Dismissal by mutual agreement or at own will: what is the difference and what rights does the employee have
Dismissal by mutual agreement and dismissal at own will are different legal mechanisms for terminating employment relationships. Although in both cases the initiator can be the employee, the procedure for documentation, dismissal terms, and the employer's role differ significantly.
What distinguishes dismissal at own will from dismissal by mutual agreement
Labor legislation provides two separate grounds for terminating an employment contract: by mutual agreement according to paragraph 1 of part one of article 36 of the Labor Code of Ukraine and at the initiative of the employee according to article 38 of the Labor Code.
In the case of dismissal at own will, an employee working under an indefinite employment contract must notify the employer in writing no later than two weeks before the dismissal date. At the same time, the law provides several cases when the employee can request termination of employment within a period specified by them. This is possible, in particular, due to relocation, transfer of husband or wife to work in another location, admission to an educational institution, pregnancy, need to care for a child or sick relative, retirement, employment through competition, and other valid reasons.
Regarding dismissal by mutual agreement, as noted by the Ministry of Social Policy of Ukraine in a letter dated April 4, 2014, No. 60/06/186-14, this ground implies reaching mutual consent between the employee and employer on the termination of the employment contract and determining the dismissal date.
The initiator of such dismissal can be either the employee or the employer. If the proposal comes from the employer, the employee's consent must be obtained. This can be formalized by a written proposal from the employer indicating the dismissal date and the employee's written agreement or by the employee submitting a statement consenting to the termination of employment.
If the initiative comes from the employee, they must submit a statement indicating the reason and preferably the desired dismissal date.
Unlike dismissal at own will, the law does not establish a mandatory notice period or the need for valid reasons for dismissal by mutual agreement. Therefore, the parties can agree to terminate the employment contract at any mutually agreed time — either shorter or longer than the two-week period provided for dismissal at own will. In addition, this method of terminating employment can be applied to both indefinite and fixed-term contracts, as well as during vacation, temporary incapacity, or probation period.
Thus, the key difference is that dismissal by mutual agreement is possible only by mutual consent of the employee and employer. In contrast, when dismissing at own will, the employee exercises a right guaranteed by law to terminate employment, and the employer's consent is not required. This is emphasized by the Federation of Trade Unions of Ukraine.
Features of dismissal during martial law
Dismissal during martial law by mutual agreement has no special features, unlike dismissal at own will. According to article 4 of the Law of Ukraine dated 15.03.2022 No. 2136-IX "On the organization of labor relations under martial law" (hereinafter — Law No. 2136), due to hostilities in areas where the enterprise, institution, or organization is located and the existence of a threat to the life and health of the employee, the employee may terminate the employment contract on their own initiative within the period specified in their statement (except in cases of forced involvement in socially useful work under martial law or involvement in work at critical infrastructure facilities).
According to article 38 of the Labor Code, the employee has the right to terminate an indefinite-term employment contract by notifying the employer in writing two weeks in advance. In addition, article 38 lists cases when the employee may request termination within the period they specify. However, "hostilities" is not included in this list.
The provisions of the article grant the employee the right to terminate the employment contract on their own initiative within the period specified in their statement if the following conditions exist:
- hostilities in the areas where the enterprise is located and the existence of a threat to the life and health of the employee;
- work under the employment contract is not due to forced involvement in socially useful work under martial law or involvement in work at critical infrastructure facilities.
Since article 38 did not contain an exhaustive list of reasons for dismissal without notice to the employer, the employer could recognize the reason — threat to life and health of the employee — as valid for dismissal without notice even before Law No. 2136 came into force. However, it was not defined in which territory of Ukraine such a reason could be applied.
Law No. 2136 clearly defines that the threat to the life and health of the employee can be a valid reason for dismissal without notice only if the enterprise is located in an area of hostilities, not anywhere in Ukraine.
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