How to issue a dismissal by agreement of the parties correctly

2024 Author: Malcolm Clapton | [email protected]. Last modified: 2023-12-17 03:44

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 an employment contract. The contract can be terminated in different ways of the Labor Code of the Russian Federation Article 77. General grounds for terminating 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 it is quite difficult. The employee must commit some serious violation. For example, skipping 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 a reorganization. And it is much easier to issue a dismissal by agreement of the parties than a layoff.

That is, for the employer it is an opportunity to quickly and easily get rid of the employee. And for the employee - to receive compensation for the fact that he loses his job for no objective reason.

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 collect things faster 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 it was not possible to reach a consensus, nothing needs to be signed. The agreement on the agreement of the parties cannot be revoked.

An exception is made for women who become pregnant. Determination of the Supreme Court of the Russian Federation dated 20.06.2016 No. 18-KG16-45 before the document was signed, and learned about it later.

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 the employment contract

There is no rigid form for paper decoration. But it must contain the following data.

date of dismissal

From what date the employee will vacate the position.

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 compensation is paid in addition to the mandatory payments, and not taking them into account. The employer must give you salary and money for unused vacation in any case. But savvy employers can take them into account in compensation. Correct wording will avoid this.

Vacation information if you want to take a vacation

If you intend to rest, this must be recorded in the document.

Condition for the inclusion of an agreement in an employment contract

In order for an employee to receive severance pay, this norm must be enshrined in the Labor Code of the Russian Federation Article 178. Severance pay in an employment or collective agreement. So the agreement needs to be made part of the employment contract.

If this is not done, an unscrupulous employer may evade payment of compensation, citing the fact that this is not spelled out in the employment contract.

Termination Agreement Template →

2. Application for termination of the 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 a standard letter of resignation. Only in it the conditions are prescribed.

Statement.

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 in the amount of more than three of the Tax Code of the Russian Federation Article 217. Income not subject to salary tax (for the Far North and equivalent territories - six), it is necessary to 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 the withdrawal of 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

It is necessary to apply with a statement of claim to the court at the place of residence of the employee or the address of registration of the employer. For this there is a year of the Labor Code of the Russian Federation Article 392. Terms of applying to the court for the resolution of 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.