Termination of an employment agreement by agreement of the parties: pros and cons

Getting a job, a person is faced with a large bureaucratic system of personnel policy, signing a bunch of papers and trying to delve into a multi-page agreement. The whole procedure is ready to be repeated again upon dismissal, when suddenly the employer offers to quietly and peacefully disperse, having drawn up a simple and painless dismissal agreement by agreement of the parties. But is it really that simple and painless? Who benefits from this wording of dismissal, and for whom this is the only way to leave "beautifully." How to arrange a dismissal by agreement and what you need to know when drawing up a contract? These questions will be answered by the legislation and adopted regulatory documents.

What does the law say?

Business relations are regulated by the Labor Code of the Russian Federation (Labor Code of the Russian Federation). In particular, by article 77 of the Labor Code of the Russian Federation, dismissal by agreement of the parties takes place. The procedure can be performed at any time, even during the trial period. This requires the consent of two parties. Those. if the boss offers to carry out such a procedure, then the employee must agree. Failure makes the process impossible.

Advantages of termination of employment contract upon agreement of the parties

The termination of an employment contract by agreement of the parties in office work is rare, although it has a number of advantages of this condition. For example, this procedure of dismissal does not oblige the employee to warn in advance of his intentions and work out the due date. Sometimes an employee does not know whether it is better to quit on his own or by agreement of the parties, and if seniority is important for him, then in the second case, seniority will remain uninterrupted if a new job is found within a month after dismissal.

For the employer, there is also the benefit of dismissal by agreement of the parties. For example, an employee who has violated discipline or has lost the trust of the company may postpone dismissal under the article with his promised “own desire”, and after the period has elapsed, refuse to leave the post. Upon dismissal by agreement of the parties, an advantage for the employer will be the employee’s inability to change his mind unilaterally, which will accelerate the process of getting rid of an unwanted employee and the likelihood of sabotage on his part. If a worthy replacement for an employee spontaneously appears in the company, and the director puts the current colleague in front of the fact, the best thing for both parties that can be arranged here is termination of the contract by agreement.

Cons of termination by mutual agreement

Even the simplest and most profitable solutions to terminating employment contracts have their drawbacks and pitfalls. We are talking about the period of drawing up the contract. For example, a written contract with the date of termination of the contract and the signature will not lose force if the employee is sick or is on vacation. Another point concerns payments. If the agreement does not contain compensation conditions, for example, for late notification of the employee about dismissal, then in most cases you will have to rely only on unspent vacation days. Termination of the agreement by agreement of the parties does not require notifying the trade union organizations about this procedure, therefore, if disputes arise, the employee will not have to take advantage of the union’s support. If you have any questions and complaints about the former employer that have been brought to court by both parties, then justice will not be on the side of the employee, since the main document is the voluntary agreement of the parties with the seal and signatures. It is almost impossible to prove that the contract was drawn up under pressure. If an employee wrote a letter of resignation of his own free will, then within two weeks he can pick it up, if he changes his mind, unilaterally. But you can’t change your mind after signing the contract termination agreement. More precisely, it is possible, but the second side has the right to refuse this.

Who could benefit from such a wording upon dismissal

In relation to the employer, such an article is generally favorable for dismissal: with the mutual consent of either litigation, labor inspection, or reporting to trade union organizations. Even the payments are the same as with other articles of termination of the contract, unless the contract also provides for "compensation" to the employee. But the dismissed person should think before agreeing to such a termination of the contract. If the employee has violated the discipline or has not complied with the requirements of the job descriptions and knows that he is threatened with dismissal, then he himself can ask for the wording “by agreement of the parties”.

This will be the least of evils; employment records will not be spoiled by dismissal records under articles that interfere with a career. It’s enough to imagine how the future authorities will respond to the record “dismissed due to loss of confidence” or “because of an unfair attitude to duties”. If everything is in order with the employee’s reputation and discipline, but the employer needs to reduce the labor unit, then the dismissed person can discuss the amount of compensation with his superiors. If an agreement is not reached, then the employer will have to find other options or indicate the reason for the staff reduction. And this in turn does not make the company a reliable employer. Such a wording would be most ideal in a situation where the employee’s relations with the employer are friendly, and in order not to create problems for each other, they part by mutual agreement.

When applying for a job - think about quitting

This is not a pessimistic attitude, but the business approach of any competent employee who defends his rights in labor relations. The fact is that when drawing up a contract for employment, in addition to the duties and rights of the parties, the order of dismissal is indicated. This paragraph indicates the amount of payments, including vacation pay, under various articles of termination of the contract. Usually an employee is “rushed” or allowed to read a multi-page contract before signing, saying that it is standard and standard. The employee relaxes and signs the "model contract", but meanwhile nuances and deviations can be indicated there, with which he automatically agreed with his signature. Therefore, one should not be afraid to seem meticulous and scrupulous; one needs to take a contract and calmly read it on all points. It should be remembered that the employee has the right to demand clarification on obscure points. If the employee’s candidacy suits the company in all respects, then, with the consent of the employer, amendments can be made to the disputed clauses of the employment contract.

Agreement termination process

In order for the procedure to be legally clean and not cause further questions from the boss and subordinate, the process is performed according to the article by agreement of the parties.

It has an installed algorithm:

• Oral agreement of the parties on the procedure. First, the parties discuss and decide to terminate the contract in this way.
• Employee statement.
• Written documentation. An agreement between the parties on the termination of the employment contract is drawn up. It describes the conditions, terms, procedure for dismissal and compensation.
• Registration agreement. In a special journal of record keeping put a mark on this document.
• Sighting a document. The parties exchange copies of the agreement for signatures.
• Drafting a dismissal order. Make an order for the number, register it in the journal
• Sight of the order. They introduce the order of the resigning, who puts his signature in duplicate.
• Actual termination of office. Within the specified period, the employee resigns his authority, and final settlement is made with him .

Employment record

So, what record will the employee see after the termination of the employment contract by agreement of the parties? In the column "number" affixed serial number. Next is the date. In the column “Information about the work” there will be approximately the following entry: “The employment contract has been terminated by agreement of the parties, Article 77, Part 1, Clause 1 of the Labor Code of the Russian Federation”), and the order number in the last column. A personnel manager or human resources inspector or other authorized person is also indicated. The seal of the organization and the signature of the employer are put, then the signature is put by the former employee. The work book must be issued on the day the order is drawn up that the employee was dismissed by agreement of the parties.

What benefits does the employee claim?

Before or after entry into the labor by agreement of the parties, the employee is waiting for the calculation. What amounts can he claim?

1. Calculation for the worked period.
2. Settlement for unused vacation.
3. Compensation for the termination of the contract.

Payment of compensation for the termination of the contract by agreement of the parties is carried out only if it is provided for by the regulatory documents of the company or signed by agreement of the parties.

Also, along with compensation, there will be no payment for unused vacation, if the termination occurred on a trial period.

There may be some difficulties in paying vacation pay if the employee has an irregular schedule or the ability to replace himself with another colleague. In this case, resort to the calculation of vacation pay by formulas.

Payroll

In order to calculate all the compensation upon termination of the agreement by agreement of the parties, daily earnings are calculated according to the model. First, they calculate how many days have been worked out in the organization, deduct weekend, holidays and hospital days. Then they add up all the salaries without sick leave and divide by the number of days worked. Thus, the average daily wage is obtained.

Calculation of unused vacation

If an employee is dismissed by agreement of the parties, then vacation pay is made as follows:

1. All unused vacation in the number of days is calculated.
2. A salary for one working day is taken.
3. The resulting numbers are multiplied.

Rules for preparing an application by agreement of the parties

In order to properly quit by agreement, the employee needs to know how to write a statement by agreement of the parties. There is no clearly established form for such a statement, and the organization itself draws up a sample document template. According to the regulations of the Labor Code, the application must be written by hand or printed. There are cases when an employee cannot personally submit an application, but only through a proxy. Then the first step is to draw up a power of attorney for the person who will act on behalf of the applicant and register the power of attorney with a notary. The letter of resignation indicates their desire to terminate the contract by agreement of the parties, as well as the number from which the employee ceases to operate on the territory of the organization. The number indicated in the statement will be regarded by the employee of the human resources department as the last day of work, and all compensation calculations will be made regarding him.

The main requirements for the application for 2017 are as follows:

• The title of the document shall indicate the position, surname, name and patronymic of the head, full name of the organization, position and name of the applicant.
• After the word "Application" the text is written on a new line: "I ask you to terminate ..." or "I ask to cancel the employment contract by agreement of the parties with ...".
• A specific date is written, that is, the last working day.
• Next, put the date of the application and signature of the applicant with a transcript.

It is important to comply with the application deadlines. If the employee and the company have a good relationship, then ideally write a statement 14 days before dismissal. Sometimes this affects the amount of compensation for dismissal by agreement of the parties under the Labor Code of the Russian Federation.

Sample agreement and possible nuances

With any written procedure, it is important to observe the correctness of the preparation of the documentation, because otherwise it will not have legal force. By agreement of the parties, an agreement on cooperation drawn up earlier, but with the appropriate wording, can be considered an example of termination of an agreement:

• At the beginning of the contract, persons are indicated with the position and name, as well as the status in the contract, for example, “Employer” and “Employee”.
• The contract is numbered and dated.
• The "body" of the contract indicates the conditions for termination of the contract, the availability of payments. If payments are made, then this must be reflected in the contract. If the financial and other obligations of the parties are preserved, then the deadline must be indicated.
• Be sure to indicate the last day of the employee.
• All details of the parties are entered.
• The required number of copies is made.
• Each copy is stamped, signed by the parties to the agreement, and the date the contract is drawn up.

If the contract is drawn up correctly and signed, then an order is drawn up.

There are certain pitfalls in the preparation of such agreements, and they are usually used by the interested party.

So, the nuances can affect pregnant employees. When the employer finds out about the "interesting situation" of his subordinate, this automatically obliges the company to pay sick leave, monthly allowance up to one and a half years, allowance up to three years. In addition, the employer must retain the employee for her workplace and reinstate the woman in office after the end of her maternity leave. Not all managers are ready for this turn of events, so they prefer to part with an employee by terminating the contract by mutual agreement, since this is one of the few legitimate ways to fire a pregnant woman. But not only expectant mothers, but also the rest of the staff should know that no agreement and consent are valid in the absence of this agreement.

Labor exchange after dismissal by agreement

It often happens that an employee goes "nowhere" after the termination of the contract by agreement of the parties and can not always find a decent replacement for the workplace. In such cases, the labor exchange comes to the rescue, which deals with the selection of vacancies and at the same time makes payments to the applicant.

To do this, you will need to contact the city employment service within two weeks after dismissal. The applicant will need to leave an application for registration, as well as fill out a resume form indicating the education, places of work, skills and the desired level of payment. A citizen needs to provide a work book indicating the dismissal by agreement of the parties, and then the labor exchange will be ready to consider the possibility of making unemployment benefits.

The employment service requires the following conditions to be met:

1. The applicant has reached the age of 18.
2. No other official income was recorded at the time of payment.
3. The applicant passed the registration procedure at the labor exchange.
4. The applicant is ready to consider all the offered vacancies, go for interviews and keep documented reports on interviews with potential employers.
5. A citizen is ready to acquire new knowledge, skills, study, change qualifications during interviews.

The department of payments of the labor exchange relies primarily on wages established in the last place of work. To do this, the applicant must provide an income statement for the last three months. Payments are made taking into account the duration of stay at the labor exchange. For the first three months, 75% of the salary is paid, for the next 4 months - 60% and then - 45% of the average monthly income from the last place of work.

The applicant must bring four documents for registration of unemployment benefits:

• certificate of income from the last workplace for 3 months;
• passport;
• work book;
• diploma or certificate of education.

Within a 10-day period from the moment of filing the documents, a check takes place, after which payments are made. It is worth noting that there is a set norm and it does not exceed 4900 rubles.