How to issue a dismissal by agreement of the parties correctly
His Work Educational Program / / January 05, 2021
The employee receives money, the employer quickly vacates the position or avoids red tape with documents.
What is dismissal by agreement of the parties
The relationship between the employee and the employer is enshrined in the employment contract. There are various ways to terminate a contractLabor Code of the Russian Federation Article 77. General grounds for termination of an employment contract:
- At the initiative of the employee - the so-called dismissal of his own free will.
- At the initiative of the employer. It is not impossible to do this, but rather difficult. The employee must commit some serious violation. For example, take a walk work for no good reason.
- When reducing the position.
- Under circumstances beyond the control of the parties. Let's say a court verdict has entered into force, which prohibits an employee from holding this position.
- By agreement of the parties. This method implies that the employee and the employer agree on the terms under which the employee agrees to leave the position. Usually these are additional cash payments.
To understand why an agreement of the parties is needed, consider the frequent cases in which it is referred to:
- The employee performs extremely poorly in his duties and is generally useless for the company. But formally he complies with the terms of the employment contract. So you can't dismiss him under the article. Therefore, the employer is willing to pay him to get rid of him.
- The employee takes a place of bread, which needed to be freed up for someone of his own. The reason is very dubious, but it would be strange to pretend that this does not happen.
- The company is undergoing reorganization. And it is much easier to issue a dismissal by agreement of the parties than a reduction.
That is, for the employer it is an opportunity to quickly and easily get rid of the employee. And for an employee - to receive compensation for the fact that he loses his job for no objective reason.
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Who can offer dismissal by agreement of the parties
Sometimes people think that the initiative must necessarily come from the employer. Like, this is his gesture of goodwill to encourage the employee to quickly collect things and empty the table. In fact, both parties to the agreement can initiate a conversation and offer their terms until they come to a compromise solution that suits both.
If no consensus has been reached, there is no need to sign anything. The agreement of the parties cannot be revoked.
An exception is made for women who become pregnantDetermination of the Supreme Court of the Russian Federation dated 20.06.2016 No. 18-KG16-45 before signing the document, and learned about it after.
How to issue a dismissal by agreement of the parties
It is not enough to agree on the terms; it is important to sign the relevant documents. There may be two of them.
1. Agreement on termination of an employment contract
There is no rigid form for paper decoration. But it should contain the following data.
date of dismissal
From what date the employee will vacate the position.
The last working day of the Employee is considered April 6, 2020.
The amount of compensation and the term for its payment
How much the employee will receive and when. This can be a fixed figure or the number of salaries. You can issue money on the last working day or earlier.
It is important to point out that the compensation is paid in addition to the mandatory payments, not taking them into account. The employer must give you a salary and money for unused vacation anyway. But savvy employers can take them into account in compensation. Correct wording will avoid this.
April 6, 2020 pay the Employee severance pay in the amount of one month's salary, in addition to the amounts due upon dismissal.
Vacation information if you want to take a vacation
If you intend to rest, this must be recorded in the document.
Before dismissal, provide the Employee with paid leave for 7 calendar days from March 30, 2020. until April 5, 2020
Condition for including an agreement in an employment contract
In order for an employee to receive severance pay, this norm must be fixedLabor Code of the Russian Federation Article 178. Severance pay in an employment or collective agreement. So the agreement must be made part of employment contract.
This agreement is an integral part of the employment contract No. 211 dated April 13, 2017. and comes into force from the moment of signing by the Parties.
If this is not done, an unscrupulous employer can evade payment of compensation, citing the fact that this is not spelled out in the employment contract.
Employment Termination Agreement Template →
2. Application for termination of an employment contract by agreement of the parties
It is submitted by an employee who intends to quit with compensation. It looks almost the same as the standard one. statement for dismissal. Only in it the conditions are prescribed.
On the basis of clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation, I ask you to terminate the employment contract of April 13, 2017 by by agreement of the parties on April 6, 2020 with payment of compensation upon dismissal in the amount of one month salary.
The head of the company must put on the application a visa approving it, for example "I do not mind", and sign.
This is a method that works with a bona fide employer. But it's better to make an agreement anyway.
What can be the severance pay
Formally, there are no hard restrictions. But with severance pay of more than threeRF Tax Code Article 217. Income not subject to tax salaries (for the Far North and equivalent territories - six), you must pay income tax and insurance premiums. This can make the employer less accommodating, as additional costs will be incurred. And the employee will lose 13% of payments.
In addition, in some cases, the IRS may find too high a severance pay suspicious. Suddenly this is not compensation, but an attempt to dubious enrichment of the employee and withdraw money.
Employees should remember this in order to quickly reach a compromise with the employer.
What to do if the employer has not paid compensation
Need to contact statement of claim to the court at the employee's place of residence or employer's registration address. There is a year for thisLabor Code of the Russian Federation Article 392. Time limits for going to court for resolving an individual labor dispute from the moment of dismissal.
What will be written in the work book
Both in the order of dismissal and in the work book there will be a record of dismissal by agreement of the parties with reference to paragraph 1 of part 1 of article 77 of the Labor Code of the Russian Federation.
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