If we dismiss the director’s gene, do we consider compensation? The procedure for the dismissal of the head of the company by agreement of the parties and the compensation paid. Compensation for the early dismissal of the director

The employer may fire the head of the organization without giving reasons. Upon dismissal, the type of employment contract does not matter (fixed-term or fixed-term). However, it is always necessary to pay compensation upon dismissal. We will figure out how and in what amount it is necessary to pay compensation to the dismissed employee. We will help you understand how it differs from severance pay.

Who is entitled to compensation for dismissal by decision of the owner

If the dismissal occurs according to the decision of the owner, then compensation is due only to the head of the organization (director, general director). The head of the branch or representative office is paid only when he performs the functions of the sole executive body.

Compensation is not paid to employees who manage only certain areas of the company, as well as individual entrepreneurs.

When compensation is paid, and when severance pay upon dismissal of the director

Compensation is always paid upon dismissal of the director by decision of the authorized body, namely the owner of the property, board of directors, etc.

The decision to terminate the employment contract with the director should be the responsibility of the authorized body in accordance with the law or the charter of the enterprise. And the employer is not required to voice the reason for dismissal.

If the directors are transferred to another position, then in this case the contract with him is not terminated and compensation is not paid, but simply an additional agreement is concluded indicating the new functions.

Compensation is paid upon dismissal to the director by decision of the authorized body or change of ownership.

Compensation for dismissal is not a severance pay.

Severance pay is paid to any employee if they terminate the employment contract for certain reasons.

List of grounds for severance pay:
liquidation of the enterprise;
Reduction in the number or staff of employees in the enterprise;
Refusal to transfer to another job, which is necessary for medical reasons;
The employee is called up for military service;
Reinstatement of an employee who has previously performed this position;
Refusal to transfer to another locality with the employer;
Refusal to continue work in connection with a change in the terms of the employment contract.

What amount of compensation is due upon the dismissal of the director

TO compensation to the director upon dismissal It is paid provided that he did not commit the guilty acts (inaction) (Article 279 of the Labor Code of the Russian Federation).

The legislation does not determine the amount of compensation for the dismissal of the director. The amount of compensation should be specified in the employment contract, but not less than the average monthly earnings of the director in three times.

If the termination of the employment contract with the director is due to guilty actions, then compensation is not provided.

If the amount of compensation payment is not defined in the employment contract, then it can be indicated in the minutes of the general meeting. In case of non-payment of compensation, the former director may apply to the court, which determines the amount of payment itself.

When determining the amount of payment, the following circumstances will be taken into account:

the duration of the dismissed director in this position;
time until the expiration of the fixed-term employment contract;
the amount of wages that a dismissed person could receive if he continued to work in the company;
additional expenses that the employee may incur as a result of dismissal.

The maximum size is not provided by law, but should be reasonable. If the court concludes that the size of the payment violates the interests of the organization or other employees, then it can reduce it

Director dismissal procedure

When dismissing the director at the enterprise, it is necessary to take actions that are presented in the table:

Preparation of a protocol on termination of an employment contract	This document must indicate the reason for dismissal. As a basis, there may be a director’s statement of resignation of his own free will, an agreement of the parties, a decision of the participants, a memo on the director’s actions under article 81 of the Labor Code of the Russian Federation.
Issuing an order	The order is issued in the form of T-8 and is registered in the journal
The transfer of cases	The director transfers to the employer the affairs and property of the enterprise under an act
Settlement with an employee	Salary and compensation for unused vacation paid
Filling out a personal card	A record of dismissal in the form T-2 is entered in the personal card. With the record you need to familiarize yourself with the list.
Employment record	A record of dismissal is entered in the work book and handed out to the director
Notify Bank	It is necessary to notify the bank about the dismissal of the director, in which the current account of the enterprise is opened
IFNS Notice	Within three days, the Federal Tax Service must be notified of the dismissal of the director and the transfer of authority to another manager in accordance with form 14001

Liability of the employer for non-payment of compensation upon dismissal of the director

On the last day of the director’s work, the employer must fully settle with him, namely, pay wages for hours worked, compensation for unused vacation time and due compensation upon dismissal.

The employer will violate the procedure for terminating the employment contract if he does not pay the laid-off manager the due compensation and at the same time incur large losses. In this case, the employee can go to court and recover not only the amount of compensation, but also the interest for each overdue child, as well as compensation for non-pecuniary damage. In addition, the employer bears administrative and criminal liability for non-payment or violation of the terms for payment of compensation.

Typical Mistakes When Dismissing a Director

Error: The employer hired a director with whom they entered into an employment contract. Only it did not spell out the payment of compensation upon dismissal. When the director was dismissed by decision of the authorized body, compensation was not paid.

It is generally accepted that leadership positions are subject to different rules than ordinary ones. At the same time, in terms of dismissal, the procedure is not much different, the only thing - there can be more reasons for terminating the employment contract with the head of the enterprise. But, as in the general case, compensation will be paid to the director upon dismissal.

Additional grounds for dismissal of the director of the company

Along with the standard reasons for dismissal of employees, there are also special reasons for the dismissal of directors of enterprises:

The director may be dismissed from the position of the head of the debtor company due to its bankruptcy.
Directors can be asked to make room by decision of the owner of the enterprise or authorized body without explanation.
The manager may be removed from office on the grounds listed in article 278 of the Labor Code of the Russian Federation.

As a rule, the director of the company leaves his place by personal will, by agreement with the employer, because of violations of the law or by decision of the authorized bodies. The easiest way to terminate the relationship is by mutual agreement - then the matter will not go to court proceedings. The law in such a situation provides only one option for canceling the dismissal - the simultaneous refusal of the employer to dismiss the director and the desire to stay in his place of manager. But then there’s nothing to go to court - you can re-sign a cooperation agreement.

The company and its owner are obligated to provide the director with some labor guarantees, including compensation for dismissal. If nothing was said in the employment contract on compensation, this does not mean that you will not have to make a payment - the law says that this is an indispensable condition for early termination of the contract with the director on the initiative of the employer.

Another feature of the dismissal of the director of the company is the need to warn of upcoming resignation by personal will at least 30 days before the date of actual departure from work. Longer training than in the general case is connected with the fact that finding a new leader is much more difficult than an ordinary employee. Plus, for this month, the director must clarify the situation to his successor or temporary substitute.

If the Director General leaves the workplace of his own free will, compensation is not due to him, unless it is stipulated by the employment contract.

Dismissal of a manager may result from disciplinary violations. You can fire a director if:

He at least once violated the duties that are assigned to the CEO:
- committed a violation of labor protection;
- illiterate took into account material values;
- incorrectly conducted statistical reporting;
- exceeded authority to receive benefits.
He gave an order, because of which the integrity of the property was violated, the company's property was unlawfully applied, or the company was damaged.

Before dismissing the director and recovering funds from him for lost property or anything else, you need to prove his guilt and degree of guilt.

How compensation is paid to the director upon dismissal, if there is no clause on its payment in the contract

If the conditions for the fulfillment of the duties of the employee, indicated in the employment contract, worsen his position, which is defined at the legislative level, such conditions are invalid.

An employment contract is developed in such a way as to pre-negotiate and secure the obligations and rights of the parties to the agreement, to register the position, salary, any additional payments and allowances, as well as the procedure for terminating the contract.

Despite the importance of the employment contract, first of all, care must be taken to comply with the provisions of federal normative acts, since they always have priority over any local acts of companies. Therefore, even if the employment contract does not contain a clause on the payment of compensation to the dismissed director, it is necessary to pay it, since he is losing his place of work not of his own free will.

When the director of the enterprise is dismissed, an act is drawn up between him and the owner of the company (signed by the person taking the case), which states:

important points related to the functioning of the company;
the current state of affairs in the company;
material assets transferred by the manager upon dismissal;
the fact of the transfer of certificates of ownership of real estate, primary accounting documentation, licenses, registration and constituent documents;
a list of agreements and contracts that were signed during the work of the company when managing the director;
a list of powers of attorney that were issued by the company to transfer certain powers to someone, and issued bills.

On the last day of work, the director must familiarize himself with the order for his dismissal, after which the documents are transferred to the accountant and the employee of the personnel department. The manager on the same day will receive a work book with a record of the reasons for dismissal and the balance of the money he earned. He will be paid a salary for the last month, compensation for the vacation for which he had the right, did not have time to take it, severance pay in case of dismissal not of his own free will and not for disciplinary actions or violation of the law.

How much compensation is paid to the director upon dismissal?

If the employment contract does not contain instructions regarding the payment of compensation to the dismissed director, the amount is determined in accordance with applicable law and is paid only when the dismissal occurred by decision of the employer and not for the guilty actions of the director.

The amount of compensation that will be paid on the day of dismissal of the head of the enterprise should be indicated in the employment contract. In any case, its size should not be lower than the average monthly salary of the director for the previous 3 months (or 6 months if the company operates in the Far North and equivalent areas).

The above does not apply to managers who have lost their jobs for allowing guilty acts or who have decided to leave the enterprise by their own will. But the director can count on such a payment, but only if the employment contract provided for a generous amount of compensation.

Related Legislation

Common mistakes

Error: The employer hired a CEO. They entered into an employment contract that did not stipulate payment of compensation upon dismissal. When the director was dismissed by decision of the authorized body, compensation was not paid.

. The issue of compensation to the former director. Retired according to Article 278, Clause 2. Article 279 shall enter into force. But I didn’t conclude an employment contract for 7 years of directorship. I was vested with authority until 3.12.16 for one year. According to the charter for 5 years. They paid compensation for only 3 months. Is it right ???
? Alexander

Hello, Alexander!

The issues of the correct application of Part 2 of Article 278 of the Labor Code of the Russian Federation and Article 279 of the Labor Code were considered in the Constitutional Court of the Russian Federation ... In particular, in paragraph 4.2 (Resolution of the Constitutional Court of the Russian Federation of March 15, 2005 No. 3-P, the following is indicated

Among such guarantees is the payment of compensation for the early termination of an employment contract with the head of the organization as provided for in article 279 of the Labor Code of the Russian Federation in the amount determined by the employment contract.

Within the meaning of the provisions of this article in conjunction with the provisions of article 278

The Labor Code of the Russian Federation, the payment of compensation is a necessary condition for the early termination of the employment contract with the head of the organization in this case.
The legislator does not establish a specific amount of compensation and does not limit it to any limit - the amount of compensation is determined by the employment contract, i.e. by agreement of the parties.
Based on the purpose of this payment - to compensate to the maximum extent possible to the dismissed person the adverse consequences caused by the loss of work, the amount of compensation may be determined taking into account the time remaining until the expiration of the employment contract, those amounts (labor remuneration), which the dismissed person could receive while continuing to work as the head of the organization, additional expenses that he may have to incur as a result of early termination of the contract, etc.

, The absence in the employment contract of the conditions for the payment of compensation and its amount, in particular for the reason that the contract was concluded before the entry into force of the Labor Code of the Russian Federation, and the necessary changes were not made, does not relieve the owner of the obligation to pay compensation(by virtue of part two of Article 424 of the Labor Code of the Russian Federation, which establishes the rules for applying the norms of this Code; by virtue of part two of Article 424 of the Labor Code of the Russian Federation, which establishes the rules for applying the norms of this Code

From the above right position of the Constitutional Court of the Russian Federation should draw the following conclusions:

The amount of compensation according to Article 279 of the Labor Code is established by agreement of the parties to the employment contract. Agreement ...

The absence in the employment contract of the conditions for the payment of compensation and its amount does not exempt the owner from the obligation to pay it.

The amount of compensation may be determined taking into account the time remaining until the expiration of the employment contract, the amounts (remuneration) that the dismissed could receive while continuing to work as the head of the organization,

The same legal position is set out in the definition of the Supreme Court of the Russian Federation

In paragraph 4.1 of the Decree of the Constitutional Court of the Russian Federation of March 15, 2005 N 3-P, it was stated that the federal legislator, without imposing on the owner, with the exception of the general rules for terminating the employment contract with the employee at the initiative of the employer, the obligation to indicate the reasons for dismissal of the head of the organization on the basis of provided for in paragraph 2 of article
278 of the Labor Code of the Russian Federation, does not consider
termination of the employment contract on this basis as a measure of legal liability, since it is based on the fact that the dismissal in this case is not caused by the unlawful behavior of the head - in contrast to the termination of the employment contract with the head of the organization on the grounds related to the commission of guilty acts (inaction).

Giving the owner the right to decide on
early termination of the employment contract with the head of the organization - by virtue of Articles 1 (part 1),
7 (part 1),
8 (part 1),
17 (part 3),
19 (parts 1
and 2), 34 (part 1),
35 (part 2),
37 and 55 (part 3)
Constitution of the Russian Federation - implies, in turn, the provision of
the latter with adequate legal guarantees of protection against negative consequences,
which may come for him as a result of job loss, from the possible
arbitrariness and discrimination (paragraph 4.2).

Such guarantees include those specified in Section 279.
Labor Code of the Russian Federation compensation for early
termination of the employment contract with the head of the organization in the amount of,
determined by the employment contract. Within the meaning of the provisions of this article
in conjunction with the provisions of Article 278 of the Labor Code of the Russian Federation, payment of compensation is necessary
condition for early termination of the employment contract with the head of the organization in this case.

Consequently, non-payment to the employee of such compensation at
provided that he did not commit any guilty acts giving rise to his dismissal, should be considered as a violation by the employer of the dismissal of the employee.
If the dismissal was made in connection with the guilty
failure of the head of the organization to fulfill his duties, the employer must indicate the specific reason for dismissal and, when resolving the dispute, submit evidence in court that confirms that the early termination of the employment contract was caused by the guilty actions of the head.

The absence in the employment contract of the conditions for the payment of compensation and its amount does not relieve the owner of the obligation to pay compensation.

The issue of the amount of compensation, as follows from Article 279 of the Labor Code of the Russian Federation, should be decided by agreement of the parties, and not the owner unilaterally.

Amounts payable should be determined by agreement between the head of the organization and the owner, and in the event of a dispute, by decision of the court, taking into account the actual circumstances of the particular case, the purpose and nature of this compensation payment.

Thus, the termination of the employment contract under paragraph 2 of Article 278
The Labor Code of the Russian Federation is not a legal measure
responsibility and not allowed without fair compensation, the amount of which is determined by the employment contract.

Alexander, I believe that you are entitled, on the basis of the legal position of the Constitutional Court of the Russian Federation and the Armed Forces of the Russian Federation, to demand from the employer the payment of fair compensation corresponding to the earnings that you would have received if there had not been an early termination of the contract (earnings until 3.12.16).

If the dispute with the employer about the amount of compensation reaches the court, you have a real chance to win the case.

Note: stated: the legal position of the Constitutional Court of the Russian Federation and the Armed Forces of the Russian Federation does not apply to the positions of leaders specified in Article 349.3 of the Labor Code of the Russian Federation (for heads of municipal and state organizations, the law sets the maximum compensation in the amount of three times the average monthly salary.)

TO compensation to the director upon dismissal It is paid provided that he did not commit the guilty acts (inaction) (Article 279 of the Labor Code of the Russian Federation).

The amount of compensation is established by the employment contract, but not less than the average monthly earnings of the director in three times. When concluding an employment contract with a director, the contract should establish the amount of compensation in the event of his innocent dismissal. If this does not happen, its size can be determined and fixed later in an additional agreement.

Compensation to the director upon dismissal in the absence of such a condition in the employment contract.

Sometimes the compensation condition is not included in the employment contract with the manager either at the time of employment or later. According to some employers at dismissal of the director based on paragraph 2 of Art. 278 TC, the organization should not pay compensation.

However, the RF Armed Forces does not agree with this. The VS believes that the absence of a condition on the payment of compensation and its amount in the employment contract with the director does not relieve the organization of the obligation to pay compensation (Definition of the RF Armed Forces of January 25, 2008 No. 5-B07-170).

The obligation to pay compensation arises for the owner of the organization in those cases when the contract was concluded before the entry into force of the Labor Code of the Russian Federation, and the necessary changes were not made to it. The dismissal of the head without payment of compensation, if he did not commit the guilty acts giving rise to his dismissal, is a violation of the dismissal order. The court may decide to reinstate the dismissed person at work.

The amount of compensation to the director upon dismissal

The amount of compensation to the director in the event of his innocent dismissal is determined by the employment contract concluded with him.

If there is no compensation clause in the contract, it should still be paid. But the question arises - in what size?

If the condition for compensation is not included in the employment contract, the parties to the contract may conclude an additional agreement to it immediately before filling out the dismissal. In it, they will fix the amount and procedure for payment of compensation.

If no agreement is reached. In the event of a dispute between the owners of the company and the dismissed director, a decision on the amount of compensation and the procedure for its payment may be taken by the court taking into account the actual circumstances.

The amount of compensation may be determined on the basis of the time actually worked by him, the time remaining until the expiration of the employment contract, as well as the amount of earnings that the manager could have received if he continued to work, and the additional costs that he would be forced to incur as a result of early termination contract.

Compensation for the dismissal of the director of personal income tax is not taxed. It is this approach that tax and financial authorities adhere to in practice. This approach finds support in the courts.

There are no related articles yet.

1. Upon dismissal under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation to the head, in accordance with Art. 279 of the Labor Code of the Russian Federation, compensation must be paid in the amount determined by the labor contract, but not lower than three times the average monthly salary. Since in the case under consideration, the amount of compensation for this situation is not defined in the employment contract with the Director General, upon dismissal the Director General must be paid an amount in the amount of three times the average monthly salary.

Article 139 of the Labor Code of the Russian Federation establishes a uniform procedure for calculating the average earnings for all cases when it is necessary to determine it in accordance with the norms of the Labor Code of the Russian Federation (vacation pay, business trip and other cases). The calculation of the average monthly income when paying compensation to the head on the basis of Art. 279 of the Labor Code of the Russian Federation is no exception and is also made according to the rules established by Art. 139 of the Labor Code of the Russian Federation and the Regulation on the features of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of 12.24.2007 No. 922.

It should be noted that this guarantee is valid only in the absence of guilty actions (inaction) by the head. The decision of the Constitutional Court of the Russian Federation dated March 15, 2005 No. 3-P states that the dismissal of the head under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation for committing guilty acts (inaction) cannot be carried out without specifying specific facts that indicate the leader’s unlawful behavior, his fault, without observing the procedure established by law for applying this liability measure, which in case of a dispute is subject to judicial review.

Thus, taking into account the aforementioned resolution, the head of the organization dismissed under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, does not have the right to compensation if the dismissal was made in compliance with the stipulated by Art. 193 and 195 of the Labor Code of the Russian Federation for the application of disciplinary action. Judicial practice confirms this conclusion (determination of the Supreme Court of the Russian Federation of 03.03.2005 No. 5-B05-156, resolution of the Presidium of the Moscow Regional Court of October 15, 2008 No. 565).

2. The procedure for filling out workbooks is established by the Rules for maintaining and storing workbooks, making blank workbooks and providing employers with them, approved by the Government of the Russian Federation dated 04.16.2003 No. 225 “On workbooks” (hereinafter - the Rules), as well as the Instructions for filling out workbooks books approved by the Ministry of Labor of Russia dated 10.10.2003 No. 69 (hereinafter - the Instruction).

Subject to the requirements of clause 5.5 of the Instructions, the wording of the entry in the work book (and therefore in the order of dismissal) should be as follows: “Dismissed in connection with the decision by the authorized body of the legal entity to terminate the employment contract, clause 2 of Article 278 of the Labor Code of the Russian Federation ".

According to paragraph 10 of the Regulation, all entries in the work book, including the entry on dismissal, are made on the basis of the relevant order. Clause 5.1 of the Instruction establishes that in the column “Name, date and number of the document on the basis of which the entry is made” in the work book, the details of the order (instruction) or other decision of the employer are entered. Thus, in the labor book as the basis for dismissal of the employee, it is precisely the corresponding order (order) of the employer that is indicated, and not the protocol of the general meeting of participants.

3. The dismissal order must be drawn up according to the unified form of the order (order) on the termination (termination) of the employment contract with the employee (dismissal) (form No. T-8), which was approved by the RF State Statistics Committee dated 05.01.2004 No. 1 1. According to the instructions for filling out form No. T-8, the order is drawn up by a personnel officer, signed by the head of the organization or a person authorized by him.

The General Director without a power of attorney acts on behalf of the company, including approving the states, issues orders and gives instructions binding on all employees of the company (Clause 3, Article 40 of the Federal Law dated 08.02.1998 No. 14-ФЗ On Limited Liability Companies "). It seems obvious that the General Director has these powers throughout the work, including on the last day of work.

Thus, the director general has the right to sign the order of his dismissal on the last day of work. In the event that on this day the general director for some objective reasons (for example, due to temporary disability) did not work or did not sign the order on his dismissal, this can be done by a person authorized by him to sign such orders.

1 Since January 1, 2013, the use of standardized forms of documents is not mandatory; companies can approve and use their forms.

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