Dismissal of the director of the article TC. Dismissal of the CEO: nuances and specifics of the procedure

has a number of differences from the procedure for dismissing an ordinary employee. The reason is that such an employee is the main executive body of the company, without whom it cannot continue its activities. We will talk about the features of this procedure in our article.

How to dismiss the director of an LLC at your own request

The procedure for dismissing the director of an LLC at will includes several stages:

Compliance with legal requirements at each stage can protect the organization from possible claims from the former manager and labor inspection, as well as ensure its further full functioning.

Drawing up a letter of resignation for the general director

Letter of resignation to the founder from the director- a document that confirms the will of an employee who wants to leave his position. It is drawn up 1 month before the expected date of leaving work (Article 280 of the Labor Code of the Russian Federation). Writing an application is not a mandatory step. Sufficient evidence of the will of the general director is the notice given to the founders of the company.

The legislation does not establish clear requirements for the document. If you decide to use any sample resignation letter general director OOO, you need to remember that the document must contain information about the employee and employer, the date of the upcoming dismissal, the date the document was drawn up and the signature of the applicant. It should be borne in mind that for the head of the company the employer is general meeting members of the company.

Submit your application to dismissal of the director at his own request can be done in person or using the postal service or courier service. In any case, the date of notification is considered to be the day the document is received by the employer. The main thing is to record the fact that the application has been received by the addressee - for example, to receive a note that the letter has been delivered.

Notice from the General Director of dismissal

After making a decision to resign from office, the director should set a date for an extraordinary meeting of the company's members and send them information about the time and place of its holding. The notification rules are listed in Art. 36 of the Law “On Limited Liability Companies” dated 02/08/1998 No. 14-FZ:

1. Notice must be given at least one month in advance of the upcoming meeting.
2. It is necessary to notify each LLC participant individually.
3. The notice may be sent by registered mail or other method provided for by the company's charter.
4. The notice must contain information about the time and place of the meeting, as well as a list of issues planned for discussion.

Taking into account the above rules, we can say that best option- sending an application to dismissal at the own request of the general director of the LLC members of the organization along with notice of an extraordinary meeting of participants.

The procedure for agreeing upon dismissal with the founders of the organization

At the meeting, the founders discuss and decide the issue of the upcoming departure of the head of the company. Since Art. 37 of the country’s basic law prohibits forced labor; LLC participants do not have the right to refuse the head of the organization early release from office.

Don't know your rights?

Refusal to participate in a meeting and evasion of delivery of notice are not considered good reasons to continue the work of the general director against his wishes. In case of such behavior of the employer, the head of the organization may go to court. The statement of claim served on the employer is sufficient confirmation of the director’s desire to leave his position. As practical example You can cite the appeal ruling of the Perm Regional Court dated 08/05/2013 No. 33-7154.

During the extraordinary meeting, the founders agree on the date of the upcoming voluntary dismissal of the CEO, and can also agree with him on more long term work required to find a new candidate for the position of manager. If an agreement is not reached between the employer and the employee, the latter has the right to resign without the consent of the founders. The main thing is to follow the procedure as required by law.

Order for the dismissal of the general director at his own request, sample order

The head of the organization can issue and sign a resignation order independently after the meeting. It states:

• name of the company and its details;
• information about the person being dismissed;
• reasons for dismissal;
• date of departure of the CEO from office.

It is usually used unified form document No. T-8, approved by the Decree of the State Statistics Committee of the Russian Federation “On approval of unified forms of documents...” dated 01/05/2004 No. 1. However, the use of this particular template is not mandatory; the employer, if desired, has the right to independently develop the form of the document. A current sample of an order for the dismissal of the head of an organization can be downloaded on our website.

Making an entry in the work book and paying the general. director

The head of the organization can make an entry into the labor register himself or entrust this to an authorized person of the organization. He also has the right to certify it with his signature and the seal of the organization (if any). The main thing is to comply with the requirements of the instructions for filling work records, approved Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 No. 69:

1. Fill out all fields of the document.
2. Use Arabic numerals when filling out.
3. Avoid abbreviations and corrections in records.
4. Competently formulate the reason for dismissal.
5. Add a link to the legislative norm that became the basis for termination of the employment relationship.
6. Indicate the details of the order to terminate the contract between the dismissed person and the employer.

At dismissal of the general director at his own request he can count on payments and compensations stipulated by law: wages for hours worked, compensation for unused vacation etc. In addition, the former general director transfers affairs to the new head of the organization. In the event of the temporary absence of a legal successor, the ex-manager may:

• continue to independently store the seal and documents of the organization;
• entrust storage to a special archival organization;
• hand over the documents and seal to a notary for safekeeping.

The right to store documents for notaries is granted by Art. 97 “Fundamentals of the legislation of the Russian Federation on notaries” dated 02/11/1993 No. 4462-1. When transferring, you must remember that documents are accepted and stored on behalf of the organization. This gives the new head of the company the right to pick up the documents and seal at any time.

Does the procedure for dismissing the general director of an organization at his own request provide for notification of the tax service?

The answer to this question is contained in sub. "l" clause 1 and clause 5 of Art. 5 of the Law “On state registration legal entities and individual entrepreneurs" dated 08.08.2001 No. 129-FZ, which require information about the dismissal of a director of a legal entity (including at his own request) and changes in executive body companies. To do this, you must submit tax office an application drawn up in form P14001, having previously certified it by a notary. The application is submitted by the newly appointed head of the company within 3 days from the date of appointment to the position, after which the tax authority enters information about the new head into the Unified State Register of Legal Entities.

A person dismissed from the position of general director must make sure that his data is deleted from the Unified State Register of Legal Entities. An unscrupulous approach to this issue can cause trouble in the future: problems with employment as a manager in another organization, the danger of financial liability for the company’s debts in the event of its bankruptcy, etc. If new manager the company has not been appointed, the application can be signed and submitted by the former general director.

Peculiarities of the procedure for dismissal of a general director who is a pensioner at his own request

The process of dismissal at the own request of a person who has reached retirement age, has one peculiarity: such an employee has the right not to work out the term, provided for by law(Part 3 of Article 80 of the Labor Code of the Russian Federation). Thus, the head of an organization who is an old-age pensioner is not required to meet the deadline for leaving work.

However, it is still necessary to follow the formal dismissal procedure (notify the founders, convene an extraordinary meeting of company members and make a decision to dismiss the retired manager). The entry in the work book must indicate that the reason for termination of the employment relationship was retirement.

The procedure for the voluntary dismissal of the general director - the sole founder of the company

In the case where the manager is simultaneously the sole organizer of the company and its owner, the procedure dismissal of the general director at his own request is greatly simplified. According to Part 2 of Art. 273 of the Labor Code of the Russian Federation, labor regulation standards for managers do not apply to such an employee.

In this situation, the head of the organization can at any time independently write a corresponding statement and decide on his dismissal. That is, the duration of the process is significantly reduced, since there is no need to notify yourself of the upcoming dismissal, wait 1 month and organize a meeting of participants. Simultaneously with the decision to dismiss, the sole founder can appoint the head of the company.

Responsibility of the CEO after dismissal

The work of a manager involves making difficult decisions. He will bear responsibility for his actions and decisions - both material and criminal - if there are grounds for its occurrence, even in the event of dismissal from office.

So, financial liability manager occurs in the following cases:

• in case of loss of property;
• damage to the organization's property;
• unforeseen expenses of the enterprise;
• loss of profit by the company due to the fault of the manager.

As a rule, these circumstances are discovered after an audit of the company. The employer of the dismissed head of the organization may file a claim in court demanding compensation for damage caused by the actions of the general director. If the claims are satisfied, the recovery may be directed to the property of the former employee.

The illegal actions of a manager may become grounds for bringing to criminal liability under the following conditions:

1. His actions (inaction) constitute a crime.
2. The manager's guilt is documented.
3. The statute of limitations has not expired.

In conclusion, it remains to say that optimal solution there will be peaceful negotiations and mutually beneficial agreements between the head of the enterprise and the founders, since they avoid litigation and quickly dismiss the general director at his own request.

In accordance with the labor code, any working person can decide to quit of their own free will. To do this, it is enough to express your desire in writing in the form of a statement and after some time stop working in the company. But you can quit some positions, but with great difficulty, so as not to break the law. One of such cases is the dismissal of the general director of an LLC at his own request.

Once a leading executive decides to leave his job voluntarily, various legal obstacles immediately arise that prevent him from resigning and complying with all laws.

Any other employee of the company for voluntary dismissal submits an application two weeks before the specified date. The general director is obliged to notify the company one month in advance in writing. This is dictated by the fact that he is responsible for all processes in production and reporting.

The General Director is the sole executive body of the company and bears responsibility for the legality of the company's actions. It will take a lot of time to find a new competent top manager to replace the current one in a leadership position. And paperwork for dismissal will take a long period of time. Submitting an application early is also important for the CEO himself, in order to clearly distinguish between the time when he was a leader and the time when he retired from making decisions.

The determination of the general rights and obligations of the director of the LLC is made at a meeting of the company's participants. Only it has the right to choose executive positions society or terminate their authority.

The general director must notify the general meeting of participants of the intention to dismiss. He has the right to convene it at any time to resolve fundamental issues in the interests of society. Society may ignore the manager’s decision to resign and not look for a replacement.

Infringement of rights and unauthorized dismissal

The free decision to work is enshrined in Article 37 of the Constitution Russian Federation. And the Labor Code of the Russian Federation prohibits forcing a person to work under duress. The meeting of the company is called upon to accept a statement from the director about his desire to resign, and they cannot refuse him this. By showing inaction, members of the general meeting abuse their rights, but the situation with the dismissal of the general director cannot be hopeless. The transfer of affairs to another person is carried out in order to delimit the degree of responsibility over time between the two managers.

First and important step is the convening of participants in the general meeting. All persons falling under this category written invitations are sent indicating the time and place of the meeting. Such postal items It is better to send with a description of the internal attachment. If the board members ignore the message, the manager will be left with a receipt with a description, mail stamp and inventory.

Sometimes the situation develops in such a way that it is known in advance about the intentions this representative meeting to decide on the dismissal of the director, then you can speed up the process by enclosing two documents at once in a valuable letter: an invitation to a meeting and an application for resignation of your own free will. The conclusion is that it is mandatory for everyone to notify negligent members of the general council and collect documentary evidence about this.

Some companies have a procedure for notifying its members of a general meeting by registered mail, a type of which a valuable letter does not belong. In that case you need to duplicate the notification also by registered mail in order to comply with all the formalities that were impossible to find fault with.

If the general director is confident that his desire to resign at his own request has been communicated to all participants in the general meeting, he can terminate his activities a month after this event. His dismissal can be considered completed; all that remains is to formalize it with the appropriate order for the company, which he himself can initiate. He can also make an entry in the work book himself.

Key points when dismissing a CEO

The problem remains unresolved regarding the registration of the director in the unified state register of legal entities as the sole executive body of the LLC. This situation is complex and insoluble until a new one is found. general manager OOO.

A legal organization is obliged to submit to the tax authorities all changes concerning its sole executor. But the application form to the register must contain information about the new director, and not about the fact that the old one is no longer working. From the moment the previous general director of the LLC terminated his powers, he no longer has legal law submit an application to the tax authority, since he is not a manager and cannot act on behalf of the company without a power of attorney to conduct business. That is, the resigned director simply will not be able to submit documents and change the registration data on the termination of his powers.

Registration data in the register can be completely changed only after the company has accepted the appointment of a new person to the position of general director of the LLC and notified about his new data in the unified registration register of legal entities. In fact, the old CEO shouldn't worry, it is much more important to think about the affairs of society which he controlled.

Transfer of cases

If all the conditions for the director’s independent dismissal are met, he can notify all LLC participants about convening a meeting to transfer affairs to another person. Notification occurs according to the scheme described above with the preservation of all receipts and inventory. If a suitable candidate for the post of General Director of the LLC is not found by this time, the company has the right to instruct one of its participants to take over the affairs of the director and formalize this with the appropriate act.

The date of dismissal of the manager is great value, after which he is not responsible for the company’s illegal actions. If violations were discovered while he was in power, then he will have to answer for them in full.

The legislation does not directly indicate the procedure for the former general director of an LLC to transfer his duties, rights and documentation, therefore a person resigning from such a responsible position needs to insure himself and not do any illegal things.

Procedure for the General Director.

1. Funds in cash at the company's cash desk must be handed over to the bank, having formalized this action with the appropriate document.
2. At the time of dismissal, be sure to report all taxes, put documents in order, and sign deferred important treaties and terminate obsolete ones. It is worth paying all due taxes and debts to contractors, it is advisable to pay wages to employees.
3. It is recommended to close all current accounts of the company. Sometimes some of them have cash and this does not allow you to close the account. In that case it is necessary to notify the bank management in writing about the dismissal of the director and the impossibility in the future to make any monetary transactions on behalf of the former manager and with his signature.
4. The notice of the bank director is left in two copies with his signature, one remains with the former director.
5. Although the law does not provide for notification of the tax authorities about the dismissal of the old director, it is still necessary to do this. The best way to describe it is by simple letter, in which to notify the authorities that the dismissal was carried out in compliance with all letters of the law. This step is necessary so that in the near future after leaving there will be no problems with questions from the tax authorities, for example, regarding missed reporting deadlines.

A situation arises when the process of transferring important documentation to the new director is not possible, then the question arises of preserving valuable papers from a material and ideological point of view. Each director decides this issue independently, taking into account the prevailing circumstances.

The General Director has the right:

• store documents at your own peril and risk;
• enter into an agreement with a reliable archival organization and store important papers there. The contract must contain a clause on the possibility of issuing documents upon a written request from the company;
• the general director can deposit the papers with a notary in the prescribed manner on behalf of the LLC company so that the new top manager of the company can pick them up for further use in their work.

Actions of a notary

An employee of a notary office can accept documents for storage with or without an inventory, if the packaging is reliable and not damaged. In that case the envelope is affixed with a personal seal and signature of a notary. From now on, he is personally responsible for the safety of the papers:

• certifies and records the time of submission of documents for storage;
• accepts funds as deposits, material assets and package securities, which are in the custody of the future director, if there is no person appointed for transfer. In this case, the LLC acts as a creditor;
• accepts documents and papers of the LLC company for storage;
• issues a certificate of delivery of documents to the bearer.

Definition of evidence by a notary

The general director can contact a notary office to provide evidence that he has performed all the necessary actions for safety. For example, locking a cabinet with a key or handing over any documents to ordinary persons of the company to resolve everyday issues can take place in the presence of a notary.

The notary has the right to question witnesses and inspect material and paper evidence. If necessary, prescribe an examination for integrity and integrity.

The notary is guided by the norms of civil procedural law to establish the procedure for the process of providing evidence to interested parties. The notary appoints the time and place of the procedural action, but if one party did not appear, this cannot be an obstacle to the determination of evidence.

When transferring cases, the former manager can use the services of a notary to secure the identification of witnesses and LLC participants. This can once again confirm the fact that invitations to meetings and resignation letters were sent out. Ordinary employees of the LLC can also testify and confirm information about the dismissal of the director, confirm other actions of the former manager.

The general director may ask to inspect the premises, valuables, documents on their safety and have the results certified by a notary. Documents on securing evidence issued to the former general director of the LLC may, in the event of a conflict, be additionally considered by a court or other body.

In order for the general director of an LLC to resign of his own free will in the absence of the initiative of the members of the board of the company to let him go, you need to go through a difficult path. But the day will come when former manager will feel free and it’s worth fighting for.

The head of an organization is an important person. Traditionally, all issues related to the registration of his powers stand apart and are resolved taking into account special rules. This approach is, of course, justified. The “first person” has such serious rights and responsibilities that sometimes he is not even perceived as an employee of the organization and a member of the workforce.

The dismissal of a manager is a responsible event that requires taking into account the norms of labor and civil legislation. Our article will help you understand this complex procedure, take into account all the nuances of terminating your employment relationship with your manager and correctly fill out the necessary documents.

Termination of employment relations with an employee - the head of an organization, on the one hand, must be carried out according to the general rules established by the Labor Code of the Russian Federation. On the other hand, since the director is also the sole executive body legal entity, this procedure should take into account the provisions of civil law, as well as the requirements of the organization’s constituent documents on the powers of the head and the activities of the bodies that have the right to terminate relations with him employment contract.

WHO MAKES THE DECISION ABOUT DISMISSING A MANAGER?

In all cases, the decision to terminate the powers of the head of the organization is made by the authorized body or person who has the right to appoint or elect him to the appropriate position ( table 1).

HOW IS THE DECISION TO DISMISS A MANAGER MADE?

The decision to terminate the employment relationship with the head of the organization is made by authorized bodies and persons in accordance with a certain procedure, depending on who exactly makes the decision.

Table 1

Making a decision to terminate the powers of the head of the organization

...In joint stock companies

The decision to terminate employment relations with a manager in a joint-stock company is made by the general meeting of shareholders, if the company’s charter does not include the resolution of these issues within the competence of the board of directors ( supervisory board) society. The procedure for holding an extraordinary general meeting of shareholders is established by Art. 55 of the Law on JSC.

How is a meeting of the board of directors (supervisory board) of a joint stock company held?

If we are talking about other grounds for terminating an employment contract with the head of an organization (for example, the issue of dismissing a manager will be decided under clause 2 of Article 278 of the Labor Code of the Russian Federation), then a meeting of the board of directors (supervisory board) of the joint-stock company is convened by the chairman of the board of directors (supervisory board) company on its own initiative, at the request of a member of the board of directors (supervisory board), audit commission(auditor) of the company or auditor of the company, as well as other persons determined by the charter of the company.

The procedure for convening and holding meetings of the board of directors (supervisory board) of the company is determined by the charter or internal document society. These documents may provide for the possibility of taking into account, when determining the presence of a quorum and voting results, the written opinion of a member of the board of directors (supervisory board) of the company who is absent at the meeting on agenda items, as well as the possibility of making decisions by absentee voting.

The quorum for holding a meeting is determined by the company's charter, but should not be less than half of the number of elected members of the board of directors (supervisory board). By general rule decisions at the meeting are made by a majority vote of the members of the board of directors (supervisory board) participating in the meeting. When deciding issues, everyone has one vote. In the event of a tie of votes, the company's charter may provide for the right of the chairman of the board of directors (supervisory board) to have a casting vote when making decisions.

...In a limited liability company

In a limited liability company, the procedure for the activities of the board of directors (supervisory board) of the company is determined by the charter of the company.

The procedure for convening a general meeting of company participants is defined in Art. 36 of the LLC Law.

If we talk about convening an extraordinary general meeting of LLC participants, then the right to convene it, in addition to the head of the company, has the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor, as well as participants of the company who collectively have at least one tenth of the total number of votes of the company's participants.

The head of the LLC is obliged to consider the this requirement and make a decision to hold an extraordinary general meeting of company participants or to refuse to hold it.

If a decision is made to hold an extraordinary general meeting of the company's participants, it must be held no later than forty-five days from the date of receipt of the request for its holding.

If within deadline no decision has been made to hold an extraordinary general meeting of the company's participants or a decision has been made to refuse to hold it, the meeting may be convened by bodies or persons demanding its holding. In this case, the director is obliged to submit to the specified bodies or persons a list of company participants with their addresses.

The initiator of an extraordinary general meeting of participants must notify each participant of the company about this no later than thirty days before it is held by registered mail to the address indicated in the list of participants of the company, or in another way provided for

bylaws. The notice must indicate the time and place of the general meeting of the company's participants, as well as the proposed agenda.

How is a decision made on early termination of an employment contract with the head of an LLC?

By virtue of clause 8 of Art. 37 of the LLC Law, such a decision is made by a majority vote of the total number of votes of the company’s participants, however, the Charter may provide for the need for a larger number of votes to make such a decision.

In addition, a decision on the issue of early termination of an employment contract with the head of an organization can be made without holding a meeting by absentee voting (by poll). Such voting can be carried out by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communications that ensure the authenticity of transmitted and received messages and their documentary evidence.

Let us note that the possibility of conducting absentee voting and its procedure are determined by the internal document of the company, which must provide for the mandatory notification of the proposed agenda to all participants of the company, the possibility of familiarizing all participants of the company with all necessary information and materials, the opportunity to make proposals for the inclusion of additional issues on the agenda, the obligation to inform all members of the company before voting of the amended agenda, as well as the deadline for the end of the voting procedure (Article 38 of the LLC Law).

HOW IS THE DECISION TO TERMINATE A MANAGER'S DISMISSAL?

If a meeting of the board of directors (supervisory board) or the general meeting of participants (shareholders) has taken place, a decision is made to terminate the employment contract, which is documented in minutes ( Appendix 1).

For example, this document is indicated by Art. 37 of the LLC Law, art. 63 and 68 of the Law on JSC.

Requirements for the content of protocols can also be found in the relevant laws.

For example, the minutes of a meeting of the board of directors indicate:

• place and time of its holding;
• persons present at the meeting;
• meeting agenda;
• issues put to vote and voting results on them;
• decisions made.

The minutes of the meeting of the board of directors (supervisory board) of the company are signed by the chairman of the meeting, who is responsible for the correctness of the minutes.

What are the requirements for the content and procedure for drawing up minutes of the general meeting of shareholders?

The minutes of the general meeting of shareholders indicate:

• place and time of the general meeting of shareholders;
• the total number of votes possessed by shareholders - owners of voting shares of the company;
• the number of votes held by shareholders participating in the meeting;
• chairman (presidium) and secretary of the meeting, agenda of the meeting.

The minutes of the general meeting of shareholders of the company must contain the main provisions of the speeches, the issues put to vote and the results of voting on them, and the decisions adopted by the meeting.

The minutes are drawn up in two copies no later than three working days after the closing of the general meeting. Both copies are signed by the chairman of the general meeting of shareholders and the secretary of the general meeting of shareholders.

In a limited liability company, the management of the general meeting of the company's participants organizes the keeping of minutes.

How is the decision of the sole shareholder (participant) and the company formalized?

If there is only one shareholder (participant), then the termination of the powers of the head of the organization is formalized by the decision of the sole shareholder (participant). This is indicated by Art. 47 of the Law on JSC, according to which in a company in which all voting shares belong to one shareholder, decisions on issues within the competence of the general meeting of shareholders are made by this shareholder individually and are documented in writing. In this case, the provisions of the law defining the procedure and terms for preparing, convening and holding a general meeting of shareholders do not apply. Similar provisions are contained in Art. 39 of the LLC Law.

FEATURES OF THE PROCEDURE IN SPECIFIC SITUATIONS

Due to the peculiarities of the status, the head of an organization is subject to both general grounds for termination of an employment contract (for example, agreement of the parties, expiration of the employment contract) and special grounds (for example, a change in the owner of the organization’s property, disqualification, making an unreasonable decision that entailed a violation of the safety of property , unlawful use or other damage to the organization’s property). In addition, additional grounds for dismissal of the head of the organization may be provided for in the employment contract itself ( table 2).

It is important to take into account that in relation to the dismissal of the head of an organization there are general norms labor legislation.

For example, if the term of the employment contract concluded with the head of the organization is coming to an end, then in accordance with Art. 79 of the Labor Code of the Russian Federation, he must be notified of dismissal in writing at least three calendar days before dismissal.

Table 2

Additional grounds for dismissal of managers with examples of dismissal entries in the work book

The employment contract concluded with the director expires. Who should send him a written warning about termination of the employment contract?

The General Meeting of Shareholders (Participants) does not have such a right, since its competence is limited to resolving issues specified in the Law on JSC and the Law on LLC. The question of who should notify the manager about the expiration of his employment contract should be directly regulated in the charter or local regulations organizations. In practice, this authority is often vested in the board of directors (supervisory board).

It is good if such a notification is sent to the manager after it becomes clear whether his candidacy has been nominated for the next election as the sole executive body of a legal entity or not. If this issue is resolved positively, then the director can be simultaneously notified in the notice of a meeting of the board of directors (supervisory board), a general meeting of shareholders (participants), where the issue of electing the sole executive body of the company will be decided.

Another example. When dismissing the head of an organization for committing a disciplinary offense, it is necessary to follow the procedure for bringing to disciplinary liability provided for in Art. 192 and 193 of the Labor Code of the Russian Federation.

Often employers are sure that they can fire a director at any time, even if he is on sick leave, but this is not the case. The head of the organization is subject to the guarantee provided for in Part 6 of Art. 81 of the Labor Code of the Russian Federation: dismissal of an employee at the initiative of the employer is not allowed (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.

In paragraph 50 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation Labor Code Russian Federation" states: taking into account that Art. 3 of the Labor Code of the Russian Federation prohibits restricting anyone in labor rights and freedoms depending on official position, and also taking into account that the dismissal of the head of an organization in connection with the adoption by an authorized body of a legal entity or the owner of the organization’s property, or a person (body) authorized by the owner of a decision on the early termination of an employment contract is essentially dismissal at the initiative of the employer, and Ch. 43 of the Labor Code of the Russian Federation, which regulates the peculiarities of the work of the head of an organization, does not contain norms that deprive these persons of the guarantee established by Part 6 of Art. 81 of the Labor Code of the Russian Federation, in the form of a general ban on the dismissal of an employee at the initiative of the employer during a period of temporary incapacity for work and while on vacation (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur), an employment contract with the head of an organization cannot be terminated under clause 2 of Art. . 278 of the Labor Code of the Russian Federation during the period of his temporary incapacity for work or while on vacation.

Dismissal at the initiative of the manager

This common ground dismissal, as termination of an employment contract at one's own request, has one peculiarity in relation to the head of an organization - the manager must notify the employer (owner of the property, his representative) at least one month before dismissal (Article 280 of the Labor Code of the Russian Federation).

The resignation letter must be in writing. It is the presence of such a statement that serves as proof of the legality and validity of the dismissal. Indicative next example from judicial practice.

On October 18, 2011, the regional court considered the case on the cassation appeal of LLC “L” against the decision of the district court dated August 24, 2011. The district court reinstated S. as director of LLC “L” from June 30, 2011, and declared paragraphs 10, 11 and 12 of the decision of the extraordinary meeting of participants of LLC “L” illegal.

IN court hearing it was established that on June 29, 2011, an extraordinary meeting of the company’s participants made a decision to remove S. from the powers of director. At the same time, the plaintiff argued that he did not submit an application for resignation of his own free will or for the early resignation of the director.

The regional court agreed with the decision of the district court, indicating that on the basis of the minutes of the extraordinary general meeting of participants of LLC “L”, by order No. ... of June 29, 2011, S. was dismissed from his position. As stated in the order, the basis for S.’s dismissal was his statement. From the case materials it follows that S.’s written statement about the termination of his powers as director of LLC “L”, confirming his will to terminate the employment contract concluded with him, is missing; the plaintiff himself, when considering the case, denied writing such a statement. The absence of his will to dismiss is confirmed by the fact that during the extraordinary general meeting of participants on June 29, 2011, S. did not vote on this issue (while he is one of the founders), which was confirmed at the court hearing by the newly elected director of the company M .

In the case materials there are two copies of photocopies made from the inventory of the company's documents, transferred on July 1, 2011 to the newly elected director M., one of which contains an indication of the presence of S.'s application, the other does not contain such an indication. Under such circumstances, the court rightfully did not take into account the original of this inventory dated July 1, 2011, presented as evidence, which indicated the presence of S.’s application for termination of powers. Taking into account the circumstances established above, the court reasonably concluded that there was no voluntary expression of the will of plaintiff S., expressed in the manner prescribed by law, to terminate the powers of the director of the company and the illegality of his subsequent dismissal.

To whom should the head of the organization address a letter of resignation?

Naturally, writing such a statement “to yourself” makes no sense. In this case, the employer is understood as an authorized body or authorized persons who have the right to terminate the powers of the head of the organization (we have already mentioned them above).

Our director wrote a letter of termination and left it in the HR department with the words “send to the address and make sure the founders receive everything.” To whom should the manager convey his statements? Can he leave them like this in the HR department or with the secretary?

We believe that the manager himself must ensure that his application is sent. If the authority to terminate an employment contract with a director belongs to the board of directors (supervisory board), then the application should be submitted to the chairman of the board of directors (supervisory board), since it is he who organizes its work and also convenes meetings of the board of directors (supervisory board) of the company. If the decision on the issue of early termination of an employment contract is within the competence of the general meeting of shareholders (participants), then the manager must notify all shareholders or participants of his decision in writing. In state or municipal unitary enterprises, the manager submits the application to the person heading the body state power Russian Federation, government body of a constituent entity of the Russian Federation, body local government who perform the functions of property owner unitary enterprise.

In this case, the resignation letter may be sent by registered mail with acknowledgment of delivery. If in the future it is not possible to hold a meeting of the board of directors (supervisory board) or a meeting of the general meeting of shareholders (participants), then the director will be able to confirm the fact of sending the application.

IN joint stock companies the manager does not have the right to convene a general meeting of shareholders, unless he himself is a shareholder owning at least 10 percent of the company's voting shares. Therefore, if a manager wants to resign, it is not enough for him to warn shareholders about this; he must also achieve a general meeting of shareholders to make a decision on terminating his powers. He can make a corresponding request, for example, to the board of directors (supervisory board) of the company.

The head of a limited liability company is obliged to send the company’s participants an application for termination of the employment contract at least a month before termination of work, as well as notify them of the convening of a general meeting of participants (clauses 1 and 2 of Article 35, clause 1.2 of Article 36 of the LLC Law ).

The director sent a letter of resignation to the company's participants and a notice of convening an extraordinary general meeting to decide on the termination of his powers. But the participants ignored this information and did not attend the meeting. Thus, by the time the notice of dismissal expired, no decision had been made regarding the director. Despite this, the director issued an order to resign and stopped working. Did he have the right to do this?

Article 2 of the Labor Code of the Russian Federation enshrines the principle of freedom of labor and the principle of prohibition of forced labor. This means that the employer does not have the right to refuse the employee to terminate the employment contract. Consequently, if the head of the organization duly notified the authorized body of his desire to terminate the employment contract, and did everything in his power to hold a meeting of the board of directors (supervisory board) or a general meeting, then the employment contract is terminated upon expiration of the one-month notice period. Therefore, after the expiration of the notice period for dismissal, the director, like any other employee, has the right to stop working (Part 5 of Article 80 of the Labor Code of the Russian Federation).

Let's see what court decision was made in a similar situation.

The application for termination of powers of the general director of the LLC, the decision to hold an extraordinary general meeting and the notice of holding an extraordinary general meeting were handed to the company's participants in person or sent with a valuable letter with notice. According to the court, such a letter can be considered as proper notice to the employer of voluntary dismissal.

At the same time, the refusal of the participants from the general meeting actually deprived the general director of the right to terminate the employment contract.

Freedom of labor is enshrined in Art. 37 of the Constitution of the Russian Federation and Art. 2 Labor Code of the Russian Federation. In accordance with Art. 2 of the Labor Code of the Russian Federation, forced labor is prohibited, i.e., members of the company cannot deny the head of the organization the right to resign at his own request. The general meeting is necessary only to accept his application. Considering the director’s right to terminate the employment contract at any time, the inaction of the participants is nothing more than an abuse of right (clause 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

After a month has passed after the employer is notified of the termination of the employment contract, the director, on the basis of Art. 280 of the Labor Code of the Russian Federation had the right to stop work by issuing an appropriate order.

Dismissal by decision of the employer

The authorized body of the legal entity must decide on the early termination of the employment contract with the head of the organization. If we are talking about business societies, then such a decision is made either at a meeting of the board of directors or at an extraordinary general meeting of shareholders (participants).

In a limited liability company this problem may arise. According to Art. 35 of the LLC Law, an extraordinary general meeting of the company’s participants is held in cases determined by the company’s Charter, as well as in any other cases if the holding of such a general meeting is required by the interests of the company and its participants. In this case, the decision to convene a general meeting of the company’s participants, including at the request of the board of directors (supervisory board), is made by the head of the organization.

Let us recall that within five days from the receipt of the corresponding request to hold an extraordinary general meeting of the company's participants, he is obliged to make a decision on holding such a meeting or refusing to hold it.

But it is possible for the head of the company to abuse the right when, knowing about the agenda of the extraordinary meeting of shareholders, he deliberately delays its holding. This is especially true when deciding on the early termination of a manager’s powers, including for guilty actions.

He outlined his position on this matter Supreme Court RF.

The decision of an extraordinary general meeting of LLC participants to terminate the employment contract with the manager is lawful even in the event of a formal violation of the requirements established by the LLC Law for the procedure for convening a meeting.

In accordance with paragraph 2 of Art. 35 of the Law on LLC, an extraordinary general meeting of the company's participants is convened by the executive body of the company on its initiative, at the request of the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor, as well as the company's participants owning in the aggregate no less than one tenth of the total number of votes of the company's participants.

The Supreme Court of the Russian Federation does not agree with the point of view that holding an extraordinary general meeting of company participants regarding the termination of the powers of the director without notifying him of this is a direct violation of this norm, since the establishment in law of the obligation of the executive body to convene an extraordinary general meeting of company participants does not mean establishing a prohibition to hold such a meeting without his participation.

Thus, if according to constituent documents issues of formation of the executive body and early termination his powers fall within the competence of the general meeting of participants, the decision this issue at a general meeting of participants without the participation of the relevant official legal.

At the next general meeting of the company's participants, a decision was made on early termination of the employment contract with the director under clause 2 of Art. 278 of the Labor Code of the Russian Federation in the absence of his guilty actions. The director was not present at the meeting and the reasons for the dismissal are unknown to him. Is it necessary to somehow officially inform him in writing of the reasons for the dismissal, and can he challenge such a dismissal?

By a decision of the authorized body of a legal entity or the owner of the organization’s property, or a person (body) authorized by the owner, an employment contract with the head of the organization can be terminated unilaterally under clause 2 of Art. 278 Labor Code of the Russian Federation. The decision to terminate an employment contract with the head of a unitary enterprise is made by the body authorized by the owner of the unitary enterprise in the manner established by the Government of the Russian Federation, after preliminary approval by the certification commission.

At the same time, the law does not provide an approximate list of reasons and circumstances that may serve as a reason for the dismissal of the head of an organization on the grounds in question. Thus, formally the decision to terminate the employment contract with the head of the organization under clause 2 of Art. 278 of the Labor Code of the Russian Federation does not require any justification on the part of the competent person (body) who made such a decision.

This opinion is also shared by the Constitutional Court of the Russian Federation in Resolution No. 3-P dated March 15, 2005 - when dismissing the head of an organization on appropriate grounds, it is not necessary to indicate certain specific circumstances confirming the need to terminate the employment contract with him.

When formalizing the termination of an employment contract with the head of an organization, it is advisable to issue two orders: for the main activity - on termination of the powers of the manager and for personnel - on dismissal

But one cannot fail to take into account one of the most important principles of labor law - the prohibition of discrimination in the sphere of labor, when no one can be limited in labor rights and freedoms or receive any advantages depending on gender, race, skin color, nationality, language, or official position and other circumstances not related to business qualities(Article 3 of the Labor Code of the Russian Federation). Thus, a manager who suspects that he was fired for discriminatory reasons has the right to challenge his dismissal in court. And if the fact of discrimination is proven, the court will certainly declare the dismissal illegal. Therefore, we recommend that you inform the head of the organization in writing of the reasons for it. early dismissal so that there is no reason to accuse the employer of discrimination.

HOW IS TERMINATION PROGRAMMED?

According to Art. 841 of the Labor Code of the Russian Federation, the dismissal of an employee is formalized by order of the employer, regardless of the grounds for dismissal and the position held by the employee. Even if his position was the general director of the organization. In any case, there are no exceptions in this regard.

Is it necessary to issue an order to dismiss a manager?

Advice When formalizing the termination of an employment contract with the head of an organization, it is advisable to issue two orders: for the main activity - on termination of the powers of the manager and for personnel - on dismissal

The letter of Rostrud dated March 11, 2009 No. 1143-TZ states that “in the process of labor relations, the manager issues (including in relation to himself) orders (for example, about going on a business trip, vacation).” But business trips and vacations are one thing, hiring and dismissal are another. Therefore, often in practice, an order for personnel to dismiss a manager is not issued. Instead, the head of the organization issues and signs an order for the main activity on termination of the powers of the head ( appendix 2).

But in the provisions of the Labor Code of the Russian Federation on registration of dismissal, we are talking specifically about an order regarding personnel, and not about the minutes of a general meeting or a written decision of the owner of the organization’s property to terminate the employment contract with the head of the organization and not about an order regarding the main activity. We believe that, in addition to the above documents, it is also necessary to issue an order for the personnel on the dismissal of the manager.

Who should sign the personnel order to dismiss the manager?

Shareholders and members of the company are not authorized to issue administrative documents. Orders and instructions, including regarding personnel, are issued by the head of the organization on behalf of the employer.

Until January 1, 2013 in connection with the use of unified forms, approved. By resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1, the legality of formalizing the dismissal of the head of an organization by order of termination (resignation) of powers was questioned, since such an order did not correspond to the unified form No. T-8. However, from January 1, 2013, after the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” came into force, according to which employers (with the exception of organizations public sector) use their own forms of primary accounting documents for recording labor and its payment, the unified form No. T-8 has become optional. Employers can currently approve a form of dismissal order that would also be suitable for formalizing the termination of employment relations with the head of the organization.

Issuance of a work book

On the last day of work, the manager, like any other employee, must be issued a work book with a record of dismissal ( Appendix 3). Who will make such an entry is determined internal rules organizations.

According to clause 35 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved. By Decree of the Government of the Russian Federation dated April 16, 2003 No. 225 “On work books”, responsibility for maintaining, storing, recording and issuing work books is specifically borne by authorized person, assigned by order of the employer. This could be, for example, the head of the HR department. The employee responsible for maintaining work books, upon dismissal of the manager, certifies with his signature all entries made in the work book during his work in the organization, puts the employer's seal and invites the manager, for his part, to certify the entries made in his work book.

1 -1

The status of the company's CEO is ambiguous. On the one hand, it is determined by the norms corporate law, and on the other - labor. Read about what needs to be done, taking into account this dual specificity, in order to part with the director as painlessly as possible, and what to do if, after his dismissal, it turns out that he acted in bad faith.

The issue of dismissal of the general director of a company may arise in connection with the following circumstances:

the employee’s own desire;

agreement of the parties;

loss of trust;

change of owner;

founder's decision;

liquidation;

bankruptcy;

expiration of the employment contract;

retirement.

Moreover, all of the listed grounds for dismissal can be divided into two types - voluntary and forced dismissal from a position.

Based on federal laws dated December 26, 1995 No. 208-FZ “On Joint-Stock Companies” (hereinafter referred to as the JSC Law) and dated February 8, 1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as the LLC Law), the authorized body of the company makes the appropriate decision. The authorized body may be:

general meeting of shareholders;

meeting of LLC founders;

decision of the sole owner.

If the procedure is violated, the decision may be invalidated.

Let's consider possible situations dismissal of the CEO in more detail.

Dismissal at the request of the director or by agreement of the parties

Let's start with the simplest thing: the general director resigns by agreement of the parties or at his own request and the employer does not object.

In accordance with Art. 280 of the Labor Code of the Russian Federation, the head of an organization has the right to terminate an employment contract early by notifying the employer (the owner of the organization’s property, his representative) in writing no later than one month in advance. In this case, he sends a written notification by mail to the company’s registration address or personally delivers it to the founders. Moreover, if for an LLC this period is 30 days (Clause 1, Article 36 of the Law on LLC), then for a JSC this period is 50 days (Clause 1, Article 52 of the Law on JSC).

The dismissal procedure is as follows:

the general director sends written notice of the decision to terminate the employment relationship;

an extraordinary meeting is convened, at which a corresponding decision is made;

a dismissal order is issued;

an entry is made into the work book;

On the last day, the employee is paid in full upon dismissal.

In this case, it is necessary to appoint a person to whom powers will be transferred; this can be the acting general director.

The next stage is the procedure for making changes to the Unified State Register of Legal Entities. Information about the change of director must be submitted to the tax office within three days. To do this, you will need to have an application in form P14001 certified by a notary.

In case of violation of the deadlines, an administrative fine may be imposed under Art. 14.25 of the Code of Administrative Offenses of the Russian Federation in the amount of 5,000 rubles.

The owners of a company whose director is resigning must also ensure that the following actions are taken:

revocation of all powers of attorney;

transfer of all keys and electronic digital signatures(in relation to banks, reporting, for participation in electronic trading etc.)

replacement of bank cards;

transfer of all seals and stamps of the organization;

reporting on all entrusted amounts;

transfer of property of an organization in official use.

This list invites several comments. The fact is that changing the digital signature may take some time and this procedure must be taken care of in advance; it is possible that additional digital signature keys will need to be created in parallel for other employees, so as not to be left without the opportunity to sign documents during the change of the general director.

As for the transfer of property and documents, it will be in the interests of both parties to conduct an inventory of property, contracts and other significant things in order to avoid possible claims against each other. The process can be labor- and time-consuming, so it is better not to delay it and immediately appoint a commission that will deal with the transfer of cases.

The general director resigns of his own free will, but the employer is against his dismissal

A situation in which the CEO resigns voluntarily, but the business owners do not accept his “resignation,” seems to be a more difficult task. In this case, the director is still subject to all labor laws, but in order to go through this procedure with the least losses, you will have to take the following steps:

the general director will need to send notice of his desire to terminate the employment contract according to legal address company and/or place of registration of business owners;

At the same time, the general director will need to initiate a general meeting and, if the business owners do not take any action within a reasonable time, then independently relinquish his powers and transfer affairs. If it is impossible to transfer the affairs to a successor, and this could be one of the founders, if a new general director has not been appointed, you can transfer the documents to a notary. Another option is to keep the documents and transfer them to the founders upon request;

further, having a copy of the resignation letter and documents confirming the sending and/or receipt of the original resignation letter, the general director can make an entry in the Unified State Register of Legal Entities independently out of court. To do this, it is also necessary to have the application in form P14001 certified by a notary and send it to the tax authority.

It must be borne in mind that in this case a legal incident may arise - on the one hand, the company must have a general director indicated in the Unified State Register of Legal Entities, but the tax office has no reason not to remove the entry about the resigned director from the register (more about the approaches of the tax authorities and courts to resolve this issue, read the material “The director decided to resign, but society is against it: is it possible to cancel the entry about the director in the Unified State Register of Legal Entities?”, “EZh”, 2017, No. 33).

In the author’s practice, there was experience when the owner of the company was an offshore organization and in the process of dividing assets between the former owners, control and access to information and communication with the offshore legal entity were lost. As a result, the general director independently relinquished his powers:

made an entry in the Unified State Register of Legal Entities;

informed the banks about his dismissal;

canceled all signatures;

handed over the documents to the notary.

Dismissal of the director due to the expiration of the employment contract

According to Art. 275 of the Labor Code of the Russian Federation if, in accordance with Part 2 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract is concluded with the head of the organization; the validity period of this employment contract is determined by the constituent documents of the organization or by agreement of the parties. The consequences of the expiration of a fixed-term employment contract are provided for in Part 4 of Art. 58 and part 1 of Art. 79 of the Labor Code of the Russian Federation and apply, among other things, to labor relations between an organization and its leader, since no other special rules are established by labor legislation.

According to the established rules, the employee must be warned in writing about the termination of an employment contract due to its expiration at least three calendar days before dismissal, except in cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires. .

Since the general director is the head of the company, his responsibilities include, among other things, written notification of the termination of the employment contract with the employee due to its expiration. At the same time, legislation and judicial practice proceed from the fact that if a fixed-term employment contract is not terminated on time, the employee is not notified in advance about its expiration, then the fixed-term employment contract is transformed into an open-ended one in accordance with the provisions of Art. 58 Labor Code of the Russian Federation. This means that it will no longer be possible to dismiss an employee due to the expiration of the employment contract, and the issuance of a dismissal order will be unlawful. To prevent this from happening, the employee must be warned in time that the employment contract with him will not continue. To avoid conflict situations with a general director whose powers have come to an end, the owners can send notice of the expiration of his employment contract.

Thus, the procedure formally looks approximately the same as for voluntary dismissal; the difference will only be in the wording and article of the Labor Code of the Russian Federation.

Dismissal of the CEO by decision of the company's owners

According to Art. 279 of the Labor Code of the Russian Federation in case of termination of the employment contract with the head of the organization in accordance with clause 2 of Art. 278 of the Labor Code of the Russian Federation (in connection with the adoption by an authorized body of a legal entity, or the owner of the organization’s property, or a person (body) authorized by the owner of a decision to terminate an employment contract with a manager), in the absence of guilty actions (inaction) of the manager, he is paid compensation in the amount determined by the employment contract , but not less than three times the average monthly earnings.

As follows from paragraph 9 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated 06/02/2015 No. 21 “On some issues that arose in the courts when applying the legislation regulating the work of the head of the organization and members of the collegial executive body of the organization,” even in the absence of violations on the part of the director, owners may decide to change it at an extraordinary or regular meeting. At the same time, termination of an employment contract with the head of an organization on this basis is not a measure of legal liability and is not allowed without payment to the director of compensation provided for in Art. 279 Labor Code of the Russian Federation.

Dismissal will take place according to the same scheme as when terminating an employment contract at the director’s own request. The only thing to remember: such a decision of the founders in any case can be challenged in court for various reasons. For example, if the decision to dismiss was made in violation of the principles of inadmissibility of abuse of rights and (or) prohibition of discrimination in the world of work.

Dismissal by decision of the owners without payment of compensation is possible if the guilt of the general director is proven, for example, facts of theft are revealed, or a criminal case is opened. We emphasize that the guilt of the general director must be proven and documented. For example, if there is a shortage during an inventory, the involvement of the general director in theft must be proven, a criminal case must be opened; if his guilt is not proven during the investigation, then it will be impossible to dismiss him under this article without compensation.

Company expenses or lost profits are an even more difficult subject from the point of view of proving guilt. The director operates in market conditions and deals with certain commercial risks. Therefore, even with the involvement of expertise, it will be very difficult to prove guilt and, most importantly, intent to cause harm to the company.

It must be borne in mind that it is impossible to rely on assumptions and judgments as a reason for dismissal. Even the commission that identified the deficiency cannot be the body that makes a decision on the guilt of the employee.

Dismissal due to company liquidation

The process of dismissing the general director by decision of the founder during the liquidation of the organization will not differ fundamentally from the procedure for dismissing any other hired employee in this situation.

When liquidating an enterprise, the general director must be notified two months before the termination of the employment contract (Part 2 of Article 180 of the Labor Code of the Russian Federation). In this case, the employer may offer him to terminate the employment contract before the expiration of this period, but subject to payment of compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.

Upon dismissal due to the liquidation of the company, the director has the right to all types of severance pay and compensation that are provided for by the Labor Code of the Russian Federation for employees dismissed during liquidation - severance pay (Article 178 of the Labor Code of the Russian Federation), compensation for unused vacation, etc. In addition, the terms of employment The agreement with the director may also provide for additional payments in case of various types layoffs.

When a company is liquidated, it is possible to terminate the employment relationship with the director, even if he is on vacation, sick leave or maternity leave.

The dismissal of a director is a procedure that is related not only to labor legislation, but also to civil law in the part governing corporate legal relations.

Upon liquidation of an LLC labor relations with employees are terminated under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation on the basis of a decision on liquidation. The decision to liquidate can be made by the owners of the company or by the court.

Dismissal due to retirement

When the general director resigns of his own free will due to retirement, the employer is obliged to terminate the employment contract within the period specified in his application (Article 80 of the Labor Code of the Russian Federation). At the same time, labor legislation does not provide for such grounds for dismissal as reaching retirement age. On the contrary, in accordance with Art. 3 of the Labor Code of the Russian Federation, no one can be limited in labor rights and freedoms or receive any advantages depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, relationship to religion, beliefs, membership or non-membership of public associations or any social groups, as well as from other circumstances not related to the employee’s business qualities. Thus, if business owners are unwilling to continue cooperation with a CEO who has reached retirement age, they will have to be guided by other arguments. A possible reason for dismissal may be clause 2 of Art. 278 of the Labor Code of the Russian Federation with subsequent payment of compensation.

Termination of powers of the General Director due to his death

This, of course, is not exactly dismissal, but sometimes in practice you have to deal with such cases. The procedure may be complicated by the fact that the general director may be the owner of the company. In any case, the procedure should be as follows:

an order is issued to terminate the employment relationship on the basis of a certificate dated by the date of death in accordance with paragraph 6 of Art. 83 Labor Code of the Russian Federation;

a corresponding entry is made in the work book;

the personal card is closed;

All due payments transferred or issued to legal heirs.

At the same time, the organization needs to change keys, digital signature, etc., as well as appoint a new person acting as general director and make a corresponding entry in the Unified State Register of Legal Entities.

Dismissal of the general director - a foreigner

Foreign citizens are subject to almost the same labor legislation as Russian citizens, but there are some nuances. So, in accordance with paragraph 8 of Art. 13 of Federal Law No. 115-FZ of July 25, 2002 “On the legal status of foreign citizens in the Russian Federation” Russian employers are required to notify migration authorities of both the hiring of employees with foreign citizenship and their dismissal. For failure to fulfill this obligation within the three-day period established by law, organizations are subject to sanctions in the form of a fine of 800,000 rubles. or administrative suspension of activities for up to 90 days (Part 3 of Article 18.15 of the Code of Administrative Offenses of the Russian Federation).

General Director's Responsibility

According to current legislation, the general director may be subject to both administrative and criminal liability even after his dismissal. This is due to the fact that violations can be detected much later, for example, during an inventory or after passing tax audit.

Criminal liability of the director is provided for:

theft and losses, if intent and guilt are proven;

non-payment of wages;

non-payment of taxes.

In accordance with Art. 78 of the Criminal Code of the Russian Federation, a person is released from criminal liability if the following deadlines have expired from the date of commission of the crime:

two years after committing a minor crime;

six years after committing a crime of average gravity;

ten years after committing a serious crime;

15 years after committing a particularly serious crime.

Currently, the most pressing issue is the issue of liability for non-payment of taxes.

In accordance with Art. 199 of the Criminal Code of the Russian Federation for evasion of taxes, fees and (or) insurance premiums payable by an organization, liability for a fine of 100,000 rubles is provided. to imprisonment for a term of up to two years. And such an act committed by a group of persons by prior conspiracy or on a particularly large scale may entail imprisonment for a term of up to six years.

In this norm, a large amount is recognized as the amount of taxes, fees, insurance premiums, amounting to more than 5 million rubles for a period within three financial years in a row, provided that the share of unpaid taxes, fees, insurance premiums exceeds 25% of the amounts of taxes, fees payable , insurance premiums in the aggregate, or exceeding 15 million rubles, and especially large - an amount amounting to more than 15 million rubles for a period within three financial years in a row, provided that the share of unpaid taxes, fees, insurance premiums exceeds 50% of the due payment of taxes, fees, insurance premiums in aggregate, or exceeding 45 million rubles.

Thus, even after dismissal, the CEO may be held liable for actions committed while working for the organization.

Let us also recall that on June 28, 2017 the Federal law No. 488-FZ dated December 28, 2016, developing provisions on subsidiary liability of directors for company debts arising as a result of their dishonest and unreasonable behavior.

FYI

What should you pay attention to when terminating an employment contract with a general director?

Does the employee fall into the category of employees with children under three years of age who are on sick leave due to temporary disability?

What forms of violations and grounds for dismissal are specified in the employee’s employment contract?

• What compensation is specified in the employee’s employment contract?

Availability of a concluded employment contract.

Availability job descriptions employee.

What powers does the general meeting of participants have according to the company's charter?

If non-compliance is detected official duties or theft, have the deadlines for bringing administrative or criminal liability been met and have the formalities of drawing up documents been completed?

Judgment

An example of holding a director liable for the company's losses is a dispute in which the court upheld the founder's claim against former director on the recovery of losses in the amount of about 8 million rubles that arose as a result of the director concluding a number of contracts on behalf of the company with shell companies. The amount of losses was confirmed by the materials of an on-site tax audit, during which it was discovered that the director had understated the tax base and failed to pay income tax, in connection with which the company was brought to tax liability in the form of a fine and penalty (resolution of the Tenth Arbitration Court of Appeal dated March 23, 2015 No. 10AP -18605/2014 in case No. A41-36477/14).

In another case (resolution of the Moscow City Court dated September 30, 2015 No. 4у/2-4866/2015), the director’s conclusion of fictitious contracts in order to inflate the organization’s expenses in order to reduce the tax base for VAT and income tax became the basis for bringing him to criminal liability with punishment in the form of imprisonment for a term of one year and ten months in a correctional colony general regime. In addition, in a civil suit, the court decided to recover more than 20 million rubles from the director. to state income.

Another example is the decision of the AC Sverdlovsk region dated July 10, 2016 in case No. A60-28209/2016. In this case, the prosecutor filed an application to bring the general director to justice under Part 2 of Art. 14.12 of the Code of Administrative Offenses of the Russian Federation for the deliberate bankruptcy of the company, but the court did not consider the evidence presented by the prosecutor to be sufficient and refused to satisfy his application.

Every organization must have a governing body, which is always the director of the company. But this person himself, as a rule, in turn, is a hired employee who carries out activities on the basis of a contract signed with him labor agreement. For a number of reasons, it can be terminated, for example, the general director can be dismissed at his own request.

The dismissal of a director at his own request is carried out differently from the dismissal of a simple ordinary employee. These differences stem from the position in which he worked and what powers he had.

The main differences between the dismissal of a director are:

• The director makes a contract not with himself, but with the owners of the company. And if there are several such founders, then each must be sent a written notice, or a general meeting must be announced and the issue of dismissing the old manager and appointing a new one must be raised.
• Due to the need to notify the owners and appoint a new manager, the notice period for a director to be dismissed at his own request has been increased to 1 month.
• The owners have the right to dismiss the director if the company is sold to other persons, due to making wrong decisions that damage the company, due to bankruptcy, etc.
• When dismissing a director, it is imperative to notify not only the partners of the company, but also government agencies (for example, the tax office), banks, etc. about this event.
• To exclude a period of “anarchy,” when an old director is dismissed, a new one should be immediately appointed in his place.

Attention! An ordinary employee submits an application 2 weeks before the desired date, and the director must submit it at least a month in advance, according to Art. 280 Labor Code of the Russian Federation.

Dismissal of the director of an LLC at his own request: registration in 2019

Let's look at how to fire a director step by step.

Step 1. Submit a resignation letter

In order to express your desire to resign from the position of director, you must draw up a statement about this. The structure of this document is slightly different from the application of an ordinary employee.

Attention! Secretary or personnel worker must register the document and make as many copies of it as the founders of the company have. On each of them you need to put a stamp “Copy is correct” and certify it with a signature.

Step 2. Convening a general meeting of founders

To carry out the dismissal procedure, you need to convene an extraordinary general meeting of the founders. To do this, each of the founders of the company is sent a notice of convening the meeting by registered mail with acknowledgment of receipt.

Also, each letter must include a list of attachments indicating all attached documents.

The charter of the company may indicate another method by which it is necessary to conduct a meeting of participants. However mailing list yet it is a fairly simple and reliable method.

Letters are sent to the addresses of participants indicated in the Unified State Register of Legal Entities or the current register. If a situation arises that the same person has different addresses in the statement and in the register, then it is necessary to send a letter to each of them.

The main attachment of the letter is a message that must indicate the place, time and date of the extraordinary meeting. You can also put down the future agenda here - termination of the contract with the director of the company.

The director also signs the document in the familiarization column. After this, the order is registered in the order book.

Step 4. Make a note of dismissal in your personal card

Step 5. Making an entry in the labor record

Like an ordinary employee, the director needs to do. It should be composed like this: “The employment contract was terminated at the initiative of the employee, paragraph 3 of Article 77 of the Labor Code of the Russian Federation”.

Column 4 records not the details of the order, but information about the minutes of the meeting of participants, how the dismissal of the manager was accepted.

The employment certificate must be handed over to the director on his final working day in the company. Upon receipt, he must also put the visa in the labor register.

Step 6. Compose a note-calculation and carry out the calculation

When dismissing a director, like an ordinary employee, it is necessary to make a full settlement with him for the amounts due to him. To do this, the accountant must carry out calculations and enter this information into.

Upon dismissal, the director is entitled to the following payments:

• Wages for the time worked.
• , if it has been used in full.
• Severance pay, if it is provided for in the employment contract or in.

Important! If on the last day of work no settlement was made with the dismissed person due to his absence, then the money must be paid later than the next day from the date of presentation of the demand.

Step 7. Issue work-related documents to the employee

On the last day of work, the dismissed person must be given the following documents:

• A work book with an entry on the termination of the employment contract included in it. At the same time former employee must sign in the Book of movement of work books and inserts to it on receipt of this document.
• about the amount of income received over the last 2 years. Required for calculation sick leave at a new place of work.
• At the employee's request, certified copies of documents related to his or her employment may be provided. labor activity: copies of orders, statements, etc.
• Information about paid and accrued payments to the Pension Fund.
• . This new form applied since 2017.

Important! If an employer does not issue a certificate in the SZV-STAZH form upon dismissal, then a fine of up to 50 thousand rubles may be applied to him.

Step 8. Notifying government agencies

Under an ideal set of circumstances, the dismissal of the old director and the appointment of a new one occur simultaneously. Therefore, all concerned authorities must be notified about this.

An application for a change of manager, Form 14001, is drawn up and submitted to the tax office. This must be done within three days from the date the new manager accepts the position. His signature must be notarized.

Attention! If the specified deadlines are not met, a fine will be imposed on the company. After receiving this document, INFS itself notifies all extra-budgetary funds.

Step 9. Other actions

If the director was a person liable for military service, then it is necessary to notify the military registration and enlistment office within two weeks from the date of dismissal. To do this, you must send a notification to the military registration and enlistment office either by mail or by personally visiting this government agency.