It should be noted that dismissal by agreement of the parties (OSS) appeared in the Labor Code of the Russian Federation since 2001, and precedents for its use have occurred since 2002. Nevertheless, this formulation of the legal basis for dismissal today has the most applicable practice as the basis for dismissal. Moreover, it is, frankly speaking, that it is preferred by both personnel officers and heads of commercial companies.
Hiring Contract Attribute
Dismissal by agreement of the parties (Article 77 of the Russian Labor Code) is often found in connection with the distribution of the contract form of employment in the Russian labor market. This form of contractual relationship between employers and staff is an indispensable element of the market system.
Is this leadership in the labor market justified? Is the ease of termination of employment inherent in this form of dismissal positive: employer-employee? This is a moot point. According to official statistics, the unemployed account for 2-3% of the total working population.
These data are objectively underestimated throughout the world. The fact is that not all unemployed are registered at the labor exchange for various reasons. Therefore, it is generally recognized that the data of the International Labor Organization are 4–5 times higher than official statistics on unemployment.
And it is precisely dismissal by agreement of the parties that is absolutely leading in terminating labor relations. The features of this type of dismissal in the conditions of the labor market are more clearly visible in comparison with other forms of termination of labor relations.
By staff reduction and by agreement of the parties
It is well known that dismissal during downsizing is a companion of economic crises and their consequences - optimization of the organization’s staff structure. Its legal justification (see paragraph 2 of Article 81 of the Russian Labor Code) is organizationally difficult and time-consuming.
An employer is obliged to warn ahead of time the personnel being reduced in this way and, in addition, to offer candidates for dismissal an alternative full-time position (note that the existing staff is often characterized by a shortage of vacant posts).
He must also identify the personnel to whom the law guarantees the pre-emptive right to remain on staff, and to implement it. Therefore, some employers, optimizing their staff, are trying to replace the “staff reduction” with an “agreement of the parties”, achieving certain benefits for the company to the detriment of those who are being dismissed.
Clause 1 of Article 77 of the Russian Labor Code proposes a less organizationally biased way - dismissal by agreement of the parties. This method of terminating the employment relationship involves tight deadlines, joint regulation of the process of dismissal by the company's management and employee. However, the administration is not required to comply with the above formalities and the participation of the trade union organization.
At will and by agreement of the parties
The absence of a period of compulsory working off distinguishes the method we are investigating from dismissal of our own free will, in which only the employee writes the application.
Upon voluntary dismissal (UPSJ), such a statement is drawn up fourteen days before the agreed date of leaving work. During the aforementioned two weeks, the employee continues to perform his previous duties.He is also entitled to take leave for this period. However, even if the employee is on sick leave, the 14-day period will not be considered interrupted.
Dismissal by agreement of the parties is significantly simplified with respect to the UPJ. First of all, the difference lies in the absence of a two-week period of work - until the date of dismissal. The date of departure from work is negotiable, the director also negotiates with the employee to be dismissed by mutual agreement some additional conditions. Labor Relations can be interrupted on a date agreed and agreed in advance, even if the employee is on vacation or on sick leave.
Legal differences between the two types of layoffs
Dismissal by agreement of the parties involves the termination of the employment contract between the employer and the employee in accordance with article 78 of the Russian Labor Code. Employers more often use it in cases of labor violations on the part of employees (absenteeism, appearing at the workplace in a state of intoxication, failure to perform official duties). However, even more often this dismissal is initiated by the employees themselves. It, as you have noticed, has similarities with dismissal at will. However, there are differences (see table 1)
Table 1. Comparative characteristics of SPSS and SPSS
When analyzing the information contained in the above table, pay attention to the detail: it is impossible to challenge the dismissal by agreement of the parties unilaterally (in contrast to the UPSJ). It was adopted jointly under the OSS, therefore, it ceases to operate by mutual agreement.
At the request of one of the parties, dismissal cannot be prevented. However, if it was carried out under the coercion of the employer, it can be challenged in court. In this case, the employee is reinstated in his previously occupied position with the payment of average earnings for forced absenteeism.
Compensation payment
If dismissal takes place by agreement of the parties, compensation for unused vacation should be paid to the employee. In addition to her, he is compulsorily paid accrued wages for the current month on the last day of work, as well as bonus organizations included in remuneration, various bonuses (for length of service, qualification). Then the employee receives a work book and a certificate of average monthly salary.
However, not only mandatory payments promise the employee dismissal by agreement of the parties. Compensation in the amount of one salary is often stipulated by the employer in orders for the organization.
The legislation does not establish a specific framework for such payments, therefore, in the agreement between the employer and the employee, the contractual amount of additional compensation may be established.
It is no secret that this type of dismissal is more beneficial to the employer than to the employee. The motivation is well known: the employee cannot independently withdraw the written statement, and the trade union, in turn, also can not influence this process in any way.
Therefore, the employee who chose to quit by agreement of the parties, compensation must be considered as a section of the contract with the employer. Federal Law No. 330-ФЗ dated November 21, 2011 established the procedure for assessing personal income tax compensation. In accordance with paragraph 8 of clause 3 of Article 217 of the Russian Tax Code, compensation that does not exceed three employee salaries is exempt from taxation.
Section 178 of the Labor Code governs the payment of such severance pay. According to her, the provisions for its payment may be included in the collective labor contract. The second version of the regulation of such compensation is stipulated directly in the documents that accompany the specific dismissal by agreement of the parties. In this case, according to paragraph 3 of Article 217 of the Tax Code of the Russian Federation, personal income tax was not levied on severance pay not exceeding three salaries, and for the regions of the Far North - six salaries.
Registration of dismissal
The existing practice of processing such a dismissal does not provide for any standard documents. However, an agreement drawn up jointly by the employee and the employer remains the preferred design option. An indication of the desired legal consequences of termination of employment due to mutual agreement of the parties, an indication of the date accompany the dismissal by agreement of the parties. Payments of the amount of severance pay, the timing of the transfer to a new employee of affairs and positions are also negotiated. Let's give an example of the above agreement.
Termination of employment agreement
July 15, 2014, Moscow
The employer - Alfa-Trade LLC, represented by Director Pavlov Konstantin Borisovich, acting on the basis of the charter, and employee - merchandiser Marina V. Selezneva agreed that:
- The employment contract of February 21, 2010 N 35 will be terminated by agreement of the parties.
- The employment contract is terminated on July 20, 2014.
- The employee is paid compensation in the amount of one official salary.
The agreement is made in 2 copies with the same legal force, 1 for each party.
Director Seal Pavlov Konstantin Borisovich
Worker Selezneva Marina Viktorovna
Dismissal Initiator - Employee
However, the proposed method of registration can often be preceded by writing a statement by the employee or the corresponding appeal of the administration to him. However, there is no single model for writing a letter of resignation by agreement of the parties. Therefore, we present an example of such a document.
Sample Employee Application
To the director of Alfa-Trade LLC
Pavlov Konstantin Borisovich
Statement
I ask your consent to terminate the employment contract with me from July 20, 2014, respectively, paragraph 1 of Article 77 of the Labor Code (reason - by agreement of the parties).
I consider it appropriate to establish severance pay in the amount of two salaries.
Prior to obtaining written consent from you, I reserve the right to withdraw this application at any time.
Merchandiser Selezneva
Marina Viktorovna.
The agreement, as an option, may also be preceded by an appeal from the administration initiating dismissal by agreement of the parties. The sample text is similar to that presented in the statement.
Administration letter
Dear Marina Viktorovna!
We offer you to terminate the employment contract, guided by paragraph 1 of Art. 77 of the Labor Code (i.e., by agreement of the parties) from July 20, 2014
Compensation is established, according to the collective labor contract, in the amount of two salaries.
Director
Pavlov K.B.
Execution of a dismissal order
Based on the agreement, the head of the organization signs the relevant order. Dismissal by agreement of the parties is gaining legal force at this moment. Often, along with this order, an order is issued on the transfer, transfer of cases and inventory.
LLC Alfa-Trade
ORDER
07/20/2014 No. 15-k
Moscow
About the dismissal of Selezneva M.V.
Dismiss:
Selezneva Marina Viktorovna, merchandiser, 07.20.2014 by agreement of the parties (Article 37 of the Labor Code).
Bookkeepers pay Selezneva M.V. monetary compensation in the amount of three salaries.
Reason: application of Selezneva M.V. from 07.15.2014.
Director of Alfa-Trade LLC Pavlov KB
Visa
Selezneva M.V. familiarized with and agrees with the order
By means of such an order, dismissal is carried out by agreement of the parties. Employment record in this case, it is mandatory to mention paragraphs 1 of part 1 of article 77 of the Labor Code.
Should the term “termination by agreement of the parties?” Be avoided upon dismissal
This question, of course, is controversial and associated with myths.
Myth No. 1: an employee dismissed by consent of the parties is a violator of labor discipline.
Myth number 2: an employee who interrupted labor relations in this way is not qualified enough.
The reason for the appearance of these prejudices was the practice of employers to “reduce” negligent employees under article 77 of the Labor Code. However, if an employee is confident in his qualifications, as well as in the fact that he will be immediately hired at another place, then these myths are void. On the contrary, a person will be able to quickly get the expected job.
Conclusion
Is SPSS ideal in its current form as a tool in the labor market? Based on macroeconomic patterns, its parameters (for example, non-participation of trade unions in its process) are incorrect with a significant level of unemployment.
For the full operation of such a market mechanism on the labor market, ideally, a growing nature of the economy and a sufficient level of competitive jobs are needed. However, the simplified organizational aspects accompanying the OSS are in many cases preferable for the rapid interruption of labor relations. This factor determines its widespread use.
A person dismissed by agreement of the parties should take into account that in some cases an incorrectly executed agreement and, accordingly, an order of dismissal by agreement of the parties can ignore payments or benefits due to him. Therefore, everything should be foreseen and taken into account.
