Regulates dismissal by agreement of the parties. The article “agreement of the parties upon dismissal” states that the agreement concluded between the manager and the employee can be terminated at any time by the consent of the persons who entered into it.
A description of the dismissal procedure on this basis is not contained in any regulatory document. And the text of Article 78 of the Labor Code of the Russian Federation is very laconic. Its meaning is as follows: the working relationship between employer and employee ends on terms that satisfy both.
Its use when terminating a contract has advantages for the manager and employee:
For an employer, this is a convenient way to terminate a working relationship in a conflict situation with an employee.
What rules on dismissal by agreement of the parties does the Labor Code contain?
When a citizen is hired, it is concluded (in two copies), which specifies the conditions under which it can be terminated ().
The employer or employee cannot unilaterally cancel or change the document signed between them. Its cancellation or modification is made only with the mutual consent of the signatories.
The article of dismissal by agreement of the parties to the Labor Code of the Russian Federation assumes that the working relationship can be terminated at any time at the initiative of the employer or employee (Article 78 of the Labor Code of the Russian Federation). This reason is most often used:
The document on termination of the working relationship must contain the following conditions:
an indication of the mutual desire of the employee and employer to terminate the contract on terms convenient for them.
date and number of the contract being terminated;
citizen's last day of work.
The following information is also indicated:
date of conclusion;
Full name of the employee and name of the organization;
employee's passport details;
employer's tax identification number;
signatures of those who concluded it
The Labor Code obliges dismissal to be properly formalized by agreement of the parties. In this case, the order is issued by . It states that the working relationship is terminated on the grounds of clause 1, part 1, art. 77 Labor Code of the Russian Federation. The employee must be familiarized with the order against signature. Additionally, it can be compiled.
According to the Labor Code of the Russian Federation, dismissal by agreement of the parties must be noted in the employee’s work book with a corresponding entry. It is indicated that the working relationship has been terminated in accordance with clause 1, part 1, art. 77 Labor Code of the Russian Federation.
The form is issued to the person on the last day of work. The employee signs on its receipt on the personal card and in.
The record of termination of the working relationship is certified by the signature of the manager.
The employer is also obliged to pay the employee wages for the period worked and cash. Payment of funds is made on the last day of work (Article 84.1, 140 of the Labor Code of the Russian Federation). The settlement period cannot be changed (
Agreement between the parties to dismiss is in many cases the only way to part with an unsuitable employee without conflict. This type of termination of employment relationships often suits the employees themselves, because in the agreement the parties can agree on the payment of monetary compensation. Labor legislation does not establish strict requirements for the design and content of the agreement, however, when concluding it, you should adhere to the rules that have developed in practice.
By agreement of the parties, both a fixed-term employment contract and an employment contract concluded for an indefinite period can be terminated at any time. To do this, one of the parties (employee or employer) makes a proposal to dismiss by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation). The initiative can be expressed orally or in writing (for example, a sample of a written proposal from an employer to an employee to dismiss by agreement of the parties is presented in the forms section on the website https://www.moedelo.org/Pro (Article 78 of the Labor Code of the Russian Federation, paragraph 20 of the Resolution Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004).
How to draw up an agreement?
The Labor Code does not indicate in what form an agreement to terminate an employment contract should be concluded (Article 78 of the Labor Code of the Russian Federation). Since Part 1 of Art. 67 of the Labor Code of the Russian Federation requires that an employment contract be concluded in writing, then the form of the agreement on its termination must be written.The agreement must be drawn up by analogy with an employment contract: in two copies, each of which is signed by the parties. One copy of the agreement must be given to the employee, the other will be kept by the employer. The employee must sign a copy of the agreement kept by the employer to receive his copy. For example, in this form: “I received a copy of the agreement. Signature, date” (Part 1 of Article 67 of the Labor Code of the Russian Federation).
What to include in the agreement?
The agreement of the parties on termination of the employment contract contains the following basic conditions:- an indication of the mutual desire of the employee and employer to terminate the employment contract by agreement of the parties. To do this, it is advisable to include in the agreement a separate clause stating that it was signed by the parties (employee and employer) voluntarily, on the basis of their free will and without any coercion;
- details (date and number) of the employment contract that is being terminated;
- date of termination of the employment relationship (the employee’s last day of work).
You can also include in the agreement a condition on payment to the employee of monetary compensation for termination of the employment contract, its amount and other conditions. Payment of monetary compensation to an employee upon dismissal by agreement of the parties is not mandatory.(Article 78 of the Labor Code of the Russian Federation).
If annual leave is issued with the subsequent dismissal of the employee by agreement of the parties (Part 1 of Article 127 of the Labor Code of the Russian Federation), it is advisable to include in the agreement a condition on granting the employee leave with subsequent dismissal.
The agreement must contain the same information that is indicated in the employment contract:
- date and place of conclusion of the agreement;
- surname, name, patronymic of the employee and the name of the employer who entered into the agreement;
- information about the employee’s identity documents;
- employer's tax identification number;
- information about the employer’s representative who signed the agreement and the basis on which he is vested with the appropriate powers;
- signatures of the parties to the employment contract (Part 1 of Article 57 of the Labor Code of the Russian Federation).
An employer or employee cannot unilaterally cancel or change an agreement concluded between them on termination of an employment contract. Cancellation (annulment) or change of the agreement is possible only with the mutual consent of the parties (clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004, Determination of the Constitutional Court of the Russian Federation No. 1091-О-О of October 13, 2009).
A comment - Often in practice the question arises: how long should it take from the moment the agreement to terminate the employment contract is signed until the employee is dismissed? The question arises due to the fact that in relation to voluntary dismissal, a certain period of warning (“working off”) is established for the employee - as a general rule - two weeks (Article 80 of the Labor Code of the Russian Federation). However, in a situation where a dismissal agreement is concluded between the parties, such a period is not defined.
The parties to the employment contract themselves set the date for termination of the employment relationship (last day of work). If the date of conclusion of the agreement and the last day of work do not coincide, then the working days between the date of conclusion of the agreement and the date of termination of the employment contract will be the time that the employee works before dismissal (for example, the date of conclusion of the agreement to terminate the employment contract is January 11, and the date of termination labor relations - January 17) (Article 78 of the Labor Code of the Russian Federation, paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004).
We formalize the dismissal
After signing the agreement to terminate the employment contract, a dismissal order is issued, which must be familiarized to the employee against signature. As a basis for dismissal, the order must indicate: “Agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation.” If the order cannot be brought to the attention of the employee (is absent, refuses to read it), a corresponding entry is made on it (Parts 1-2 of Article 84.1 of the Labor Code of the Russian Federation).The dismissal order is the primary accounting document and can be issued either in a unified form (No. T-8 or No. T-8a), or in a form independently developed by the employer and approved in its accounting policy. The order form used must contain all the required details listed in Part 2 of Art. 9 of Federal Law No. 402-FZ of December 6, 2011
On the day of dismissal final payment is made to the employee, namely, he is paid:
- salary for hours worked not received by the day of dismissal;
- compensation for unused vacations (if any);
- compensation for termination of the employment contract (if such payment is provided for in the agreement) in the amount determined by the agreement.
Also on the day of dismissal you need issue the employee with a work book with a notice of dismissal, which is entered in column 3 of the section “Information about work” as follows: “The employment contract is terminated by agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation.” A record of the reason for dismissal (termination of an employment contract) must fully comply with the wording of the Labor Code of the Russian Federation with reference to the relevant article, part and paragraph of the article. All words in the entry must be written in full, without abbreviations (paragraph 2, clause 1.1 of the Instructions, approved by Resolution of the Ministry of Labor of Russia No. 69 of October 10, 2003).
If on the day of termination of the employment contract the employee is absent from work, you must send him a notice by mail asking him to appear for his work book. From the moment the notification is sent, the employer is released from liability for the delay of the work book (parts 4-6 of article 84.1 of the Labor Code of the Russian Federation, clauses 12, 36, 41
Termination of an employment contract by agreement of the parties requires a careful approach: a procedural error or an incorrectly executed document can lead the employer to court. You will find step-by-step instructions and a sample order in the article.
In the article:
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When is termination of a contract by mutual consent allowed?
To formalize the termination and amendment of an employment contract by agreement of the parties, no special reasons are needed. It is enough to draw up a document confirming the will of the parties. This scenario is acceptable even in situations where unilateral dismissal is simply impossible or difficult to implement - for example, if you need to end a relationship with an employee who is on vacation or sick leave, a parent with many children, a pregnant woman or a teenager.
But not only the employer benefits from this scenario. Since the law does not require specifying the real reasons for termination of the contract by agreement of the parties, the employee’s reputation will not suffer, unlike dismissal "under article".
Risks
Dismissal by agreement - the most peaceful way to part with a problematic employee who is facing dismissal for violation of discipline or inadequacy for the position held. For example, if a teacher does not fulfill the requirements for advanced training of teaching staff. The risk of litigation is minimal if all documents are drawn up correctly.
GPC agreement
How does dismissal by mutual consent occur (sample + step-by-step instructions)
The initiative can come from both the employee and the employer. The proposal is made in writing and transmitted to the other party, who has the right to accept it or refuse it. If both parties are ready to terminate the contract, you can move on to the next stage.
The procedure for terminating the contract by agreement of the parties
- Enter into a written agreement. Specify the terms of termination of the contract, write down all the conditions. If the company plans to pay the employee monetary compensation, indicate the exact amount of the payment. Read more in the magazine "Personnel Affairs":
- Confirm the agreement with the signatures of the parties. Make sure the employee signs the employer's copy.
- Issue an order to terminate the contract. Correctly indicate the basis for 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. Please provide the details of the agreement below. Compose your own sample or download it from the Personnel System: Sample order for termination of an employment contract by agreement of the parties
- Issue a personal card and work book. Make entries in strict accordance with the wording of the order, and refer to it when filling out column 4 of the work book.
- Pay the employee. Pay wages and all due compensation in full. Even if the amount is large, it must be paid in full on the day of settlement - the law does not provide for installments. Give it to the employee work book, an extract from the SZV-M form and other documents related to the work.
How to formalize a refusal to terminate a contract by agreement of the parties
It is impossible to refuse to terminate the contract unilaterally. But you can cancel a previously made decision by mutual consent, acting in the same way as with amendments to the employment contract(Article 72 of the Labor Code of the Russian Federation).
Draw up another written agreement in free form, indicating the details of the parties, as well as the date and number of the document being canceled. Indicate that the employee and employer have reached a mutual agreement, enter the current date, print out the agreement in two copies and certify each with the signatures of the parties. The employee must sign for his copy on a form that remains with the company.
Attention! If the employee who signed the agreement found out about her pregnancy and asked to cancel it, it is better to meet her halfway. Pregnant woman has every chance of being reinstated through the courts.
The employment relationship with an employee who is ready to negotiate can be terminated by agreement of the parties - quickly and without unnecessary risk. Draw up the agreement in free form, avoiding vague language, and be sure to hand over one copy to the employee. The document can be canceled only by mutual decision of the parties, unless we are talking about the employee’s pregnancy.
Natalia Plastinina, practicing lawyer
Not as common as voluntary dismissal, such a “peaceful” basis for dismissal is an agreement of the parties, still a no-no, but it entails the emergence of a legal dispute.
1. Dismissal by agreement of the parties and dismissal at will
Quite often, disputes arise out of nowhere: only because of the misconceptions of a dismissed employee. The employee mistakenly believes that, as in the case of voluntary dismissal, he could have “changed his mind” in time and made the dismissal invalid. But when applying the ground under consideration, such cancellation of the agreement to terminate the employment contract is possible only in the same manner - by agreement of the parties. The fact that the dispute is based on a misconception in advance does not reduce the work of the judge, or the problems of the employer. This is the most common type of dispute arising from dismissals by agreement of the parties. In order to clearly understand at least the main differences between these two grounds for dismissal, we present a comparative table.
characteristic |
voluntary dismissal |
dismissal by agreement of the parties |
|
submitting an application |
always – the employee’s own desire. The employer’s opinion is not taken into account by labor legislation in this case and does not in any way affect the rights of the employee and the guarantees provided to him by the Labor Code of the Russian Federation |
Always a mutual desire. At the same time, it is not forbidden for the employer to initiate the agreement, and for the employee to agree to terminate the employment contract. |
|
Base shape |
Personal written statement from the employee |
The formal form of the agreement of the Labor Code of the Russian Federation has not been established. It can be either a statement from the employee with the employer’s resolution, or an agreement as a single document. |
|
Order of dismissal |
Eat. Published in a unified form. |
|
|
Possibility of annulment of a desire to terminate an employment contract |
Yes, possible unilaterally |
No, the party to the labor relationship does not have the right to “change his mind” unilaterally. Only by mutual agreement of the parties. |
Employers in most cases know this difference. However, employees still confuse the grounds for dismissal and then go to court. The court does not consider the employee’s position to be correct. Basically, the employee's demands are denied.
Practice (revocation of an agreement to terminate an employment contract can only be carried out by both parties to the employment relationship):
N.L.A. appealed to Severalmaz OJSC for reinstatement at work, recovery of wages for the period of forced absence, and monetary compensation for moral damage. In support of the stated requirements, she indicated that she was dismissed by agreement of the parties under clause 1 of part 1 of Art. 77 Labor Code of the Russian Federation. However, she considers the dismissal illegal, since she signed the dismissal agreement under pressure from the employer, which consisted of a threat to fire her for absenteeism. The employer did not react to her withdrawal of the agreement and fired her on the above grounds. The court considered the plaintiff's arguments not based on the law and did not satisfy her demands.
The court indicated that when terminating an employment contract on the basis in question, a joint expression of the will of its parties is necessary, aimed at ending the employment relationship. However, this does not exclude the manifestation of appropriate initial initiative by the employee or employer. Such an initiative on the part of the employee can be expressed in his written statement with a proposal to terminate the employment contract by agreement of the parties from a certain date. On the other side, the employer himself can take such an initial initiative, offering the employee for signing a draft agreement on termination of the employment contract by agreement of the parties. The court came to the conclusion that the plaintiff’s will to terminate the employment contract was made voluntarily, no evidence of forcing her to do so on the part of the employer was not established, therefore the court found the plaintiff’s arguments that the statement was written by her under pressure unfounded. Unlawful dismissal is an unjustified dismissal or one committed in gross violation of the dismissal procedure in accordance with Article 394 of the Labor Code of the Russian Federation, which was not established in this case (decision of the Oktyabrsky District Court of the city of Arkhangelsk dated February 10, 2011 in case No. 2-760/2011) .
2. What the “agreement” of the parties actually hides or why it is beneficial for the employer.
Worker, basically goes for dismissal by agreement of the parties for:
1) receiving compensation in connection with the termination of an employment contract (often used when dismissing executives of an organization).
2) to exclude the possibility of his dismissal for a disciplinary offense.
3) really under some psychological pressure from the employer, practically unprovable.
Employer However, when offering an employee to conclude such an agreement to terminate an employment contract, it often proceeds from not very honest thoughts:
1) Dismiss the employee as soon as possible, even by paying him compensation for termination of the employment contract.
2) Get rid of the unwanted employee if other methods are unacceptable or have not yielded results.
3) cases of dismissal of an employee receiving benefits.
4) Covering up true staff reductions - to speed up the procedure.
However, cases of cover-up are uncovered by regulatory authorities, who, within the framework of their powers, demand that the identified violations of workers’ rights be eliminated.
Example (the employee is defended by the prosecutor's office):
As the Prosecutor General noted, discussing the impact of the crisis on labor relations, some employers, realizing that people depend on them, send workers on leave without pay, or force them to resign of their own free will or by agreement of the parties. In the Kursk region, for example, at the request of the prosecutor of the Medvensky district, 100 employees of Chermoshnoye LLC were reinstated, and the manager who illegally fired them was brought to administrative responsibility .
It is precisely in connection with the employer’s cover-up of the true state of affairs that disputes of a special type often arise: about the collection of severance pay and compensation upon dismissal.
3. Severance pay or compensation upon termination of an employment contract by agreement of the parties
4.1. The main types of severance pay are provided for in Art. 178 Labor Code of the Russian Federation. In most cases of legal disputes, we are talking about severance pay paid upon termination of an employment contract in connection with the liquidation of an organization (clause 1 of part one of Article 81 of the Labor Code of the Russian Federation) or a reduction in the number or staff of the organization's employees (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation). However, disputes over payment are becoming increasingly common. severance pay upon termination of an employment contract by agreement of the parties.
Practice (simple solution: the employer recognized the obligation to pay severance pay upon dismissal by agreement of the parties):
Kh. filed a claim against Medvezhya Gora LLC for the collection of arrears of wages, indicating in support of the claim that on April 14, 2010, the employment contract with him was terminated by agreement of the parties, which also provided for the payment of severance pay to the plaintiff in the amount of ..... rubles Meanwhile, upon dismissal, the plaintiff was not paid severance pay. Also, wages for April 2010 in the amount of ... were not paid. rub. In this regard, the plaintiff asks to recover these amounts from the defendant. The defendant admitted the claim in full; reported that the consequences of recognizing the claim, including the fact that recognition of the claim entails its satisfaction, were explained and understandable to him. The claim was admitted voluntarily. The court believes that the recognition of the claim by the defendant does not contradict the law, due to the fact that the plaintiff actually worked at Medvezhya Gora LLC and was fired on April 14, 2010 by agreement of the parties. The amount of unpaid wages and severance pay to the plaintiff is confirmed by the agreement on termination of the employment contract dated April 14, 2010, the pay slip and explanations of the parties. Based on the above, Kh.’s claim was satisfied by the court in full (decision of the Medvezhyegorsky District Court of the Republic of Karelia dated June 21, 2010) .
4.2. Part 4 of Article 178 of the Labor Code of the Russian Federation stipulates that employment contract or collective agreement other cases of payment of severance pay may be provided for, as well as increased amounts of severance pay may be established. Incorrect interpretation of this possibility and inaccurate reading of the law lead to unexpected court decisions.
Practice (very interesting conclusions of the court: employees dismissed under clause 1 of part 1 of Article 77 of the Labor Code of the Russian Federation were denied the recovery of severance pay provided for in the agreement on termination of the employment contract):
Several employees filed lawsuits against ZAO Insurance Group “U...” for the recovery of severance pay and compensation for failure to pay severance pay on time. In support of all claims, it was stated that on June 4, 2010, agreements were signed between the plaintiffs and the employer to terminate employment contracts on August 31, 2010, with the payment of severance pay to each employee in the amount of four monthly salaries. By orders, the workers were dismissed under clause 1 of part 1 of article 77 of the TF. The court of first instance satisfied the claims of the former employees, and collected benefits and compensation from the employer for failure to pay benefits on time.
The court of first instance, satisfying the claims, proceeded from the fact that agreements were concluded with the employees by an authorized person providing for the payment of severance pay upon dismissal. The obligation to pay severance pay upon dismissal by the employer has not been fulfilled.
The Judicial Collegium for Civil Cases overturned the decision of the court of first instance, making a new decision, which denied the workers' claims, indicating the following. Part 4 of Art. 178 of the Labor Code of the Russian Federation, it is stipulated that an employment contract or collective agreement may provide for other cases of payment of severance pay, as well as establish increased amounts of severance pay. Thus, the basis for payment of severance pay upon dismissal of an employee is the presence in the employment contract with the employee or the collective agreement of conditions for the payment of severance pay. Other agreements between the employee and the employer do not give rise to the employer’s obligation to pay the employee severance pay upon dismissal. From the case materials, it is clear that in employment contracts with employees and additional agreements to such contracts, there are no conditions for paying severance pay to employees upon dismissal. The collective agreement was not submitted to the court, from which it follows that the plaintiffs did not prove their right to receive severance pay in accordance with the terms of the collective agreement.
In addition, on June 4, 2010, the employer entered into agreements with the employees on the termination of employment contracts, which provided for the payment of severance pay on the last day of work in the amount of 4 monthly salaries. From the content of these agreements it follows that the employee and the employer agreed on the timing of dismissal, the grounds for dismissal, and the procedure for dismissal. Such agreements are concluded by the parties to the labor relationship in accordance with Art. 78 of the Labor Code of the Russian Federation, which provides for termination of an employment contract by agreement of the parties.
An agreement to terminate an employment contract cannot be identified with the employment contract itself, since such an agreement contains only the conditions for terminating the employment contract, which does not comply with the provisions of Articles 56, 57 of the Labor Code of the Russian Federation.
Thus, an agreement to terminate an employment contract cannot be the basis for collecting severance pay from the employer.
Taking into account the above, the judicial panel overturned the decision of the court of first instance and, with its new decision, denied the plaintiffs the recovery of severance pay in connection with dismissal and interest for late payment of this benefit (decision of the Oktyabrsky District Court of Izhevsk dated December 2, 2010; cassation ruling of the court Collegium for Civil Cases of the Supreme Court of the Udmurt Republic dated February 16, 2011 in case No. 33-492) .
4.3. But the most common confusion is between severance pay and compensation. We have just looked at the types of severance pay. With regard to severance pay, the Labor Code of the Russian Federation contains imperative norms, allowing for the additional establishment of types of severance pay only in part 4 of Art. 178 Labor Code of the Russian Federation. With regard to the payment of compensation upon termination of an employment contract, there is only one imperative norm in the Labor Code of the Russian Federation - Art. 279 of the Labor Code of the Russian Federation, which we will discuss a little later. The compensation component of labor law has a more flexible basis: the parties to an employment contract have the right to provide for almost any amount of compensation upon dismissal. In our case, upon dismissal by agreement of the parties. Which is very often used, for example, when dismissing top managers of giant companies.
Practice (an employee was denied recovery of severance pay in connection with a layoff, since he received compensation provided for by agreement of the parties upon dismissal under clause 1 of Article 77 of the Labor Code of the Russian Federation)
I. filed a claim against the Municipal Institution “Customer Service of the Krestetsky Municipal District” to change the wording of the reason for dismissal, collect severance pay, compensation for delayed payment upon dismissal and compensation for moral damage. In support of the claim, he indicated that he was fired from work under clause 1, part 1, article 77 of the Labor Code of the Russian Federation by agreement of the parties. In fact, his dismissal was made in connection with a reduction in the number of employees in a shortened manner, before the expiration of a two-month warning period about the upcoming reduction, in the manner prescribed by Part 3 of Article 180 of the Labor Code of the Russian Federation. He was promised all the severance pay provided for by current legislation when the number or staff of employees was reduced. Severance pay in the amount of average monthly earnings was not paid to him due to the impossibility of such payments upon dismissal of an employee by agreement of the parties. The court found that from the agreement concluded between the plaintiff and the defendant it is clear that the parties reached an agreement to terminate the employment contract by agreement of the parties, in connection with the reduction of staff, with payment to the employee of two months' average earnings. By order, I. was dismissed under clause 1, part 1, article 77 of the Labor Code of the Russian Federation with payment of two months’ average earnings. The court, making its decision, indicated that the possibility of paying severance pay in cases other than those specified in the law, as well as in an increased amount, is allowed in accordance with Article 178 (Part 4) of the Labor Code of the Russian Federation and is not indisputable evidence of the plaintiff’s dismissal due to staff reduction or number of employees. According to the defendant's staffing table, the plaintiff's position has not been reduced and is available on the day of the consideration of the case. The plaintiff’s reference to the agreement as a basis for considering his dismissal on the basis of a reduction in the number of employees cannot be taken into account, since the agreement indicates dismissal of his own free will, in connection with a reduction in staffing levels. However, the position occupied by the plaintiff has not been reduced. The plaintiff's arguments that his number of employees was reduced are unfounded, since a reduction in the number of employees implies a reduction in the number of employees in one specialty. According to the staffing table, the defendant has one position on the staff that was occupied by the plaintiff, this unit has been retained. Thus, there are no grounds provided by law for paying the plaintiff severance pay in accordance with Article 178 of the Labor Code of the Russian Federation as an employee dismissed due to a reduction in the number or staff of employees. In connection with this, the court refused to satisfy I.’s claims (decision of the Okulovsky District Court of the Novgorod Region dated September 29, 2011) .
4.4. Unlike the severance pay provided for in Art. 178 of the Labor Code of the Russian Federation, in relation to the head of an organization, the Labor Code of the Russian Federation also establishes situations of obligation to pay compensation. According to Art. 279 of the Labor Code of the Russian Federation, in the event of termination of an employment contract with the head of an organization in accordance with paragraph 2 of Article 278 of the Labor Code of the Russian Federation, in the absence of guilty actions (inaction) of the manager, he is paid compensation in the amount determined by the employment contract, but not less than three times the average monthly salary. In this case, the grounds for dismissal “by agreement of the parties”, according to clause 1 of part 1 of Art. 77 Labor Code of the Russian Federation. And in the additional agreement to the employment contract, the parties already stipulate the amount of the above type of compensation. If there is no indication of it, the employer’s obligation to pay compensation does not disappear anywhere, and is subject to recovery (in case of a dispute) in court - but in the amount of three times the average monthly salary.
Disputes between this category of dismissed workers are not so rare in practice. In most cases, they end in a court decision to recover the specified type of compensation from the employer. However, directly opposite decisions are also not uncommon.
Practice (the plaintiff was denied severance pay due to the fact that the employer had signed an addendum to the employment contract by an unauthorized person):
D. filed a lawsuit against ROPP “***” for the recovery of severance pay and a salary increase. In support of the claim, she indicated that, in accordance with the additional agreement to the employment contract, she was given a bonus and also provided for the payment of severance pay in the amount of 100 official salaries in the event of termination of the employment contract with the employer when the owner of the organization’s property changes, the jurisdiction of the organization changes, or its reorganization or liquidation. She asked to recover from the defendant severance pay in the amount of 1,200,000 rubles and a salary increase. The court found that by decision of the Regional Branch Conference dated April 12, 2008, T.’s powers as Chairman of the Regional Branch Council were terminated early. Having analyzed the provisions of Articles 47, 59, 72 of the Labor Code of the Russian Federation, Art. 31 Federal Law “On Political Parties”, Charter of the Political Party, Regulations on the system of executive bodies of the party, Model regulations on the apparatus of the bureau of the Council of the regional branch, the court of first instance came to a reasonable conclusion that the chairman of the Council of the regional branch did not have the authority to independently determine the size severance pay and conditions of payment for employees. In addition, there was a very controversial expert opinion, which did not confirm that the parties signed the specified additional agreement in terms of timing. In connection with the above, the court refused to satisfy D.’s demands due to the lack of proof of the existence of the very condition for the payment of severance pay (decision of the Sovetsky District Court of the city of Tula dated 02/15/2010; cassation ruling of the Judicial Collegium for Civil Cases of the Tula Regional Court dated 05/13/2010 to case No. 33-1373) .
5. Additional terms of agreement
5.1. Condition for subsequent payment of wages.
The question of using the type of grounds for dismissal in the interests of the employer is quite interesting. Here we are talking about the employer’s mistake in assuming that the parties’ agreement on dismissal will cover certain types of violations of labor laws.
Question: Is it possible in an agreement to terminate an employment contract to include a condition for deferring payment of both the final payment and arrears of wages?
Answer: No, such an agreement in terms of establishing the specified conditions is void, since it does not comply with the law. Article 140 of the Labor Code of the Russian Federation establishes the terms of calculation for dismissal - on the day of dismissal of the employee. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment. The establishment of other deadlines, including by agreement of the parties, is not provided for by the Labor Code of the Russian Federation for any situation or circumstances.
In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the undisputed amount on the employee’s last day of work.
5.2. Condition for subsequent payment of bonuses for the year.
Not the last question that interests an employee resigning by agreement of the parties: a bonus for a year not fully worked. The answer cannot be unambiguous, since different employers have different conditions for the calculation and payment of bonuses, fixed in the local acts of the organization. In general, taking into account the provisions of Art. 135 of the Labor Code of the Russian Federation, the conditions for calculating and paying bonuses can be fixed both in a local act of the organization, in a collective agreement, and separately in an employment contract. In each specific case of a dispute, the court will take into account the circumstances of the specific case and the specific additional agreement to the employment contract (including its termination). It is impossible to give an unambiguous answer to the question about the legality of fixing in the agreement on termination of an employment contract the employee’s right to part of the annual bonus and the consequences of such an agreement. The parties have the right to provide for such a right of the employee and a corresponding obligation of the employer. When it is carried out voluntarily, no questions will arise: there is a reason, there is an action. In a controversial situation, it is quite possible to either satisfy the employee’s demands based on the agreement or refuse to satisfy them.
6. About the form of the agreement and its content.
The form of the agreement must still be written. And that's why.
Art. 77 of the Labor Code of the Russian Federation provides as a basis for termination of an employment contract, including the agreement of the parties - clause 1, part 1 of this article (in detail - Article 78 of the Labor Code of the Russian Federation). If an agreement is reached between the employee and the employer, an employment contract concluded for an indefinite period or a fixed-term employment contract can be terminated at any time within the period determined by the parties. You can, of course, express your will to terminate an employment contract and accept an agreement on this orally by performing legally significant actions, but this immediately increases the risk of challenging the dismissal and the court making a decision unfavorable for the employer to reinstate the employee at work. In practice, there are cases when the court recognized an agreement to terminate an employment contract as valid even in the absence of written confirmation of this. However, it is extremely difficult to prove your arguments to the employer in this case.
Therefore, the requirement for written confirmation of the agreement as having taken place is, in fact, advisory in nature. But strongly recommended. Regarding the requirement to draw up a single document or two different ones, there are no imperative norms of the Labor Code of the Russian Federation.
In the vast majority of cases, written confirmation of the existing agreement of the parties to terminate the employment contract occurs in two versions:
1) a written application from the employee requesting dismissal on a certain date by agreement of the parties with a resolution of the employer’s manager agreeing to dismissal on the conditions specified in the application. Confirmation of the agreement will be the issued order of dismissal under clause 1 of part 1 of Art. 77 Labor Code of the Russian Federation. Signed by both the manager and the employee.
2) a written agreement to terminate the employment contract or an additional agreement to the employment contract, signed by both parties to the contract. Confirmation is again an order of dismissal.
6.1. As practice shows, employees who apply to the court with claims to declare dismissal by agreement of the parties illegal, first of all put forward the argument of signing the specified documents (or writing - in the case of the first option of formalizing the termination of employment relations) under pressure from the employer . However, more often than not, they do not take into account the difficulty of proving their arguments.
Practice (the fact of pressure on the employee when signing a dismissal agreement was not established by the court):
V. filed a lawsuit against Russian Railways OJSC to declare illegal the order of dismissal by agreement of the parties and reinstatement at work, recovery of wages for the period of forced absence and compensation for moral damage. In support of the stated requirements, he indicated that by order No. *** he was dismissed from his position by agreement of the parties. He does not agree with this order, since the letter of dismissal by agreement of the parties was written by him under duress from the employer, whose representatives explained to him that if the employment relationship continues, he will be held financially liable for the material damage caused by him as a result of cutting the arrow, which is calculated in millions. The court, having studied the case materials, found no grounds to satisfy the claims of the dismissed employee. As follows from V.’s statement, he asked to terminate the employment contract with him by agreement of the parties on 01/21/2011. The said statement contains the employer’s resolution to dismiss B, which indicates the employer’s consent to terminate the employment contract with the plaintiff on the conditions specified by him in his resignation letter. The order to dismiss the plaintiff by agreement of the parties was issued and signed by a person who has the authority to conclude and terminate employment contracts with employees.
The court came to the conclusion that when the plaintiff was dismissed by the defendant, there were no violations of labor legislation, since, based on its provisions, when an agreement is reached on the termination of the employment contract between the parties to the contract, it is terminated within the period determined by the parties. V.’s argument about the possible holding of him to financial liability in the amount of millions was also not confirmed. From the documents presented in the case file, it follows that due to the plaintiff’s violation of the procedure for securing the rolling stock, the brake shoe was lost, which was found in the track of the ninth track, and therefore V. was deprived of a yellow warning ticket and sent for an extraordinary inspection knowledge. There is no information in the case file that this violation resulted in material damage. From the explanations of the defendant’s representative, it follows that JSC Russian Railways does not have any documents on this fact, and therefore it is not possible to verify this circumstance and reliably assert that the actions of V. of JSC Russian Railways caused material damage. In connection with the above, the court did not find the illegality of the plaintiff’s dismissal proven and refused to satisfy his demands. The judicial panel agreed with the conclusions of the court of first instance (decision of the Leninsky District Court of Murmansk dated March 22, 2011, cassation ruling of the judicial panel for civil cases of the Murmansk Regional Court dated May 18, 2011 in case No. 33-1388-2011) .
6.2. A popular basis for challenging dismissal by agreement of the parties is also the argument that the employer’s representative lacks authority to sign this type of agreement with employees. However, in this case, as a rule, after a thorough check, the court comes to the conclusion that the requirements are unfounded due to the discrepancy between the dismissed employee’s arguments and the actual circumstances of the case.
Practice (the employee’s compulsion to sign the agreement has not been proven; the authority of the employer’s representative to sign the agreement has been verified and confirmed during the trial):
Popov A.V. filed a lawsuit against Bamtonnelstroy-Gidrostroy LLC for reinstatement as head of the legal department, recovery of wages for the period of forced absence, compensation for moral damages and transportation expenses. In support of the claim, he pointed out that he was forced to sign an agreement to terminate the employment contract, as well as the lack of appropriate authority on the part of the person who signed this agreement on the part of the employer.
The court found that the plaintiff was fired on August 2, 2010. By decision of the Kuraginsky District Court dated February 8, 2011, he was reinstated at work due to the fact that the fixed-term employment contract was recognized as concluded for an indefinite period. After reinstatement at work on 02/08/2011, an agreement was concluded between the parties to the labor relationship to terminate the employment contract, providing for the payment of compensation to the plaintiff in the amount of four salaries. The plaintiff received the full payment, compensation and work book on time. The court did not agree with the employee’s arguments regarding the forcedness on his part to sign the controversial agreement, pointing out that the proposal of the employer’s representative to conclude an agreement to terminate the employment contract and “part in peace” cannot be assessed as psychological coercion, since the initiative to terminate the employment contract by agreement of the parties can come from from any party (employer or employee). The employee’s consent to dismissal by agreement of the parties has legal significance. Such consent on the part of the plaintiff took place at the time of signing the agreement. The plaintiff’s argument that the chief engineer lacked authority to sign an agreement to terminate the employment contract was also not confirmed during the consideration of the case. The powers of the chief engineer as a representative of the employer were confirmed by a power of attorney, an order assigning duties to the general director for the duration of the latter's business trip, an order to send the general director on a business trip and a travel certificate, a copy of the order book. The plaintiff's arguments about the possibility of issuing order No. 59/1 retroactively, since the order number contains a fraction, are speculative. In accordance with the copy of the order registration book presented by the defendant, it is clear that the company has adopted the numbering of orders assigning duties to temporarily absent employees through a fraction with a unit, these are orders: No. 4/1, No. 5/1, No. 36/1, No. 55/1 No. 59/1, and all 17 orders during the absence of the general director were signed by the chief engineer. Thus, the court did not establish legal grounds for satisfying Popov’s claims and denied him the claim (decision of the Kuraginsky District Court dated 08/08/2011) .
6.3. The employee’s claims may be based not on the form, content of the agreement on termination of the employment contract and the powers of the signatory, but on and the employer’s failure to comply with the prohibitions and restrictions established by the Labor Code of the Russian Federation. Surprisingly, the awareness of workers about the almost unlimited opportunity to go to court without any grounds (claims in labor disputes are not subject to state duty, which sometimes provides ample opportunities for abuse of rights) is combined with the legal illiteracy of the disputants. For example, employees often decide that they cannot be dismissed on the basis of clause 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation during illness or vacation. In this case, there is a classic confusion between dismissal on the initiative of the employer (it is in relation to them that there are prohibitions on dismissal during the period of vacation or temporary disability of the employee) and other grounds for dismissal that are not related to the initiative of the employer.
Practice (the date of dismissal by agreement of the parties cannot be changed even if the employee is temporarily disabled on the date of dismissal):
G. filed a claim against the Svetlogorsk social and health center “Dream” to change the date of dismissal, collect temporary disability benefits, and compensation for unused vacation. In support of her demands, she indicated that she was dismissed by agreement of the parties. However, due to the fact that on the day of her dismissal she was incapacitated, she believes that the date of dismissal should have been postponed to the first working day after her return from illness. However, her application to postpone the date of dismissal due to illness by the employer’s manager was not satisfied, which she considers illegal. The court found that<дата>a dismissal agreement was signed with G. by the employer, and an order was issued for her dismissal by agreement of the parties under clause 1 of Art. 77 of the Labor Code of the Russian Federation, with which she was familiarized with on the same day. As established by the court, during the period of her incapacity for work until the day of dismissal, the plaintiff continued to perform labor functions without informing the employer about her illness, which is confirmed by the logbook of the arrival and departure of employees, the logbook of the movement of work books, testimony of a witness, and a work time sheet.<Дата>the inventory items of the warehouse premises were transferred from G. to another employee. The plaintiff was at work the entire day; no statements were received from her that she was on sick leave or that she was asking for a postponement of her dismissal date. On the day of dismissal, the plaintiff was issued a work book. According to the plaintiff’s certificate of incapacity for work during the period<период>was undergoing outpatient treatment due to illness. Temporary disability benefits were paid by the defendant to the plaintiff, which was confirmed by the parties at the court hearing. The court considers the plaintiff’s arguments about the need to change the date of dismissal due to her temporary disability on the day of dismissal to be untenable due to the fact that the prohibition established by Article 81 of the Labor Code of the Russian Federation on the dismissal of an employee during a period of temporary disability does not apply to the case under consideration; dismissal by agreement of the parties is not dismissal at the initiative of the employer. In addition, the court did not satisfy the plaintiff’s demands for payment of temporary disability benefits for<период>according to another certificate of incapacity for work, since more than 30 calendar days have passed from the date of dismissal of the plaintiff to the day of the beginning of her new temporary disability. Taking into account this circumstance, based on the provisions of paragraph 3 of Art. 13 Federal Law of the Russian Federation dated December 29, 2006 N 255-FZ of the Russian Federation “On compulsory social insurance in case of temporary disability and in connection with maternity”, the policyholder (employer of the Social Social Insurance Center “Dream”) is relieved of the obligation to assign and pay a temporary disability benefit to the former employee G. V<период>. G.’s claims against the employer were left unsatisfied (decision of the Svetlogorsk City Court of the Kaliningrad Region dated November 11, 2010 in case No. 2-723/2010) .
7. Main motives and goals of litigation.
Based on an analysis of judicial practice, among the purposes of going to court, those dismissed under clause 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation (by agreement of the parties) can be distinguished some of the most popular goals:
- Reinstatement at work and recovery of average earnings for the period of forced absence.
2) Collection of what was not received upon dismissal (severance pay, compensation upon dismissal, wage arrears, bonuses, etc.).
3) On changing the date of dismissal to the date of the court decision and collecting average earnings for the period of forced absence.
4) On changing the wording of the grounds for dismissal. In case of a request for a change to “dismissal due to staff reduction under clause 2 of Art. 81 of the Labor Code of the Russian Federation" - collection of amounts of severance pay provided for in Art. 178 Labor Code of the Russian Federation.
Define motives workers going to court is much more difficult. In total, they can only be divided into:
The desire to restore your rights and achieve justice.
- “playing” on the employer’s mistakes and abusing your right to obtain additional payments for yourself.
- eliminate the consequences of your “bad” behavior - correct an unfavorable entry in your work book.
In addition to disputes arising from dismissal under clause 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation very closely related to them are the disputes about changing the wording of the “bad” grounds for dismissal to “agreement of the parties.” Most often, if the employer knows all the mistakes he made when applying a disciplinary sanction in the form of dismissal, he agrees to a settlement agreement. After all, changing the basis for dismissal and making an appropriate entry in the work book is much easier than expecting the dismissal to be declared illegal and enduring the reinstatement of an employee who has committed misconduct.
Practice (settlement agreement to change the bad grounds for dismissal to an agreement between the parties was approved by the court):
Ch. filed a lawsuit against the Pskov Municipal Enterprise “Pskov Heating Networks” for reinstatement at work, recovery of wages for the period of forced absence, and compensation for moral damage. The plaintiff was fired for the employee’s repeated failure to fulfill his job duties without good reason under clause 5 of Article 81 of the Labor Code of the Russian Federation. At the court hearing, at the initiative of the plaintiff, the parties entered into a settlement agreement under the terms of which Ch. renounces the claim in full, and the defendant undertakes to change the date of dismissal to the date of approval of the settlement agreement (07/14/2006), change the reason and basis for Ch.’s dismissal from “repeated failure by an employee to fulfill labor duties without good reason" clause 5 of Article 81 of the Labor Code of the Russian Federation to "by agreement of the parties" Article 78 of the Labor Code of the Russian Federation; make payment of remuneration for forced absences and make the appropriate entries in Ch’s work book. The settlement agreement was approved by the court, the proceedings in the case were terminated (Determination of the Pskov City Court of the Pskov Region dated July 14, 2006 in case No. 2-2244/2006) .
Despite all the examples given, which show that the court is not always sure that the employee is right, and after carefully checking the circumstances of the case, even admits that he was wrong, the number of labor disputes arising from dismissal by agreement of the parties, alas, does not decrease. Every employee, when going to court, if he does not consider himself right, then at least hopes that the court will reveal such circumstances that “will play into his hands.” In this regard, I would like to advise all employers, regardless of the form of ownership and popularity of their company, to dismiss by agreement of the parties, to be extremely careful and not allow even the slightest violations (including, for example, the lack of formal authority of the employer’s representative to conclude agreements on termination of employment contracts). And then, in the event of a dispute, the employer will face the same positive decisions as we have given in this article. http://okulovsky.nvg.sudrf.ru/modules.php?name=bsr&op=print_text&cl=1&id=53600111111210947408581000059154
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