Why is it better to quit peacefully?
Both for the employee of the enterprise and for his employer, the path of peaceful separation is the shortest and most profitable. If there is an opportunity to resign by agreement of the parties, it must be taken advantage of.
For the employer, the absolute advantage is the following:
- in the event of such dismissal, there is an absolute guarantee that the employee will not withdraw his application, unless, of course, this condition is provided for in the agreement (this is especially true in cases where the employee for some reason has become inconvenient or redundant).
- there is no need to listen to the opinion of the trade union when dismissing a subordinate (which sometimes may not coincide with the opinion of the company’s management), and if the matter comes to the labor inspectorate or court, he will have an ironclad argument on his hands.
- It is also important that in most cases, dismissal by agreement occurs without any additional compensation payments (unless the director himself expresses a desire to financially reward the employee).
For the subordinate, the positive aspects are also quite obvious:
- with an agreement, he can negotiate for himself the necessary amount of time to find a new job, which will exceed the standard two weeks given for dismissal at his own request or, conversely, leave without “working off” in one day.
- if the management of the company is loyal, the employee can receive a good “compensation”, and the benefit from the employment service, if the quitter registers in the future, may turn out to be much larger than if he quit at his own request without good reason.
- Reputation is also important: by remaining on good terms with management, a former employee of the company can obtain excellent letters of recommendation, even if the reason for dismissal was some unseemly act.
Compensation upon dismissal by agreement of the parties and other payments upon settlement
Most often, when leaving an enterprise by agreement of the parties, the question arises about compensated payments to the leaving employee.
The legislation does not provide for mandatory provision of compensated payments by the institution. At the same time, there is no prohibition on limiting such payments, therefore, when signing a care agreement, the parties can stipulate the conditions for the person’s care with the provision of additional payments.
Moreover, by agreement, the subordinate may even be awarded severance pay.
( Video : “Dismissal by agreement of the parties of payment”)
Other payments for deductions under the agreement are exactly the same as for deductions on other grounds, which are as follows:
- Salary for final days worked.
- Compensation for missed vacation days, according to Art. 127 of the Labor Code of the Russian Federation, including for the past time, if any.
At the same time, if a person received vacation pay in advance, then the excess money given to him is withheld.
Why such a dismissal may not be interesting
It should be said that with such a dismissal there are not only advantages, but also disadvantages. Some of the most noticeable for an employee are:
- impossibility of unilateral withdrawal of an application,
- and also that the employer has the right to terminate the employment contract even during the employee’s illness.
It happens that a request for dismissal by agreement written by a subordinate does not find understanding with the employer and no one has the right to force him to meet the subordinate halfway (this happens especially often if the employer wants to dismiss the employee, which is called “under the article”).
Labor legislation
The procedure for terminating an employment contract is regulated by Art.
77 and 78 of the Labor Code of the Russian Federation, where the provisions and procedures are prescribed. Using these articles, you can terminate both an open-ended and a fixed-term contract. In case of an indefinite employment contract, termination of the relationship is allowed after a preliminary 14-day warning by the party that initiated this action. A fixed-term contract is terminated when management notifies the subordinate in writing at the end of its term. If management did not warn such an employee about dismissal due to the expiration of the contract, the agreement becomes indefinite.
Any party may take the initiative to terminate the contract. Once an agreement is reached, the severance of the labor relationship must be documented in the appropriate protocol.
( Video : “How to formalize dismissal by agreement of the parties?”)
Thus, there are the following options for terminating an employment contract.
- The end of its validity period when it is concluded for a specific period.
- Submission by an employed person of a resignation letter with 14 days of work.
- In other options provided for by law.
Note. By mutual agreement, the outgoing employee may leave the institution without working the 2-week period.
When to apply
An application drawn up in accordance with all the rules should be submitted to the employer no later than fourteen days before the expected day of dismissal or earlier if unanimous agreement is reached on this.
As a result of the application, a corresponding dismissal order is issued by agreement of the parties.
During the time remaining before the day of dismissal, the enterprise's personnel service must have time to prepare all the necessary documents, including making entries in the work book and personal card of the person leaving, and specialists from the accounting department must calculate all the necessary settlement payments.
How to submit an application to an employer
Termination of business relationships by agreement of the parties is possible for both open-ended and fixed-term contracts. To carry out such an event, the employee must submit a written request, the content of which must comply with the rules for drawing up business papers.
Note. A request for dismissal by agreement of the parties is submitted 2 weeks before the date of termination of the employment contract.
A completed request to leave the company by agreement of the parties can be sent to the manager using the following options:
- Personally by a working person, visiting the reception or personnel department.
- Via mail - by sending a registered letter with notification of delivery to the addressee.
- Courier delivery.
- Sending the document by email, if you have an email address at the company.
In all options for filing an application, the time for filing it is counted taking into account the delivery of the document, if the working person must work for 2 weeks.
An employee can send such an application while:
- In a hospital bed. In these circumstances, the boss is obliged to dismiss the employee on the date noted in the petition, even if on the specified date he is on sick leave. He will receive payment and necessary documents, as well as accrued sick leave after recovery.
- On holiday . The date of deduction according to the vacationer’s request can be made both during the vacation and at its end. The vacationer will receive the documents at the end of the vacation.
What to pay attention to when making an application
The law does not provide for any unified forms or restrictions for drawing up an application, so you can write it in any form or according to a template valid within the company. It is only important that the structure of the form complies with generally accepted rules of office work, and that the text complies with the standards of the Russian language.
The first thing to write in the application is the “header” :
- the addressee is indicated, i.e. full name of the enterprise where the employee works;
- position, last name, first name and patronymic name of the manager in whose name the document is drawn up;
- then enter the position, the name of the structural unit, the full name of the employee, and his contact telephone number.
Below, in the middle of the line, the word “Statement” is written.
Further, in the main part of the document it follows:
- express the employee’s desire to resign with the note “by agreement of the parties”, refer to the required article of the Labor Code of the Russian Federation,
- and also indicate the date of your last day at work.
If there are any additional papers that the applicant wishes to add to the application, they must be included in the form as a separate item.
If necessary, additional conditions for dismissal :
- information on the transfer of equipment, furniture, machinery and other items located in the area of responsibility of the resigning employee;
- the amount of compensation payments;
- data on unused vacation days that the employee wants to take before leaving, etc.
Stage 1. Reaching an agreement between the parties on dismissal.
For legal dismissal by agreement of the parties, it is necessary to reach an agreement on termination of the employment agreement (contract) between the employer and the employee.
- Elements of an agreement
An agreement must be understood as reaching agreement between the parties simultaneously on 2 elements:
a) the parties agreed to terminate the employment relationship precisely under clause 1, part 2, art. 35, art. 37 TC, i.e. agreed on the grounds for dismissal.
Those. if the employee applied to the employer to resign at the request of the employee, and the employer fired the employee by agreement of the parties (Clause 1, Part 2, Article 35, Article 37 of the Labor Code), this will be a violation, the dismissal of the employee will be considered illegal, and the employee will has the right to be reinstated at work. And all because the employee expressed his will to dismiss at the request of the employee, the employer fired him on a different basis (agreement of the parties), but an agreement between the parties regarding changing the grounds for dismissal was not reached. Therefore, taking into account the above, the employer can dismiss an employee by agreement of the parties only in the case when the employee asks to dismiss him precisely by agreement of the parties.
b) the parties have precisely determined and agreed upon the date of dismissal.
In practice, this is often forgotten, which can cause problems for the employer in the future. Therefore, it is not enough to reach an agreement simply to terminate the agreement (contract) by agreement of the parties; it is also necessary to clearly define the date of dismissal (the last day of the employee’s work with the employer). Such a day can be any working day from the moment an agreement is reached between the employee and the employer. However, do not forget that on the day of dismissal, the employer must make a final settlement with the employee and return the work book to the employee. Therefore, when agreeing on the date of dismissal, try to take into account all the circumstances.
- Agreement form
We recommend that the parties’ agreement on dismissal be drawn up exclusively in writing. The agreement of the parties on dismissal by agreement of the parties can be oral. But in the event of a dispute, the courts check the evidence of an agreement between the parties (including by date). As you understand, without a written agreement, it can be problematic to prove its existence (although it is possible: it can be confirmed by witness testimony and other evidence).
To reach an agreement, the initiator of termination of the employment contract draws up a written document. The initiative to terminate the contract by agreement of the parties can come either from the employee or from the employer, so there are 2 options.
- Methods of registration (depending on the initiator)
a) Dismissal at the initiative of the employee
Step 1. The employee submits a letter of resignation to the employer by agreement of the parties.
Step 2. The employer signs on the employee’s application a resolution agreeing to dismiss the employee by agreement of the parties.
Do not forget that the employer has the right to refuse dismissal by agreement of the parties. In this case, the employee may resign on other grounds provided for by law.
b) Dismissal at the initiative of the employer
Step 1. The employer submits to the employee a proposal to dismiss by agreement of the parties or an agreement to terminate the contract. The contract termination agreement most fully reflects the mutual rights and obligations of the employer and employee in the process of dismissal by agreement of the parties.
Step 2. The employee puts down a note of consent to dismissal and his signature on the employer’s proposal.
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Key points when applying
There are also no special requirements for the design of the document, as well as for its content. The application can be written on an ordinary sheet of A4, A5 format or on company letterhead, by hand (only with a ballpoint pen of any dark color, but not with a pencil) or on a computer.
Only one condition must be strictly observed: the application must have a “living” signature (i.e., when filling out the form, the use of facsimile autographs printed in any way is unacceptable).
The document should be prepared in two copies - one of them should be kept with you, having previously been endorsed by the secretary, the second should be handed over to the management of the enterprise for resolution.
How to file a resignation letter by agreement of the parties
To fill out an application, by agreement of the parties, take a blank sheet of paper, A4 size, and fill it out, either manually or on a computer, followed by printing.
The application must be completed with the following structural elements:
A cap
- The position, company name, full name are displayed here. boss (in the dative case)
- The position to be filled below is full name. the submitter of the request (in the genitive case). The structural unit and personnel number can be displayed.
- The name of the form is “Application”.
Request text
- This section sets out the applicant's request for consent to terminate the business relationship and the date of discharge.
Conclusion
- At the end of the completed application, the date of completion and the signature of the dismissed person are indicated.
A request to leave the company by agreement of the parties can be sent at any time:
- during work activity;
- while on a business trip;
- during illness;
- while on vacation.
Based on the submitted petition, the management of the company issues an order signed by the boss.
