In accordance with Articles 67 and 72 of the Labor Code of the Russian Federation, entry into the Labor Code is carried out on the basis of the prisoner at the time of employment employment contract(TD). That is, when hiring a specialist, you will initially reach an agreement that he will become your employee voluntarily, without coercion on your part.

There are no exceptions in this sense. And when terminating industrial relations, the same relaxed interaction should develop between you.

The designated articles of the Labor Code of the Russian Federation state that any changes to the relations established on the basis of TD, based on the good will of the parties, are formalized by the appropriate written certificate. Agreement is a written document stating that agreement has been reached on the cancellation of the TD.

Based Article 78 of the Labor Code of the Russian Federation in this situation, termination labor relations can be carried out at any convenient time, unhindered and without complications of a legal or other nature. Mutually conditioned desire is a sufficient reason for stopping inappropriate actions.

Direct entry is made based on clause 1 part 1 art. 77 Labor Code of the Russian Federation.

The paperwork procedure provides for the formation of documentation flow according to routine, with the implementation of rules and regulatory standards. The entry you made in the TC will receive legal force, by observing the basic provisions of the organizational plan:

1. The agreement to terminate the TD is drawn up in the form of a document, signed and sealed by the organization.
2. It is based on the provisions, clauses and subclauses of the TD. There are no special requirements for it, but attention should be paid to what may subsequently become the cause of conflict. These points must be foreseen.
3. The agreement must include all the fragments of activity accompanying the dismissal, including mutual settlements.
4. Based on the agreement drawn up, a dismissal order is drawn up. The employer is required to sign it.
5. The order must be issued (registered).
6. The person leaving must be familiarized with it against signature 3 days before receiving the Labor Code or earlier.
7. Based on an order completed in accordance with all the rules, an entry is made into the labor record.
8. When issuing the document in hand, it is entered, which must be stitched and with numbered sheets. How to flash a work record book - read.

If the sequences are not followed or the preliminary documentation is not properly completed, the entry you made in work book employee may be declared invalid, which will entail certain difficulties for both parties. Regulated by law and.

After the procedure for drawing up an agreement and correctly preparing an order, you have the opportunity to make an entry in the Labor Code. Take this process carefully and carefully double-check all initial information.

When entering, open TC on the page where the last available entry was made. It is likely that you made this entry at the moment when cooperation with the resigning employee began.

Pay attention to the first column, where the next serial number is entered. Accordingly, below you will put the number under which your entry about the cancellation of the TD will appear.

Check that the beginning of its application does not stray from the line you have chosen., the entry must be made exactly. Each column is filled in from the beginning of the same line.

Next, in the second column, enter the date of dismissal of your employee. It includes: date, month, year. An entry in the TC can be made not on the day of issue, but in advance. Please note that the date will correspond to the day of dismissal, and not the entry made.

The basis of production is entering all information about working life persons, makes up the third column. It includes all data on labor movements, as well as the reasons accompanying them. All of them should look standard and reflect the requirements of legal regulations.

The dismissal phrase must be constructed concisely, correctly, based on regulatory framework and when using regulated terms and expressions.

The phrase you literally wrote will be almost word for word: “The employment contract was terminated by agreement of the parties, clause 1, part 1, article 77 of the Labor Code of the Russian Federation.”

Without changing the column, here, but just below, provide information about yourself as the person responsible for making entries in the Labor Code (position, surname, initials). In the fourth column, the order on the basis of which the procedure was carried out is entered. It should contain information:

• publication dates,
• serial number.

Conclusion

The indicated method of resolving the issue when interaction in industrial relations did not work out for one reason or another can be called fundamentally effective. Moreover, it has undeniable advantages in comparison with other forms of TD termination.

Experts in the field of labor law universally recommend reaching an agreement in any, even the most difficult situations.

Dismissal due to a reduction in the number of employees (clause 2 of Article 81 of the Labor Code of the Russian Federation) is a complex procedure. The employer must warn employees in advance, offer them another job, determine those who have a preferential right to stay, report the layoff to the employment service, and pay those laid off. severance pay.

Labor legislation provides for more simple ways separation from employees, in particular dismissal by agreement of the parties (clause 1 of article 77 of the Labor Code of the Russian Federation). It is important to note that dismissal on this basis excludes any pressure or coercion to terminate the employment relationship. If the employee does not agree to resign, this method Termination of an employment contract cannot be applied.

Rule of Article 78 Labor Code states that an employment contract can be terminated at any time by agreement of the parties. What follows from this? Labor legislation does not directly indicate what conditions must be met by the employer and employee. We will try to determine them based on the content of other articles section III Labor Code.

Document flow upon dismissal by agreement of the parties

From the requirements of Part 1 of Article 67 and Article 72 of the Labor Code, it follows that both the employment contract itself and the agreement to change its conditions are drawn up in writing in two copies. The dismissal agreement is drawn up in the same way. But before concluding it, the parties must agree. Let's consider all stages of the dismissal procedure by agreement of the parties.

The employer is the initiator of dismissal

Let us assume that the initiator of termination of the employment contract is the employer. He must express his intention in a letter to the employee (see sample below). The document must indicate the basis for dismissal (by agreement of the parties) and its expected date.

Sample letter from employer regarding termination of employment contract

The employee does not agree

If the employee does not agree to terminate the employment contract on the terms proposed by the employer, he has the right to report this in a response letter and offer his own conditions (see sample below).

In order to avoid lengthy correspondence, it is more effective to sit down at the negotiating table and discuss all the nuances of terminating the employment contract.

Sample employee response letter

Negotiations between employee and employer

As a rule, if it is necessary to dismiss a significant number of employees, negotiations are carried out not with each individual individually, but in the course of general meeting interested parties. Negotiations (meetings) can be conducted not only by CEO, but also any employee authorized by the administration, for example a HR specialist. It is desirable that during the negotiations the parties come to complete mutual understanding.

Based on the results of the negotiations, the text of the dismissal agreement is drawn up. Please note: even if the negotiations were held in the form of a meeting, and the conditions for terminating the employment contract were adopted for all those dismissed, the dismissal agreement is drawn up for each employee separately. The documents are signed by the head of the organization, and not by the employee who was authorized to negotiate.

We draw up an agreement to terminate the employment contract

After negotiations, having come to a mutually beneficial solution, the parties must record it in an agreement on termination of the employment contract (see sample below). This document must specify the basis for dismissal (agreement of the parties), the timing, and the amount of severance pay, if there is an agreement on its payment. We advise you to additionally discuss the fact that the amount of severance pay is final, cannot be changed or supplemented, and the parties do not have mutual claims against each other.

The agreement is drawn up in two copies, like the employment contract. In the case of large-scale layoffs, we recommend assigning a serial number to the agreements, which is then indicated in the text of the dismissal order in the “Base Document” column.

Order of dismissal

After the parties sign an agreement to terminate the employment contract, the HR specialist will have to draw up an order to terminate (terminate) the employment contract (see sample below). Unified order forms (No. T-8 and T-8a) were approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1. The wording of the grounds for dismissal will be as follows: termination of the employment contract by agreement of the parties (clause 1, part 1, article 77 of the Labor Code Russian Federation), and the basis document is an agreement to terminate the employment contract.

Sample agreement to terminate an employment contract

Entry in the work book

You need to make an entry in your work book: “The employment contract was terminated by agreement of the parties, paragraph 1 of part 1 of Article 77 of the Labor Code of the Russian Federation.” After making a notice of dismissal, the employee must familiarize himself with it and sign the work book. You can ask him to make a note “Acquainted” and put a signature below the personnel officer’s signature, or simply sign. After receiving the work book, the employee must also sign the book of work records and their inserts in the form approved in Appendix No. 3 to Resolution No. 69, and on last page personal card (unified form No. T-2 approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1).

Sample entry in a work book

Payments to a dismissed employee and their taxation

Payments upon dismissal by agreement of the parties

Wage. Upon dismissal by agreement of the parties, the employee is entitled to pay wages, accrued inclusive of the last day of work.

. This payment is guaranteed labor legislation(Part 1 of Article 127 of the Labor Code of the Russian Federation). It is calculated in the usual manner in accordance with the provisions of Articles 127 and 139 of the Labor Code.

Upon dismissal by agreement of the parties, the employee has the right to take leave with subsequent dismissal (Part 2 of Article 127 of the Labor Code of the Russian Federation). Let us remind you that the provision of such leave is not the obligation of the employer, but its right. Accordingly, if you provide a dismissed employee with vacation in full, taking into account all previously unused days, you will not have to pay compensation for unused vacation. Vacation pay will be paid instead.

The condition for granting leave with subsequent dismissal can be stated in the agreement on termination of the employment contract (see sample below).

Compensation. In addition to wages, the parties may provide for the payment of severance pay (Part 4 of Article 178 of the Labor Code of the Russian Federation), that is, compensation. The procedure for calculating this payment should be provided for in the collective agreement, labor agreement, regulations on remuneration, or recorded in the agreement on termination of the employment contract, if they are not provided for by the remuneration system.

Fragment of an agreement on termination of an employment contract

Taxation of payments to an employee upon dismissal by agreement of the parties

Personal income tax. If the employment relationship is terminated before the end of the calendar month, the date of actual receipt of income in the form of wages is recognized as the last day of work for which the income was accrued (clause 2 of Article 223 of the Tax Code of the Russian Federation).

Personal income tax on the income of a resigning employee must be paid to the budget:

Not later in the day receipt of funds from the bank or the day of transfer of money to his account;

No later than the day following the day of dismissal, if the payment is made from the proceeds received at the cash desk (clause 6 of Article 226 of the Tax Code of the Russian Federation).

Please note that the compensation amount is subject to personal income tax general procedure as income received from a source in the Russian Federation (subclause 10, clause 1, article 208 of the Tax Code of the Russian Federation).

Income tax. In relation to wage amounts, the provisions of paragraphs 1, 2 and 3 of Article 255 of the Tax Code apply. Payments accrued in accordance with these rules fully reduce the taxable base for income tax.

Compensation for unused vacation is recognized as labor costs that reduce the taxable base for income tax, based on paragraph 8 of Article 255 of the Tax Code.

WITH compensation the situation is more complicated. If this payment is not provided for by the enterprise’s remuneration system and is not guaranteed by an employment contract, it does not reduce the taxable base for income tax (clause 21 of Article 270 of the Tax Code of the Russian Federation).

If the amount of compensation is established by a collective (employment) agreement and is included in the enterprise’s remuneration system, it is recognized as part of labor costs that reduce the taxable base for income tax on the basis of paragraph 25 of Article 255 of the Tax Code. But its size must correspond to the criterion of economic justification of costs in accordance with paragraph 1 of Article 252 of the Tax Code. How to prove that the costs of paying compensation are economically justified? In our opinion, it is enough to reduce the amount of this payment in comparison with the severance pay guaranteed by labor legislation upon dismissal due to staff reduction (Part 1 of Article 178 of the Labor Code of the Russian Federation).

UST, pension contributions. Payments provided for by labor (collective) agreements, which reduce the taxable base for income tax, are subject to unified social tax (clause 1 of article 236 of the Tax Code of the Russian Federation) and pension contributions (clause 2 of article 10 Federal Law dated December 15, 2001 No. 167-FZ).

In the event that the payment does not reduce the taxable base for income tax (compensation outside the remuneration system), it is not subject to Unified Social Tax (clause 3 of Article 236 of the Tax Code of the Russian Federation) and pension contributions. Compensation for unused vacation is not subject to the Unified Tax (Subclause 2, Clause 1, Article 238 of the Tax Code of the Russian Federation).

Contributions for injuries. Contributions for injuries are not subject to accruals in favor of the employee, which are clearly named in the List of payments for which they are not accrued. insurance premiums to the Social Insurance Fund of the Russian Federation (approved by Decree of the Government of the Russian Federation dated July 7, 1999 No. 765).

In paragraph 1 of this document, of the above payments, only monetary compensation for unused vacation is indicated. For the amount of wages (including all its components) and the amount of compensation (regardless of the source), contributions for injuries should be calculated (clause 3 of the Rules for the calculation, accounting and expenditure of funds for the implementation of compulsory social insurance against industrial accidents and occupational diseases, approved by the resolution Government of the Russian Federation dated March 2, 2000 No. 184).

Cancellation of an agreement to terminate an employment contract

If the intentions of the parties have changed: the employer has found an opportunity to keep the employee or the latter has found a compelling argument not to fire him, the agreement can be annulled only upon reaching mutual agreement. In this case, the initiator of cancellation must notify the other party about this in writing.

Sample application for cancellation of agreement

If the other party agrees with this proposal, it is necessary to cancel both the agreement to terminate the employment contract and the dismissal order. A sample cancellation order, which is issued in any form, is given below.

Sample agreement

Sample order for cancellation of dismissal order

No agreement. If the other party does not agree, the dismissal remains in effect and cannot be reversed. This is stated in paragraph 20 of the resolution of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”: “Annulment of an agreement regarding the period and grounds for dismissal is possible only with the mutual consent of the employer and employee.”

But a situation may arise when the person leaving begins to violate labor discipline. The employer will not be envied here - he will no longer have the right to fire the violator for other reasons.

Advantages of dismissal by agreement of the parties

As we see, dismissal by agreement of the parties in modern conditions beneficial to the employer. Let's summarize what has been said.

Everyone can take the initiative. Termination of an employment contract can be initiated by either party: both the employee and the employer. Such a dismissal suits both parties; it is a kind of compromise.

Cause. The initiator of termination of the employment contract is not obliged to explain the reason or indicate it in any documents.

The warning period is not defined. When dismissing by agreement of the parties, there is no need to comply with notice periods for dismissal, as is required, for example, when dismissing due to staff reduction. The parties themselves agree on the date last day work. For example, it could be the next business day.

The opinion of the trade union is not taken into account. The employer does not need to take into account the opinion of the trade union organization, and when dismissing a minor employee, the consent of the relevant state labor inspectorate and the commission for the affairs of minors and the protection of their rights is not required, since the requirements of Article 269 of the Labor Code apply only to dismissals at the initiative of the employer.

Probation period is not a hindrance. An employment contract may be terminated by agreement of the parties and during probationary period employee, and when concluding a fixed-term employment contract.

Any conditions. Upon dismissal, by agreement of the parties, it is possible to determine special conditions for terminating the employment contract, agree on the timing, size and procedure of compensation payments (severance pay or compensation) and other circumstances.

Simple procedure. The parties can agree orally and draw up one document. Many active employees, without waiting for the dismissal deadline due to reduction and not wanting to have a record of reduction in the work book, take compensation and begin searching new job. A record of dismissal by agreement of the parties does not spoil the work book. Such wording in the work book does not cause a negative reaction from the future employer, and in times of crisis characterizes the candidate with positive side as able to compromise and not conflict with the employer.

More unemployment benefits. In case of dismissal by agreement of the parties, and not by at will or for violation of labor discipline, the employee may receive a larger benefit. Unemployment benefits for those dismissed by agreement of the parties are established as a percentage of the average earnings calculated over the last three months at the last place of work (Clause 1, Article 30 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On Employment in the Russian Federation”). Note that employees dismissed of their own free will or for guilty actions can count on unemployment benefits calculated as a multiple of its minimum amount. For 2009, the minimum amount of unemployment benefits is 850 rubles, the maximum is 4900 rubles. (Resolution of the Government of the Russian Federation dated December 8, 2008 No. 915).

The fired person will not return. Cancellation of an agreement regarding the period and grounds for dismissal is possible only with mutual consent of the employer and employee. Neither the court nor the labor inspectorate in case of complaints former employee they won't support him.

Amount of severance pay. Upon dismissal by agreement of the parties, the amount of severance pay is determined by mutual agreement.

The most peaceful way to terminate the labor relationship between an employee and an organization can be called. This is a separate basis, which is drawn up in writing. But, despite its apparent simplicity, dismissal under this formulation requires compliance with many nuances, which every personnel officer should be aware of. In this article we will look at how to fill out a work book upon dismissal by agreement of the parties, so that it can be considered legally correct and does not violate the laws of the country.

Relies on this type dismissal of an employee at the station 78 of the Labor Code of the Russian Federation, according to which the employer can resort to this procedure at any time.

It turns out that the organization has the right to part with its specialist even during vacation or vacation.

Peculiarities

As a rule, the company plays the role of initiator here, but there are cases when an employee himself makes such a decision and turns to his superiors for this. An offer from any party can come either orally or in writing. Any of these options is quite legitimate and can be applied in practice.

Once the employee and the company have agreed to terminate the employment relationship, an agreement must be drawn up. Its form is free, because no rules are provided for by the legislative authorities. This document is a confirmation of the mutual agreement of the parties, and its details are exactly what is needed to register them in the order. The agreement can include the following: important points, How:

• The time period when the employment contract must be terminated permanently.
• Financial compensation to a person and its amounts.
• Payment for moving.
• Payment of bonus for a year of work.
• Other conditions.

When the agreement is concluded, it must be signed by the head of the enterprise and to an individual, which works for him. It will be possible to cancel this paper after this only by mutual consent, but not unilaterally. This should be taken into account.

Marks in the work book

It is important that the entry in the work book is correct, so a note in the form “dismissed by agreement of the parties” will not work. The wording should only be as provided for in Art. 84.1 Labor Code of the Russian Federation. And if you rely on this document, you will need to write this: “The employment contract is terminated by agreement of the parties, paragraph 1 of Article 77 of the Labor Code of the Russian Federation” (Article 77 of the Labor Code of the Russian Federation). A link to this article is required. You can write not “terminated”, but “dissolved”. In general, the wording of such an entry is not as important as the link to the Labor Code.

In columns 1 and 2 of the book you need to put the number and date of entry, departing from previous entry one line. In column 3 an entry is made with the above wording. In column number 4, the HR department employee must indicate the number of the dismissal order and its date. Everything written will have to be secured with the personal signature of the responsible employee who prepared the employment document, as well as the company seal and the signature of the dismissed person. You can find a detailed sample.

Conclusion

Despite the fact that dismissal by agreement of the parties is the most painless and simple, here you need to know all the nuances well in order to make the correct entry in the work book and correctly create the necessary documentation. Failure to comply with the requirements will result in the imposition of penalties or administrative liability on the company. HR representatives are responsible for this procedure, so they must be able to carry it out according to the letter of the law.

What is the basis for dismissal by agreement of the parties? What is the difference from dismissal at the initiative of the employee? Can the agreement be revoked? In what order can it be changed? What is the procedure for dismissal by agreement of the parties? Should the condition for the payment of severance pay be established by documents other than the agreement?

By virtue of Art. 78 of the Labor Code of the Russian Federation can be terminated at any time by agreement of its parties. And this is the only article of the Labor Code devoted to this basis for dismissing an employee - on the one hand, the most universal, and on the other, the most “insidious”, primarily because its clear procedure has not been established. However, guided by established practice (including judicial practice), today it is possible to determine the basic rules and procedure for dismissal by agreement of the parties, which we will discuss in the article.

Rules for concluding an agreement.

By and large, the dismissal procedure by agreement of the parties is similar to that at the initiative of the employee, but there are still several differences. First of all, you should determine which document is the basis for dismissal. Article 78 of the Labor Code of the Russian Federation simply states that this is an agreement of the parties, its form is not indicated. That is, it can presumably be concluded orally.

In fact, so that disputes do not arise between the employee and the employer regarding such dismissal (they are not uncommon), the agreement, of course, must be in writing. It may look like an agreement itself, which is preferable, or like a statement from the employee if he initiated the dismissal. Moreover, in contrast to the employee’s statement of resignation at his own request, this statement must contain:

• the reason for termination of the employment relationship is by agreement of the parties;
• desired date of dismissal;
• amount of compensation or other conditions of dismissal (if any);
• signatures of the employee and employer.

Let us present a sample statement that can be considered as an agreement.

I don't mind. To the director

HR specialist L. Prikazova at MBUK “ central Library»

formalize the dismissal on January 20, 2017. M. S. Knizhkina

To accountant O. A. Kopeikina from the librarian

01/20/2017 make calculations for L. M. Formularova

in accordance with labor

legislation.

01/18/2017, Knizhkina

Statement

I ask you to terminate the employment contract with me by agreement of the parties on the basis of clause 1, part 1, art. 77 Labor Code of the Russian Federation January 20, 2017.

Formlyarova /L. M. Formlyarova /

If the employer agrees to dismissal by agreement of the parties, but is not satisfied with the conditions specified in the application, for example the date of dismissal, it is better to try to agree on them and reflect them in a separate agreement.

So, if the employer initiates termination of the contract by agreement of the parties, he must send the employee a written proposal to conclude an agreement. Here is an example of such a proposal.

Municipal state-financed organization culture
"Central Library"

(MBUK "Central Library")

01/18/2017 To the librarian

ref. No. 3/k L. M. Formularova

OFFER

on termination of the employment contract

Dear Larisa Mikhailovna!

I ask you to consider terminating your employment contract No. 12/2014 dated 10/12/2014 in accordance with clause 1, part 1, art. 77 of the Labor Code of the Russian Federation by agreement of the parties on January 25, 2017 with payment of compensation in the amount of one salary. Please inform me about your decision in writing within three days from the date of receipt of this proposal.

Director Knizhkina M. S. Knizhkina

Offer received. Formlyarova /L. M. Formlyarova /

If the employee agrees to be dismissed, he and the employer agree on the terms of the dismissal and enter into an agreement. It must also indicate the basis for termination of employment, the date and other conditions of dismissal.

The agreement is drawn up in two copies, signed by the employee and the employer, and one copy is given to the employee against signature. Let's give a sample.

Agreement

on termination of the employment contract

dated 10/12/2014 No. 12/2014

Voronezh 01/20/2017

1. In accordance with Article 78 of the Labor Code of the Russian Federation, the Employee and the Employer agreed to terminate the employment contract dated October 12, 2014 No. 12/2014 by agreement of the parties (Clause 1, Part 1, Article 77 of the Labor Code of the Russian Federation) on January 25, 2017.

3. On the Employee’s last working day, the Employer undertakes to issue a completed work book and make full payments to him.

4. On the last working day, the Employer undertakes to pay the Employee the wages due to him, compensation for unused vacations, additional monetary compensation in the amount of one salary, and the Employee undertakes to accept the specified amounts.

5. The parties have no mutual claims against each other.

6. This Agreement is drawn up in two copies having equal legal force, one for each of the Parties.

Employer: Employee:

20.01.2017 20.01.2017

We emphasize that the agreement on the part of the employer must be signed either by the manager himself or by a person authorized by him to do so, otherwise the court will declare the dismissal illegal.

In addition to observing the form of the agreement, the employer should strictly observe one more rule: it is unacceptable to force an employee to enter into an agreement to terminate the employment contract, since the main condition for such dismissal is the mutual voluntary expression of the will of the parties. And if the dismissed employee proves in court that he entered into such an agreement under the coercion of the employer, he will be reinstated.

Rules for cancellation of the agreement.

The main difference between dismissal by agreement of the parties and dismissal at the request of the employee is the impossibility of revoking the agreement. Let us remind you that according to Art. 80 of the Labor Code of the Russian Federation, before the expiration of the notice period for dismissal, an employee has the right to withdraw his application at any time, except for the case when another employee is invited in writing to take his place.

The employer cannot refuse to fulfill the agreement or force the employee to continue working. By virtue of clause 20 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” if before dismissal one of the parties wants to cancel the agreement or change the term and basis for dismissal, this will not be possible without the consent of the other sides. In this case, the parties must enter into a new agreement that cancels the previous one in whole or in part. (We give a sample on page .)

And here you should pay attention to the fact that it is possible to terminate an employment contract by agreement of the parties with any employee: with a woman who has a child under 3 years of age; with a single mother raising a disabled child under the age of 18 or a young child (under the age of 14); with another person raising these children without a mother; with a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under 18 years of age or the sole breadwinner of a child under 3 years of age in a family raising 3 or more young children, if the other parent (other legal representative of the child) is not a member in labor relations; and also with a pregnant woman.

None of the workers of the listed categories, with the exception of pregnant women, can unilaterally refuse to fulfill the agreement. This conclusion follows from the Ruling of the Armed Forces of the Russian Federation dated September 5, 2014 No. 37-KG14-4, which states that the guarantee in the form of a ban on the dismissal of a pregnant woman at the initiative of the employer, provided for in Part 1 of Art. 261 of the Labor Code of the Russian Federation, is also applicable to relations arising upon termination of an employment contract by agreement of the parties. Moreover, this rule also applies if the employee did not know about her pregnancy at the time of signing the agreement.

If at the time of cancellation of the agreement the employer had already issued a dismissal order, it must be canceled by another order.

Agreement

on cancellation of the agreement to terminate the employment contract

dated 10/12/2014 No. 12/2014

Voronezh 01/23/2017

The municipal budgetary cultural institution "Central Library" represented by the director Marina Stanislavovna Knizhkina, acting on the basis of the Charter, hereinafter referred to as the Employer, on the one hand, and Larisa Mikhailovna Formlyarova, hereinafter referred to as the Employee, on the other hand, collectively referred to as the Parties, have entered into this agreement about the following.

1. The parties agreed to cancel the agreement dated January 20, 2017 on the termination of the employment contract dated October 12, 2014 No. 12/2014.

2. This Agreement is drawn up in two copies having equal legal force - one for each of the Parties.

Employer: Employee:

Director Knizhkina / M. S. Knizhkina / Formlyarova / L. M. Formlyarova /

23.01.2017 23.01.2017

A copy of the agreement has been received. Formlyarova /L. M. Formlyarova /

Dismissal rules.

So, based on the agreement, the employer issues an order. The order reflects the grounds for dismissal and details of the agreement. The employee must be familiar with the order upon signature. The employee’s refusal to sign the order cannot cancel the dismissal if an agreement is concluded between the parties. Therefore, by virtue of Art. 84.1 of the Labor Code of the Russian Federation, in the case where the order to terminate the employment relationship cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it and sign it, a corresponding entry is made on the order.

On the last day of work, it is issued to the person being dismissed. If he refuses to receive it, the employer is obliged to send him a notice of the need to appear for the work book or agree to send it by mail. On the same last working day, the final settlement is made with the dismissed person, in particular, payments stipulated by the agreement are made.

note

Article 178 of the Labor Code of the Russian Federation establishes cases of payment of severance pay, in particular in case of staff reduction, conscription military service. At the same time, it is established that an employment or collective agreement may provide for other cases of payment of severance pay, as well as establish their increased amounts.

Thus, if an employment or collective agreement provides for the payment of severance pay or compensation in cases of termination of the employment contract by agreement of the parties, then the employer is obliged to pay them.

When an employer refuses to pay compensation or severance pay, and their payment is established only by agreement, judges differ in their opinions. Some believe that such a refusal is legal, since the payment of benefits or compensation, in addition to the agreement, must be provided for by an employment or collective agreement, others believe that the refusal is unlawful, since the agreement to terminate the employment contract is part of it and may contain conditions that are not provided for by the contract.

In any case, when paying compensation, the employer must comply with the provisions of Art. 349.3 of the Labor Code of the Russian Federation, which establishes a limit on the amount of severance pay, compensation and other payments in connection with the termination of employment contracts for individual categories workers.

In particular, in agreements on termination of employment contracts in accordance with Art. 78 of the Labor Code of the Russian Federation with the heads of the organization, their deputies, and chief accountants, it is not allowed to include conditions on the payment of severance pay, compensation and (or) on the appointment of any other payments to these employees. At the same time, if the payment of compensation and severance pay is provided for by an employment or collective agreement, they are paid, but their amount cannot exceed three times the average monthly salary of the specified employees.

Question

If, before the date of dismissal according to the agreement, the employee grossly violated labor discipline or changed his mind and wrote a letter of resignation of his own free will, on what grounds can we fire him?

If the employer manages to complete the procedure for bringing disciplinary liability before the date of dismissal specified in the agreement, then it is possible to dismiss the employee on the appropriate grounds of Art. 81 Labor Code of the Russian Federation. As for voluntary dismissal, if the date specified in the resignation letter precedes the date specified in another statement, then the employee will have to be fired under clause 3, part 1, art. 77 of the Labor Code of the Russian Federation upon expiration of the warning period. If not, the employee is dismissed by agreement of the parties.

Question

Should we dismiss an employee by agreement of the parties if he is on sick leave?

If an employee is ill on the date of termination of the employment contract, he still needs to be dismissed under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, since this is not dismissal at the initiative of the employer. Moreover, if you do not formalize your dismissal by the date specified in the agreement, the agreement to terminate the employment relationship will be canceled automatically.

To summarize, we highlight the basic rules for dismissal by agreement of the parties:

1. The agreement must be concluded in writing, indicating the grounds for dismissal, the date of dismissal, the amount of compensation, if any, (other conditions), and signed by the employee and the employer (other authorized employee).

2. The agreement is concluded only by the mutual voluntary expression of the will of the parties.

3. The terms of the agreement must not contradict the provisions of the law.

4. The agreement cannot be revoked by the employee (unless the employee is pregnant), changed or canceled unilaterally - only by mutual consent of the employee and employer by concluding a separate agreement.

5. Upon dismissal, the dismissal procedure must be followed and the terms of the agreement must be met.

6. If an employee, having signed an agreement to terminate the employment contract, refuses to resign (did not sign the order, did not receive a work book), he is subject to dismissal and such dismissal is lawful.

7. If the employee is not fired on the day specified in the agreement, it is automatically canceled.

8. Before the date of dismissal, the employee may be dismissed for another reason.