Dismissal by mutual agreement or at own will: what an employee needs to know

Many employers offer employees to arrange dismissal by mutual agreement, explaining that this option is faster and simpler. However, for the employee, the difference between these grounds for dismissal is much greater than it may seem at first glance.

As noted by the Labor and Employment Inspection of the Dnipro City Council, there is no universally "better" option — everything depends on the specific situation and the employee’s goals.

Dismissal by mutual agreement (Clause 1 Part 1 Article 36 of the Labor Code)

Dismissal is possible only when the employee and employer have reached a mutual agreement on the termination of the employment contract.

Main advantages of this dismissal method include:

• the parties can independently determine the date of termination of employment relations;
• no need to wait for the two-week notice period;
• the procedure can be convenient if the employee and employer have truly agreed on the dismissal terms.

At the same time, employees should consider an important feature: the Supreme Court has repeatedly emphasized that if the parties have agreed on termination of the employment contract by mutual agreement and agreed on the dismissal date, the employee cannot unilaterally refuse this agreement. It can only be canceled by mutual consent of the parties.

This approach is confirmed, in particular, by the legal position of the Supreme Court of Ukraine, set out in the ruling dated 26.10.2016 in case No. 6-1269цс16, which continues to be applied by the Supreme Court.

That is why in judicial practice there are many cases where employees are denied reinstatement if, after reaching an agreement on dismissal by mutual consent, they changed their decision.

Dismissal at own will (Article 38 of the Labor Code)

As a general rule, the employee must notify the employer in writing no later than two weeks in advance.

However, this ground provides the employee with additional guarantees. If before the end of the notice period the employee changes their mind and continues to work, the employer generally does not have the right to dismiss them based on the previously submitted application.

An exception is the situation when another employee has already been invited to the position, who, according to the law, cannot be refused employment (Part 2 Article 38 of the Labor Code).

In addition, the law allows the employee to demand dismissal on the date specified in the application without serving the two-week notice. This is possible, in particular, in cases of:

• relocation to a new place of residence;
• enrollment in an educational institution;
• inability to live in a certain area due to medical reasons;
• need to care for a child or a sick family member;
• retirement;
• violation of labor legislation or terms of the employment contract by the employer.

Position of the courts

The Supreme Court’s judicial practice is based on the understanding that dismissal by mutual agreement is the result of mutual consent between the employee and employer.

After such an agreement is reached, the employer is not obliged to agree to the employee’s unilateral refusal of dismissal. The agreement can only be canceled by consent of both parties.

At the same time, when dismissed at own will, the employee has more opportunities to change their decision before the actual termination of work.

What to consider before dismissal

Before signing a dismissal application, the employee should evaluate not only the speed of document processing but also the legal consequences of the chosen grounds.

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