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

How to dismiss the founder from the position of director?

According to the provisions of Articles 33, 40 of the Law "On Companies ..." dated February 8, 1998 No. 14-FZ, the appointment and dismissal of the head of an LLC is within the competence of the meeting of the company's participants. Both an outsider and one of its participants can manage the company. The labor contract with the managing company on its behalf is signed by the participant presiding over the meeting, who in this case represents the employer.

The legal status of the director of the company, by virtue of Article 274 of the Labor Code of the Russian Federation, is determined, in addition to the normative acts, by an employment contract - therefore, the norms of the Labor Code of the Russian Federation are applied to his activities, as well as in relation 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 dismissal of 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 the agreement of the parties (Article 78 of the Labor Code of the Russian Federation), special ones can be applied to the director of the company:

expiration of the contract, since, in accordance with Article 59 of the Labor Code of the Russian Federation, both an open-ended and fixed-term contract can be concluded with the director;
adoption by the participants of the LLC of a decision 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 grounds 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 Decree 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 liability - accordingly, on this basis, both urgent and perpetual contract. However, the company must pay compensation to the director in the amount of at least the average salary for 3 months, 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 making it must strictly comply with the charter of the LLC and the norms of Federal Law No. 14. This requirement objectively in view of the fact that, by virtue of Article 43 of Federal Law No. 14, the director - participant of an LLC has the right to appeal in court not only the dismissal itself, but also the decision itself general meeting members, which a director who is not a member of the company cannot do.

Dismissal procedure

The procedure for dismissal of a director includes several stages:

The adoption of a decision on the termination of the powers of the director by the participants of the company, regardless of the reason for the 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 March 11, 2009 No. 1143-TZ. In addition, the decision must clearly define the last day of the director's work, the procedure and terms for transferring cases to a new leader.
Issuing a notice of dismissal. At the same time, the signature under such an order must be put either by the director himself or by another authorized employee (more this question disclosed in the relevant 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 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. The letter of Rostrud 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 out by an authorized person (he may personnel worker or a person who concluded an employment contract with the director). As for the basis, in this situation it is the decision of the LLC participants, drawn up following the results of their general meeting.
Calculation and issuance of a work book on the last day of the director's work.

Who needs to 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, according to Article 5 of the Law “On State ...” dated 08.08.2001 No. 129-FZ, the tax inspectorate should be notified about its change (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 accordance with Form No. P14001 (approved by Order of the Federal Tax Service of the Russian Federation “On Approval ...” dated January 25, 2012 No. MMB-7-6 / [email protected]).

Apart from tax office the change of director must be notified to the banks servicing the accounts of the organization, as well as counterparties, if this is required to fulfill existing agreements or sign new ones.

Dismissal of the founder director of an LLC at his own request and in the event of liquidation of the company

Upon the departure of the director from his post on own will it should be remembered that he needs to 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, in the letter of Rostrud No. 1143-TZ it is indicated that the director should warn about his dismissal of the participant who, on behalf of the company, was a signatory employment contract with him.

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

Dismissal upon liquidation

In the event of liquidation of an LLC, the director, as well as all other employees, must be notified of the upcoming dismissal 2 months before the said 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 termination of the 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 his average earnings for 2 months after his dismissal 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 the employment contract with the director, in accordance with Article 278 of the Labor Code of the Russian Federation, is his removal from office in the event of the bankruptcy of the company. According to Article 126 of the Law “On Insolvency…” dated October 26, 2002 No. 127-FZ, the powers of the director in this case are terminated by the decision of the arbitration court from the moment it is issued. At the same time, it is not required to notify the director of dismissal, severance pay is not paid, since we are talking about removal from office. After the court makes such a decision, the director must, within 3 days, transfer all documentation, seals and material values organization to the bankruptcy trustee.

Dismissal of the CEO - the sole founder of the company

Upon dismissal of the CEO sole founder LLC should remember that the provisions of Chapter 43 of the Labor Code of the Russian Federation, in accordance with Article 273 of the Labor Code, do not apply in this case. Do these relationships fall under the regulation of labor legislation?

According to the position of Rostrud (letter dated March 6, 2013 No. 177-6-1), in this case, the norms of the Labor Code of the Russian Federation are not applicable, since the conclusion of an employment contract by the sole founder with himself is contrary to the meaning labor relations, since they are assumed to be two-sided. In this situation, one of the parties is absent, so the conclusion of an employment contract is impossible. This means that it is simply incorrect to talk about the dismissal of the director - the only founder.

In turn, if the sole 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 occupy 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 case of liquidation through 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 his post, 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:

Completion contract.
Misconduct CEO as head of the organization.
Termination at the initiative of the retiring.
Change of ownership organizations.

Labor Code of the Russian Federation. Article 77. General grounds for termination of an employment contract
The grounds for termination of 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 has demanded their termination;
termination of the employment contract at the initiative of the employee (Article 80 of this Code);
termination of the 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 elective work (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);
refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);
refusal of an employee to transfer to another job, necessary for him in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts Russian Federation, or the absence of an appropriate job for the employer (parts three and four of Article 73 of this Code);
the employee's refusal to be transferred 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 also be terminated on other grounds provided for by this Code and other federal laws.

Part three is no longer valid.

By decision of the founder

How to dismiss the CEO by decision of the founder? What are grounds to file a layoff?

One of the easiest options for removing an employee of this level from a position is to hold it by order of the founder organizations.

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

In case of insolvency ( bankruptcy) The dismissal of an enterprise is carried out on the basis of Article 278 of this Code.

When formalizing a dismissal, it is important to comply with a combination of labor laws that require such procedures to be formalized as for the dismissal of any other employee at any level.

And respect the interests of the dismissed an employee who, until the fact of signing the order, continues to be the leading figure in the organization, representing the interests of the founder in the role of the sole executive body of production.

Given this, the decision of the founder to dismiss the CEO can only be based 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. Once approved, the process proceeds as normal.

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, an employment contract with the head of an 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 the legal entity, or the owner of the property of the organization, or the authorized owner of the person (body) of the decision to terminate the employment contract. The decision to terminate the employment contract on the specified grounds 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 to dismiss yourself from office general manager?

Perform the dismissal of a figure of this level without her consent and without the consent of the founder at the same time impossible. Without the participation of the founder or without the consent of all the founders, start a similar procedure unreal.

Another case becomes implementation of an independent solution director general. It can also ultimately 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 organization's property.

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 the standard mode.

Personnel units are based on the obligation guaranteed by Article 37 of the Constitution of the country and Article 2 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 period specified in Article 80 of the Labor Code of the Russian Federation.

Labor Code of the Russian Federation. Article 80
The employee has the right to terminate the employment contract by notifying the employer in writing not later than two weeks, unless another period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal.

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

In cases where the employee's application for dismissal on his own initiative (of his own free will) is due to the impossibility of continuing his work (enrollment in 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, conditions collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee's application.

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

Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer is obliged to give the employee a work book, other documents related to work, at the written request of the employee, and make the final settlement with him.

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

An important nuance making such a decision becomes:

need data transfer to the Unified State Register of Legal Entities about the new personal of the General Director;
signing the consent on the own dismissal leaving work, 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 must be sent within 5 working days.

Statement

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

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

Based on such a decision, the personnel department conducts the registration of the dismissal and makes the appropriate work book entry.

At the same time, a statement informing about any type of termination of labor relations with organizations, its head is preparing in 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 on the basis of a decision taken by the board of directors, founders or other similar structure within the organization.

Among other things, the basis is resignation letter although it is not mandated by law anywhere. Registration is carried out by an internal Order drawn up according to the T-8 form, which was developed by the State Statistics Committee in 2004.

The order must indicate grounds for termination of employment, the date of compilation is put and the handwritten signature of the one who, according to legislative requirements, must officially dismiss himself.

Compensation calculation

What compensation is due to the CEO upon dismissal? The size compensation payments calculated as standard just like when you end 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 has the right to compensation, the amount of which is three average monthly payments.

Deadline for filing care information

The Constitution of the Russian Federation and the Labor Code of the Russian Federation call for a standard attitude towards a specialist holding positions at any level. Although a representative of a leadership position of this rank is subject to a reservation about the need founder's notice decision one month before the expected departure date.

Such an extension of the term makes it possible to convene the regulatory authorities to hold a council and adopt a protocol on dismissal.

In the absence of a reaction of the founder to the information provided, an employee of any rank, on the basis of Article 80 of the Labor Code has the right to terminate their functions, require the issuance of a work book and the calculation of accounting.

Features of making an entry in the work book

Given the level 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 the 4th column of this document.

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

Changing the date of dismissal

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

General Director before making changes to the Unified State Register of Legal Entities has the right to change the date of his dismissal in a situation of inability to transfer cases to his successor.

Change is being made internal order.

Responsibility of the former leader

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

Including he retains material liability in case of evidence of misconduct. Such as:

expenses or lost profits that occurred through the fault of this employee;
identified loss or damage property.

Administrative Claims on such a basis may be considered at any time, subject to proof of the revealed fact, confirmed during the court session.

To criminal liability such a resigned employee may be involved on the basis of article 165 of the Criminal Code of the country in which situations of causing property damage through deceit or breach of trust are considered.

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

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

shall be punishable by a fine in the amount of up to 300 thousand roubles, 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. years with a fine in the amount of up to 80 thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to six months or without it, and with restriction of liberty for a term of up to one year or without it.

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

committed by a group of persons by prior agreement 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 80 thousand roubles, 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 freedom for a term of up to two years or without it.

Summary

In conclusion, attention should be paid to legal complexity many reasons and grounds for dismissal in the position of CEO.

Most of them can litigate, extending the entry into office of a new employee of this rank.

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

The help of specialists is useful and appropriate for both sides of the issue under consideration.

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Last modified: March 2020

Directors, as well as other employees of firms, can be fired for various reasons. For general directors, in addition to the usual reasons for leaving their position, termination of the employment contract is also provided for by 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 decision of the owners occurs before the end of his term of office (clause 2, part 1, 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 substantiate their position.

If the manager did not commit actions (inaction) of a guilty nature that led to damage to the company, then the dismissal of the director by decision of the founder occurs with payment monetary compensation. The initiative to terminate the powers of a director may also come in 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, article 77, article 78 of the Labor Code of the Russian Federation).
Adoption of an ill-considered decision of the head that led to the infliction of damage (clause 9, part 1, article 81 of the Labor Code of the Russian Federation);
A single gross violation by the director of his duties (clause 10, part 1, article 81 of the Labor Code of the Russian Federation).

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

When the 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 at the initiative of the owners if:

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

Failure to comply with these restrictions may result in the director's subsequent reinstatement. However, there were cases when in court companies managed to prove the fact of abuse on the part of the head and defend the right to dismissal in case of violations (Decision of the Moscow City Court dated 09.12.2013 N 4g / 3-11957 / 13).

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

Anyone, even the highest-ranking wage worker, is the same worker. 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 need to be taken into account. The sequence of actions in case of completion of cooperation with the head by the decision of the owners is as follows:

Initiation of convening a general meeting of founders;
Making a decision of the founders on the termination of the director's contract - ;
Based on the issued document of the authorized body, an order for dismissal is issued -;
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 personal card of the employee;
All amounts due to the director upon dismissal are accrued and paid on his last working day;
A work book and all due payments are issued on the last working day of the head.

In addition, the company must notify the tax authority of the resignation of the old head and the appointment of a new one, in order to make changes to the Unified State Register of Legal Entities. Until such changes are made, new leader will not be able to perform their duties, sign administrative documents.

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

How is the decision to dismiss a director made?

The authority to terminate the contract with the director is vested in the subject to whose competence this issue is assigned in accordance with the law and constituent documents. It can be:

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

Example. For an LLC, this may be a meeting of participants, a sole 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:

Title of the document, date and place of its preparation;
List of persons participating in the meeting;
List of issues discussed;
Information about the persons who spoke during the meeting;
The decision itself is based on the results of 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 departure of the director. 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 head, no special forms have been approved, and the organization can develop it on its own 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 subject who must sign the order is not clearly specified in the legislation. It could be:

The retiring manager 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

An entry in the manager's work book will be drawn up 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 with the identification of the person who must certify it. Column 4 shall contain the data of the decision 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 dismissal order or who is entrusted with the responsibility of maintaining work books.

How is the calculation of the dismissal of the director

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

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

In the case when the termination of the employment relationship with the director is not related to his guilty actions, he is also entitled to a separate compensation. Compensation is calculated 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 compensation is calculated upon dismissal of a director

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

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

To calculate the average daily earnings, the government decree of December 24, 2007 No. 922 is applied. To define it you need:

Take all earnings for the previous 12 months, including 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 average earnings (sick leave, vacation, blood donation days, vacations without saving);
Divide the amount of salary received by the calculated number of working days.

If the company's documents establish a greater number of months for payment of compensation, then you need to multiply the average earnings by the number of days in them.

Informing the IFTS and banks about the change of head

In addition to the above procedures for the dismissal of the old director and the acceptance of a new one (if this was done), the following must be reported:

IFTS on the assumption of the position of a new director, this can do as the very entity, and the old director in the form P14001. If information about the change of director is not provided, the tax authorities face a fine of 5,000 rubles.
banking organization, in which the company is serviced to confirm the authority of the new director to make payment transactions. In particular, it is necessary to transfer to the bank cards with sample 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 new director will not be able to perform their 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;
Salary certificate of the employee for the last 2 years;
Certificate of income and tax amounts of the employee;
Information on insurance premiums and the length of service of the employee (extracts from SZV-M, SZV-STAZH, DSV-Z, RSV).

If it was not possible to issue documents on the day of parting, you need to send written notice about the need to come for them.

Potential risks when dismissing 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 documentation procedure;
Liability for late payment of wages, non-issuance of labor or entering incorrect data into it;
Possible challenge by the employee in court of the fact of dismissal.

At the same time, non-payment of compensation alone cannot serve as the only basis for reinstatement (paragraph 1, clause 10 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated 02.06.2015 N 21). In most cases, the issues of parting with the directors are amicable, and only in a small number of cases, the case ends in litigation. In this regard, one should be extremely careful when drawing up documents for the dismissal of the director, calculating all due payments, comply with all established by law the timing of the procedures. 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 an error may be too tangible for the company.

Despite their high status and many powers, the CEO is still in fact an ordinary employee of the company. Because of this, it would seem that 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. Partly, it is.

But, in addition to this, 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 the company's relationship 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.

Any changes to the Articles of Association require the decision of each of the founders who are present at the meeting, therefore, it is impossible to dismiss the general director, who is also the owner and sole 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 decision of the founder

LLC members have all the powers to dismiss the executive body of the company. But for this it is necessary to set out good reasons for such a decision.

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

The statute of limitations for criminal offenses is determined by the severity of the crime:

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

Conclusion

The dismissal of the CEO brings more difficulties and problems than in the case of an ordinary employee. However, if you understand the basics and certain nuances, then this process will pass without any special difficulties and problems.

An employee as a general director occupies a dual position in the enterprise, because he is employed 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 a sole proprietor executive body enterprises, has great powers. He has a huge responsibility for managing the enterprise. As an employee, he has the right to use guarantees, benefits, and can claim compensation.

Legal basis for dismissal

The general director of the enterprise is responsible for production activities, its promotion and development. An important role in solving the tasks assigned to the enterprise is played by its personal qualities.

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

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

These include:

change of the owner 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 property was lost, and his illegal actions led to damage to the property of the enterprise;
while doing functional duties the CEO committed 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 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 carried out 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:

deliberate communication of any information to 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;
partnership in another company.

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

Features dismissal of the CEO by decision of the founder

By generally accepted rules in accordance with the organizational and legal form of the enterprise, the dismissal of the management is included in the range of issues resolved by the general meeting of founders, shareholders and authorized bodies. For example, in an LLC, JSC, the general meeting of founders, shareholders exclusively makes a decision to dismiss the general director.

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

With regard to unitary enterprises owned by the state, municipal authorities the owner of the property has the right to dismiss the head holding the position of general director.

FROM CEO An employment contract may be terminated in accordance with Articles 77, 81, 83, 278 of the Labor Code:

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

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

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

It must be drawn up in a protocol, in which it is necessary to indicate 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 there is a case,. Typically, this situation develops in an enterprise where there is one founder. Termination job duties as a director of an LLC, it 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 owners are not subject to the regulation of the labor of the head of the enterprise.

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, substantiating the decision of the founder;
by decision of the founder, in the order he indicates that the employment contract is terminated due to the adoption by the authorized body of the legal entity of a decision to terminate it in accordance with paragraph 2 of Article 278 of the Labor Code of the Russian Federation, an entry is made with a link justifying his decision.

In the second method, he is obliged to pay himself as a general director, in accordance with the instructions of legislative acts, compensation equal to the average monthly salary tripled, therefore, most often, many founders choose the first method.

Order

The decision to dismiss the general director is drawn up by an internal order for the enterprise on a form with a unified, developed and approved by the State Statistics Committee of Russia in early 2004, resolution number 1.

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

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

In the days preceding the dismissal, it is necessary to carry out the procedure for the acceptance and transfer of cases, which is drawn up by an act. As usual, it is carried out on the last working day. The procedure for the transfer of 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 the heads of the enterprise in some situations.

In particular, article 81 of the code established a provision according to which the general director is not subject to dismissal:

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

If the founder does not comply with the above conditions, then in accordance with the instructions of the resolution Supreme Court RF, adopted in execution in March 2004 under number 2, his actions are regarded as illegal. As practice shows, the point of view of the Supreme Court leads to serious problems that the founders get into in the event of a disputed dismissal of the director. In the future, disputes may arise regarding the basis on which the dismissal of the CEO will be considered an incentive to restrict his rights.

Enrollment in labor

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 the generally established procedure for personnel records management.

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

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 protocol drawn up during the general meeting or the decision made by the sole founder, justify the reason for dismissal, certify with the seal of the enterprise. The procedure for making entries in the work book was approved by a letter from Rostrud in March 2009 under the number 1143-TZ.

What is the subsequent responsibility?

Despite the dismissal of the general director from his position, he is not relieved of the material and other types of responsibility assigned to him. labor law The Russian Federation has fixed the provision according to which the obligated party to the employment contract must compensate the other party for property damage. It may result from improper performance functional responsibilities.

Judicial bodies have the right to demand a material recovery from former leader if the business has suffered damage.

The CEO may be held liable as a result of dismissal, including:

material, since he is responsible for the property of the enterprise, if there was a 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 deceit or breach of trust”, unlawful actions were committed, but his guilt must be proven.

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To the first type of liability, the general director is involved in case of damage or loss of property, if the enterprise has suffered direct actual damage, costs, lost profitable offers. Any founder has the right to submit statement of claim to court to recover material damage from him. The amount of material liability is not limited, the general director is liable with his property, with the exception of living space, personal belongings.

According to the second terms are determined by the severity of the offense committed in accordance with the criminal code. At the end of the term, the general director is released from criminal punishment due to the statute of limitations, during which it is possible to attract.

Measure of influence

In accordance with Article 183 of the Code of Law, 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 wage or other types of income received for work performed within one to six months.

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