Dismissal of the General Director by agreement of the parties

Dismissal by agreement of the parties

The process of dismissal by agreement can be started by both the employee and his employer.
The first thing to do is to send the other party a written proposal to terminate the employment relationship. This can also be done orally, but in this case there will be no evidence on hand that such a proposal took place. If everything goes well and the employer or employee agrees with the initiative expressed by the opponent, it is time to proceed directly to the agreement, which must be formalized in writing. A severance agreement is called an agreement because it is usually of interest to both parties. For example, an employee can bargain for good “compensation” - their amount is not limited by law (it is worth noting that if they are not specifically specified in the document, settlement funds will be paid in the amount provided for by the legislation of the Russian Federation). Through this document, the employer gets the opportunity to get rid of an “unnecessary” employee, and (which is especially important!) after signing the agreement, the employee will no longer be able to unilaterally refuse dismissal or change its terms.

Performance of duties by the employer on the day of dismissal

After agreeing on the procedure for terminating the employment contract, the person must work for another month. This period of time is given by law so that the company owner has time to find a suitable employee for the vacant position. In some situations, this period is not enough: then the owner of the organization has the right to contact the resigning director with a request to extend the service period. If agreed, the response is recorded in writing.

It is envisaged that during the training, the leaving employee will introduce the newcomer to the situation, explain and show in practice how to perform job duties. It is worth noting that this is not the responsibility of the person, but often the owners of the organization make such demands on him in order to quickly dismiss him.

On the last working day, an act of acceptance and transfer of cases is drawn up, which indicates the material assets for which the former director was responsible. These things may include:

• Company seals;
• Valuable documents;
• Reporting;
• Other.

The correctness of the procedure is monitored by an authorized person who is appointed by the negotiating parties at the time of signing the agreement. He must check the correctness of the act, the presence of all seals and documents important for the company. After verification, the former manager is given a work book.

Dismissal by agreement of the parties: sample entry in the work book

For many personnel department employees, it is still a secret whether the basis such as an agreement of the parties is written correctly on the employment form. And, by the way, how to correctly enter this information into the work book has already been discussed in the relevant paragraphs of the instructions for personnel department employees.

Before talking about how to correctly make an entry in the work book, which concerns the agreement of the parties, you need to understand what such dismissal is and how it differs so strikingly from voluntary dismissal.

Filling out a work book

The question often arises: how exactly to record a dismissal in connection with an agreement in the work book? Which wording should I choose: “employment relationship terminated”, “dismissed”, “employment contract terminated”?

Rostrud gave the following explanations: the main thing is that the entry in the work book can be interpreted unambiguously (letter dated April 16, 2008 No. 900-6-1). In the Instructions for filling out work books (approved by Resolution of the Ministry of Labor of the Russian Federation of October 10, 2003 No. 69), in examples of dismissal records the word “dismissed” is used, after which a reference is made to a specific norm of the Labor Code of the Russian Federation (up to the indication of a subparagraph).

The above-mentioned instructions are mandatory because, unlike the Rostrud letter, they are a normative act. Thus, it is she who should be guided when making a record of dismissal by agreement of the parties.

Dismissal by agreement of the parties

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 needs to 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 severance pay to those fired.

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.

Rules for drawing up an agreement

All the subtleties of dismissal that both parties have come to must be indicated in the appropriate document - an agreement. It is on the basis of this document that the dismissal process takes place. The Labor Code does not provide for a specific form and sample of such an agreement, so it should be drawn up in a free form acceptable to both parties. All rules for preparing official documents must be followed.

The agreement document, as befits official papers, must have a serial number and the date on which it was concluded. It should contain all the nuances and subtleties, the conditions that both parties agreed to. It should be remembered that the contract agreement cannot have clauses that contradict Labor legislation. Otherwise, such a document will be declared invalid.

Read on the topic: How to correctly draw up an agreement to terminate an employment contract by agreement of the parties?

Dismissal of a director by agreement of the parties, entry into the labor sample

Attention: As a rule, employers are reluctant to change their decision. And, if the employee changes his mind about quitting by agreement of the parties, he is unlikely to be able to remain at work. It is impossible to challenge an employer's decision to dismiss. Therefore, before writing a letter of resignation by agreement of the parties, carefully consider this step. By signing the documents, you deprive yourself of the opportunity to change your mind and stay at work.

If, when concluding an employment agreement, no decision was made on the procedure for maintaining the work book in relation to the general director, then upon dismissal, the procedure for making an entry in it should be reflected in the decision of the owners.

Reasons for dismissal

Dismissal by agreement of the parties, unlike all other options, can be made at any time. To do this, it is enough to reach appropriate agreements between the employer and the employee.

In most cases, the reason for dismissal is:

1. Transfer of the general director to any other position.
2. Termination of the agreement at the initiative of one of the parties.
3. Expiration of the employment contract.
4. Change of owner of an enterprise or company.
5. The general director makes gross mistakes and makes unreasonable decisions.

Dismissal of a manager by agreement of the parties

Please note: the use of evaluative economic criteria for calculating compensation in such an agreement (such as a percentage of the company’s profit or total income for a certain period) may lead to both the emergence of a dispute between the parties when determining its amount and difficulties in court. It is more advisable to use strict criteria, for example, a certain number of average monthly earnings or the number of official salaries.

The text of the agreement should indicate the special conditions for termination of the employment contract agreed upon by the parties. These may be any conditions that do not contradict current legislation. But two such conditions must be provided without fail. These are the conditions on the basis and term of termination of the employment contract. In addition, the agreement must indicate the amount and procedure for compensation payments (compensation), if agreed upon, and other circumstances.

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Rules for dismissal of the CEO by agreement of the parties - step-by-step instructions

• Step 1. Submitting an appeal to the founders of the LLC or other persons authorized to terminate the agreement.
• Step 2. Meeting of the founders, where the application is considered, a decision is made and all points of the agreement are negotiated. An application for termination of an employment contract by agreement of the parties may be rejected.
• Step 3. Signing of the document by both parties to the relationship.
• Step 4. Issuance of an order on the upcoming termination of the contract based on the decision of the founders. The settlement date must be indicated here.
• Step 5. A record of dismissal is made in the work book on the basis of a separate article of the Labor Code of the Russian Federation. Additionally, a reference is made to the issued order.
• Step 6. Within 3 days, the tax authority must be notified of the dismissal of the manager.
• Step 7. The employee receives a work book and all due payments on the day of dismissal. The calculation includes the following amounts: wages for actual time worked, compensation for unused vacation and severance pay of no more than three times the average salary of the manager.

Typically, an agreement between the parties is reached to obtain mutual benefit. For example, when a structural division of a company is liquidated. After all, formalizing a reduction is a longer procedure and requires more paperwork.

Right to payments and compensation

Labor legislation regulates the only possible situation in which a director can count on mandatory payment: if the decision to liquidate mutual obligations is made by the owner of an LLC or an enterprise with a different organizational form and there are no guilty actions on the part of the employee. In such a case, the dismissed manager receives three monthly salaries or more. The deputy director and chief accountant can also count on a similar payment. Just like any employee, the general director has the right to receive compensation for unused vacation and unpaid wages for each day worked. If there are no such grounds, the head of the company is dismissed without compensation.

Rules for maintaining employment contracts

In the event that the documents on the basis of which entries were made in the work book do not contain complete information about work in the past, only the information available in these documents is entered into the duplicate work book (Fig. 49).

If an employee is dismissed in connection with a transfer to an elective job (position) to another employer (in another organization), an entry is made in the work book: “Dismissed due to a transfer to an elective job (position) in (indicate the name of the organization), paragraph 5 Article 77 of the Labor Code of the Russian Federation" (Fig. 36).

Dismissal of the General Director by agreement of the parties

The general director (director, president, chief - the title of the position of the executive body performing its functions individually is determined in the organization's charter), with whom an employment contract is concluded, is the same employee as others. His dismissal on the basis of an agreement is carried out in the usual manner, but with some peculiarities.

A decision such as the appointment of a general director in commercial organizations falls within the competence of the general meeting of participants or the sole founder. Similarly, it is necessary to record the fact that the owners (participants) of the company made a decision to dismiss the director by agreement of the parties.

Dismissal by agreement of the parties, sample employment record 2021

As a rule, the owner of a company is not satisfied with an employee and decides to fire him. In this case, he suggests that he resign by agreement of the parties in order to avoid negative consequences for both parties. This must be done according to the strictly prescribed procedure. It includes the following actions:

Upon dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation) and entry into the labor record, the resigned employee has the legal right to contact the Employment Center to find a new place of employment. In addition, he has the opportunity to receive unemployment benefits provided for by the Labor Code. It is paid until the person finds a suitable job.

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Stages of dismissal

Before dismissing the CEO, all stages of this procedure must be followed. Only in this case will the entire process be recognized as legal and will not have negative consequences for one of the parties.

Negotiations about dismissal

The first stage on the path to termination of cooperation is negotiations between the head of the organization and its founders.

Each party can initiate the entire process. At this stage, it is important to document all results in writing in order to avoid litigation in court in the future.

In the legislation of the Russian Federation there is no mention of the negotiation process; the rules for its conduct are chosen by the director, as well as the founder.

The entire procedure can be completed in the form of a notification letter, which specifies all the stages and requirements. In this case, it is possible not to indicate the reasons that prompted one of the parties to begin negotiations on terminating the employment contract. A correctly executed paper is signed by the initiator and handed over to the other party. The second participant in the process must send written notice of the decision made.

Decision making procedure

The general director is appointed to his position by the founder. It can be one person or several. In the second case, the issue must be discussed at a general meeting of the founders of the company or firm.

The situation is exactly the same with the dismissal of a manager. All owners need to make a collective decision on the issue of removing the general director by agreement of the parties, and also formally record it.

For this purpose, a decision protocol is drawn up. It must indicate the person who is entrusted to sign the agreement on termination of cooperation on the part of the founders of the company.

Signing the agreement

The Labor Code of the Russian Federation does not establish requirements for the execution and signing of a document.
As a rule, in this case, an official two-sided paper is drawn up. It is done in writing and in at least two copies. One of them is transferred to the trustee on the part of the company (or the sole founder), and the second - to the director. The text of the document takes into account a sample of the dismissal of a director by agreement of the parties, which should indicate the following:

1. The exact date of preparation and execution of the document.
2. Brief information about the parties to the agreement.
3. Details of the employment contract.
4. List of justified grounds for dismissal.
5. Last day of tenure (is the date of termination of the contract).
6. Conditions for the transfer of affairs to the new general director.

The authorized person and the former general director are required to personally sign all copies of the document.

Executive compensation

The Labor Code provides only one option, in which the manager is dismissed by agreement of the parties with payment of compensation. This is a case in which the owners of a company decide to terminate an employment contract. In this case, the dismissed employee has the right to receive at least three average monthly salaries.

In other situations, payments are made only if there are corresponding entries in the employment contract or the text of the agreement.

However, this does not take into account all expenses, and the resulting profit cannot be taxed. To combat this situation, a law was developed that prohibits the inclusion of conditions for receiving compensation in agreements. It is important to take into account that this prohibition applies not only to cash, but also to shares. In addition, it is prohibited to stipulate in contracts payments at the expense of movable and immovable property.

Issuance of an order

Even a process such as issuing an order can contain many nuances. If you know them, you can significantly speed up the process of dismissal and hiring a new person to the vacated position.

A few days before the dismissal of the director, it is necessary to prepare a corresponding order or order. This is done because the manager himself must sign it. The only exception to this situation is the transfer of all powers to another person proposed by the founder. This could be the retiring person’s closest deputy or the head of the human resources department.

In most cases, an official order is issued according to a strictly defined form No. T-8. However, it is not mandatory, and the employer has the legal right to draw up such a document at its own discretion.

In this case, it is necessary to include the following points:

1. Data from the personal file of the resigning CEO.
2. Valid grounds and reasons for dismissal. In this paragraph it is also necessary to indicate specific articles of the Labor Code of the Russian Federation.
3. Details of the officially executed document on termination of cooperation.
4. Date of final termination of the employment contract.

In order for all actions of the founder to comply with the law, the former manager must be provided with a certified copy of the signed dismissal document.

Entries in the work book

Very often, employers cannot correctly formulate and record in the work book the fact of dismissal by agreement of the parties.
Because of this, very often situations arose in which dismissed employees received different entries in their employment documents. To resolve this issue, in 2004, Rostrud issued a decree that clearly states that when filling out a work book, the word “dismissed” must be used. In addition, the norm of the Labor Code must be indicated to more accurately explain the reasons for the breakdown of cooperation. Such records are mandatory for any firms and enterprises, so the founders use them.

Record of dismissal by agreement of the parties

Often, an agreement is reached orally, and after agreement, the employee writes a statement in which he expresses a request to dismiss him under Article 78 of the Labor Code of the Russian Federation. The director of the organization applies a resolution of his consent to such a statement, after which an order is issued and the procedure is considered completed.

1. End of a fixed-term contract. It can be terminated by the parties within a specified period, and if this is not done, it automatically turns into an open-ended agreement.
2. Transfer of an employee at his request or with his consent to another unit or another organization.
3. The employee’s reluctance to continue cooperation after the company’s management has changed.
4. Disagreement with changes being made to the employment contract.
5. The presence of medical contraindications for continuing to work as before and the impossibility or unwillingness to transfer to another position.
6. Refusal to move to another area when changing the location of the enterprise.
7. Force majeure circumstances, which, regardless of the wishes of the parties, terminate further cooperation.
8. Identified violations during the conclusion of the contract.

Dismissal of a director by agreement of the parties

Separately, it is necessary to consider the situation when termination of employment relations is carried out at the initiative of the employer. Part 2 of Article 278 of the Labor Code of the Russian Federation establishes the procedure for dismissal in connection with the adoption of a corresponding decision by an authorized body, a meeting of founders or the owner of a company. It also provides for the payment of compensation for dismissal in the amount of the average three-month salary of the employee. The exception in this case is situations where the termination of the relationship occurred as a result of the guilty actions of the head of the enterprise.

This is primarily due to the desire to break off relations “on good terms” in order to avoid leakage of information about the specifics of the enterprise’s economic activities. After all, the director of the company, who was in direct management and in possession of valuable data, is being dismissed. And when concluding an agreement between the parties, it is possible to add a clause on non-disclosure of information related to the activities of the organization.

The decision-making procedure for the owners of the organization

After writing a statement about the desire to leave the post, a meeting is held. During negotiations, the founders decide whether they are ready to terminate the employment contract at the request of both parties, or whether dismissing the manager on his own initiative will be more profitable. If there are several founders or shareholders, each of them must vote, and only when a general agreement is reached is a certain decision made.

As a rule, the owners of the organization do not refuse to resolve the issue peacefully and agree to draw up a written agreement to terminate the business relationship. Otherwise, according to Article 80 of the Labor Code of the Russian Federation, the employee has the right to leave the post at his own request.

During the negotiations, the owners of the enterprise must also make the following decisions:

• Who will replace the retiring manager;
• Who will control the correctness of the transfer of affairs and responsibilities to the new official.

How to correctly fill out a work book upon dismissal by agreement of the parties

An employee and an organization, both in Moscow and in any city in the country, have the opportunity to terminate the relationship by terminating both an open-ended and a fixed-term employment contract at a time convenient for both the organization and the employee, within the time frame specified by them and on specific conditions, for example, with the payment of monetary compensation .

The employer can draw up the agreement in two copies as a separate document. Each copy is signed by both the head of the institution and the resigning employee himself. The employer keeps one copy for himself and gives the second copy to the employee. Then you need to make a special entry in the employment record: dismiss by agreement of the parties. Let us tell you in more detail how to formulate it correctly.

Dismissal of a director by agreement of the parties

When dismissing the head of an organization in connection with the adoption by an authorized management body or the owner of the organization’s property of a decision on early termination of an employment contract, the following must be taken into account. On March 15, 2005, Resolution of the Constitutional Court of the Russian Federation No. 3-P was adopted, which considered the issue of the constitutionality of the provisions of paragraph 2 of Art. 278 Labor Code of the Russian Federation.

The Constitutional Court of the Russian Federation came to the conclusion that paragraph 2 of Art. 278 of the Labor Code of the Russian Federation corresponds to the Constitution of the Russian Federation. The owner of the organization's property has the right to terminate the employment contract with the head of this organization, without justifying the need to make such a decision. Such powers of the owner are aimed at realizing and protecting his right to own, use and dispose of his property, both individually and jointly with other persons.

General provisions

When both parties come to an agreement and approve the terms of dismissal of the manager, the executive will have to work in the organization for another month. According to Labor Law, this period should be sufficient to introduce the new manager to all matters, the state of the enterprise, documentation and reports.

A month is quite sufficient time to find a suitable candidate for the role of manager (general, executive or financial director). Also, the Labor Code of the Russian Federation provides for the option of increasing the working period (the standard 2 weeks, as for most workers, are not implemented here).

As the dismissal procedure is completed, an order is issued and comes into force, and all payments are assigned. Dismissal can (for reasons that we will discuss below) occur with or without compensation.

According to Article 278 of the Labor Code, the founder (owner of the company) must pay compensation to the dismissed manager. The urgency of the employment contract does not depend on this at all: the contract can be either a fixed-term type or an indefinite one. The owner of the organization is not obliged to explain his decision; he has the right to dismiss the director at any time, but is obliged to pay compensation.

The amount of compensation is determined by the employment contract, but may change in court. If the contract does not contain information regarding the amount of compensation, then upon dismissal of the manager, he should be paid at least 3 monthly salaries. The court, based on the state of affairs of the company, may change

Dismissal without compensation is possible in cases where the reason for dismissal was not the legal action of the manager or a crime in the workplace. If the dismissal of a manager took place without payment of compensation, but he did not commit guilty acts that became the reason, then such a dismissal procedure is illegal.

All payments that are provided after termination of an employment contract include:

• earnings (official salary) of the manager for the final reporting period;
• compensation for vacation days that the manager did not use;
• severance pay (cannot be less than average earnings for 3 months).

The law does not provide for other payments for this position. Let's look at the dismissal procedure in more detail.

Read on the topic: Final calculation of payments upon dismissal by agreement of the parties. Example of calculating severance pay

Entry in the work book about dismissal by agreement of the parties

Labor legislation does not establish a strict form for the termination agreement, but it must be drawn up in a separate document. It would be correct to draw it up in two copies: one for each of the parties. But practice shows that in most cases the initiative is shown by the employee. Then the termination of the employment contract under clause 1, part 1, article 77 of the Labor Code occurs upon his personal application and order from the organization. There is no need to draw up or sign an additional agreement.

Labor relations always involve two parties: the employee and the employer. The reason for the employee’s dismissal is his personal desire related to starting a new job, moving or other circumstances. If the initiator of termination of the employment contract is the employer, then he is obliged to convey to the employee the reason, agree on the terms of dismissal and other conditions. Those. one side makes a proposal, and the other agrees with it.

Signing an agreement to terminate an employment contract (sample)

The Labor Code of the Russian Federation does not provide for specific requirements for the form of an agreement on termination of an employment contract. But it is obvious that this must be a written, bilateral document. It is necessary to draw up the agreement in at least 2 copies (one for each party).

The text of the agreement consists of a preamble and conditions, among which you can specify any (if they do not contradict current legislation). You must indicate:

• date of document preparation;
• information about the employer and employee;
• details of the employment contract;
• grounds for dismissal;
• the last day of work (day of dismissal), which is also the date of termination of the employment contract.

Among other things, the agreement may include conditions on the director’s obligation to return entrusted property, transfer affairs, etc.

The agreement is signed by the parties themselves. As mentioned above, on the employer’s side, the signatory is the only participant in the organization or a person authorized at the general meeting.

A sample agreement can be found on our website.

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IMPORTANT! Neither party has the right to unilaterally change the terms of the signed agreement (unlike, for example, dismissal at the request of an employee, when the latter is authorized to withdraw his application at any time before the last day of work). This was indicated by the plenum of the Supreme Court of the Russian Federation in paragraph 20 of resolution No. 2 of March 17, 2004.