Dismissal of the CEO at the initiative of the founder. How to dismiss the director of an LLC if he is a founder? Legal basis for dismissal

22.12.2021 Recipes

The dismissal of employees, regardless of their position, is strictly regulated by the labor code. All documents are drawn up in accordance with legislative acts. Dismissal of a director is possible only by decision of the founder / council of founders. In the work book, a corresponding entry is made.

The decision to dismiss the director of an LLC with one founder

The director of the company can be either the owner of the company or an employee. If the head of the company is the owner, then there are two options for his dismissal:

A statement written of their own free will. There is a standard execution of documents for dismissal, with the filling in of the necessary marks in the employee's personal card and work book;
The protocol of the decision of the sole owner to terminate the employment relationship with the manager of the company is drawn up. The labor record is made on the basis of Art. 227 clause 2.

It is worth noting that the general manager himself can sign a resignation order and later on the removal of powers. This is not against the law. For a sample order of dismissal, see

Employment record of the director's dismissal by decision of the founder

The corresponding record is made by the HR department or accountant (in the absence of a staff position in the state), based on the decision of the founders and the removal from the director's position, it is necessary to display the article by which he / they were guided when accepting the dismissal.

Compensation for dismissal of a director by decision of the founder

The payment of compensation to the director is provided by law in two cases:

Under the new owner of the organization
Termination of employment by decision of the owner / owners without giving reasons.

In both of these cases, compensation is paid, at least three salaries. In the event that the manager is dismissed in connection with the liquidation of the LLC, it is necessary to be guided by Art. 178 of the Labor Code of the Russian Federation, based on this, monthly compensation is provided on a general basis, and with further employment, no more than two months. In case of termination of the employment contract on the initiative of the employee, or by agreement of the parties, additional payments are not provided.

Grounds for dismissal of a director by decision of the founder

If you are going to dismiss the CEO, you need to do it in accordance with legislative acts and requirements. The basis may be:

The term of the contract has expired. In this case, the council of owners / owner makes a decision on a possible extension of the term of the contract or change of the general one;
Change of ownership of the organization. In this case, the term for the adoption of the decision to replace the general is limited - it is three months. In the future, it is impossible to refer to this circumstance;
Damage to the company due to misconduct by the company manager. If this damage is identified, they can take a decision on removal from office without compensation. Guided by Article 81, Part 1. Clause 9, it is necessary to confirm the damage that was caused to the society. Otherwise, litigation is possible, up to reinstatement in office;
Liquidation of society. The notice of the liquidation of the organization must be provided to the manager at least 2 months in advance. After the appointment of a liquidator, the powers of the head are terminated;
Bankruptcy of the society. According to Article 69 on bankruptcy, the head of the bankruptcy organization is removed from management and transfers his powers to a temporary administrator;
Termination of an employment contract based on a decision of the owners / owner without giving a reason. In this case, it is necessary to notify the current manager 30 days before the termination of the contract;
By agreement of the parties. This is one of the most common cases of managerial changes. The amount of compensation is set individually, according to the agreement of the parties;
Additional grounds provided for by the employment contract. This interpretation gives us 278 Art. Of the Labor Code of the Russian Federation, but what exactly these grounds are does not provide any explanations.

After removal, from the position of manager, it is necessary to take over the affairs of the company and transfer them to a new leader. All documents, powers, seals and stamps of the organization are transferred. It is necessary to notify the tax authorities about the change of the head within three days. It is worth informing both banks and companies with which transactions are being made, in order to avoid damage. For information on who is responsible for the LLC's debts, see the article on subsidiary liability.

Who signs the order to dismiss the director by decision of the founders?

After determining the basis for the dismissal of the director, it is necessary to prepare the relevant documents. Mandatory is the resolution of the meeting of founders / founder on the removal from office of the manager. Upon termination of the contract, a corresponding order is drawn up, which is signed by the owner of the company / chairman of the council of owners of the company.

Read about how to renew the powers of a director.

Dismissing the CEO of his own free will is a more complicated procedure compared to terminating the employment relationship between an ordinary employee and an organization. We consider the issues of dismissal of a manager from the point of view of labor and from the point of view of corporate legislation, and also pay attention to formal issues (notification of the Federal Tax Service, etc.)

Dismissal of the general director of an LLC of his own free will

The general director of a limited liability company acts as its sole executive body (clause 1 of article 40 of the Federal Law "On limited liability companies" dated 08.02.1998 No. 14-FZ).

The functions of the employer in relation to the general director of the LLC are entrusted to the general meeting of participants (subparagraph 4 of paragraph 2 of article 33 of Law No. 14-FZ). Therefore, the application for the director's dismissal is written in the name:

the only member of the LLC;
chairman of the general meeting of participants.

The decision to terminate the employment relationship with the general director of the legal entity is made at an extraordinary meeting of the LLC participants, which the resigning manager himself is authorized to initiate (paragraphs 1-2 of article 35 of Law No. 14-FZ).

Important! Unlike other employees, the head of a legal entity must notify the employer in writing of his intention to quit at least 1 month in advance (Art. 280 of the Labor Code of the Russian Federation of 12/30/2001 No. 197-FZ).

At the same time, this period is established regardless of how long the employment contract was concluded with the general director of the organization, including in the case of short-term labor relations (Rostrud letter dated 06.03.2013 No. PG / 1063-6-1).

If the letter of resignation is sent by mail, then the date of receipt of the letter by the employer is considered the date of the notification of the employer (a note about this will be in the notice of delivery), and not the date of its sending (see the appeal ruling of the Belgorod Regional Court of 26.06.2012 in case No. 33- 1744).

However, a properly sent notification may not always be delivered or received by the addressee. It is recommended to resolve this situation by going to court.

The procedure for the dismissal of the CEO of his own free will

The standard procedure is as follows:

Notice of LLC participants:
- Notifications of an extraordinary meeting are sent by sending registered letters to the LLC participants with a list of attachments and notices of delivery (clause 1 of article 36 of Law No. 14-FZ). The charter of a legal entity may regulate another method of notification, but this one seems to be one of the most reliable and simple.
- The notification must indicate the date, time and address of the meeting, the agenda (in this case, the dismissal of the general director of the organization, but at the same time the issue of appointing a new head may be included). The notification should also include copies of the CEO's resignation letter of his own free will.
- The mailing of the mentioned letters must be made to the addresses of all members of the LLC. They are taken from an extract from the Unified State Register of Legal Entities or the register of LLC participants. If the addresses in the named sources do not match, you must send notifications for each of them.
Holding a meeting of LLC participants. Based on its results, a decision is made on the dismissal of the general director, which is entered into the minutes.
Issuance of an order on the dismissal of the general director of the LLC on the basis of the minutes of the general meeting.
Calculation with a dismissed employee, registration of an entry in his work book.
Notification of the Federal Tax Service on the dismissal of the director.

If the members of the LLC ignore the director's statement of dismissal

Taking into account the stipulated in Art. 37 of the Constitution of the Russian Federation prohibiting forced labor, participants in the general meeting of an LLC have no right to refuse the general director to accept his letter of resignation and subsequent termination of employment.

Important! An extraordinary meeting in this case is not held to agree on the possibility of dismissing the general director of his own free will, but in order to comply with the stipulated in Art. 280 of the Labor Code of the Russian Federation and sub. 4 p. 2 art. 33 of Law No. 14-FZ of the rules for dismissal.

The most common expression of unfair actions on the part of the employer is the ignorance by all participants of the LLC or one of them to participate in an extraordinary general meeting, which may also result in unwillingness to receive a corresponding certified letter from the general director of the LLC with his letter of resignation.

In such cases, after the expiration of the prescribed month, the head of the LLC who wants to resign is advised to go to court with a claim challenging the inaction of the founder (founders) and demanding dismissal of his own free will. At the same time, requirements may be made to amend the information in the Unified State Register of Legal Entities (see the appellate ruling of the Kirov Regional Court dated 13.06.2012 in case No. 33-1718).

Note! The courts indicate that according to Art. 80 of the Labor Code of the Russian Federation, after the expiry of the notice of dismissal, the employee is entitled to terminate the performance of his labor functions, regardless of whether the employer has complied with the rules for terminating the employment contract or not.

At the same time, a statement of claim of the corresponding content, handed to one of the founders, can be recognized as a proper confirmation of the employee's will of the employee (see the appeal ruling of the Perm Regional Court of 08/05/2013 in case No. 33-7154).

Notification of the tax and non-budgetary funds about the dismissal of the director

Notification of the territorial body of the Federal Tax Service at the location of the legal entity about a change in information about a person entitled to act without a power of attorney on behalf of the organization is made within 3 days from the date of implementation of such changes (sub. On state registration of legal entities and individual entrepreneurs "dated 08.08.2001 No. 129-FZ) by filling out and sending form P14001, approved by order of the Federal Tax Service of Russia dated 25.01.2012 No. ММВ-7-6 / [email protected]

Note! The legislation does not establish that the termination of the powers of the executive body of an LLC and their assignment to a new person should occur simultaneously. So while a new general director of the LLC has not been appointed, a message should be sent to the tax office on the termination of the powers of a particular individual (see sheet K of Appendix 6 to Order No. ММВ-7-6 / [email protected]).

Based on practice, the tax authorities are extremely rarely ready to accept from a resigned head of an organization a statement on his exclusion from the Unified State Register of Legal Entities as a person entitled to act on behalf of the organization without a power of attorney. The FTS's refusal to register changes is usually explained by the fact that the specified form R14001 cannot be signed by the former head, since in fact his powers have been terminated, although information about him is still contained in the Unified State Register of Legal Entities (see the decision of the Supreme Arbitration Court of the Russian Federation "On Invalidation ..." dated May 29, 2006 No. 2817/06).

At the same time, there is also law enforcement practice, according to which the courts quite often oblige the Federal Tax Service authorities to exclude from the Unified State Register of Legal Entities information about the former general director of the organization at his request. They proceed from the fact that the inability to submit an application drawn up in accordance with the requirements of the law cannot in itself be a reason for refusing to satisfy a legal claim of a person (for example, the resolution of the 19th AAC dated 03/02/2016 in case No. A36-4738 / 2015).

The duty to notify extra-budgetary funds, Rosstat and other government agencies in the order of interdepartmental interaction is assigned to the Federal Tax Service.

Sample application for the resignation of the CEO

By its structure, the letter of resignation on behalf of the CEO is absolutely identical to the statements that all other employees write in similar cases.

The CEO's resignation letter suggests the following content:

addressee: the body of the legal entity that entered into an employment contract with the director (this can be the founder, general meeting of participants, etc.);
position, surname, name, patronymic of the applicant;
a request to dismiss the applicant from the position held, indicating a specific date of dismissal;
date of application submission;
the signature of the applicant with a transcript.

Director's dismissal date. Actions to be taken before it occurs.

The last day of work of the CEO may be:

The date specified by the director in the statement, with which the participants / participant of the LLC agreed;
The date on which 1 month expires from the moment the CEO was warned about his dismissal. This date can be used, in particular, in the event that the director did not indicate the date of dismissal in the application. The day following the day the employer is notified of the upcoming dismissal is taken as the starting point.
Another date determined by agreement of the parties.

Note! If the participants / sole participant of the LLC decide to dismiss the director before the date specified in the application without the consent of the director, despite the fact that there are no guilty actions on the part of the latter, the decision of the owner will become the basis for dismissal. In accordance with Art. 278 of the Labor Code of the Russian Federation in this case, the director is paid compensation.

The resigning director must:

report on the accountable funds (if any);
transfer keys, seals, documents to the new director (founders) according to the acceptance certificate.

Sample order for the dismissal of the CEO

The order to dismiss any employee is signed by the head of the legal entity-employer. The same applies to the order to dismiss the general director of the LLC. Despite the fact that in this case the dismissed employee and the sole executive body coincide in one person, the CEO signs the order on his own dismissal himself (see Rostrud's letter dated 11.03.2009 No. 1143-TZ).

In a situation where the general director, due to certain circumstances, cannot sign the order on his own (for example, due to temporary disability, etc.), a person authorized by him to sign the orders can do it for him. The head can transfer such powers by issuing a local act or issuing a power of attorney.

Note! Usually, to draw up an order on the dismissal of the general director, they use the unified form T-8, approved by the decree of the State Statistics Committee of the Russian Federation of 01/05/2004 No. 1. However, from 01.10.2013 this form became optional (see the information of the Ministry of Finance of Russia "On the entry into force ..." No. PZ- 10/2012). So the order can be issued in any form.

The order on the dismissal of the CEO (in a unified form) can be downloaded below:

Making an entry in the work book

Enters a record of dismissal in the work book, as a rule, an authorized person (HR inspector). In the absence of such, the director can make the entry himself. In any case, it is necessary to comply with the requirements of the instructions for filling out work books, approved. Resolution of the Ministry of Labor of Russia dated 10.10.2003 No. 69.

The entry should look like this:

Note! Abbreviations during recording are not allowed.

The letter of dismissal will be certified by the signature of the authorized person and the seal of the organization (if any).

Dismissal of the CEO by the decision of the founder

The founder is entitled to terminate the employment relationship with the head of the legal entity by his own decision. Possible grounds are set out in Art. 81, 83, 278 of the Labor Code of the Russian Federation.

The issue of dismissing the general director is submitted to the general meeting of the founders (participants) of the LLC (subparagraph 4, paragraph 2 of article 33 of Law No. 14-FZ).

Upon dismissal of the general director on the grounds of clause 2 of Art. 278 of the Labor Code of the Russian Federation, if no guilty actions were revealed on his part, he is paid compensation in the amount of at least 3 times the average monthly earnings (Article 279 of the Labor Code of the Russian Federation).

Important! The dismissed employee has the right to appeal in court the motives of his own dismissal presented by the founder, since the rather abstract formulation of the norm of clause 2 of Art. 278 of the Labor Code of the Russian Federation, nevertheless, does not mean that the employer is not limited in any way in deciding the issue of dismissing the general director of the organization and resolves the problem at his own discretion (see the definition of the RF Armed Forces dated 01.11.2007 No. 56-B07-15).

At the same time, the dismissal of an employee under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation without specifying the reasons is recognized as fundamentally admissible. In this case, the dismissal does not act as a measure of legal responsibility and is accompanied by a mandatory payment of compensation (see the definition of the Constitutional Court of the Russian Federation of 07/14/2011 No. 1015-О-О).

Terminate the employment relationship with the CEO on the grounds of pp. 7-7.1 Art. 81 of the Labor Code of the Russian Federation is possible only in the cases listed in these norms. The Plenum of the RF Armed Forces in its resolution of 17.03.2004 No. 2 explains that the persons specified in clause 7 of Art. 81 of the Labor Code of the Russian Federation, can be dismissed on this basis, including when it is established that they committed theft, taking a bribe or other illegal actions of a mercenary nature, even if they were not related to their work (paragraph 45 of Resolution No. 2).

Thus, the dismissal of the general director of his own free will implies that he notifies his employer at least 1 month before the date of dismissal. The functions of the employer in relation to the general director of the LLC are entrusted to the sole participant or the general meeting of the participants of the LLC. The CEO is authorized to sign his own order of dismissal himself.

The procedure for dismissing the general director by decision of the founder differs from the termination of labor relations, both with other employees and with a senior official, but in a different way. Its features and rules are established by law and are mandatory for all employers, regardless of the coincidence or non-coincidence of the managerial position with the founding staff.

Grounds and methods of dismissal

The key role in the conduct of business activities of a legal entity is assigned to its founder. It performs the most important functions and is endowed with special rights:

controls financial accounting and reporting;
makes a profit;
may withdraw from the founders;
at its own discretion disposes of its own share in the capital of the company;
recruits and dismisses staff, including top management.

The founder has the right to dismiss the head of the enterprise on various grounds:

If, as a result of his actions, the company has suffered property or financial damage.
For disclosing information about a company that is a trade secret.
When transferring to another company on a part-time basis.
If he has grossly violated his labor duties.
In case of bankruptcy of the company.
If the owners of the enterprise change.

Dismissal of the head of the company is also possible due to the termination of the contract or of his own free will.

If the employment contract is terminated due to circumstances beyond the control of the director of the LLC and without his fault, then he is compensated for the average monthly salary in three times. It is not subject to taxation (Article 217 of the Tax Code of the Russian Federation).

Often, the founder is the executive body of the company and can fire himself / herself. In this case, dismissal can be made in two ways:

Terminate the contract on your own initiative.
Make a decision of the constituent body, referring to paragraph 2 of Art. 278 of the Labor Code of the Russian Federation.

The first option provides for writing a statement, issuing a corresponding order and making an entry in the work book indicating the article for which the termination of labor interaction took place. For samples of the order to dismiss the general director of LLC and the statement, you can use any practical examples on specialized sites, taking into account the individual situation at the enterprise. This method is most preferable, since when using the second option, which provides for the termination of the contract on the initiative of the employer, it is necessary to make compensation payments to oneself.

According to paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, the termination of labor interaction with a senior manager can be made without specifying reasons by a decision made by a special body of the company or its owner (representative). Such termination of the employment contract does not apply to measures of legal responsibility and must be accompanied by an increased compensation payment. Its size is established by the parties in the most basic contract, and in a disputable situation - by the court (ruling of the Constitutional Court of the Russian Federation No. 3-P of 2005).

The dismissal of the general director by the decision of the founder without specifying the reasons for terminating the contract obliges the employer to pay him compensation not less than when the work is terminated due to the change in the owner of the company (Article 181 of the Labor Code).

Thus, in general, the process of dismissing a director of an LLC is not very different from the dismissal of ordinary employees. However, there are some nuances in it.

Features of dismissal

According to the Labor Code of the Russian Federation, in the presence of several founders in the company, the termination of the employment contract with the general director is made by decision of their general meeting. It is also allowed to hold a board of directors. However, such a possibility must be spelled out in the charter of the enterprise.

In state and municipal organizations, their owners have the right to dismiss the top manager. But holding a general meeting is necessary in such cases as well. It is a prerequisite for terminating employment relationships with senior management. Otherwise, the dismissal may be declared illegal by the court.

Procedure

If the company has a single founder, the procedure for dismissing the general director includes the following steps:

Making a decision and drawing up an act on termination of an employment contract by a board of directors or a similar structure.
Execution of a dismissal order on the basis of a compiled act indicating the reasons for the termination of employment.
Familiarization of the dismissed manager with the order.
Calculation and issuance of a work book on the last working day.
Within three days, the former general director of the Inspectorate of the Federal Tax Service is notified of the event by submitting an application for changing the data in the Unified State Register of Legal Entities.
Notification of the credit and financial organization serving the company.

A few days before the immediate termination of the contract with the general director, it is necessary to begin the acceptance and transfer of cases. The procedure for its implementation, as a rule, is spelled out in the company's charter.

A lot of documentation is drawn up for the CEO to perform special powers. For example, powers of attorney for the implementation of certain functions, EDS - for banking operations, etc. When dismissed from office, he must transfer all entrusted values to the new management or other competent person.

The transfer of property and documents is carried out on the basis of an inventory (clause 22 of the Methodological Instructions of the Ministry of Finance, approved by order No. 119n of 2001). Documentation procedures can be secured by a special act.

Upon dismissal of the head of the company by decision of the founder, he is paid:

three times the average salary;
compensation for unused vacation time.

These payments are made if the dismissal of the head of the organization was not his fault.

In the absence of the retiring general director at work on the last day, they are carried out upon his written application on the next day after its submission. If it is impossible for the director to receive the documentation in person, a notification should be sent to his address, which reflects the need to receive them. This must be done by registered mail with a list of attachments. This will confirm the fulfillment by the company of its obligations, and there will be no problems with the inspection of the labor inspectorate.

In addition, the CEO, upon dismissal, is required to fill out a work-around sheet. However, if he does not do this, the documents must still be issued.

Article 81 of the Labor Code of the Russian Federation establishes a ban on the dismissal of a director by decision of the founder, even if he commits a violation during:

his illness;
finding him on vacation.

An exceptional situation is with the liquidation of a company, when the general director must be notified of the dismissal 60 days before the termination of the company's activities.

Registration

In any case, the fact of termination of the employment relationship between the employer and the senior official of the company must be based on the decision that was made and signed by the constituent body. According to this document, the personnel service draws up the dismissal and makes the appropriate entries in the work book. To quit on his own initiative, the head of the company must apply to terminate the employment contract in the name of the founder.

For many, the question of who signs the order to dismiss the CEO is becoming relevant. The document is drawn up by the personnel department on the basis of a decision or a protocol of dismissal. It is signed by the head himself, who, according to the law, is obliged to fire himself.

To draw up an order for the dismissal of a director, a sample is convenient that reflects its structure and content. In 2004, Goskomstat developed a unified document form - form T-8, which is used to the present. It must necessarily reflect the basis for termination of the contract, the date of registration and the signature of the manager himself.

Thus, a senior executive of a firm can be dismissed for various reasons. In case of termination of labor interaction without explaining the reasons (according to Article 278 of the Labor Code), additional compensation must be paid to him. Dismissal is carried out by order of the head who signed it on himself.

Attention! Due to the latest changes in legislation, the legal information in this article may become out of date!

Our lawyer can advise you for free - write a question in the form below:

Dismissal of the general director by decision of the founder can be carried out for various reasons, which are spelled out in the Labor Code of the Russian Federation. We will study them, as well as how the procedure for dismissing the head of the company from his position at the initiative of the owner is carried out.

What are the grounds for early termination of the employment contract with the director

The owners of a business entity may, on their own initiative, dismiss the head of the company on the basis of:

Namely - as a result of decisions made by the director due to which the health of employees of the organization was caused or damage was caused to the property of the company. In addition, dismissal under Art. 81 is possible if the director fails to perform his duties properly.

How to fire a CEO: dismissal order

Above, considering the procedure for dismissing a director of a company from a position, we reflected the need to initiate the issuance of an order by the dismissed director to actually dismiss himself from office. This is due to the requirements of Art. 84.1 of the Labor Code of the Russian Federation.

At the same time, an extended interpretation of these requirements is permissible: the specified article of the Labor Code of the Russian Federation states that the order (or order) must be drawn up by the employer, and this is not necessarily the head of the company. At the same time, functionally this order or order (and with an extended interpretation of the term "order" - and legally) may correspond to the decision or protocol of the founders on the release of the director. Thus, it is permissible to refuse to draw up the order in question, especially if the director himself suddenly refuses to sign it.

Whether the order in question has been applied or not determines the peculiarities of filling out the work book of the dismissed director.

Dismissal of the director: entry in the work book and personal card

If the director's order to dismiss himself has not been issued, then in his work book in the column "Name of the document on the basis of which the entry is made," you must give a link to the minutes adopted at the meeting of founders.

In the column "Information on employment", you need to provide a wording that corresponds to the reason for dismissal, which is reflected in the protocol (that is, there must be a link to the applicable article of the Labor Code of the Russian Federation).

An entry in the work book of a dismissed director can be made and certified by a HR specialist or other competent person of the company (it can be determined by the same minutes of the meeting of founders).

The rest of the workbook is filled in and certified in the same way as when an ordinary employee is fired.

You can find out more about the peculiarities of filling out work books upon dismissal of employees in the article "Filling out work books upon dismissal - sample-2019".

Again, on the basis of the protocol or order (if any), an entry is made in the personal card (which can be drawn up according to the unified form No. T-2). The dismissed director must also sign it.

Informing the Federal Tax Service and banks

As soon as the internal corporate documents are drawn up, it is the turn to inform the third-party subjects of legal relations with the organization from which the director is leaving. Namely:

Tax authorities within 3 days from the moment the new director takes office must be informed about this through form P14001. Based on this document, the Federal Tax Service will make changes to the Unified State Register of Legal Entities - on the new head of the organization.

Form R14001, in the general case, is submitted to the tax service by the founders themselves (since the new director at that time - before the changes in the Unified State Register of Legal Entities - from the point of view of administrative legislation, does not have the authority to submit any documents to the Federal Tax Service). But in some cases, the FTS agrees to accept this document from the former director (since he, despite the termination of work in the company under the Labor Code of the Russian Federation, from the point of view of the FTS still remains the head of the organization).

If the tax authorities do not promptly notify about the change of director, the company may be fined 5,000 rubles (clause 3 of article 14.25 of the Administrative Code of the Russian Federation).

2. Serving financial institution.

The bank in which the company's current account is opened must also know that the director has changed in it and, therefore, the person who probably has the authority to perform payment transactions with this bank (in particular, using an EDS). In addition, at the time the new director starts to work, he will need to draw up the documents necessary to gain access to the bank, for example, a certificate and EDS carriers. You will also need to transfer to the bank a card with a sample signature of the new director, new powers of attorney issued by him to persons who have access to the bank for one reason or another.

Acceptance of documents and property

The current director is usually entrusted with a large number of different documents, on the basis of which he exercises his powers (the same powers of attorney and EDS - for operations with a bank account). Upon completion of work in the firm, he is obliged to hand them over to the new head or other competent persons of the organization (decision of the Arbitration Court of the Sverdlovsk Region dated 01.21.2014 No. A60-34604 / 2013).

In relation to the property transferred by the director (this also applies to documents), it is necessary to conduct an inventory (clause 22 of the Methodological Instructions by order of the Ministry of Finance of Russia dated December 28, 2001 No. 119n).

The transfer of documents by the retiring director can be reflected in a special act.

You can find out more about drawing up the corresponding act in the article "Act of acceptance and transfer of documents when changing the director".

Issuance of documents and payment of compensation

On the last day of the director's work, he needs to be issued a workbook, as well as to pay due compensation. For these purposes, it may be necessary to prepare other documents, for example, the calculation of payments according to the unified form No. T-61.

If the director is unable to receive the documents in person, he must be sent a notice of the need to appear at the company for their receipt by registered mail. Postal documents confirming the sending of this notification will at the same time confirm the fulfillment of this obligation by the company during the inspection of the labor inspectorate, if by that time the documents are not with the resigned director.

It is desirable for the director to fill out a bypass sheet, but even if he does not do it, then all the documents one way or another must be issued to him.

You can find out more about the use of a work-around sheet when dismissing an employee in the article "Bypass sheet upon dismissal - sample and form" .

Outcomes

The founders can dismiss the director for various reasons. If the dismissal of the director from his post is carried out under Art. 278 of the Labor Code of the Russian Federation (in this case, the founders have the right not to explain to him the reasons for dismissal), then the director is entitled to additional compensation. The procedure for dismissing the head of an organization is in the jurisdiction of labor, civil, in a number of legal relations - administrative legislation.

You can find out more about the specifics of employers' use of certain mechanisms for the dismissal of managers in the articles:

"Dismissal of the CEO of his own free will" ;
"Art. 81 of the Labor Code of the Russian Federation: questions and answers " .

Upon the dismissal of the general director, an extraordinary meeting of the company's members is convened with a notice to terminate the employment contract. However, this issue can be raised, among others, at the scheduled regular or extraordinary meeting of the company's participants. You also need to issue an order to terminate the employment contract and familiarize the general director with it. The remaining technical steps in the process of dismissing the director are standard: making an entry in the work book and personal card, calculations, handing out the work book.

There are several situations in which you cannot terminate the employment contract with the general director:

if the manager is a pregnant woman, the exception is the liquidation of the company ();
if the manager belongs to the category of persons named in;
during the period of temporary disability or the director's stay on vacation, the exception is the liquidation of the organization ().

Dismissal of a director at the initiative of the owner

It must be remembered that the CEO is an employee of the company, therefore his relations with the owners are regulated by labor laws. When dismissing a director, it is important for owners to coordinate their actions with labor legislation. In addition, the CEO is a person with whom the relationship is governed by corporate law. And this should also be taken into account.

An employment contract with the general director on the initiative of the owner may be terminated due to several circumstances:

If there is a change in the owner of the company (). The norm does not apply to cases when the composition of the participants simply changes, as well as to reorganization in the form of affiliation.
If there has been a transformation of society, that is, the organizational and legal form (division and separation) has changed. In this case, the owners may decide that it is necessary to terminate the relationship with the CEO without specifying the reasons for dismissal.
If by his actions the director has caused damage to the interests of society ().
If the director has once grossly violated his labor duties ().

1) Dismissal of a director in connection with a change in the owner of the company's property

The new owner of the property has the right, no later than three months from the date of the emergence of his right of ownership, to terminate the employment contract with the executives.

Having made a decision to terminate the employment contract with the general director, the owner must pay him compensation in the amount of at least three times the average monthly salary ().

2) Dismissal for causing damage from the actions of an official

How can an owner find out that the general director has committed a violation in relation to the safety of the property? Initially, he may be informed about this by one of the employees. But often the owners find out about this from the reports of the consultants.

3) Dismissal of a director due to a single gross violation of labor duties

The CEO falls under the regulation. According to the owners, any violation of obligations, which is named in the employment contract, can be a gross violation. For example, the director must agree on the candidacy of the acting person during his absence. If he forgot to do this, it means that he has grossly violated the provisions of the employment contract. Failure to provide the necessary reports in due time or failure to meet the indicators, which are named as obligations in the employment contract, can be considered a gross violation. It should be noted that Clause 10, Part 1 of Art. 81 of the Labor Code of the Russian Federation applies only to managers and deputy managers.

Since the dismissal on the grounds named in Art. 81 of the Labor Code of the Russian Federation is a disciplinary sanction, then in order to register this sanction in the work book as a basis for terminating the employment contract, the employer will have to prove the fact of a disciplinary violation. For this, it is necessary to conduct an internal investigation.

Algorithm for conducting an internal investigation

A service investigation can be initiated on the basis of a memorandum, inventory results, etc.
An order on the creation of a commission to conduct an investigation is necessarily issued (it specifies the full names of the commission members, their positions, purpose, date of creation, validity period, powers).
All members of the commission must familiarize themselves with the order.
Acts and other documents are drawn up in the course of the investigation, a final act is prepared based on the results of an official investigation.
The manager must familiarize himself with the acts.
A written explanation is taken from the manager.
An order is issued on the application of a disciplinary sanction, with which the manager must familiarize himself.

It is important to remember that two disciplinary sanctions cannot be applied for gross violations of an employment contract. You will have to decide which disciplinary action to apply.

Dismissal of the head on the basis of Art. 278 of the Labor Code of the Russian Federation

Situation 1: The company introduces a bankruptcy procedure ( )

In this case, the decision to remove the manager from office is made by the arbitration court. The following persons have the right to apply for the removal from office of the head of the debtor organization: an interim manager, a meeting of creditors, an administrative manager or the persons who provided security.

Key points for this situation:

The basis for issuing an order is a ruling by an arbitration court on the dismissal of the head of an organization.
The last day of work is the day when the owner of the organization's property became aware of the entry into force of the court ruling.
The director is not paid severance pay (with the exception of cases where such payment is provided for by an employment contract or other local regulatory act of the organization).

Situation 2: The authorized body of the legal entity made a decision to terminate the contract ( ).

An employment contract with a director can be terminated by the general meeting of shareholders or by the board of directors. Dismissal of the head of the organization on the basis established in paragraph 2 of Part 1 of Art. 278 of the Labor Code of the Russian Federation, can occur at any time and without specifying the reasons.

Dismissal initiated by the CEO

The manager has the right to early terminate the employment contract, but he must warn all owners of the intention to resign, and in writing and no later than one month in advance (). Letters are sent to all founders, owners, shareholders according to the register, with acknowledgment of receipt. In letters, the director asks for the convocation of an extraordinary meeting with a notice to terminate the employment contract. The procedure for transferring cases and property is determined in advance so that the owner does not initiate arbitration proceedings.

In case of dismissal of the head of the organization of his own free will, he is not paid monetary compensation in the amount of at least three times the average monthly salary.

Dismissal of a director due to the expiration of the employment contract

Since the executive body is appointed for three or five years, the powers of the director may be terminated due to the expiration of the contract. Ekaterina Kuznetsova, partner of PBU LLC, member of the Chamber of Tax Consultants and host of the webinar, tells what points you should pay attention to in this case:

What guarantees can a director expect upon dismissal?

First of all, compensation is provided in the form of a three-month average monthly earnings (). However, as noted above, there are cases when this compensation is not paid - dismissal as a result of the bankruptcy of a legal entity, upon the expiration of the contract and at the request of the employee.

Compensation must be paid if the owner of the organization's property changes (). At the same time, just a change in the company's members is not a change in the ownership of the property.