How and for what can you fire the head of an organization? Dismissal of the general director How a director resigns from an enterprise.

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

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

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

WHO MAKES THE DECISION TO TERMINATE A MANAGER?

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

HOW IS THE DECISION TO DISMISS A MANAGER MADE?

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

Table 1

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

...In joint stock companies

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

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

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

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

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

...In a limited liability company

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

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

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

The head of the LLC is obliged, within five days from the receipt of the request to hold an extraordinary general meeting of the company's participants, to consider this requirement and make a decision to hold an extraordinary general meeting of the company's participants or to refuse to hold it.

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

If within the established period a decision is not made to hold an extraordinary general meeting of the company's participants or a decision is made to refuse to hold it, the meeting may be convened by bodies or persons demanding its holding. In this case, the director is obliged to submit to the specified bodies or persons a list of company participants with their addresses.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The minutes of the general meeting of shareholders indicate:

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

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

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

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

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

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

FEATURES OF THE PROCEDURE IN SPECIFIC SITUATIONS

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

It is important to take into account that the general norms of labor legislation apply to the dismissal of the head of an organization.

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

table 2

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

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

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

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

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

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

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

Dismissal at the initiative of the manager

Such a general basis for dismissal as termination of an employment contract at one’s own request has one peculiarity in relation to the head of an organization - the manager must warn the employer (owner of the property, his representative) at least one month before dismissal (Article 280 of the Labor Code of the Russian Federation).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dismissal by decision of the employer

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

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

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

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

The Supreme Court of the Russian Federation has outlined its position on this matter.

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

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

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

Thus, if, in accordance with the constituent documents, the issues of the formation of the executive body and the early termination of its powers fall within the competence of the general meeting of participants, the resolution of this issue at the general meeting of participants without the participation of the relevant official is legal.

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

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

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

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

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

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

HOW IS TERMINATION PROGRAMMED?

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

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

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

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

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

Who should sign the personnel order to dismiss the manager?

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

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

Issuance of a work book

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

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

1 -1

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

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

The main differences between the dismissal of a director are:

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

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

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

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

Step 1. Submit a resignation letter

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

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

Step 2. Convening a general meeting of founders

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

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

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

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

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

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

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

Step 5. Making an entry in the labor record

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

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

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

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

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

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

• Salary for hours worked.
• , if it has been used in full.
• Severance pay, if provided for in the employment contract or in.

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

Step 7. Issue work-related documents to the employee

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

• A work book with an entry on the termination of the employment contract included in it. In this case, the former employee must sign in the Book of movement of work books and inserts to it about receipt of this document.
• about the amount of income received over the last 2 years. Necessary for calculating sick leave at a new place of work.
• At the employee’s request, certified copies of documents related to his work activities can be provided: copies of orders, statements, etc.
• Information about paid and accrued payments to the Pension Fund.
• . This is a new form used since 2017.

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

Step 8. Notifying government agencies

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

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

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

Step 9. Other actions

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

How to fire a manager - the question is not the simplest. To do this, it is necessary to determine the basis for dismissal, follow its procedure, including making changes to the state register, and not forget about the guarantees due to the employee.

Legal status of the manager

The head of the organization, in accordance with clause 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/02/2015 No. 21, is an employee performing a special labor function, which, according to Art. 273 of the Labor Code of the Russian Federation, lies in the management of the organization.

Management, in turn, also implies the performance of the functions of the sole executive body, namely:

• powers of the owner of the organization’s property;
• powers and responsibilities of the employer in relation to other employees of the organization;
• powers of the copyright holder of the results of intellectual activity, including rights to a trademark, domain name, business name and other means of individualization, etc.

When performing the functions of an executive body, the manager goes beyond the scope of the Labor Code, since a number of powers are granted to him by the Civil Code and other laws. In particular:

From the above, it is logical to conclude that the manager has a special status: on the one hand, he is an employee who has entered into an employment relationship with the employer-organization and has entered into an employment contract, on the other hand, he acts on behalf of the employer and represents its executive body, whose activities are largely regulated by civil law.

IMPORTANT! The specifics of regulating labor relations with the participation of the head of the organization are established by Chapter 43 of the Labor Code of the Russian Federation. The provisions of this chapter, in accordance with paragraph 1 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 21, can be extended to members of collegial management bodies, if this is provided for by the constituent document of the organization or the law.

The special status of the head of the organization is due, among other things, to an expanded list of grounds for his dismissal compared to other employees.

Dismissal of a manager on general grounds

The general grounds for dismissal apply to all employees, including the manager. Among the general grounds under Art. 77-81, 83, 84 of the Labor Code of the Russian Federation distinguish dismissal:

1. At the initiative of an employee who is a manager, expressed by:
   • in the desire to terminate the employment contract;
   • refusal to continue work due to a change in the owner of the organization’s property;
   • refusal to continue work due to a change in subordination or reorganization of the organization;
   • in the desire to transfer to another employer;
   • refusal to continue working due to changes in the terms of the employment contract;
   • refusal to transfer to another job, the need for which is caused by health conditions;
   • in refusing to be transferred to another location together with the employer.
2. At the initiative of the employer in case of: unsatisfactory test results;
   • liquidation of the organization;
   • insufficient qualifications identified during the certification;
   • gross violation of duties (for example, disclosure of secrets, theft, truancy, etc.);
   • repeated failure to fulfill labor duties, not justified by a valid reason, in the event of a disciplinary sanction;
   • inaction in case of conflict of interest, etc.
3. By agreement of the parties.
4. Due to objective circumstances preventing the continuation of the employment relationship, such as:
   • the expiration date of a fixed-term employment contract;
   • identification of violations of the rules for concluding an employment contract (for example, concluding it with an employee for whom this work activity is contraindicated for health reasons).
5. Due to circumstances beyond the control of the manager and employer:
   • conscription of a leader for military service;
   • recognition of him as incapacitated;
   • occurrence of emergency circumstances, etc.

Dismissal of a manager on grounds applicable to employees of certain positions

Additional grounds for dismissal of a manager are provided for by the Labor Code in Art. 81 as grounds on which employees of certain positions can be dismissed.

Thus, additional grounds for terminating an employment contract with a manager are reduced to dismissal at the initiative of the employer:

1. When the owner of the employer's property changes.

   In accordance with paragraph 32 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, a change of ownership of property implies the following processes:

   • privatization (transfer of ownership from the state to a private person);
   • nationalization (the reverse procedure consisting in the transfer of property from private individuals to the state);
   • transfer of property between the municipality and the state enterprise;
   • transfer of an enterprise between federal and regional authorities.
2. In case of gross violation by the manager of his duties.

   A gross violation, according to paragraph 49 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, will be failure to fulfill duties, resulting in damage to the employer’s property or harm to the health of subordinates. Each case of a violation being considered gross is considered by the court, taking into account the specific circumstances.

3. When the manager makes an unfounded decision that results in damage to the employer’s property.

   As stated in the ruling of the Constitutional Court of the Russian Federation dated April 23, 2015 No. 779-O, the factual circumstances that can be interpreted as unfounded decisions are so diverse that it is impossible to establish an exhaustive list in the law.

   For example, the decision of the Supreme Court of the Russian Federation dated June 4, 2009 No. 53-B09-4 recognized as legal the dismissal of the head of a bank branch due to his unjustified decision to issue a loan.

Special grounds for dismissal of a manager

In Art. 278 of the Labor Code of the Russian Federation lists special grounds that apply exclusively to the dismissal of organizational leaders:

1. Removal from the position of a manager due to violation of the provisions of the Law “On Insolvency (Bankruptcy)” dated October 26, 2002 No. 127-FZ during the bankruptcy procedure of the employer.

   For example, in the resolution of the Federal Antimonopoly Service of the West Siberian District dated May 26, 2010 in case No. A27-24225/2009, the fact of the manager’s failure to present the documents necessary for supervision to the temporary manager is indicated as such a violation.

2. The adoption by the owner of the organization’s property, an authorized body, of a decision to terminate the employment contract.

   Clause 9 of Resolution No. 21 of the Plenum of the Supreme Court of the Russian Federation states that dismissal when the property owner or other authorized person makes a decision to terminate an employment contract is not a measure of liability, and therefore is accompanied by payment of compensation to the manager. In this case, dismissal is permitted without specifying the reasons for dismissal.

As stated in paragraph 50 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2, dismissal on this basis is dismissal at the initiative of the employer, therefore the manager retains a guarantee of maintaining employment relations during the period of vacation or temporary disability.

The employment contract with the hired manager may also provide for other grounds for dismissal.

The procedure for dismissing the head of an organization

The dismissal of a manager, depending on its grounds, is initiated by different acts; in addition, in some cases additional actions are required, but in general the dismissal algorithm is the same. Let's present it in the form of a table:

1 The ruling of the Constitutional Court of the Russian Federation dated April 23, 2015 No. 779-O states that in case of dismissal due to an unjustified decision made by the manager, an objective assessment of the act committed by the manager precedes the decision to dismiss. In this case, the validity of the dismissal can be verified by the court.

Don't know your rights?

The reasons for this decision are:

1. Completion contract.
2. Misconduct CEO as the head of the organization.
3. Termination on the initiative of the person resigning.
4. Change of owner 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 employment contract (Article 79 of this Code), except for cases where the employment relationship actually continues and neither party has demanded its termination;
• termination of an 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 due to 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, required for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work (parts three and four of Article 73 of this Code);
• refusal of the employee to be transferred to work in another area 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 decision of the founder

How to fire the CEO by decision of the founder? What are grounds for registration of dismissal?

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

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

In case of insolvency ( bankruptcy) of the enterprise, dismissal is carried out on the basis of Article 278 of this code.

When registering a dismissal, it is important to comply with a combination of labor laws that require that such procedures be completed as when dismissing any other employee at any level.

AND respect the interests of the person being dismissed an employee who, until the order is signed, continues to be a leading figure in the organization, representing the interests of the founder in the role of the sole executive body of production.

Taking this into account, the founder’s decision to dismiss the CEO can only be based at 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 by the sole owner of the property. Once approval is received, the process proceeds as normal.

Labor Code of the Russian Federation. Article 278. Additional grounds for termination of 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 an authorized body of a legal entity, or the owner of the organization’s property, or a person (body) authorized by the owner of a decision to terminate the employment contract. The decision to terminate an employment contract on the specified basis in relation to the head of a unitary enterprise is made by the body authorized by the owner of the unitary enterprise in the manner established by the Government of the Russian Federation;
• on other grounds provided for in the employment contract.

Without the consent of the founder

Can the CEO of an LLC resign without the consent of the founder? How to do it right dismiss yourself from office CEO?

To dismiss a figure of this level without her consent and without the consent of the founder at the same time impossible. Start such a procedure without the participation of the founder or without the consent of all founders unreal.

Another case becomes implementation of an independent solution director gene. It can also ultimately be based only on the decision of the meeting of shareholders, board of directors, founders and any other advisory structure, the sole owner of the organization’s property.

But the first step in this case is standard statement about dismissal from his position.

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

Personnel units are based on the mandatory requirements guaranteed by Article 37 of the Constitution of the country and Article 2 of the Labor Code the right to freedom of labor of every citizen of our state.

In this case, the general meeting of founders is necessary solely for the purpose of accepting the fact of dismissal employee, to which the latter is entitled within the period taken into account in Article 80 of the Labor Code of the Russian Federation.

Labor Code of the Russian Federation. Article 80. Termination of an employment contract at the initiative of the employee (at his own request)
An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.

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

In cases where the employee’s application for dismissal on his initiative (at his own request) 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 expiration of the notice period for 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 denied an employment contract.

Upon expiration of the notice period for 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 and other documents related to the work, upon the employee’s written application, and make a final payment to him.

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

An important nuance formalizing such a decision becomes:

• necessity transfer of data to the Unified State Register of Legal Entities about the new personality of the General Director;
• signing consent for their own dismissal from work, since such a document can only be signed by the general director listed 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 recorded.

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

Statement

Who officially records the decision to dismiss the general director, 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 only be based by decision of the board of directors or other constituent body.

Based on this decision, the HR department formalizes the dismissal and makes the appropriate entry in work book.

At the same time, a statement informing about any type of termination of labor relations with the organization is prepared by its head in the name of the founder.

Order

Based on what provisions and how is the Order prepared? An order regarding the fact of resignation 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.

Among other things, the basis becomes protocol of dismissal, although its mandatory nature is not prescribed 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 labor interaction, the date of compilation and the handwritten signature of the person who, according to legal requirements, must officially dismiss himself is put.

Compensation calculation

What compensation is due to the CEO upon dismissal? Amount of compensation payments calculated as standard as when terminating 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 submitting information about care

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

Such an extension of the period makes it possible to gather supervisory authorities to hold a council and adopt a protocol on dismissal.

In the absence of a reaction from the founder to the submitted information, an employee of any rank on the basis of Article 80 of the Labor Code has the right to cease to perform his functions, demand the issuance of a work book and settlement with the accounting department.

Features of registration of entries in the Work Book

Considering the level of official position, it will be necessary to observe certain features of entering data about 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 entry of information about number of the compiled 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-TZ of the country's Rostrud.

Change of dismissal date

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

General Director before changes were made 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 affairs to his successor.

The change is made by internal order.

Responsibility of the former manager

Does the former CEO's liability continue 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 it is retained material liability in case of evidence of illegal actions. Such as:

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

Administrative claims on this basis can be considered at any time period upon proof of the identified fact, confirmed during the court hearing.

TO criminal liability such a resigned employee can be prosecuted on the basis of Article 165 of the country’s Criminal Code, which deals with situations of causing property damage through deception or breach of trust.

The period for bringing to criminal liability 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. Causing property damage to the owner or other possessor 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 the amount of up to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or by forced labor for a term of up to two years with or without restriction of freedom for a term of up to one year, or by imprisonment for a term of up to two years. years with a fine in the amount of up to eighty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to six months or without it and with restriction of freedom for a period of up to one year or without it.

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

• committed by a group of persons by prior conspiracy or by an organized group;
• causing particularly large damage -

shall be punishable by forced labor for a term of up to five years, with or without restriction of liberty for a term of up to two years, or by imprisonment 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 wages or other income of the convicted person for a period of up to six months, or without it and with or without restriction of freedom for a term of up to two years.

Summary

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

Most of them can be challenged in court, extending the period of entry into position of a new employee of this rank.

In most cases, a successful resolution to the dismissal of 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.

Despite his high status and many powers, the CEO still actually remains an ordinary employee of the company. Because of this, it would seem that the whole process becomes extremely clear - dismissal should occur according to the same rules and laws as in the case of any other employee. In part, this is true.

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 severing the company’s relationship with him always takes place in a special order, and has a number of its own nuances.

Is it possible to fire without his consent?

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

Any changes to the Charter require a decision from 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 stated in paragraph 4, article 12 of the Federal Law “On Companies” with limited liability" .

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

By decision of the founder

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

If the damage is due to unpaid debts by the former manager, then, in accordance with Federal Law No. 127, he will have to pay them from his personal funds. As for 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, limitation periods are established in accordance with current legislation.

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

• mild severity – 2 years;
• moderate severity – 6 years;
• felony – 10 years.

Conclusion

Firing a CEO involves 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 take place without any particular difficulties and problems.