The decision of the sole founder to dismiss the director is sample. How to fire an LLC director - step by step instructions. Dismissal upon liquidation

How to dismiss a founder as a director?

According to the provisions of Articles 33, 40 of the Law "On Companies ..." dated 08.02.1998 No. 14-FZ, the appointment and dismissal of the head of the LLC is within the competence of the meeting of the company's participants. A society can be run either by an outsider or by one of its participants. An employment contract with the management company on its behalf is signed by the participant who presides over the meeting, who in this case represents the employer.

The legal status of a director of a company, by virtue of Article 274 of the Labor Code of the Russian Federation, is determined in addition to regulatory acts by an employment contract - therefore, the norms of the Labor Code of the Russian Federation are applied to his activities, as well as to any other employee. However, it is important to take into account the features listed in Chapter 43 of the Labor Code of the Russian Federation.

Reasons for dismissal

The general list of grounds for dismissing the director of an LLC is listed in Article 77 of the Labor Code of the Russian Federation. However, in addition to the initiative of the director himself (article 80 of the Labor Code of the Russian Federation), the employer (article 81 of the Labor Code of the Russian Federation) or an agreement of the parties (article 78 of the Labor Code of the Russian Federation), special ones can be applied to the company's director:

expiration of the contract, since, in accordance with Article 59 of the Labor Code of the Russian Federation, both an unlimited and a fixed-term contract can be concluded with the director;
the decision of the LLC participants to dismiss the director in accordance with Article 278 of the Labor Code of the Russian Federation.

It is important to emphasize that dismissal on the basis provided for in Article 278 of the Labor Code of the Russian Federation may also be unmotivated. Moreover, as noted in paragraph 9 of the resolution of the Plenum of the RF Armed Forces "On some ..." dated 02.06.2015 No. 21, dismissal in this case is not a measure of legal responsibility - accordingly, on this basis, both a fixed-term and an unlimited contract can be terminated. However, the company must pay compensation to the director in the amount of at least 3 months' average earnings, in accordance with the requirements of Article 279 of the Labor Code of the Russian Federation.

In addition, when making such a decision, all participants must vote unanimously. If a participant who is a director votes against such a decision, the procedure for its adoption must strictly comply with the charter of the LLC and the norms of the Federal Law No. 14. This requirement is objective in view of the fact that, by virtue of Article 43 of the Federal Law No. 14, the director-participant of the LLC has the right to appeal in court not only dismissal, but also the very decision of the general meeting of participants, which a director who is not a member of the company cannot do.

Dismissal procedure

The procedure for dismissing a director includes several stages:

The decision to terminate the powers of the director by the participants of the company, made regardless of the grounds for dismissal, since only in this way can the dismissal of the director be initiated (Article 33 of the Federal Law No. 14). Also, the need to make such a decision is reflected in the letter of Rostrud dated 11.03.2009 No. 1143-TZ. In addition, the decision should clearly define the last day of the director's work, the procedure and terms for transferring cases to a new leader.
Issuance of a dismissal order. In this case, the signature under such an order must be signed either by the director himself or by another authorized employee (this issue is discussed in more detail in the corresponding article). With the content of the order, the dismissed person, by virtue of Article 84.1 of the Labor Code of the Russian Federation, must be notified against his signature.
Making an entry on the termination of the contract in the work book, in accordance with article 84.1 of the Labor Code of the Russian Federation. Rostrud's letter No. 1143-TZ in relation to this situation establishes that if the head is dismissed by virtue of Article 278 of the Labor Code of the Russian Federation, then the work book is filled in by an authorized person (he can be a personnel worker or a person who has entered into an employment contract with the director). As for the grounds, in this situation it is the decision of the LLC participants, drawn up on the basis of their general meeting.
Calculation and issuance of a work book on the last day of the director's work.

Who should be notified of the director's dismissal?

According to paragraph 2 of Article 40 of Federal Law No. 14, the director has the right to sign and represent the organization without presenting a power of attorney. In this regard, its change should be notified, in accordance with article 5 of the law "On state ..." dated 08.08.2001 No. 129-FZ, the tax inspectorate (to amend the Unified State Register of Legal Entities). The notice period is 3 days from the date of appointment of a new director. The application for making adjustments itself is submitted in the form No. Р14001 (approved by the order of the Federal Tax Service of the Russian Federation "On approval ..." dated 25.01.2012 No. ММB-7-6 / [email protected]).

In addition to the tax inspectorate, it is necessary to notify the banks servicing the organization's accounts, as well as counterparties, about the change of director, if it is required to fulfill existing agreements or sign new ones.

Dismissal of the director - founder of the LLC of his own free will and upon liquidation of the company

When the director leaves his post of his own free will, remember that he must notify other participants about this in advance. According to article 280 of the Labor Code of the Russian Federation, this must be done in writing 1 month before the expected date of dismissal. In addition, Rostrud's letter No. 1143-TZ states that the director should be warned about his dismissal by the participant who, on behalf of the company, was the signer of the employment contract with him.

Don't know your rights?

However, the monthly period, as indicated by article 80 of the Labor Code of the Russian Federation, can be reduced by agreement of the parties to the labor contract. Accordingly, the issue of dismissal before the expiration of this period can only be resolved by the general meeting of the company's participants.

Dismissal upon liquidation

In the event of the liquidation of an LLC, the director, as well as all other employees, must be notified of the upcoming dismissal 2 months before the specified event, in accordance with the requirements of Article 180 of the Labor Code of the Russian Federation. Notices are sent in writing.

It is also important to remember that upon dismissal in the event of the termination of the activities of an LLC, the director, in accordance with Article 178 of the Labor Code of the Russian Federation, is entitled to compensation in the amount of his monthly salary (severance pay). He also retains for 2 months after dismissal the average earnings until the moment of employment (severance pay is to be included in the amount of average earnings for the specified period).

Dismissal in bankruptcy

Another reason for terminating an employment contract with a director, in accordance with Article 278 of the Labor Code of the Russian Federation, is his removal from office in the event of bankruptcy of the company. According to Article 126 of the Law "On Insolvency ..." dated 26.10.2002 No. 127-FZ, the powers of the director in this case are terminated by the decision of the arbitration court from the moment of its issuance. At the same time, it is not required to notify the director of the dismissal, the severance pay is not paid, since we are talking about dismissal. After the court makes such a decision, the director must, within 3 days, transfer all documentation, seals and material values \u200b\u200bof the organization to the bankruptcy commissioner.

Dismissal of the CEO - the sole founder of the company

When dismissing the general director - the sole founder of an LLC, it should be remembered that the provisions of Chapter 43 of the Labor Code of the Russian Federation, according to Article 273 of the Labor Code, do not apply in this case. Do these relations generally fall under the regulation of labor legislation?

According to the position of Rostrud (letter dated 06.03.2013 No. 177-6-1), in this case, the norms of the Labor Code of the Russian Federation are inapplicable, since the conclusion of an employment contract of the sole founder with himself contradicts the meaning of labor relations, since they are assumed to be bilateral. In this situation, one of the parties is absent, so the conclusion of an employment contract is impossible. This means that talking about the dismissal of the director - the only founder - is simply incorrect.

In turn, if the only founder intends only to leave the post of director, he only needs to make an appropriate decision, relying on the powers granted to him by Article 39 of the Federal Law No. 14. At the same time, the conclusion of any agreement with himself to take up the post is also not required. since the provisions of Article 43 of the Federal Law No. 14, applied in such cases, do not apply to the sole founder.

The dismissal of the director - the sole founder of an LLC in liquidation by bankruptcy will be carried out on the basis of a court decision, in accordance with Article 126 of the Federal Law No. 127.

So, when deciding how to dismiss the director of an LLC, if he is the only founder, it should be remembered that when dismissing him from office, in this case, it is necessary to rely on the general rules on dismissal provided for by the Labor Code of the Russian Federation. However, it is important to take into account a number of features associated with the special status of such an employee.

The reasons for this decision are:

Completioncontract.
Misconduct CEO as the head of the organization.
Termination at the initiative of the quitting one.
Change of ownership organizations.

Labor Code of the Russian Federation. Article 77. General grounds for termination of an employment contract
The grounds for terminating an employment contract are:

agreement of the parties (Article 78 of this Code);
expiration of the term of the employment contract (Article 79 of this Code), except for cases when the employment relationship actually continues and none of the parties demanded their termination;
termination of the employment contract at the initiative of the employee (Article 80 of this Code);
termination of an employment contract at the initiative of the employer (Articles 71 and 81 of this Code);
transfer of an employee at his request or with his consent to work for another employer or transfer to an elective job (position);
the employee's refusal to continue working in connection with a change in the owner of the organization's property, with a change in the jurisdiction (subordination) of the organization or its reorganization, with a change in the type of state or municipal institution (Article 75 of this Code);
the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);
the employee's refusal to transfer to another job that is necessary for him in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have an appropriate job (parts three and four of Article 73 of this Code);
the employee's refusal to transfer to work in another locality together with the employer (part one of Article 72.1 of this Code);
circumstances beyond the control of the parties (Article 83 of this Code);
violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).

An employment contract may be terminated on other grounds provided for by this Code and other federal laws.

Part three is no longer valid.

By the decision of the founder

How to dismiss the CEO by the decision of the founder? What are groundsfor dismissal?

One of the easiest options for the removal of an employee of this level from the post is to conduct it by order of the founder organizations.

On special grounds, taken into account in paragraphs of the first part of Article 81 of the Labor Code of the Russian Federation.

In case of insolvency ( bankruptcy) of the enterprise, the dismissal is made on the basis of Article 278 of this Code.

When registering a dismissal, it is important to observe a combination of labor legislation, which prescribes to draw up such procedures as when dismissing any other employee of any level.

AND respect the interests of the dismissed an employee who, prior to the signing of the order, continues to be a leading figure in the organization, representing the interests of the founder in the role of the only executive body of production.

Considering this, the decision of the founder to dismiss the CEO can only be based on on the decision of the general meeting of founders, shareholders or board of directors depending on the form of ownership of the organization.

Also, such a decision can be made solely by the owner of the property. After receiving approval, the process is carried out as usual.

Labor Code of the Russian Federation. Article 278. Additional grounds for terminating an employment contract with the head of an organization
In addition to the grounds provided for by this Code and other federal laws, the employment contract with the head of the organization is terminated on the following grounds:

in connection with the removal from office of the head of the organization - the debtor in accordance with the legislation on insolvency (bankruptcy);
in connection with the adoption by the authorized body of a legal entity, either by the owner of the organization's property, or by a person (body) authorized by the owner, of a decision to terminate the employment contract. The decision to terminate the employment contract on the specified basis in relation to the head of the unitary enterprise is taken by the body authorized by the owner of the unitary enterprise in the manner established by the Government of the Russian Federation;
on other grounds stipulated by the employment contract.

Without the consent of the founder

Can the CEO of an LLC resign without the consent of the founder? How right dismiss oneself from office CEO?

Dismiss a figure of this level without her consent and without the consent of the founder at the same time impossible... Start a similar procedure without the participation of the founder or without the consent of all founders unrealistic.

Another case becomes implementation of an independent solution director general. As a result, it can also be based only on the decision of the meeting of shareholders, the board of directors, founders and any other deliberative structure, the sole owner of the property of the organization.

But the first step in this case is standard statement on dismissal from office.

In the absence of a decision received from the controlling constituent councils and bodies, the dismissal process is carried out in a standard manner.

Personnel divisions are based on the obligation guaranteed by Article 37 of the Constitution of the country and Article 2 of the Labor Code the right to freedom of work of every citizen our state.

In this case, the general meeting of founders must solely for the purpose of accepting the fact of dismissal an employee to which the latter is entitled within the time period specified in Article 80 of the Labor Code of the Russian Federation.

Labor Code of the Russian Federation. Article 80. Termination of an employment contract on the initiative of an employee (at his own request)
The employee has the right to terminate the employment contract by notifying the employer about it in writing not later than two weeks, unless a different period is established by this Code or other federal law. The course of this period begins on the next day after the employer receives the employee's letter of resignation.

By agreement between the employee and the employer, the employment contract may be terminated even before the expiry of the notice of dismissal.

In cases where the employee's application for dismissal on his initiative (of his own free will) is due to the impossibility of continuing his work (enrollment in an educational organization, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts, containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee's application.

Before the expiry of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not made unless another employee is invited in his place in writing, who, in accordance with this Code and other federal laws, cannot be denied to conclude an employment contract.

Upon expiration of the term of the notice of dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to issue the employee a work book, other documents related to the work, upon a written application from the employee, and make a final settlement with him.

If after the expiry of the term of the notice of dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.

An important nuance registration of such a decision becomes:

necessity data transmission to the Unified State Register of Legal Entities about the new personality of the CEO;
signing consent on their own dismissal by those leaving their jobs, since such a document can only be signed by the general director specified in the Unified State Register of Legal Entities, changes to which cannot be made until the fact of the dismissal of the old one and the appointment of a new general director is fixed.

Data on the necessary changes in the Unified State Register of Legal Entities are indicated on the basis of information submitted to the territorial tax authority... Such information should be sent within 5 working days.

Statement

Who officially fixes the decision to dismiss the CEO, to whom (in whose name) does he write the letter of resignation?

In any situation, the fact of dismissal of an employee of this level can only be based on on the decision of the board of directors or other constituent body.

On the basis of this decision, the personnel department carries out the execution of the dismissal and makes the appropriate employment record.

At the same time, a statement informing about any type of termination of labor relations with organizations, its head prepares to the name of the founder.

Order

On the basis of what provisions and how is the Order prepared? An order on the fact of leaving work of an employee of this level is being prepared based on a decision made by the board of directors, founders or other similar structure in the organization.

Including the basis becomes dismissal protocol, although its binding is not legally prescribed anywhere. Registration is carried out by an internal Order drawn up in the T-8 form, which was developed by Goskomstat in 2004.

The Order must indicate ground for termination of employment, the date of compilation and the handwritten signature of the person who, according to legal requirements, must officially dismiss himself, is put.

Calculation of compensation

What compensation is the CEO entitled to upon dismissal? Amount of compensation payments calculated as standard as when ending a relationship with any other employee.

In the event of termination of the relationship by agreement of the parties initiated by the founder, the employee is entitled to compensation, the amount of which is three average monthly payments.

Deadline for submission of information about care

The Constitution of the Russian Federation and the Labor Code of the Russian Federation call for a standard attitude to a specialist holding positions of any level. Although in relation to a representative of a leading position of this rank, there is a clause about the need notifying the founder of the decision made one month before the expected date of departure.

Such an extension of the term makes it possible to gather supervisory bodies to hold a council and adopt a protocol of dismissal.

In the absence of a founder's response to the information submitted, an employee of any rank on the basis of Article 80 of the TC has the right to terminate its functions, demand the issuance of a work book and the calculation with the accounting department.

Features of registration of an entry in the Labor Book

Given the level of the official position, it will be necessary to observe certain features of entering data on the changed status of the general director in his work book. They are entered into standard mode, except for the information entered in column 4 of this document.

It indicates the decision made by the founder, with the obligatory introduction of information about the drawn up protocol number, if it was drawn up, or any other justification of the reasons for dismissal, confirmed by the seal of the organization. This procedure was approved in 2009 by letter No. 1143-TZ of the country's Rostrud.

Change of the date of dismissal

Is it possible for the CEO to change the date of his dismissal?

General Director before amendments to the Unified State Register of Legal Entities has the right to change the date of his dismissal in a situation where there is no possibility of transferring cases to his successor.

The change is made by internal order.

The responsibility of the former manager

Is the former CEO still liable after his official dismissal? A feature of such a position is the guaranteed preservation of the right to call on the citizen who held the post of the general director to administrative and criminal liability.

Including it is saved material liability in case of proof of illegal actions. Such as:

costs or lost profitsthat occurred through the fault of this employee;
identified loss or damage property.

Administrativeclaims on this basis may be considered at any time period upon proof of the revealed fact, confirmed during the court session.

TO criminal liability such a resigned employee can be recruited on the basis of article 165 of the country's Criminal Code, which deals with situations of causing property damage by deception or abuse of trust.

The term for criminal prosecution is determined by the statute of limitations under article of the Criminal Code.

Criminal Code of the Russian Federation. Article 165. Causing property damage by deception or abuse of confidence
1. Causing property damage to the owner or other owner of property by deception or abuse of trust in the absence of signs of theft, committed on a large scale -

shall be punishable by a fine in an amount of up to three hundred thousand rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to two years, or by compulsory labor for a term of up to two years, with or without restraint of liberty for a term of up to one year, or by deprivation of liberty for a term of up to two years with a fine of up to eighty thousand rubles or in the amount of the convict's wages or other income for a period of up to six months or without it and with or without restraint of liberty for a period of up to one year.

2. The act provided for in the first part of this article:

committed by a group of persons in a preliminary conspiracy or by an organized group;
causing especially large damage, -

shall be punishable by compulsory labor for a term of up to five years, with or without restraint of liberty for a term of up to two years, or by deprivation of liberty for a term of up to five years, with a fine in the amount of up to eighty thousand rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to six months, or without it and with restriction of liberty for up to two years or without it.

Summary

In conclusion, it is worth paying attention to complexity of legal registration many reasons and grounds for dismissal from the position of CEO.

Most of them can be challenged in the courts, extending the term of entry into office of a new employee of this rank.

In most cases, a successful solution to the issue of dismissal of the CEO is recommended trust experienced representatives of law firms and services.

Professional help is helpful and relevant to both sides of the issue.

Didn't find the answer to your question? Find out, how to solve exactly your problem - call right now:

Last modified: March 2020

Directors, like other employees of firms, can be dismissed for various reasons. For CEOs, in addition to the usual reasons for leaving their position, termination of the employment contract is also provided for by the decision of the owner or the authorized body of the company. In the latter case, the procedure for dismissing the CEO by decision of the founder will be slightly different from those that apply in other situations.

Termination of cooperation with the director by decision of the founders

In most cases, the termination of the contract with the director by the decision of the owners occurs before the end of his term of office (clause 2, part 1 of article 278 of the Labor Code of the Russian Federation). To implement such an initiative, the founders do not need to take into account the length of the period for which the employment relationship is concluded or provide any evidence or substantiation of their position.

If the manager did not commit acts (omissions) of a guilty nature that led to damage to the company, then the director's dismissal by the decision of the founder occurs with the payment of monetary compensation. The initiative to terminate the powers of a director can also come from other situations:

In the event of a change in the composition of business owners (clause 4, part 1, article 81 of the Labor Code of the Russian Federation);
Initiation by the owner of the dismissal by agreement of the parties (clause 1, part 1 of article 77, article 78 of the Labor Code of the Russian Federation).
Adoption of a rash decision by the head that led to damage (clause 9, part 1, article 81 of the Labor Code of the Russian Federation);
One-time gross violation by the director of his duties (clause 10, part 1 of article 81 of the Labor Code of the Russian Federation).

In addition, the dismissal of the chief executive is possible due to the liquidation of the enterprise.

When a director cannot be fired before the end of the contract

The law regulates clear conditions that do not allow parting with the director before the end of the period of the contract concluded with him. It is impossible to dismiss a director on the initiative of the owners if:

He is on vacation or on sick leave;
The leader is a woman and she is "in position";
The head is a single mother with a child under 14, or a child with disabilities;
A direct ban has been established on the initiative of the employer at the legislative level.

Failure to comply with these restrictions may lead to the subsequent reinstatement of the director in office. However, there were cases when in court companies managed to prove the fact of abuse by the head and to defend the right to dismiss in the event of violations (Determination of the Moscow City Court dated 09.12.2013 N 4g / 3-11957 / 13).

The procedure for dismissing a director at the initiative of the owners

Anyone, even the most senior employee, is the same employee. In this regard, the procedure for dismissing directors is not much different from parting with ordinary employees. Nevertheless, there are still some features and they must be taken into account. The sequence of actions in case of completion of cooperation with the manager, as decided by the owners, is as follows:

Initiation of the convocation of the general meeting of founders;
Making a decision of the founders on the termination of the director's agreement -;
Based on the issued document of the authorized body, a dismissal order is drawn up -;
An entry is made in the director's work book, with the obligatory indication of the article of the Labor Code of the Russian Federation on the basis of which they part with him;

Records are made in the employee's personal card;
All amounts due to the director upon dismissal are accrued and paid on his last working day;
A work book and all payments due on the last working day of the manager are issued.

In addition, the company must notify the tax office of the resignation of the old manager and the appointment of a new one, in order to amend the Unified State Register of Legal Entities. Until the appropriate changes are made, the new leader will not be able to fulfill his duties, sign administrative documents.

At the same time, the status of an employee requires additional actions to be taken at each described stage. In this regard, it is necessary to consider each of them in more detail.

How is the decision to dismiss the director made

The authority to terminate the contract with the director is vested in the entity that is responsible for this issue in accordance with the law and the constituent documents. It can be:

The authorized executive body of the company;
Owner of company;
The person (body) authorized by the owner.

Example. For an LLC, this can be a meeting of participants, a single participant, a board of directors.

The minutes of the general meeting or the decision of the founder to dismiss the director must include the following data:

The name of the document, the date and place of its preparation;
List of persons participating in the meeting;
List of issues to be discussed;
Information about the persons who spoke during the meeting;
The decision itself following the discussion;
Data on the number of voters;
Signature of the chairman of the meeting.

For some types of companies, for example, state corporations, there may be specific rules for making such decisions that require additional approval. The final decision of the authority should clearly state the date of the director's departure. This will make it possible to correctly indicate the day of dismissal in the order and timely accrue all due amounts.

Features of the order to dismiss the director

To formalize the termination of relations between the company and its manager, no special forms have been approved, and the organization can develop it independently or use the T-8 form. The document must clearly indicate the basis for the completion of the employment contract with reference to paragraph 2 of Part 1 of Art. 278 of the Labor Code of the Russian Federation.

Its text may vary depending on whether the body authorized by the owner or the owner himself made the decision to dismiss. In addition, it is imperative to provide the details of the decision to terminate the powers of the director. The entity who must sign the order is not clearly specified in the legislation. This could be:

The resigning leader himself;
A person who has the right to do so by decision of the owners of the organization, for example, the chairman of the general meeting of the company.

All of these provisions must be taken into account when terminating contracts with managers.

Difficulties in issuing a work book for a director

Recording in the work book of the manager will be issued in the same way as for an ordinary employee, but with an indication of paragraph 2 of part 1 of Art. 278 of the Labor Code of the Russian Federation. There is some uncertainty in the legislation regarding the identification of the person who must certify it. Column 4 contains the data of the decisions of the representative body on the termination of the powers of the director. If the details of the dismissal order are entered into it, this is also not recognized as an error. The record must be certified by the person who signed the order of dismissal or who is entrusted with the duties of maintaining work books.

How is the calculation carried out upon dismissal of the director

Most of the charges upon termination of an employment contract with a director are standard. These include:

Earned for actually worked hours;
Relying prizes and bonuses;
Compensation for days of unused vacation.

In the event that the termination of employment with the director is not related to his guilty actions, he is also entitled to separate compensation. The calculation of compensation is made in the amount of at least 3 average monthly earnings of such an employee. For directors of some companies specified in Part 1 of Art. 349.3 of the Labor Code of the Russian Federation in the amount of 3 average monthly earnings.

How the director's dismissal compensation is calculated

The following sequence of actions is used as the basic formula for calculating compensation:

Average earnings per day × Number of days in 3 months after dismissal according to the work calendar.

To calculate the average daily earnings, the government decree of 24.12.2007 No. 922 is applied. To determine it you need:

Take all earnings for the previous 12 months, taking into account incentive payments;
Exclude from the number of days for 12 months according to the production calendar the time of absence from work with and without retention of average earnings (sick leave, vacation, days of donating blood, unpaid leave);
Divide the received salary by the calculated number of working days.

If the company's documents establish a greater number of months for payment of compensation, then the average earnings must be multiplied by the number of days in them.

Informing the IFTS and banks about the change of the head

In addition to the above procedures for the dismissal of the old director and the adoption of a new one (if this was done), it is necessary to report:

IFTS on the assumption of the position of a new director, this can be done by both the legal entity itself and the old director in the form of P14001. If information about the change of director is not provided to the tax authorities, the company faces a fine of 5,000 rubles.
Banking organization, in which the company is serviced to confirm the authority of the new director to perform payment transactions. In particular, it is necessary to transfer to the bank cards with samples of signatures and powers of attorney for those persons who will make payments on behalf of the company.

If this is not done in a timely manner, the new director will not be able to fulfill his duties.

Documents issued to the director upon dismissal

The list of documents that must be provided to the director upon dismissal is as follows:

Employment history;
Employee salary certificate for the last 2 years;
Certificate of income and tax amounts of the employee;
Information on insurance premiums and employee experience (extracts from SZV-M, SZV-STAZH, DSV-Z, RSV).

If on the day of separation it was not possible to issue the documents, you need to send the resigned person a written notice of the need to come for them.

Potential risks upon dismissal of a director

Most of the possible negative consequences are associated with standard violations typical for the dismissal of other employees. These include:

Penalty for delay in settlement upon dismissal, violation of the documentary procedure;
Material liability for late payment of wages, failure to issue wages or entering incorrect data into it;
Potential dismissal by the employee in court.

At the same time, only non-payment of compensation can not serve as the only reason for reinstatement at work (paragraph 1, paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 06/02/2015 N 21). In most cases, the issues of parting with the directors are peaceful and only in a small number of cases the case ends in court proceedings. In this regard, one should be extremely careful when drawing up documents for the dismissal of a director, calculating all due payments, and observing all the deadlines for carrying out procedures established by law. Since the income for positions of this level is quite high, the amount of possible claims will also be significant, and therefore, the cost of a mistake may be too significant for the company.

Despite its high status and many powers, the CEO nevertheless actually remains an ordinary employee of the company. Because of this, it would seem, the whole process becomes extremely clear - dismissal should take place according to the same rules and laws as in the case of any other employee. Partially it is.

But, in addition, the general director is also the executive body of the company (according to Article 31 of the Federal Law "On Limited Liability Companies"), which is why the process of formalizing or breaking off relations between the company with him always takes place in a special order, and has a number of its own nuances.

Can I be fired without his consent?

The consent of the general director to his own dismissal is necessary only if he is not part-time and one of the owners of the LLC.

For any changes in the Charter, a decision of each of the founders who are present at the meeting is required, therefore, it is impossible to dismiss the general director, who is also the owner and the only founder, without his consent, as indicated in paragraph 4, article 12 of the Federal Law "On Companies with limited liability" .

In all other situations, the CEO can be fired without his consent if the decision is made by the founders.

By the decision of the founder

The members of the LLC have all the powers to dismiss the executive body of the company. But for this, it is necessary to state a compelling reason for such a decision.

If the damage is the debts unpaid by the former head, then, in accordance with Federal Law No. 127, he will have to pay them out of his personal funds. With regard to administrative or criminal liability, then punishments for these offenses are regulated by the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation. At the same time, the limitation periods are established in accordance with applicable law.

The limitation period for criminal offenses is determined by the severity of the crime:

slight severity - 2 years;
moderate - 6 years;
serious crime - 10 years.

Conclusion

Firing a CEO presents more difficulties and problems than an ordinary employee. However, if you understand the basics and certain nuances, then this process will take place without any particular difficulties and problems.

An employee as a general director occupies an ambiguous position in the enterprise, because he finds employment on a general basis, concluding an employment contract with the founder.

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But at the same time, he represents the interests of the founder as the sole executive body of the enterprise, has great powers. He has a huge responsibility for the management of the enterprise. As an employee has the right to enjoy guarantees, benefits, can qualify for compensation.

Legal basis for dismissal

The general director of the enterprise is responsible for production activities, its promotion and development. Personal qualities play an important role in solving the tasks set before the enterprise.

Often, the founder is forced to fire the CEO, who is not managing his business properly, in addition to this, other reasons are possible.

Labor legislation regulates the procedure for dismissing the management of the founder, which establishes its grounds in accordance with the instructions of Articles 81, 83, 278.

These include:

change of ownership of property at the enterprise;
dismissal is the right of the employer if the general director made an unreasonable decision, as a result of which the safety of the property was lost, and his illegal actions led to damage to the property of the enterprise;
while performing functional duties, the CEO made a one-time gross violation;
removal from office of the head in accordance with the onset of the state of insolvency of the enterprise;
on other grounds stipulated by the employment contract.

If the general director did not commit any offenses in the performance of his duties, then he is paid income tax-free payments in the amount of the average monthly salary increased three times. This provision is implemented in accordance with the norms of the tax code of the Russian Federation, namely article 217.

Other types of grounds include any reason that undermines the production activities of the enterprise:

deliberately bringing any information to the attention of persons who do not have the right to be acquainted with it without obtaining permission from the founder;
failure to obtain specific indicators in the course of activities;
concealment of information about family ties with any employee who works at this enterprise;
part-time job at another enterprise.

The general director of the enterprise has the right to terminate the employment contract at any time, for which he must notify the employer about the decision taken in advance. The notice period for the dismissal of a manager of his own free will is one month.

Features of the dismissal of the CEO by decision of the founder

According to generally accepted rules, in accordance with the organizational and legal form of the enterprise, the dismissal of management is included in the range of issues solved by the general meeting of founders, shareholders and authorized bodies. For example, in LLC, JSC, the general meeting of founders and shareholders exclusively decides on the dismissal of the general director.

In some cases it is adopted by the board of directors, but the board's competence must be provided for in the charter of the joint stock company.

As for the state-owned unitary enterprises, the owner of the property has the right to dismiss the head who holds the position of the general director.

An employment contract with the general director can be terminated in accordance with Articles 77, 81, 83, 278 of the Labor Code:

on a universal basis;
when using special grounds;
using additional grounds.

The issues of dismissal in non-profit organizations are provided for by the provisions adopted by the charter, although in practice the owner of the property often decides it alone.

However, the general meeting is held so that the actions of the founders are not regarded as contrary to the existing legislation.

It must be drawn up in a protocol, in which it is necessary to note the number of founders present and voting for the accepted proposal.

Offenses committed in the implementation of the dismissal procedure entail the application of a measure of influence in the form of administrative responsibility. In addition, the decision to dismiss can be challenged in court if the CEO files a statement of claim.

Sole founder

Often in practice, the case occurs,. As a rule, this situation develops in an enterprise where there is one founder. Termination of employment as a director of an LLC follows a simple scheme, because he has the right to dismiss himself at any time in accordance with the instructions of article 273 of the labor code.

The decision is made by him alone, since the regulation on the regulation of the work of the head of the enterprise does not apply to the owners.

However, he needs to formalize his decision properly in accordance with the regulations.

The founder can dismiss himself in two ways:

at his own request, he writes a letter of resignation, a regular entry is made in the work book, references are made to the issued order justifying the decision of the founder;
by the decision of the founder, in the order he indicates that the employment contract is terminated due to the decision of the authorized body of the legal entity to terminate it in accordance with paragraph 2 of Article 278 of the Labor Code of the Russian Federation, a record is made with a link justifying his decision.

In the second method, he is obliged to pay himself, as a CEO, according to the instructions of legislative acts, compensation equal to the average monthly salary increased three times, therefore, most often, many founders choose the first method.

Order

The decision to dismiss the general director is formalized by an internal order for the enterprise on a unified form, developed and approved by the Goskomstat of Russia at the beginning of 2004 by decree number 1.

It is published by the CEO on the last working day.

The text of the order contains the grounds for dismissal, references to the relevant standards, the date is affixed, and his signature. The order is confirmed by the seal of the enterprise.

On the days preceding the dismissal, it is necessary to carry out the procedure for accepting and transferring cases, which is drawn up by an act. As usual, it is held on the last working day. The procedure for transferring cases is established by the constituent documents of the enterprise.

In what situations can you not be fired?

The current legislation of the Federation provides for the groundlessness of the dismissal of enterprise managers in some situations.

In particular, Article 81 of the code established a provision according to which the CEO is not subject to dismissal:

during the period of being on labor leave granted in accordance with regulatory enactments;
while he is on sick leave due to temporary disability, excluding cases of termination of production activities of an enterprise or a legal entity with the status of an individual entrepreneur.

If the founder does not comply with the above conditions, then according to the instructions of the resolution of the Supreme Court of the Russian Federation, adopted in execution in March 2004 No. 2, his actions are considered illegal. As practice shows, the point of view of the Supreme Court leads to serious problems that founders get into in the event of a conflicted dismissal of a director. In the future, disputes may arise regarding the grounds on which the dismissal of the CEO will be considered an incentive to limit his rights.

Labor enrollment

When registering a work book, the founder must make an entry on the grounds for dismissal, according to which he terminates the employment contract with him. It is subject to registration in accordance with the generally established procedure for personnel records management.

Moreover, it is necessary to provide a reference to Article 77 of the Labor Code, the Rules approved by the resolution of the Government of the Federation and adopted in April 2003 under number 225, approved by the decree of the Ministry of Labor of Russia in October 2003 under number 69 of the instruction.

In addition, in the fourth column of the page of the work book, you need to enter the decision made by the founders, put down the outgoing number of the minutes drawn up during the general meeting or the decision made by the sole founder, justify the reason for the dismissal, and certify the enterprise with the seal. The procedure for making entries in the work book was approved by a letter from Rostrud in March 2009 under number 1143-TZ.

What responsibility is imposed subsequently?

Despite the dismissal of the general director from his position, the material and other types of responsibility assigned to him are not removed from him. The labor law of the Russian Federation has enshrined a provision according to which the obligated party to the employment contract must compensate the other party for property damage. It can arise as a result of improper performance of functional duties.

The judicial authorities have the right to demand a pecuniary recovery from the former head if the enterprise has suffered damage.

The CEO may be held liable due to dismissal, including:

material, since he is responsible for the property of the enterprise if there was direct damage due to incompetent actions;
criminal, if, according to the instructions of Article 165 of the Criminal Code of the Russian Federation "On causing property damage by deception or abuse of trust," illegal actions were committed, but his guilt must be proven.

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The provision on material assistance must contain information on the amount and procedure for payments. More information in.

The general director is brought to the first type of responsibility in case of damage or loss of property, if the company has suffered direct actual damage, costs, and has lost profitable offers. Any founder has the right to file a statement of claim in court in order to recover material damage from him. The amount of material liability is not limited, the general director is responsible with his property, with the exception of the living space, personal belongings.

According to the second term, they are determined by the severity of the offense in accordance with the criminal code. At the end of the term, the general director is exempted from criminal punishment due to the onset of a statute of limitations in the continuation of which it is possible to attract.

Impact measure

In accordance with Article 183 of the Code of Rights, the CEO may be penalized for collecting information, which includes commercial, tax, banking secrets through theft of documents, bribery, threats. Its size is up to 80 thousand rubles, one salary or other types of income earned for work performed for one to six months.

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