Dismissal by agreement of the parties in Belarus
- Instruction plan
- Documents in the program
- Our legal services
- Related instructions
- Benefits of dismissal by agreement of the parties
- Disadvantages and possible risks
- Conditions for holding
- Reaching an agreement of the parties on dismissal
- Dismissal registration
- Final settlement
- If the employee is on the military register.
1. Benefits of dismissal by agreement of the parties
There are various grounds for termination of an employment agreement (contract) between an employer and an employee. But most often the agreement of the parties becomes such a basis.
There are several reasons for the popularity of this ground for dismissal:
- often it is this option that allows you to maintain loyalty in the eyes of the employer and the employee in relation to each other.
- it is a peaceful way to terminate labor relations between the parties, which in practice makes it the most painless and easiest in terms of registration from a legal point of view and, accordingly, the most reliable.
- the method in question requires the consent of both parties, and consent is usually achieved when both parties are satisfied, and their desires and interests are equally taken into account.
- dismissal by agreement of the parties is possible in a number of cases when dismissal for other reasons is impossible (for example, it is forbidden to dismiss an employee at the initiative of the employer during the period of temporary disability of the employee or while the employee is on vacation).
- dismissal by agreement of the parties, unlike other grounds, does not impose on the parties such additional obligations as compliance with the deadlines established by law, a written notice of dismissal, payment of severance pay in connection with dismissal.
- an entry in the work book about dismissal by agreement of the parties does not discredit the employee in the eyes of a potential employer and does not interfere with the further employment of such an employee.
Termination of an employment contract by agreement of the parties is provided for by Article 37 of the Labor Code of the Republic of Belarus. Despite this, it is worth remembering that when drawing up the documents necessary for dismissal by agreement of the parties, a link is given to clause 1 of part 2 of article 35 of the Labor Code.
2. Disadvantages and possible risks
As you can see, dismissal by agreement of the parties is very convenient for both the employer and the employee. But in practice, there are cases when the parties abuse this. So, we will separately mention the cases when the employee committed guilty actions, but the employer does not want to spoil the employee's work book with a dismissal entry "under the article", and therefore initiates the dismissal procedure by agreement of the parties. In such cases, we recommend that you proceed as described in our instructions for dismissal for a system of violations.
The fact is that in this case there is a concealment (or substitution) of the grounds for dismissal of the employee, tk. there are grounds for dismissing an employee for committing guilty acts. So, in practice, it is not worth doing this (especially if an employee commits gross violations) for the simple reason that such a concealment may entail unconditional bringing the head of the organization (director) to disciplinary responsibility (up to dismissal from his position). Therefore, the use of such a universal and convenient mechanism as dismissal by agreement of the parties must be approached consciously and carefully.
3. Conditions for dismissal by agreement of the parties
Dismissal by agreement of the parties is one of the most universal and widely used grounds for dismissal.
By agreement of the parties, it is possible to terminate any employment contract, including:
- all types of fixed-term employment contracts (for a specified period, including an employment contract; for the time of performing a certain work; for the time of performing the duties of a temporarily absent employee; for the time of performing seasonal work);
- an employment contract concluded for an indefinite period.
Here are some other features of dismissal by agreement of the parties:
- you can fire almost any category of workers, including:
- pregnant women;
- women with children under the age of 3;
- single mothers with children aged 3 to 14 years (disabled children - up to 18 years old).
True, there are some exceptions, for example, an employment contract cannot be terminated by agreement of the parties with young specialists (until the end of the distribution).
- the parties can agree on any date of dismissal (even while the employee is on vacation or during the period of temporary disability of the employee).
Recall that, unlike dismissal by agreement of the parties, it is prohibited to dismiss employees at the initiative of the employer during these periods. In the event of dismissal by agreement of the parties, the employer and employee are not limited by such a prohibition.
- upon dismissal by agreement of the parties, nowhere is it necessary to additionally indicate the real reasons for dismissal. The agreement of the parties automatically implies that this basis for dismissal suits both parties to the full, regardless of objective or subjective reasons that prompted the parties to terminate labor relations precisely on the basis of paragraph 1 of part 2 of Art. 35 TC.
- the employer does not need to pay any severance pay to the employee in connection with the dismissal (however, if the payment of severance pay in the event of dismissal by agreement of the parties is provided for by an employment or collective agreement, other LNLA of the employer, then the employer will still have to make such a payment).
- it is not necessary to notify the employment service, the trade union about dismissal under paragraph 1 of part 2 of Art. 35 TC.
- minimum formalities for documenting the dismissal.
Stage 1. Reaching an agreement of the parties to dismiss.
For legal dismissal by agreement of the parties, it is necessary to reach an agreement on the termination of the employment agreement (contract) between the employer and the employee.
- Elements of the agreement
Under the agreement it is necessary to understand the achievement of agreement of the parties simultaneously on 2 elements:
a) the parties have agreed to terminate the employment relationship under paragraph 1 of Part 2 of Art. 35, art. 37 TC, i.e. agreed on the basis for the dismissal.
Those. if the employee turned to the employer with a letter of resignation at the request of the employee, and the employer fired the employee by agreement of the parties (clause 1 of part 2 of article 35, article 37 of the Labor Code), this will be a violation, the dismissal of the employee will be recognized as illegal, and the employee will be has the right to recover 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 on changing the basis for dismissal was not reached. Therefore, taking into account the above, the employer can dismiss the employee by agreement of the parties only if the employee asks to dismiss him precisely by agreement of the parties.
b) the parties have precisely determined and agreed on the date of dismissal.
In practice, this is often forgotten, in connection with which the employer may have problems in the future. Therefore, it is not enough to reach an agreement simply on the termination of 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). Any working day from the moment an agreement is reached between the employee and the employer can become such a day. Nevertheless, do not forget that on the day of dismissal, the employer must make the final payment to 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 to dismiss by agreement of the parties may be oral. But in the event of a dispute, the courts check the evidence of reaching an agreement between the parties (including by date). As you understand, without a written confirmation of the agreement, it can be problematic to prove its existence (although it is possible: it can be confirmed by testimony, other evidence).
To reach an agreement, the initiator of the 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, therefore there are 2 options.
- Registration methods (depends on the initiator)
a) Dismissal at the initiative of the employee
Step 1. The employee submits to the employer letter of resignation by agreement of the parties.
Step 2. The employer puts on the employee's application a resolution on consent 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 initiated by the employer
Step 1. The employer hands over to the employee dismissal proposal by agreement of the parties either termination agreement... The agreement on termination of the contract most fully reflects the mutual rights and obligations of the employer and the employee in the process of dismissal by agreement of the parties.
Step 2. The employee puts on the employer's proposal a record of consent to dismissal, his signature.
Stage 2. Registration by the employer of the employee's dismissal by agreement of the parties.
Step 3. The employer publishes dismissal order by agreement of the parties.
Step 4. The employer acquaints the employee with the order against signature.
Step 5. The employer enters into the employee's work book dismissal note.
Step 6. The employer introduces the employee to the dismissal record in the work book (done if the company maintains personal card, on the employee and in the card there is a column for such familiarization). Also issued bypass sheet.
Step 7. The employer attaches a copy of the dismissal order to the employee's personal file, the personal file is transferred to the archive.
Stage 3. Final settlement with the employee, issuing him a work book.
Step 8. The employer, no later than the day of dismissal, makes settlements with the employee (pays the employee salary, compensation for unused vacation).
Step 9. The employer gives the employee a work book on the day of dismissal.
Step 10. The employee signs for the receipt of the work book in the book for registering the movement of work books and inserts to them.
Stage 4. If the employee is on the military register.
Step 11. Tenant сообщает about dismissal to the military registration and enlistment office at the place of residence of the employee.
Step 14. The tenant makes dismissal record on personal card military registration liable for military service.
Cancellation of the termination agreement by agreement of the parties.
Possible cancellation of the agreement between the employee and the employer on dismissal by agreement of the parties is also carried out with the consent of both parties.
We also recommend that such an agreement of the parties to cancel the dismissal be made in writing. The cancellation agreement is drawn up in the form of one of the documents that expressed the initial initiative for dismissal.
a) At the initiative of the employee
Step 1. The employee submits to the employer resignation statement.
Step 2. The employer affixes on the employee's application a resolution of consent to cancel the initial agreement to terminate by agreement.
b) At the initiative of the employer
Step 1. The employer hands over to the employee proposal to the employee to cancel the dismissal by agreement of the parties.
Step 2. The employee puts on the employer's proposal to cancel the agreement a record of his consent to the cancellation of dismissal, his signature.
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