Having minor children, an unemployed spouse and no other employment, the employee could not have voluntarily agreed to the dismissal by mutual agreement of the parties. Such dismissal is considered unlawful.
Decision of the Fourth Court of Cassation of General Jurisdiction dated November 18, 2021 in case N 88–18644/2021
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The agreement as an alternative to a disciplinary action indicates pressure on the employee
The employer offered the employee to resign by mutual agreement in lieu of being dismissed for repeated failure to perform job duties. The parties signed an employment termination agreement. The court decided that offering the employee a choice between signing the agreement and being dismissed for repeated failure to perform job duties proves that there was no employee’s free will, and reinstated the employee in the job position.
Decision of the Fourth Court of Cassation of General Jurisdiction dated August 10, 2021 in case N 88–16138/2021
Decision of the Seventh Court of Cassation of General Jurisdiction dated July 27, 2021 N 88–11840/2021 in case N 2–1472/2020
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The employer shall explain to the employee the consequences of the employment termination agreement
Dismissal by mutual agreement was found unlawful because the employer did not explain to the employee the consequences of entering into a termination agreement. The court also took into account that the employee had not been looking for another job and was not the initiator of the dismissal. More interestingly, the employee's spouse testified as a witness who confirmed that he was not looking for a job.
Appellate decision of the Kaluga Regional Court dated September 20, 2021 in case N 33–2935/2021
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It is risky to offer the agreement when the position is eliminated
The employee was dismissed by mutual agreement of the parties. The court found out that the employee’s position was planned to be eliminated, which, according to the court, shows that there was no free will to resign. As a result, the employee was reinstated.
Decision of the First Court of Cassation of General Jurisdiction dated November 29, 2021 in case N 88–28852/2021
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It is unlawful to sign the agreement after an order on dismissal on other grounds
The employer issued an order of dismissal for repeated failure to perform job duties. After that the parties signed an employment termination agreement. The court reinstated the employee and pointed out that the earlier order of the employer had already terminated the employment.
Decision of the Eighth Court of Cassation of General Jurisdiction dated July 8, 2021 in case N 88–11744/2021
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The agreement must be signed as a single document
A letter of resignation by mutual agreement approved by the employer will not work. It has to be a properly executed agreement.
Decision of the Second Court of Cassation of General Jurisdiction dated September 7, 2021 in case N 88–20138/2021
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The mere fact of entering into the agreement does not prove intent to resign
It will be necessary to prove to the court both that the employment termination agreement was concluded, and that the employee correctly understood the circumstances of the agreement and its consequences.
Decision of the Sixth Court of Cassation of General Jurisdiction dated April 29, 2021 in case N 88–7784/2021, 88–10071/2021
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Be always careful with pregnant employees. The employee will be reinstated, even if she was unaware of the pregnancy at the time of entering into the agreement
If the employee was unaware that she was pregnant at the time of entering into an employment termination agreement, the court will reinstate her as the dismissal will certainly result in economic damages for her.
Decision of the Second Court of Cassation of General Jurisdiction dated February 18, 2021 in case N 88–939/2021
According to the court, a pregnant employee cannot be dismissed even by mutual agreement of the parties.
Decision of the First Court of Cassation of General Jurisdiction dated November 15, 2021 in case N 88–25663/2021