What is better for the employee and the manager - transfer or dismissal? Dismissal at will or by agreement of the parties. Dismissal by agreement of the parties

Transfer to another position is also a kind of dismissal procedure. However, it differs significantly from other mechanisms in that immediately . However, there are many features here.

The differences between these two types

Classification

Dismissal by transfer is permitted by article 72.1 of the Labor Code. The main difference from other types of care is the guarantee of employment. It can be internal and external.

- occurs within the organization when an employee remains subordinate to the same hirer, but his duties or structural unit change. This category also includes the movement of an employee to another locality if the enterprise or company has changed its location.
- the employee changes the employer with the consent of both the former and future employers. In this case, the employee goes only to a permanent job.

The transfer implies the mandatory consent of the employee. Exceptions occur only during internal rearrangement and are usually associated with force majeure: accidents, fires, disaster recovery, and so on. Also, if a worker is transferred to the same position and with that report, his consent is not always necessary.

Initiators

The initiator can be either an employee or an employee.

In the first case the employee is advised to obtain an invitation from a future employer in order to guarantee himself employment. Then the employee writes a statement, and if the manager agrees, then the dismissal procedure can be started.
In the second case the hirer must obtain a signed employee agreement for an internal or external transfer.

The transfer of pregnant women, maternity, single mothers or large families at the initiative of the employer is prohibited.

Decor

If the consent of all three parties is reached, which indicates the reason for terminating the employment contract, the name of the company to which the employee is transferred, the details of the documents, and it is also necessarily mentioned that the procedure is carried out with the consent of the employee or.

An entry is made in the labor record, where the article is indicated - clause 5 of part 1 of Art. 77, that is, dismissal on transfer, and the reason is described - or its independent decision. When enrolling in a state at a new place of work, it is noted in the book that the employee was accepted in the order of transfer. The employee must be paid and issued.

If an employee is dismissed in this way, the new employer does not have the right to refuse him employment. However, this agreement lasts only 1 month. If during this time the employee does not have time to transfer - due to illness, for example, then the hirer may refuse to take him to work.

Methods

- the most common and most unprofitable way for the worker. It does not imply any guarantee of employment or compensation. In addition, he can receive the status of unemployed, as well as due payments, only after 3 months.
- a better option. At the same time, the length of service is preserved for 1 month, the citizen receives the status of unemployed on the 9th day after registration, the allowance is paid longer. It is also possible to receive compensation if the initiative to terminate the employment relationship came from the manager.
- does not imply, but guarantees compensation for at least 2 months, and in some cases for 3, if during this time the worker does not find a new job.
- initiated by the employer, does not involve any benefits and creates an unflattering reputation for the employee.
- a fixed-term contract has an agreed end date. If neither the employee nor the employer is eager to extend it, a dismissal is made within this period. Compensation is not stipulated, but the status of an unemployed employee is received in the same way as one who quit by agreement of the parties - from the 9th day after registration.

All of the above methods do not imply employment, while this is guaranteed when transferring.

Which is better - transfer or dismissal

The transfer dismissal is the result of a tripartite agreement. This is one of the rare situations that is beneficial to all parties to the contract. However, there are some pitfalls here.

For an employee

If the employee is satisfied with the proposed position and salary, then this method of dismissal literally consists of some advantages:

the contract stipulates a clear date of departure;
if at the same time the employee needs to move to a new place of residence, he has the right to demand compensation for the move;
wages are maintained or even increased;
compensation for unused vacation days is paid by the previous employer;
the employee hired by transfer does not pass the probationary period;
employment is guaranteed, so there is no need to register with the Exchange or look for a job yourself.

The only drawback of this solution is that the guarantee of employment lasts for 1 month. If during this time the employee does not go to a new place, the hirer has the right to refuse him, so that he will not be able to rest before new labor achievements.

For boss

Dismissal by transfer is also beneficial for the employer if he is satisfied with the prospect of losing an employee. The benefits are:

dismissal on transfer can be initiated by the employer himself. With a reduction in staff or, this is a much more profitable way for the manager, since it excludes compensation and additional payments;
if the termination of the relationship was initiated by the employee, then by agreement, the hirer can specify the date of dismissal in his own interests: for example, so that the resigning person has time to transfer his official duties to another employee.

The disadvantage is the possibility of losing a valuable employee.

Useful information

Dismissal by transfer has some features:

if the procedure is started at the initiative of the employee. He draws up an application of the appropriate form indicating the name of the organization and the position for which he is going to be accepted. A letter of invitation from a prospective hirer is also required;
if dismissal by transfer is proposed by the boss, a written agreement of the employee for the transfer is necessary - both external and internal;
the dismissal order is issued only in the unified form T-8;
the refusal of a new employer to accept an employee who left due to a transfer and arrived before the end of the agreement is a violation of the law. The court at the same time imposes a fine - 10-20 thousand rubles. for an official, and up to 100 thousand for a legal entity;
it is more profitable for the employee to achieve the conclusion of a tripartite agreement. The execution of such an order is accompanied by relevant documentation. The latter acts as proof of the offer if the future hirer has refused the place and the worker goes to court;
the labor code prohibits the transfer of young specialists to positions that do not correspond to their qualifications and specialties;
a transfer may be offered to a worker on probation. Moreover, at the new place of work, a new probationary period is not assigned.

Dismissal by transfer is a somewhat more complicated procedure than leaving at will or by agreement of the parties. However, this option is beneficial to both the entrepreneur and the employee.

How to arrange the transfer of an employee, the video below will tell:

During the course of military service, a person may encounter such concepts as “resignation” and “reserve”. Many people consider these concepts to be equivalent, but this opinion is erroneous. What is the difference between resignation and transfer to the reserve should be understood by every soldier, since ignorance can lead to negative consequences due to the difference in obligations to military service.

Difference

A person who is liable for military service, but is not currently serving in the military, can be fired into the reserve. This category of citizens can be called up for military service if there are grounds that are provided for at the legislative level, for example, in the event of a military threat.

It's important to know! A person who was transferred to the reserve is not paid money during this period.

The reserve of the RF Armed Forces consists of people who:

were dismissed with subsequent transfer to the reserve;
completed their studies at a military educational institution;
were exempted from military service;
did not complete the service due to receiving a deferral from conscription;
are not subject to conscription due to reaching the age of 27;
have not completed military service without legal grounds and have reached the age of conscription;
were dismissed from military service and after a while were registered;
completed alternative service.

In addition, females who have a military specialty can be sent to the reserve.

Resignation also implies a complete cessation of military service by citizens. A person can be dismissed at his own request, which will be expressed in writing, or by force, for example, when a person reaches a certain age, there are medical indications prohibiting the continuation of military activity. Resignation is carried out together with removal from military registration.

It's important to know! Upon retirement, a person may continue to wear a uniform with insignia only if this right is indicated in the order.

Among the main differences between resignation and reserve, it is worth highlighting:

different eligibility category. If the military commission found a citizen unfit for military service and assigned him category D, then he immediately retires;
the reserve consists of civilians liable for military service who have a fitness category. People who are in a military position and have reached retirement age are sent into retirement, which may differ depending on a number of factors, including the title of a person;
if a person was sent to the reserve, then under certain conditions, he can be called up for military service, for example, at the start of hostilities in the country. In addition, this category of citizens is required to attend military training. If a citizen was transferred to the reserve upon reaching a certain age or due to poor health, then even during military conflicts he cannot be called up;
when a person is retired, he is provided with cash payments, which are of a regular nature. Citizens who are in reserve are not paid money.

It's important to know! The amount of the award is calculated on an individual basis, taking into account various factors, including years of service, contributions made, and available awards.

Grounds for dismissal

Persons go to the reserve after urgent or contract service, as well as in the presence of a military specialty. The reason for terminating the service is:

completion of a fixed period of service;
no contract renewal
unsuitability for medical reasons;
lack of necessary psychological or professional characteristics.

The contract itself can be terminated for any reason, but further actions are the same unless there are disciplinary reasons and other extraneous incidents that affected the termination of the service. Actions:

documents receiving;
applying to the military commissariat at the place of residence and registration with transfer to the reserve;
filling out documentation.

In the future, there may be various options for action. For example, if there is a return to service again, then the person is deregistered and transferred to the active aircraft. All this is possible before retirement. Main grounds for resignation:

age limit for stock category;
the presence of medical data that will not allow to serve;
other good reasons, for example, the presence of dependents who need constant care.

Valid reasons must be documented. This can help you retire and not be called up for military service.

Dismissal procedure

Persons may retire from the reserve or from active service. The main points are the existence of grounds and confirmation in the form of documents.

Important! A documentation package will be required for procedures related to deregistration and full retirement. Without documents, not a single commissariat will be able to carry out this procedure.

The dismissal procedure itself has an established procedure:

on the basis indicated, a package of documents is collected;
data from the medical commission or other documents that certify the existence of the grounds will be required;
when leaving the active service, all due amounts are also calculated and paid, including insurance if necessary;
when transferring from the reserve to retirement, it is only necessary to provide documents to the military registration and enlistment office, for which the person is listed;
in the commissariat, a mark “deregistered” is affixed with an indication of the reason.

It is worth considering that in the event of resignations, it is also possible to accrue a pension. All these points are established upon dismissal from the service.

Reserve and retirement are considered different concepts, since being in the reserve still implies the possibility of active service, and retirement is the end of a military career. All moments with registration and deregistration are made according to the grounds, and the procedure is certified by the military commissariat at the place of registration on the registration list.

If we compare the dismissal of one's own free will and by agreement of the parties, then the main differences can be distinguished, namely: is a dismissal order, which is issued on the basis of an employee’s application, severance pay is not provided for by law and the employee has the right to change the decision to dismiss and withdraw his application. The only exception is when another person is invited in writing to take his place, and it is impossible to refuse. For example, if a new employee left his previous job in the order of transfer. The head of the organization cannot unilaterally change the date of dismissal of the employee in comparison with the one indicated in his application.

the contract is terminated at any time;
there is a possibility of "bargaining" - the terms and amounts of payments, etc. are discussed;
an alternative option in the presence of the employee's fault;
continuity of experience with this formulation continues for another month;
if after that you become registered with the central locking house, then the allowance will be higher.

But there are also disadvantages:

the employer has the possibility of terminating the contract in any situation, even in cases prohibited by law;
no union control;
there is no mandatory severance pay, unless it is stipulated in the collective agreement or the agreement itself;
there is no possibility of withdrawing the application;
judicial practice is insignificant, it is almost impossible to challenge the actions of the employer.

At their own request Simultaneously plus and minus - the need for a notice of dismissal in 14 days.

Prior to the entry into force of the Labor Code, this ground (it was provided for in paragraph 1 of Article 29 of the Labor Code) was used to terminate fixed-term contracts, which, in accordance with Art. 32 of the Labor Code could be terminated at the initiative of the employee only if there were good reasons. According to the Labor Code, an employee can terminate any employment contract without any reason, therefore, there are statements in the literature that now this basis for terminating an employment contract has lost its meaning. Actually it is not. It is always better when the legal form matches the actual nature of the relationship.
And in this case, with the actual mutual consent of the parties, the formalization of the dismissal, not of their own free will, but by agreement of the parties, provides a number of advantages, and if until recently it was the employee who had the advantages, now this procedure for formalizing the dismissal is more beneficial to the employer.

Resign voluntarily or by agreement of the parties: which is more profitable

An error occurred.

When the employer sets up obstacles (insists on the completion of the project, signing a bypass sheet, etc.) and declares that he will not give your work book, he is wrong and violates the law. Please note that on your own initiative there is an opportunity to quit during the vacation period. There is a choice between two options: to apply to the manager for a vacation and at the same time notify of dismissal, or to send a letter of resignation to the employer while on vacation.
A pensioner has the right to leave the organization without working off from the day when he was assigned a pension. You can also quit your job at will while on maternity leave or parental leave. You are not threatened with any obstacles, and the manager, most likely, will not set two weeks of working off for an absent person.
How is the dismissal process going? You are required to apply.

The indication of the reason is not an indispensable requirement. But if it is necessary to leave without a 2-week working off, then the reason should be indicated and documented to prove it. In other cases, a letter of resignation is sufficient. After the submission of the application, an order is formed. The order makes a reference to paragraph 3 of part 1 of article 77 of the Labor Code, the details of the application are indicated. With the order it is required to familiarize the employee under the signature. With such a dismissal, a salary is paid, funds for unused vacation, including other amounts that are provided for by a collective or employment agreement. If the vacation is "holiday" in advance, then vacation pay is recalculated, and the amount is withheld from payments. When registering with the CZ after dismissal, a large amount of compensation is paid by agreement, but only if the agreement is initiated by the employer.

Dismissal by agreement of the parties or voluntarily, which is better

What payments are made in case of dismissal by agreement of the parties, read in our article. Severance pay is provided only by agreement of the parties. This option is preferred by people in high positions, as they are more likely to receive a decent amount. When management asks to resign by agreement of the parties in order to reduce employees, it is unprofitable to agree. This could result in you losing your redundancy payments or receiving a smaller amount.

How best to dismiss at your own request or by agreement of the parties

Upon dismissal on his own initiative, the employee:

Must work another 2 weeks at his permanent place.
The period when you can get the status of unemployed is delayed by 90 calendar days.

But there are situations when this method is the only one, especially in the presence of a conflict situation. At the same time, the good sides of leaving by agreement are obvious:

For 30 calendar days, the worker maintains a continuous work experience.
In most cases, you will not need to work out an additional term - you can put forward a condition for leaving just from tomorrow.
Obtaining the status of unemployed occurs after a little more than a week. This means that you can receive financial assistance from the state for a longer period of time than when you quit due to your own desire.

What is the best way to quit voluntarily or by agreement

What does dismissal by mutual agreement mean?
What documentation should be?
Care on your own initiative
What documents need to be collected?
What is the difference between dismissal by agreement of the parties and voluntarily?
What is the difference for the employer?
Benefit for the employee

What does dismissal by mutual agreement mean? The very term "agreement" implies a mutually beneficial arrangement. In our case, the employer and employee must come to a mutual agreement.

Dismissal of one's own free will or by agreement of the parties, which is better

But when applying for dismissal of one's own free will, the following formalities must be observed:

The employee must notify about his intentions 14 calendar days before filing an application for dismissal, the company has legal grounds for this. But, by agreement, this period may be reduced.
If the boss systematically violated the law regulating working conditions at the enterprise, or if the worker does not have the physical ability to work out the prescribed period, then he has the right to independently determine how many days he will work in the organization, and only then agree on this fact with the management.
For two weeks, which, according to the law, an employee who quits must work out, he has the right to withdraw the application and continue to work in the same place.

How to quit: at your own request or by agreement of the parties?

You get only what is specified in the agreement and are not entitled to change the terms without agreement with the management. back to content How to get fired more profitably? As for the financial issue, in any case, you get:

salary for the period worked (including the date of dismissal);
holiday compensation if you did not use it.

What payments are made in case of dismissal by agreement of the parties, read in our article. Severance pay is provided only by agreement of the parties.
This option is preferred by people in high positions, as they are more likely to receive a decent amount. When management asks to resign by agreement of the parties in order to reduce employees, it is unprofitable to agree.
This could result in you losing your redundancy payments or receiving a smaller amount.

An employee who decides to leave of his own free will may change his mind before 2 weeks have passed. But if the dismissal occurs by agreement of the parties, in order to change the decision and keep the job, the consent of both parties will be required.
What is the difference for the employer? What is the difference between dismissal of one's own free will and by agreement of the parties for the employer? The employer often uses the wording "by agreement of the parties" in two cases:

If urgent personnel changes are needed, and there is no time to wait 2 weeks for an employee to work out.
If the company is expected to reduce staff, and you need to bypass all the formalities about this. When laying off, the legislation prescribes a rather complicated procedure: 3 months before the layoff, you need to warn the workers, check whether they can be laid off under the law, draw up and pay all the money due.

What type of dismissal is better: by agreement of the parties or by one's own

Advantages of dismissal of one's own free will and by agreement of the parties

There is also a difference in the conditions of dismissal. So, after a statement of resignation of his own free will, a member of the team is obliged to work for another 2 weeks, and the agreement of the parties implies termination of the contract at any time convenient for all parties. In the first case, one statement from the employee is enough to end the employment contract.

If the contract is terminated by agreement, both parties sign a document that confirms the action. And another difference is the ability to change your mind.

What is the best way to dismiss an employee of your own free will or by agreement of the parties

In addition to the phrase “I ask you to dismiss at your own request”, the employer has the right to ask the employee to indicate two dates in the application. First, the date the application was written. This is necessary to calculate the notice period for dismissal.

Secondly, the date of dismissal with the entry: “I ask you to dismiss of your own free will on May 29, 2008”, so that the last day of work would become the day of dismissal. In addition, the employee should be warned not to use the wording with the preposition “c” when writing the application: “I ask you to dismiss of your own free will from May 29, 2008.” Otherwise, an incident may arise: the last day of work is May 28, 2008, and the day of dismissal is May 29, 2008. An employee has the right to write a letter of resignation both during a business trip, and during a period of temporary disability, and even on vacation (including maternity and childcare leave).

What is better dismissal of one's own free will or by agreement of the parties

The fact is that until the most recent years, the legislation associated with the dismissal of one's own free will without good reason a number of adverse consequences for the employee. First, in accordance with the Rules for calculating the continuous work experience of workers and employees when assigning benefits for state social insurance, approved. By the Decree of the Council of Ministers of the USSR of 13.04.1973 N 252 (Article 51), the amount of temporary disability benefits depended on the duration of the continuous experience, and the duration of the break in work during which this experience was maintained depended on the grounds for dismissal: as a general rule, a month, upon dismissal of one's own free will without good reason - three weeks, and upon repeated dismissal during the year, the continuous experience was interrupted regardless of the duration of the break in work (as in case of dismissal for guilty reasons).

Dismissal of one's own free will or by agreement of the parties

For all the benefits of dismissal by agreement of the parties, see the video clip: back to content What is the difference? The main difference is in the initiator of the dismissal. It could be you, or it could be the leader. If you leave of your own free will, no one has the right to restrict you.

But if you have chosen a form of care by agreement of the parties, you will need to seek a compromise with the leadership. Under the agreement, you can not tell about your departure for two weeks.

When you need to quit urgently, this option is ideal. Dismissal by agreement of the parties provides an excellent chance to receive good monetary compensation from the organization. It will be especially easy to introduce such a condition if the leader was the initiator. The text in the labor will vary (“dismissed by agreement of the parties” or “dismissed of his own free will”). Both options will not affect your future career in any way.

How best to quit voluntarily or by agreement of the parties

Most experts believe that it is impossible to consider an employee's forced filing of a letter of resignation of his own free will in order to avoid dismissal at the initiative of the employer for already committed and proven guilty acts. This position is based on the general direction of labor legislation - the protection of the rights and interests of the employee, and dismissal of one's own free will instead of dismissal on a guilty basis, of course, is in the interests of the employee. However, there is another point of view: if an employee was forced to submit a letter of resignation, such a dismissal will be recognized as illegal, regardless of how the employer forced the employee to file a letter of resignation.

How best to dismiss at will or by agreement of the parties

Or vice versa - the employee decided to inform the employer in advance about the upcoming departure, so that the management could find someone for the position. In any case, the main condition is to conclude a mutually beneficial agreement. What documentation should be? To terminate the employment agreement in this case, you will need a document on the termination of labor relations, which is signed by a member of the team and the hirer. This document must contain:

the consent of both parties to terminate the contract on favorable terms for them;
number and date of the terminated contract;
date of the employee's last working day;
date of conclusion of the document;
passport details of the employee and the name of the organization;
TIN of the hiring company;
signatures of both parties.

In accordance with the Labor Code, this dismissal must be formalized in this way.

Online journal for an accountant

What should be the amount of severance pay upon dismissal by agreement of the parties?

Art. 78 of the Labor Code of the Russian Federation states that the employee and the employing company have the right to terminate the employment relationship at any convenient time, if this decision is mutual and voluntary. They draw up a document in which they prescribe the significant conditions for their separation: terms of working off, severance pay upon dismissal by agreement of the parties, and other nuances that do not contradict the law.

What is dismissal by agreement of the parties

Dismissal by agreement of the parties is almost not regulated by the current legislation, which distinguishes it from other reasons for terminating the contract. It is mentioned in Art. 78 of the Labor Code of the Russian Federation, and this is the only article that addresses this issue.

The agreement of the parties is a universal reason. It is used in relation to persons hired under fixed-term and indefinite employment contracts. It can be applied to different categories of hired specialists:

part-time workers;
key employees;
pregnant women and workers with young children;
disabled people;
persons of retirement age.

The legislation does not stipulate from whom the initiative to terminate the relationship should come. The main thing is to get a written acceptance of the second party.

Often under the dismissal by agreement, the separation of the employee and the company due to the financial difficulties of the latter is disguised. The procedure for terminating an employment contract in connection with the liquidation of a company or a reduction in staff is full of nuances and subtleties, ignoring which is fraught with problems with the labor inspectorate and liability. It is much easier to draw up a document confirming the employee's acceptance of a break in relations in exchange for payment of compensation.

The main advantage of dismissal by agreement is that the employee cannot cancel or change it unilaterally.

This option of dismissal is beneficial for the organization. Unlike dismissal by agreement of the parties, upon dismissal of their own free will, the employee has such a right. During the warning period (two weeks), he can withdraw his application and remain working in the organization (part 4 of article 80 of the Labor Code).

Form of agreement of the parties

The current legislation does not provide for a unified form of the agreement and does not formulate requirements for its content. The current jurisprudence shows that in order to avoid disputes with the staff, the employing company needs to take care of the written execution of the decision reached.

The document can be issued in two forms:

direct as an agreement;
as a statement of the employee, if he is the initiator of the termination of the relationship.

The termination agreement must contain the following provisions:

details of the parties (name of the company, full name of its representative, full name and position of the dismissed employee);
a reference to the fact that the decision to terminate the employment relationship is voluntary and mutual;
reference to articles of the Labor Code of the Russian Federation (77, 78);
number and date of the contract, the validity of which is terminated;
date of dismissal of the specialist;
the amount of compensation, if any, to the employee;
other significant conditions (for example, on the delivery of previously issued material assets (computer, mobile phone, etc.)).

The last paragraph can include the phrase that the parties do not have mutual claims against each other.

The Agreement is drawn up in duplicate, signed by both parties and having equal legal force. One is given to the dismissed person, the second remains in the personnel department and is stored in the archive.

If the company draws up an agreement in the second way, it must, in contrast to the usual letter of resignation, contain the following information:

reason for termination of the contract - by agreement with the employer;
date of dismissal;
the amount of compensation, other special conditions on which an agreement was reached;
signatures of a specialist and a representative of the employer.

If the employer is not satisfied with the conditions indicated by the employee, for example, the date of leaving the company, the parties enter into negotiations and reflect the compromise reached in a separate agreement.

Preparation of personnel documents

Based on the agreement, issue a dismissal order. The organization may, at its option:

use the unified form of order No. T-8, if approved by the head of the organization in the order on accounting policy;
apply a self-developed order form approved by the head (provided that it contains all the necessary details provided for in Part 2 of Article 9 of the Law of December 6, 2011 No. 402-FZ).

Then make an entry about the dismissal in the employee's work book: " Dismissed by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation»

What is included in the calculation upon dismissal

An employee who is dismissed by agreement of the parties is paid a cash settlement, including the following components:

salary for hours worked;
bonuses, allowances, if they rely on the terms of the employment contract;
compensation for unused vacation;
additional compensation provided by the agreement of the parties.

According to Art. 140 of the Labor Code of the Russian Federation, the accrued amount is sent to the specialist no later than the last working day in the company. It can be paid from the cash desk or transferred to a citizen's bank card.

Art. 78 of the Labor Code of the Russian Federation does not contain an indication that the payment of compensation is a prerequisite for dismissal by agreement of the parties, does not determine its minimum or maximum. Practice shows that employees usually refuse to voluntarily leave a position without paying monetary compensation, the amount of which is agreed upon during negotiations with management or the human resources department.

The amount of compensation and the nuances of taxation

An employee and an employer can prescribe the amount of compensation in one of three ways:

fixed amount;
the number of salaries of the employee;
percentage of average earnings.

The parties are bargaining and come to a consensus on the amount of compensation, the "ceiling" of which is not defined. However, in order to avoid problems with the tax authorities, the company needs to name the amounts within reasonable limits. If the payment turns out to be significantly more than the salaries of specialists in the organization, the funds spent cannot be included in expenses for the purposes of calculating income tax without proving the economic feasibility of the transfer to the Federal Tax Service Inspectorate.

The Ministry of Finance adheres to the position that the amount of compensation paid to an employee dismissed by agreement of the parties is not subject to personal income tax in accordance with paragraph 3 of Art. 217 of the Tax Code of the Russian Federation. This rule applies if the transfer to the employee does not exceed the following limits:

in the general case - three times the average salary of a specialist;
for workers in the Far North - six times.

From the amounts paid in excess of the limits, personal income tax is calculated and transferred to the state treasury.

Determining the amount of compensation is the result of "bargaining" between parties with opposite goals. The employee wants to provide himself with insurance in case of a long search for a new job, the employing company wants to save money and not get into problems with the tax authorities. The result of the negotiations is necessarily fixed in an agreement signed by the employee and the employer.

Dismissal by agreement of the parties

Dismissal by agreement of the parties in 2018 is a peaceful termination of the employment contract. The only article that is devoted to this issue is recorded in Art. 78 of the Labor Code of the Russian Federation. Often, neither the employee nor the employer understands what conditions must be met and how to formalize this dismissal by agreement of the parties. Let's try to understand this issue and consider the main nuances in our article in more detail.

What is dismissal by agreement of the parties?

Based on the name, one can guess that this dismissal is possible only after reaching a consensus and the goal of the two parties: the employer and the employee. This is the main difference from the possible dismissal at the initiative of the employee or vice versa. Dismissal by agreement of the parties allows the termination of the Employment Contract, both with a fixed-term and an open-ended contract. One of the advantages of this dismissal for an employee is that he can terminate the employment contract at any time, for example, while on vacation or on sick leave.

Also, the benefits of this agreement are those who have a student agreement. It will not be difficult to terminate such an agreement by agreement, and besides, you will not have to work for 2 weeks, as in the case of dismissal of your own free will.

Related articles:

Pros and cons for the employee

Consider the pros and cons of such a dismissal for an employee.

Advantages of dismissal by agreement of the parties:

when submitting a letter of resignation, you can not indicate the reason;
there is no time limit for submitting an application;
the initiative for such dismissal may come from both parties;
it is possible to terminate an employment contract, both with a concluded fixed-term and open-ended contract;
you can agree with the employer on the conditions of dismissal (terms, payments, compensation);
the record of such a dismissal is neutral in the work book and will not interfere with finding a new job;
dismissal by agreement is a good way out if the employee causes any damage to the organization or if he is guilty;
continuity of service lasts one more month;
those who are going to go to the employment center after the dismissal to get registered will have good news - unemployment benefits will be a little more than usual.

Cons of dismissal by agreement of the parties:

termination of the Employment Contract by the employer may occur at any time, even in cases prohibited by law;
there is no control over dismissal by agreement on the part of the legislation, which means that going to court due to the origin of an unpleasant situation will not lead to success, and the chance to achieve justice is practically zero;
if the dismissal agreement has already been signed, then it cannot be revoked or change your mind about quitting;
the employer is not obliged to pay compensation to the employee, unless it is specified in the regulatory legal act of the company or is not stipulated in the collective agreement, additional agreement. In most cases, the payment of compensation occurs on the basis of the relationship between the parties, and developed over the years that the employee spent in the enterprise.

Registration of dismissal

It is necessary to issue a dismissal in writing in order to certify all the conditions of the drawn up and signed agreement on termination of the employment contract.

The initiator of drawing up such a document can be both parties equally. The document must be necessarily drawn up in 2 copies, one copy for the employer and employee, and also contain all the necessary details.

It is worth noting that if one of the parties does not agree to this agreement, and the dismissal occurs under Art. 78 of the Labor Code of the Russian Federation, then this procedure becomes impossible. In this case, the parties need to come to a consensus on this issue and discuss all their differences.

Procedure for dismissal by agreement of the parties?

The legislation does not prescribe the procedure for dismissal by agreement of the parties. But there is some procedure for the employee if the employer offered to terminate cooperation and terminate the employment contract by mutual agreement. To ensure that the rights of the employee in this situation are not violated, it is necessary to act in order:

We draw up a letter of resignation by agreement of the parties in writing. The agreement is made on the terms of both parties. The worker may claim benefits or compensation. True, you should first turn to Art. 349.3 of the Labor Code of the Russian Federation, which indicates the categories of workers who are not entitled to benefits.
After the parties have drawn up an agreement, it must be registered. This is usually done by a secretary or clerk in the manner specified in the agreement log or other company document.
The agreement is signed in 2 copies - one of which is given to the employee. After receiving his copy, the employee must confirm this on the employer's agreement with his signature or the phrase "I received a copy of the agreement."
The employee must write a letter of resignation based on an existing agreement.
The employer issues an order, and the employee, having read it, puts his signature.
There is a full settlement with the employee.
The personnel officer makes a corresponding inscription about the dismissal in the Labor Book.
The employee receives the Labor Book in his hands and confirms with his signature in the journal the fact of receipt.
The employee takes the certificates he needs at the dismissal in the accounting department.

All documents by agreement of the parties are in the article of the magazine "Simplified" New employee agreement templates from January 1, 2018.

dismissal agreement template

A sample agreement for dismissal should contain:

mutual agreement of the parties;
date of termination of employment;
date of signing the agreement;
the amount and terms of payment of benefits or compensation (if any);
employee's passport details;
TIN of the employer;
signatures of both parties with decoding.

The agreement is drawn up in duplicate and signed by both the employer and the employee. The contract also indicates the amount of compensation, if it was agreed and agreed in advance, and the conditions for its payment.

Payments upon dismissal by agreement of the parties

The main obligation of the employer upon dismissal of an employee is to pay him off by paying him a certain amount. Of course, it is not the employer himself who is responsible for the payments, but the accounting department, but the responsibility lies first of all on his shoulders. According to Art. 140 of the Labor Code of the Russian Federation, it is necessary to pay off the employee on the day of dismissal, according to the application written by him. The amount paid to the employee includes: wages for hours worked and compensation for unused vacation and termination of the contract, if any.

Compensation upon dismissal by agreement of the parties

Upon dismissal by agreement of the parties, the employee may receive compensation, the amount of which is not fixed by law, which means that it can be any (except for the case when the amount of compensation is fixed in a regulatory legal act).

The main thing in this case is to agree with the employer on the amount that would suit both parties. But it should be understood that the employer is not obliged to pay compensation if this is not enshrined in the regulatory legal act of the organization.

In this case, payments are made only on a voluntary basis at the employer's own request for the employee's merits to the company in which he worked.

To receive compensation, an employee must write a statement that includes:

Full name of the employee and his position;
full name of the employer and the name of the organization;
request for termination of the Employment Contract;
reference to paragraph 1 of Art. 77 of the Labor Code of the Russian Federation or Art. 78 of the Labor Code of the Russian Federation;
details of the terminated Employment Agreement;
the date of the planned termination of the contract;
a request for compensation;
date of writing the application;
signature of the employee with decryption.
The employer has the right to disagree with the proposed amount of compensation and sign this application only after mutual agreement of the parties on this issue.

What entry is made in the work book

The personnel officer has 2 ways to record this dismissal.

First way:

the 1st column indicates the record number;
the 2nd indicates the date of the entry;
in column 3 it is written: "dismissed by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation";
date and number of the order of dismissal.

Second way:

columns 1, 2 and 4 indicate the same information as in the first case;
in column 3 you can write: "the employment contract was terminated by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation."

Both spellings are legal.

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Dismissal by agreement of the parties, pros and cons, compensation

Along with the usual options for dismissal of an employee, there is dismissal by agreement of the parties. This option arises and quite often and is one of the democratic options for the development of the situation, in addition, for the employee it is not shameful. We will analyze the advantages and disadvantages of this option, what compensation is due to the employee and what documents are drawn up.

What does it mean by dismissal by agreement

The departure of an employee from the company by agreement of the parties is an alternative and sometimes the best option for dismissal, it is used on a number of others, for example, with dismissal of one's own free will, but the semantic load is somewhat different. For comparison, in the first case, the basis will be a mutual agreement between the employee and the employer, and in the second case, the desire of the employee himself.

The initiator of such actions can be both the employer and the employee himself, they part by some kind of mutual agreement, which is regulated by Article 78 of the Labor Code. Note that you can terminate the employment relationship at any time, by agreement. According to the labor code, it follows that the employment contract, additions to the contract are drawn up in 2 copies, and the dismissal agreement should be drawn up in the same way.

And although the labor code does not require a specific form of such an agreement and does not even undertake to make it, it is still strongly recommended to draw it up in order to close all issues with the employee and have documentary evidence signed by both parties to the process.

Dismissal by agreement of the parties is initiated by mutual agreement of the parties when compiling a list of conditions.

In addition, this measure can be aimed at repaying the conflict between the parties, for example, if an employee refuses to quit and conducts some offensive actions. Of course, not everyone will be interested in suddenly leaving the workplace at the speculation of the employer, who may have his own thoughts on reducing such a workplace or replacing it with a new candidate.

The employee is the initiator

If such a desire was expressed by the employee, then he must do the following:

Write a letter of resignation addressed to the manager with the wording by agreement of the parties: “I ask you to fire me or terminate the employment contract from the required date by agreement of the parties” and then describe your requirements

The employer is the initiator

In the event that such a process is initiated by the employer, he must do the following:

Write a letter to the employee expressing your intentions
Specify the reason for dismissal
Estimated date of termination of employment

The Labor Code does not require a specific form of such an agreement, therefore it can be drawn up in any form, that it may contain:

Indication in it of information about the mutual agreement of the parties, for this, include the wording that it was signed voluntarily, without any coercive measures
Details of the current employment contract
The date of termination of employment, which will be the last day of work of the employee, must be agreed upon by both parties
Conditions are also stipulated, including financial ones, if any, indicating the amounts of compensation. It is necessary to divide the amount of "compensation" from the standard amounts of compensation upon dismissal
Other essential conditions
Signatures of the parties to the negotiations

Advantages and disadvantages of terminating the contract by agreement of the parties

Advantage of dismissal by agreement

The advantages include:

The initiative to terminate the employment contract can come from both the employer and the employee
You are not required to provide a reason for leaving.
There are no deadlines for submitting an application, as we say in case of dismissal of one's own free will, when an employee is obliged to notify the employer two weeks in advance, including the need for working off, depending on the agreements reached
You can terminate the employment relationship during the probationary period
Agree certain conditions (terms, severance pay, etc.)
Can be negotiated orally
Such a record does not spoil the employee's work book
An employee with this wording has another month of continuous experience
The amount of the unemployment benefit in this case is more

Flaws

Of course, there are also disadvantages that are more related to the minuses for the employee, and for the enterprise, of course, pluses:

Allows you to dismiss an employee who is on vacation (including maternity leave and during pregnancy) or on sick leave
There is no control over legality by trade union organizations
There are no guarantees in compensation (compensation), unless it is specified in the agreement
You can not change your mind or withdraw consent after signing the agreement, only if both parties agree to this
There is no way to sue and challenge these actions

Dismissal by agreement of the parties to compensation

Along with the possible requirements for the payment of monetary compensation to the employee by the employer, it should be noted that according to the law, upon dismissal by agreement of the parties, monetary compensation is not mandatory. Therefore, the requirements of the employee for "compensation" will not always be satisfied, it all depends on the negotiations themselves. And most likely the employer will go for it more often if the initiative to terminate the employment relationship comes from him, and not from the employee.

But do not forget that according to the law, the employee is entitled to all standard payments upon dismissal of an employee, such as compensation for unused vacation, if there are days off, as well as wage payments for hours worked. All these payments must be calculated and paid to the employee on the day of dismissal. Regarding the "compensation", the agreement may indicate a different date for the payment of this amount.

It should be noted that compensation (compensation) paid by agreement of the parties is also subject to all payroll taxes.

If an employee took vacation in advance (on credit), then it is necessary to calculate the amounts that should be deducted from the salary due to him for the days worked.

Step-by-step actions when dismissing an employee by agreement

Step 1. Draw up an agreement between the parties

The labor code does not describe how an agreement should be drawn up between an employee and an employer - in written or oral form. And also there is no approved form for this document. However, it is recommended to draw up an agreement between the parties in writing: one copy with the signature of the employee about its receipt from the company, and the second from the employee.

The document must contain the following information:

Date of the final business day.
Can an employee take a vacation with subsequent dismissal or not.
Compensation payments, if any.
Handover procedure.

Step 2. Issue an order to dismiss the employee

The basis for termination of the employment contract is the order to dismiss forts T-8. The document must reflect the details of the terms of termination of employment signed between the parties.

The grounds for termination of the employment contract in this case will be the following entry: "By agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation." In this case, the stipulated conditions are not indicated in the document.

After the order is issued, the document must be registered in the company's order registration book.

Step 3. Familiarize the dismissed person with the order

After issuing the order, it is necessary to familiarize the dismissed employee with it. After reading the document, he must put his signature on the document. Without a signature, it will not be considered that the employee was familiarized with it.

If desired, the employee has the right, upon written request, to make a copy or extract from the order. The employer does not have the right to refuse him such a request.

Step 4. Reflection of dismissal in a personal card

Information about the dismissal must be entered in the personal card of the T-2 form, which is entered when an employee is hired. In the column for the grounds for termination of employment, the details of the order are entered, and the date of dismissal.

After making an entry in the document, the employee must be familiarized with the personal card by putting his signature. If you do not want to sign the document, you must draw up an act in front of witnesses.

Step 5. Making an entry in the work book

An entry in Laborovaya about the reasons for dismissal with reference to the relevant article of the code “Dismissed by agreement of the parties”, clause 1, part 1, article 77 of the Labor Code of the Russian Federation. And without announcing the terms of this agreement.

Step 6. A note-calculation is drawn up in the form T-61 on dismissal

To determine the exact amounts that are supposed to be paid to the employee upon termination of the employment relationship, a calculation is made and entered into the start-up calculation in the T-61 form. Based on this document, the cashier issues money to the dismissed person.

The front of the note indicates information about the place of work and the availability of vacation days unused during work. On the reverse side, a calculation of accruals and deductions is made, and the exact amount that is supposed to be handed over.

Step 7. Make a full calculation

The employer is obliged to pay the full payment on the last working day of the citizen:

Pay wages due to him for the month of dismissal.
If the annual paid vacation has not been fully used, then pay compensation for unused vacation.
Pay severance pay (compensation), if stipulated by the collective agreement, labor agreement or agreement between the parties.

Sometimes, for some reason, the employee cannot receive money on the final day of work, for example, is not at the workplace or is ill. In this case, he needs to issue a calculation on the day when he made such a request.

If a dispute arose between the parties about the amount of payments, then the employer is obliged to issue an amount that does not cause disagreement. For the rest of the amount, it is necessary to negotiate or take the case to court.

Step 8. Hand over documents

Together with the calculation, the employer must hand over the following documents:

Labor book. It must contain a notice of dismissal. At the same time, the dismissed person must put a signature in the labor accounting book that he received it.
Help in the form 182n for calculating sick leave. It indicates his salary for the last 2 years of work.
Certificate of the amount of the transferred contributions to the FIU. It can be RSV-1 and SZV-M.
Help for the employment service on average earnings. Issued within three days of the request by her employee.
Help on the form SZV-STAZH. New form introduced since 2017. It indicates the length of service of the employee.
Copies of internal documents, if the employee has made such a request.

Step 9. Notification of the military registration and enlistment office

The employer is obliged to notify the military registration and enlistment office where the employee was registered about his dismissal within two weeks. If he was in the military.

Controversial situations

Often there are some disputes between an employee and an organization, for example, when they want to dismiss an employee without his consent, change to a new one, or make staff reductions, in this case they try to make the employee leave of his own free will, or by agreement of the parties, i.e. to. it saves time and nerves. Let's say, when reducing, it is required to notify the employee 2 months in advance, but here it is not required!

After writing a statement under the agreement and signing the agreement, it is no longer possible to change the article under which the termination of employment occurs. There may also be questions about postponing the date of dismissal. These nuances, including the proposal of one of the parties to terminate the dismissal procedure, are decided at the negotiating table. To do this, you need to send a letter to one of the parties. If both parties have come to new agreements, then this is reflected by the signing of a new agreement or the cancellation of the dismissal and the destruction of orders.

It should also be noted that when signing all agreements and documents, the employer must act as a person who has the right to sign such documents, according to a power of attorney or the charter of the enterprise. Otherwise, such documents can be considered null and void and have no legal force.

The article was written based on materials from sites: dtpstory.ru, law-uradres.ru, buhguru.com, www.26-2.ru, infportal.ru.