If we dismiss the general director, 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 in connection with early dismissal of a director

The employer can fire head of the organization Without explaning the reason. When dismissing, it does not matter the form employment contract(urgent or indefinite). However, it is always necessary to pay compensation upon termination of employment. We will figure out how and in what amount you need to pay compensation to a dismissed employee. We will help you understand how it differs from the severance pay.

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

If the dismissal occurs by the decision of the owner, then only the head of the organization (director, general director) is entitled to compensation. 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's activities, as well as to individual entrepreneurs.

When is compensation paid, and when is the severance pay when a director is dismissed

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

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

If the director is transferred to another position, then in this case the contract with him is not terminated and compensation is not paid, but simply concluded additional agreement with an indication of new features.

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

Dismissal compensation is not a severance pay.

Severance pay is paid to any employee if his employment contract is terminated for certain reasons.

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

What is the amount of compensation required for the dismissal of a director

TO compensation to the director upon dismissal paid, provided that he did not commit any culpable acts (omissions) (Article 279 of the Labor Code of the Russian Federation).

The legislation does not determine the amount of compensation for the dismissal of a director. The amount of compensation must be spelled out in the employment contract, but not less than three times the average monthly salary of the director.

If the termination of the employment contract with the director occurs 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 protocol general meeting... In case of non-payment of compensation former director can go to court, which to determine the amount of the payment itself.

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

the length of service of the dismissed director in this position;
time before the expiration of a fixed-term employment contract;
the size wages that the dismissed person could receive if he continued to work in the company;
additional costs that the employee may incur as a result of dismissal.

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

Director's dismissal procedure

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

Preparation of a protocol on termination of an employment contract	V this document you must indicate the reason for dismissal. The basis may be the director's statement of dismissal by on their own, the agreement of the parties, the decision of the participants, a memorandum on the director's actions under Article 81 of the Labor Code of the Russian Federation.
Issue of an order	The order is issued in the T-8 form and is recorded in the journal
Work Transmission	The director transfers the affairs and property of the enterprise to the employer according to the act
Settlement with an employee	Wages and compensation are paid for unused vacation
Filling in a personal card	A record of dismissal is made in the personal card in the form of T-2. The record must be familiarized with signature.
Recording in work book	The dismissal record is entered in the work book and handed over to the director
Notify the bank	The director must be notified of the dismissal of the bank in which the company's current account is opened.
Notification to the IFTS	Within three days, it is necessary to notify the Federal Tax Service Inspectorate of the dismissal of the director and the transfer of powers to another manager in the form 14001

Employer's liability for non-payment of compensation upon dismissal of a director

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

The employer will violate the procedure for terminating the employment contract if he does not pay the required compensation to the dismissed manager and at the same time incur large losses. In this case, the employee can go to court and collect not only the amount of compensation, but also interest for each delayed child, as well as compensation for moral damage. In addition, the employer bears administrative and criminal liability for non-payment or violation of the terms of 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 the decision of the authorized body, no compensation was paid.

It is generally accepted that leadership positions obey rules different from those of the rank and file. At the same time, in terms of dismissal, the procedure is not much different, the only thing is that there may be more reasons for terminating an employment contract with the head of the enterprise. But, as in general case, compensation will be paid to the director upon dismissal.

Additional grounds for the dismissal of a company director

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

The director can be dismissed from the position of the head of the debtor company due to its bankruptcy.
The director can be asked to vacate his seat by the decision of the owner of the enterprise or an authorized body without giving reasons.
The head can 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, due to violations of the law or by decision of the authorized bodies. The easiest way is to terminate the relationship by mutual agreement - then the case will not come to court proceedings. In such a situation, the law provides for only one option for canceling the dismissal - the simultaneous refusal of the employer to dismiss the director and the desire to remain in the position of the manager himself. But then there is nothing to go to court for - you can re-sign a cooperation agreement.

The company and its owner are obligated to provide the director with certain labor guarantees, including payment of compensation upon termination of employment. If nothing was said about compensation in the employment contract, this does not mean that the payment will not have to be made - this is what the law says, 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 about the upcoming resignation from office by personal will at least 30 days before the date of the actual resignation from work. Longer working off than in the general case is due to the fact that it is much more difficult to find a new manager than an ordinary employee. Plus, this month the director must clarify the state of affairs to his successor or temporary substitute.

If general manager leaves workplace at his own request, he is not entitled to compensation, except for those cases when its payment is provided for by an employment contract.

The dismissal of a manager may be the result of disciplinary violations. The director can be dismissed if:

He at least once violated the duties that are assigned to the CEO:
- committed a violation in terms of labor protection;
- illiterately considered material values;
- misjudged statistical reporting;
- exceeded the authority to obtain benefits.
He issued an order that caused the integrity of the property to be violated, the company's property was misused, or the company suffered damage.

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 a director upon dismissal, if there is no clause on its payment in the contract

If the conditions for exercising the duties of an employee specified in the employment contract worsen his position, which is determined at the legislative level, such conditions are invalidated.

An employment contract is developed in such a way as to negotiate and secure in advance the obligations and rights of the parties to the agreement, to prescribe the position, the amount of wages, any additional payments and allowances, as well as the procedure for terminating the contract.

Despite the importance of the employment contract, first of all, it is necessary to take care of the implementation of the provisions of federal regulations, since they always have priority over any local acts companies. Therefore, even if the employment contract does not contain a clause on the payment of compensation to the dismissed director, it must be paid, since he is deprived of a job 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 who accepts the case), in which it is written:

important points related to the functioning of the company;
the current state of affairs in the firm;
material assets transferred by the head upon dismissal;
the fact of 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 under the management of the director;
a list of powers of attorney that were issued by the company to delegate certain powers to someone, and issued bills.

On the last day of work, the director must familiarize himself with the order on 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 rest of the money he earned. He will be paid the salary for the last month, compensation for the vacation he was entitled to, did not have time to take it, severance pay in case of dismissal not of their 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 agreement with current legislation and is paid only when the dismissal occurred by the decision of the employer and not for guilty actions on the part of the director.

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

The foregoing does not apply to managers who have lost their jobs for committing guilty actions or who have decided to leave the enterprise at their own will. But the director can count on such a payment, but only if the employment contract provided for generous amounts of compensation.

Legislative acts on the topic

Typical mistakes

Error: The employer has hired a CEO. They entered into an employment contract that did not stipulate payment of compensation upon dismissal. When the director was dismissed by the decision of the authorized body, no compensation was paid.

.Question of compensation for the former director. Resigned under article 278 clause 2. Article 279 comes into force. But for 7 years as a director, I did not have an employment contract. I am empowered until 3.12.16 for one year. According to the charter, for 5 years. They paid compensation only for 3 months. Is it fair ???
? Alexander

Hello, Alexander!

The issues of 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 ...

Among such guarantees is provided by Article 279 of the Labor Code Russian Federation payment of compensation for early termination of the employment contract with the head of the organization 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

Labor Code of the Russian Federation, payment of compensation - necessary condition 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 intended purpose of this payment - to compensate the dismissed person to the maximum extent for the adverse consequences caused by the loss of work, the amount of compensation can be determined taking into account the time remaining until the expiration of the employment contract, those amounts (wages), which the dismissed could receive by continuing to work as the head of the organization, additional costs that he may have to incur as a result of early termination of the contract, etc.

, The absence in the employment contract of a clause on 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 to it, does not release the owner from the obligation to pay compensation(by virtue of Part II of Article 424 of the Labor Code of the Russian Federation, which establishes the rules for the application of the norms of this Code, by virtue of Part II of Article 424 of the Labor Code of the Russian Federation, which establishes the rules for the application of the norms of this Code

From the above-stated right position of the Constitutional Court of the Russian Federation, the following conclusions should be drawn:

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

The absence in the employment contract of a condition on the payment of compensation and its amount does not relieve the owner of the obligation to pay it.

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

The same legal position is set out in the Definition The Supreme Court RF

In clause 4.1 of the Resolution of the Constitutional Court of the Russian Federation of March 15, 2005 N 3-P, it was indicated that the federal legislator, without imposing on the owner, in an exception from general rules termination of an employment contract with an employee on the initiative of the employer, the obligation to indicate the reasons for the dismissal of the head of the organization on the basis 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 responsibility, since it proceeds from 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 grounds related to his committing guilty actions (inaction).

Granting the owner the right to make a decision 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 (part 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 of adequate legal guarantees of protection against negative consequences,
that may occur for him as a result of losing his job, from a possible
arbitrariness and discrimination (clause 4.2).

These guarantees include the provisions of Article 279
Of the Labor Code of the Russian Federation payment of compensation for early
termination of an employment contract with the head of the organization 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 of the Labor Code of the Russian Federation, payment of compensation is a necessary
condition for early termination of the employment contract with the head of the organization in the specified case.

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

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

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

The amounts to be paid should be determined by agreement between the head of the organization and the owner, and in the event of a dispute, by a court decision, 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
Of the Labor Code of the Russian Federation is not a legal measure
responsibility and not allowed without payment of just satisfaction, the size of which is determined by the employment contract.

Alexander, I believe that you have the right, 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 was no early termination of the contract (earnings before 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 leaders, municipal and government organizations the law establishes a maximum compensation in the amount of three times the average monthly salary.)

TO compensation to the director upon dismissal paid, provided that he did not commit any culpable acts (omissions) (Article 279 of the Labor Code of the Russian Federation).

The amount of compensation is established by an employment contract, but not less than three times the average monthly salary of a director. 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 a supplementary agreement.

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

Sometimes the compensation clause is not included in the employment contract with the manager either at the time of hiring or later. According to some employers, when dismissal of the director on the basis of paragraph 2 of Art. 278 TC, the organization does not have to pay compensation.

However, the RF Armed Forces do not agree with this. The Armed Forces believes that the absence in the employment contract with the director of a condition on the payment of compensation and its amount does not relieve the organization from the obligation to pay compensation (Definition of the Armed Forces of the Russian Federation of 25.01.2008 No. 5-B07-170).

The obligation to pay compensation arises for the owner of the organization also in cases where 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. Dismissal of a manager without payment of compensation, if he did not commit any culpable actions that give rise to his dismissal, is a violation of the order of dismissal. 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 case of his innocent dismissal is determined by the employment contract concluded with him.

In the absence of a condition on compensation in the contract, it must still be paid. But the question arises - how much?

If the compensation clause is not included in the employment contract, the parties to the contract can conclude an additional agreement to it immediately before 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, the decision on the amount of compensation and the procedure for its payment may be made by the court, taking into account the factual circumstances.

The amount of compensation can be determined based on the time he actually worked, the time remaining until the end of the employment contract, as well as the amount of earnings that the manager could receive if he continued to work, and the additional costs that he would have to incur as a result of early termination. contract.

Compensation for the dismissal of the director of personal income tax is not assessed. This is the approach taken by the tax and financial authorities in practice. This approach also 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, according to Art. 279 of the Labor Code of the Russian Federation, compensation must be paid in the amount determined by the employment contract, but not less than three times the average monthly earnings. Since in this case, the amount of compensation for this situation is not defined in the employment contract with the general director, upon dismissal, the general director must be paid an amount equal to three times the average monthly salary.

Article 139 of the Labor Code of the Russian Federation establishes a unified procedure for calculating the amount of average earnings for all cases when it must be determined in accordance with the norms of the Labor Code of the Russian Federation (payment of vacation pay, business trip and other cases). Calculation of the average monthly earnings when paying compensation to the manager 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 specifics of the procedure for calculating the average wage, approved by the Government of the Russian Federation of December 24, 2007 No. 922.

It should be noted that this guarantee is valid only in the absence of culpable actions (inaction) on the part of the manager. In the resolution of the Constitutional Court of the Russian Federation of 15.03.2005 No. 3-P, it is noted that the dismissal of the head under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation for committing guilty actions (inaction) cannot be carried out without specifying specific facts indicating the manager's misconduct, his guilt, without observing the procedure for applying this measure of responsibility established by law, which, in the event of a dispute, is subject to judicial review.

Thus, taking into account the named resolution, the head of the organization, dismissed under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, is not entitled to compensation if the dismissal is made in compliance with the stipulated by Art. 193 and 195 of the Labor Code of the Russian Federation of the order of application disciplinary action. Arbitrage practice confirms this conclusion (determination of the RF Armed Forces dated 03.03.2005 No. 5-B05-156, resolution of the Presidium of the Moscow Regional Court dated 15.10.2008 No. 565).

2. The procedure for filling out work books is established by the Rules for maintaining and storing work books, making work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 "On work books" (hereinafter - the Rules), as well as the Instructions for filling out work books books, approved by the decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69 (hereinafter referred to as the Instruction).

Taking into account the requirements of clause 5.5 of the Instruction, the wording of the entry in the work book (and, therefore, in the order of dismissal) should be as follows: “Dismissed due to the adoption by the authorized body legal entity decisions on termination of the employment contract, paragraph 2 of Article 278 of the Labor Code of the Russian Federation ”.

According to clause 10 of the Regulation, all entries in the work book, including the record of dismissal, are made on the basis of the corresponding order. Clause 5.1 of the Instruction establishes that the details of the order (instruction) or other decision of the employer are entered in the column "Name, date and number of the document on the basis of which the entry was made" of the work book. Thus, in the work book, it is the appropriate order (order) of the employer that is indicated as the basis for dismissing the employee, and not the minutes of the general meeting of participants.

3. The order of dismissal must be drawn up according to the unified form of the order (order) on termination (termination) of the employment contract with the employee (dismissal) (form No. T-8), which is approved by the decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1 1. According to the instructions for filling out form No. T-8, the order is drawn up by an employee personnel service, 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, issuing orders and giving instructions that are binding on all employees of the company (clause 3 of article 40 Federal law dated 08.02.1998 No. 14-FZ "On companies with limited liability"). It seems clear that the CEO has this authority throughout his work, including on the last day of work.

Thus, the general director 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 incapacity for work) did not work or did not sign the order of his dismissal himself, this can be done by the person authorized by him to sign such orders.

1 Since January 1, 2013, the application of unified forms of documents is not mandatory, companies can approve and use their own forms.

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