An employee has expressed a desire to leave their position. The head of the company agreed to terminate the employment contract by agreement of the parties. What agreements between an employer and a subordinate can be made under the condition of such dismissal - read further.
Legal aspects
According to item 1 Part 1 of Art. 36 of the Code of Labor Laws of Ukraine (hereinafter - the Labor Code), the grounds for terminating an employment contract are the agreement of the parties. In the event of an agreement between the employee and the owner of the enterprise, institution, organization or the body authorized to terminate the employment contract under item 1, Part 1, Art. 36 of the Labor Code (agreement of the parties), the contract is terminated within the period determined by the parties.
Termination of the employment contract under item 1, Part 1, Art. 36 of the Labor Code is applicable in case of mutual consent of the parties to the employment contract. A proposal (initiative) to terminate the employment contract on this basis can come from both the employee and the owner or an authorized body.
As evidenced by the analysis of court practice, there have been labor disputes, which are primarily related to employees filing lawsuits for the termination of the employment contract by agreement of the parties by the employer without their consent (see the decisions of the Supreme Court in case No. 591/4938/18 of February 16, 2022, in case No. 591/1375/19 of December 1, 2021, in case No. 222/438/17-ц of October 17, 2018, in case No. 264/2678/17 of June 20, 2019, in case No. 524/3490/17-ц of March 27, 2019, in case No. 487/5015/16-ц of March 20, 2019).
Grounds for terminating an employment contract by agreement of the parties
To clarify the issue of the legality of termination of the employment contract under item 1, Part 1, Art. 36 of the Labor Code (by agreement of the parties) the primary importance is whether the parties really agreed to terminate the employment contract by mutual consent; whether the employee expressed their will to terminate the employment contract at the time of issuing the dismissal order; whether the employee declare the cancellation of the previous agreement of the parties regarding the termination of the contract by agreement of the parties; whether the employer (the owner or authorized body) agreed to annul the agreement of the parties to terminate the employment contract.
Verbal form
The current legislation does not provide for a mandatory written form of the agreement of the parties on the termination of the employment contract according to item 1, Part 1, Art. 36 of the Labor Code. Such an agreement can be drawn up between the parties both by the employee submitting an application for termination of the employment contract by agreement of the parties and the employer’s consent to such a dismissal, and by making a proposal (initiative) by one of the parties to the employment contract, and the agreement of the parties on termination of employment the contract can be concluded verbally.
The relevant position of the Supreme Court is set out in the decision in case No. 264/2678/17 of June 20, 2019, in which the court, refusing the plaintiff to satisfy the claim about the illegality of their dismissal, referred to Part 3 of Art. 205 of the Civil Code of Ukraine (hereinafter – the Civil Code), which determines that in cases established by contract or law, the will of the party to commit the legal act may be expressed by its silence.
An act, for which the law does not establish a mandatory written form, is also considered committed, if the behavior of the parties proves their will before the corresponding legal consequences occur.
Written form
Termination of the employment contract by agreement of the parties must be properly formalized in writing. On the day of dismissal, the employer is obliged to issue to the employee a copy of the order (resolution) on dismissal, a written notification of the amounts accrued and paid to them upon dismissal (Article 116 of the Labor Code) and to settle with them within the terms specified in Article 116 of the Labor Code, as well as at the request of the employee to make appropriate records of dismissal in the employment records kept by the latter (Article 47 of the Labor Code).
