dismissal occur by agreement of the parties?

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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.

Special categories of citizens

The lawyer noted that exceptions to this rule apply to pregnant women. According to her, pregnant women are protected by the Labor Code from illegal dismissal, because the course of pregnancy does not always allow them to fully perform their duties. Frequent sick leave creates tension in relations with the employer, however, such an employee cannot be fired, since her state of health and temporary disability are confirmed by a medical certificate.

There are cases when a pregnant woman asks for dismissal, but it is important to understand that by dismissing such an employee, the employer risks having the legality of her dismissal reviewed by regulatory authorities. If there is such a possibility, then in order to save this woman’s job, at her request, she can be transferred to part-time work. And you won’t have to fire anyone.

In relation to persons of retirement and pre-retirement age, cases of forced dismissal on this basis are not uncommon. The specialist pointed out that such actions are contrary to the law and are a violation of human rights. But if we are talking about the dismissal of a part-time worker, then the situation here is a little simpler: the dismissal is formalized in the same way as at the main place of work, and a note in the work book is made at the request of the employee himself.