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Compensation upon dismissal of the director by decision of the founder. Payments upon dismissal of the general director by decision of the founder Payments upon dismissal of the director at his own request

In the employment contract with the General Director there is a clause "In cases established by law, upon termination of the Agreement, the General Director is paid severance pay in the amount of 3 monthly official salaries. "In the event of the dismissal of the General Director for own will, should we pay him severance pay? And is it subject to income tax and insurance premiums?

Answer

The list of situations when an employer is obliged to pay severance pay upon dismissal of an employee is given in articles 84 and 178 of the Labor Code of the Russian Federation. For example, severance pay must be paid upon the liquidation of an organization, upon staff reduction, in connection with conscription for military service, etc. Voluntary dismissal is not mentioned in these articles.

Article 178 states: “By an employment contract or collective agreement other cases of severance pay may be envisaged.” Those. in fact, the Labor Code gives the employer the right to pay severance pay both upon dismissal by agreement of the parties, and upon dismissal of their own free will. But this should be explicitly stated in the contract.

Thus, you do not have to pay severance pay to the general director if he leaves of his own free will.

Severance payments upon dismissal in the amount of 3-month average earnings are not subject to personal income tax and insurance premiums in any case, regardless of the reason for dismissal. But if the payment of severance pay is made in cases of dismissal of one's own free will (by agreement of the parties), personal income tax and contributions are not paid only if such payment is provided for by the employment contract.

Rationale

In what cases is an organization obliged to pay a severance pay to a dismissed employee, average earnings for the period of employment and compensation upon dismissal

When to pay severance pay

The organization is obliged to pay severance pay if the employee was dismissed due to:
- liquidation of the organization;
- downsizing (staff);
- the refusal of the employee to transfer to another job, necessary for him for health reasons according to the medical report, or the absence of such work in the organization;
- conscription for military or alternative service;
- reinstatement at work of an employee who previously performed this work;
- refusal of the employee to transfer in connection with the relocation of the organization to another location;
- the onset of complete disability of the employee;
- refusal of the employee to work after changing conditions employment contract;
- violation of the rules established by labor legislation for concluding an employment contract through no fault of the employee.

This list of cases of payment of severance pay is established by articles and Labor Code RF.

Employees with whom employment contracts have been concluded for a period of up to two months, pay severance pay only in one case - if it is provided for by collective or employment contracts. In other cases, regardless of the reason for dismissal, do not pay them severance pay. This is stated in Article 292 of the Labor Code of the Russian Federation.

Compulsory benefits upon dismissal can be established not only by the Labor Code of the Russian Federation, but also by other laws. For example, these laws include:

From recommendation
Nina Kovyazina, deputy director of the department medical education And personnel policy in health care of the Ministry of Health of Russia
- - provides for the payment of severance pay to prosecutors, scientific and teaching staff upon retirement, resignation, for health reasons or disability, etc. ();
- - provides for the payment of a one-time allowance to employees of the internal affairs bodies upon dismissal from service ().
From recommendation

Sergei Razgulin, Acting State Councilor of the Russian Federation, 3rd class

How to reflect in accounting and taxation the payment of severance pay, average earnings for the period of employment and compensation upon dismissal

personal income tax and insurance premiums

For the purposes of calculating personal income tax and insurance premiums, payments upon dismissal, established by law, are normalized. The amount of severance pay and average monthly earnings for the period of employment is not subject to personal income tax and insurance premiums, provided that it does not exceed three times the average monthly earnings (six times the average monthly earnings - for employees working in the Far North and equivalent areas). From payments exceeding this standard, it is necessary to withhold personal income tax and accrue insurance premiums on a general basis.

The organization is obliged to pay compensation to the head of the organization, his deputies and the chief accountant if the employment contract with such employees is terminated due to a change of ownership (). Also, the head is entitled to compensation if the decision to dismiss him was made by the owner of the property of the organization (authorized body legal entity). Compensation is paid in the absence of guilty actions (inaction) of the head. This procedure is established by Article 278 of the Labor Code of the Russian Federation. At the same time, the Labor Code of the Russian Federation does not provide for the payment of severance pay and average earnings for the period of employment upon dismissal of managers (their deputies, chief accountants) on these grounds. See more about this.

For the purposes of calculating personal income tax and insurance premiums, such compensations are normalized. Compensation to the head (his deputy, chief accountant) is not subject to personal income tax and insurance premiums, provided that it does not exceed three times the average monthly salary (six times the average monthly salary - for employees working in the Far North and equivalent areas). From payments exceeding this standard, it is necessary to withhold personal income tax and accrue insurance premiums on a general basis.

Situation: whether it is necessary to withhold personal income tax and accrue insurance premiums upon dismissal of an employee by agreement of the parties (of their own free will). The payment of severance pay upon dismissal is provided for by the employment contract

Severance pay does not need to be subject to personal income tax and insurance premiums within the established limits.

The amount of severance pay and average monthly earnings for the period of employment is not subject to personal income tax and insurance premiums, provided that it does not exceed three times the average monthly earnings (six times the average monthly earnings - for employees working in the Far North and equivalent areas). From payments exceeding this standard, it is necessary to withhold personal income tax and accrue insurance premiums on a general basis.

This follows from article 217 of the Tax Code of the Russian Federation, paragraph 2 of part 1 of article 9 of the Law of July 24, 2009 No. 212-FZ, subparagraphs and

The decision to dismiss the director of an LLC is made by a body determined by the charter of the company. Typically, this decision is made general meeting participants. In order for the dismissal procedure to take place in accordance with the law, it is necessary to take into account the reason and grounds for dismissal.

Quit yourself or get fired

The general director of an LLC has the right to resign at his own request. However, the dismissal may be initiated by the participants of the company, or it will occur due to circumstances beyond the control of the parties.

The head, as well as other employees, can be dismissed on the general grounds listed in Article 77 of the Labor Code of the Russian Federation, for example, by agreement of the parties. Additional grounds are named in article 278 of the Labor Code of the Russian Federation:

removal from office of the head of the debtor organization in accordance with the insolvency (bankruptcy) legislation;
adoption by the owner of the decision to terminate the employment contract.

Quit by own initiative director may at any time. But it happens that the owners of companies do not want to let him go. They avoid making an unpleasant decision in various ways: they refuse to hold a general meeting, they find various reasons not to hold it. In such a situation, the inaction of the participants in the company is regarded as an abuse of the right. Such behavior of the owners can be qualified as coercion of the director to work, which is categorically prohibited by labor legislation (Article 2 of the Labor Code of the Russian Federation).

Many questions arise when a director is dismissed at the initiative of the company's owners. I immediately recall the commonplace: "the initiative is punishable." But if you follow the rules dictated by law, the dismissal will pass without complications.

Difficulties in terminating an employment contract

When terminating an employment contract with the CEO on their own initiative, members of the company must be aware of the existing restrictions.

It happens that the CEO understands that his dismissal is being prepared. Then he goes on sick leave. It is unlawful to dismiss a director during a period of temporary disability (part 6 of article 81 of the Labor Code of the Russian Federation). The same rule applies if the CEO is on vacation. Violation of these requirements will entail a fine under Article 5.27 of the Code of Administrative Offenses of the Russian Federation. True, they can not be observed during the liquidation of the company.

Important
A difficult case when the leader is a woman who is expecting a child. Dismissal at the initiative of the owners of the company will be considered illegal (part of article 261 of the Labor Code of the Russian Federation). For the unjustified dismissal of a pregnant female manager, not only administrative liability is provided for under Article 5.27 of the Code of Administrative Offenses of the Russian Federation, but also criminal liability under Art. 145 of the Criminal Code of the Russian Federation (fine up to 200 thousand rubles and other sanctions).

It is not easier to fire a leader who has family obligations. For example, company owners do not have the right to fire women with children under the age of 3 or single mothers with children under the age of 14 at will. Full list persons with family obligations who are prohibited from being dismissed at the initiative of the company's members is given in part 4 of article 261 of the Labor Code of the Russian Federation.

If the dismissal still follows, then the organization needs to prepare to incur both administrative and criminal liability, when the law provides for it.

Despite severe restrictions on the dismissal of directors with family obligations, there are exceptions. In particular, you can dismiss the director if there is evidence gross violation them official duties. Whether the violation was gross, the court will determine, taking into account the specific circumstances of the case. The obligation to prove that the violation actually took place and was of a gross nature lies with the employer (Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

Whether to pay compensation to the dismissed director

Paying compensation upon dismissal of a director is not always justified. Law enforcement practice shows that the solution of this issue by employers often entails various risks and complications for both the company and its managers.

The legislation obliges the employer to pay compensation only in two cases:

if the employment contract is terminated due to a change in the owner of the organization's property (Article 181 of the Labor Code of the Russian Federation);
if the owner decides to terminate the employment contract (part 2 of article 278 of the Labor Code of the Russian Federation).

When the CEO is fired for other reasons, compensation is not the responsibility of the employer. For example, the director refused to continue working after changing the terms of the employment contract. The company is not obliged to pay compensation to him (Appeal ruling of the Penza Regional Court dated March 29, 2016 in case No. 33-980/2016).

The culprit will be left without compensation

Labor legislation delimits the grounds for dismissal into:

associated with the guilty actions of the employee;
unrelated to wrongdoing.

If there are no guilty actions (inaction) on the part of the head, he is paid compensation. The amount of payment is determined by the employment contract, but cannot be less than three times the average monthly salary (there are exceptions to this rule). Such a norm upon dismissal at the initiative of the owner is provided for by Article 279 of the Labor Code of the Russian Federation.

Interpreting the norm literally, the owners of the head are fired, charged with guilty actions and do not pay compensation. In such a situation, the likelihood of a litigation is high, in which the judges may well take the side of the ex-director.

The law does not specify which acts are considered guilty. Often guilty actions are identified with disciplinary offenses. It is difficult to consider such a position as correct, because formally the dismissal of an employee by decision of the owner does not apply to disciplinary sanctions (part 3 of article 192 of the Labor Code of the Russian Federation). Judicial practice is not unambiguous. For example, there is a position of the Constitutional Court of the Russian Federation, which believes that the list of grounds for dismissal of an employee, enshrined in Part 3 of Art. 192 of the Labor Code of the Russian Federation, is not exhaustive. So, dismissal can be regarded as a measure disciplinary action for an employee who improperly performed his labor duties (Determination of the Constitutional Court of the Russian Federation of June 24, 2008 No. 335-O-O).

So, the employer will have to determine the guilt of the director on their own, based on the established judicial practice. Guilty actions of the leader can be considered:

disclosure of information constituting a trade secret;
harm to the health of workers;
damage to the organization. For example, the deliberate conclusion of a deal that is unprofitable for the company.

Important
1. Payment of compensation is obligatory if the owner of the property of the organization changes.
2. Payment of compensation is obligatory if the directors are dismissed at the initiative of the owner (on the basis of part 2 of article 278 of the Labor Code of the Russian Federation). If the guilty actions of the head are seen and proved, then compensation is not paid to him.
3. In all other cases (for example, the director's own desire, a disciplinary offense), payment of compensation is a right, not an obligation of the company.

Miser pays twice

Some employers include in the employment contract a clause not to pay compensation to the director under any circumstances, even in the absence of faulty acts. This approach is wrong. In this case, the judges note that fair compensation must be paid in the amount determined by the employment contract or by the court if a dispute arises (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02.06.2015 No. 21).

Important
Most likely, the judges will take the side of the ex-director if he, deprived of compensation, goes to court. And it is possible that in addition to compensation, the employer will have to pay not only interest for violation of the deadline, but also compensate for the moral damage to the employee.

In determining the amount of compensation, the court takes into account the specific circumstances of the case. For example, the period of work of the dismissed general director in the organization, the time remaining until the expiration of the employment contract, the amounts that the dismissed person could receive by continuing to work as the head of the organization, additional costs that may arise due to the termination of the employment contract (Resolution of the Plenum of the Armed Forces of the Russian Federation dated 02.06.2015 No. 21).

Unfortunately, the employer and the director do not always part ways peacefully, without any claims to each other. Practice shows that it is better to agree. Litigation with the ex-director is lengthy. Accompanied by financial, temporal and moral losses on both sides. It is possible to dismiss a director without problems only on the grounds provided for in the Labor Code of the Russian Federation. And even if the company includes in the statutory documents other grounds for the dismissal of the head, the law will be on the side of the latter.

Julia Busygina, expert, training center SKB Kontur company

The procedure for dismissal and payment of compensation to the head are ambiguously determined by labor legislation. The director is included in the list of groups of specialists who cannot be fired in the standard way. This material will consider all the features of terminating an employment contract with a manager under article 78 of the Labor Code of the Russian Federation. In particular, they will consider possible reasons and the procedure for dismissal of the head by agreement of the parties, as well as the responsibility of both parties upon termination labor relations.

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Definition of the concept of "head of companies"

The head (manager, director) is individual who is responsible for running the business. Do not confuse such concepts as an employer and a leader, since the latter cannot always act as an employer and does not have absolute control over what happens in the company. Usually, they talk about the dismissal of the head when it comes to LLC, where such a decision is made by the board of directors. All labor relations with the head and other managers of the company are regulated by article No. 43 of the Labor Code of the Russian Federation.

Articles of the Labor Code of the Russian Federation, on the basis of which the head is dismissed

Within the framework of this material, the procedure for dismissing a director by agreement of the parties with further payment of compensation is considered, however, there are also other ways to dismiss the director of a company. Each of them is discussed below.

Article 280 of the Labor Code of the Russian Federation (own desire).
Article 79 of the Labor Code of the Russian Federation (termination of the working contract).
Article 78 of the Labor Code of the Russian Federation (by mutual agreement of the parties), when a certain amount of compensation is offered to the head in order to vacate the position as quickly as possible.
Article 81 of the Labor Code of the Russian Federation (the dismissal process is initiated by other participants in the LLC).
Article 75 of the Labor Code of the Russian Federation (the enterprise has another owner).
Article 69 federal law No. 127 (in case of reorganization or bankruptcy of the company).
Other reasons specified in the Labor Code Russian Federation.

Dismissal of the head by agreement of the parties

The desire of the employer to cancel the work contract of the company's manager by agreement of the parties indicates that he does not want to allow any important data on the company's activities to reach third parties. It's no wonder that CEO there is an opportunity to go to a competitor company, so the disclosure of a "production secret" will harm the company's activities.

Any of the parties to labor relations can initiate a dismissal process under Article 78 of the Labor Code of the Russian Federation. If the manager is the initiator, then he must send the employee a statement, where the reason for dismissal can optionally be indicated. Next, the employer must consider the application and decide whether he agrees to part with the general manager in this way.

"Golden Parachute"

Upon dismissal by agreement of the parties, the director is paid substantial material compensation, which is commonly called the "golden parachute". The amount of this compensation is not limited at the legislative level, therefore it depends solely on the “generosity of the employer”. According to article 255 of the Tax Code of the Russian Federation, compensation is considered as an employee's salary costs. If the amount of compensation exceeds three times the average salary of an employee, then it is subject to personal income tax. The need to pay compensation is indicated either in the employment contract, which the director and his employer signed directly during employment, or in an additional agreement, which acts as an addition to the contract.

Upon dismissal by agreement of the parties, the payment of compensation to the director is optional, but there are two cases when the receipt of compensation by the dismissed leader is a prerequisite:

change in the owner of the company;
cancellation of the contract by decision of the members of the board of the LLC (except for situations where dismissal was a disciplinary measure).

If the employment contract is terminated at the manager's own request, then compensation is not paid to him, since the person being dismissed was the person concerned, and it simply makes no sense for the employer to pay compensation. And in those situations where the termination of labor relations takes place under Article 81 of the Labor Code of the Russian Federation, the dismissed person may additionally be fined for the damage caused to the company (of course, the other party has the right to appeal such a decision of the commission in court).

For managers who have worked in public institutions, there are limits on the amount of compensation. This rule also applies to enterprises that are partially state-owned.

Cancellation procedure

Many HR specialists are wondering how to dismiss a director by agreement of the parties. The algorithm for dismissal of a leading person by agreement of the parties is as follows:

If the dismissal was initiated by members of the board of directors, then first it is necessary to draw up a minutes of the meeting, which must indicate the reason for terminating the contract. By the way, the director's statement of dismissal can serve as a reason, if the initiative came from him.
The next step is the issuance of an order to terminate the employment relationship form T-8 (this local legal act must be logged).
The dismissed director is given a work book in his hands, in which an entry on the termination of the employment contract should have been previously made.
The fact that the person no longer fulfills his powers as a director in the company is notified to the bank and the tax office.

Negotiations and drafting a letter

For dismissal of his own free will, the employee is not required to draw up an application in writing if the initiator of the termination of the contract is the employer. If, as a result of negotiations, the founders of the LLC came to the conclusion that the director should be dismissed, and we are not talking about disciplinary violations (Article 81 of the Labor Code of the Russian Federation), then a notice is sent to the current manager in writing, which must contain the following data:

the legislative framework for the termination of labor relations (in this case, this is Article 77 of the Labor Code of the Russian Federation);
date of cancellation of the contract;
the time limit for receiving a written response to the notification;
the signature of the initiator of the dismissal process, without which the application will not have legal force.

Russian law does not require that the notice indicate the grounds for dismissal of the employee. If an employee quits for no reason, not by agreement of the parties, then he must be entitled to compensation.

In many companies, there can be only one founder. If there are several of them, then the decision of the founders of the LLC or joint-stock company verified by protocol.

Drawing up an additional agreement on termination of the employment contract
The Labor Code does not regulate the procedure for drawing up, as well as the form of an additional agreement on the annulment of a work contract with a manager. It goes without saying that this document must be drawn up exclusively in writing, and two duplicates must be made - one of them is kept by the employer, and the other is handed over to the manager. The agreement may contain a large number of requirements, but in general it should include the following information:

date of drawing up the supplementary agreement;
information about the employee and employer;
information about the work contract;
the reason for the cancellation of the contract;
the actual date of dismissal, which also coincides with the date of cancellation of the director's contract;
financial obligations of the parties (optional).

Important! After the signing of the additional agreement, its terms are not subject to change. Any adjustments can only be made with the consent of both parties, so the manager cannot return to his place within two weeks after the issuance of the order to dismiss and receive compensation. It is noteworthy that dismissal by agreement of the parties may provide for such a possibility.

Since 2014 in additional agreement it is impossible to enter data on the payment of compensation to the manager, while we are talking not only about the payment of a specific amount of money, but also about the receipt by the dismissed person of certain company property (for example, a block of shares).

Dismissal order

Before the last day of work of the dismissed, the employer must issue a decree dismissing the director by agreement of the parties (sample order 2017). The decree must be signed by the director himself, having previously familiarized himself with its contents. IN individual cases another authorized person of the company (for example, the chief personnel officer) can sign the order. The order (form T-8) reflects the following aspects:

information about the dismissed leader;
legislative framework for termination of labor relations (a specific article of the code is indicated);
date of dismissal;
signature of the director or authorized person.

TO documentation dismissal procedures by mutual agreement of the parties must be approached with all due responsibility, since any inaccuracies (for example, incorrect indication of the date) are fraught with litigation. In case of termination of labor relations with the director, his deputy takes over the duties.

Mark in the work book

An entry in the work book is made in accordance with the Instruction, with which each HR specialist must be familiarized in advance. The entry looks something like this: "Fired in accordance with Article 78 of the Labor Code of the Russian Federation." The main requirement is an indication of a specific article of the Labor Code, which acts as regulatory framework to terminate the employment contract. The instructions are an official legal act, therefore, the provisions prescribed in it cannot be ignored.

Issuance of documents and settlement

According to article 84 of the Labor Code of the Russian Federation, the employer undertakes:

transfer to the director all the necessary payments (compensation, compensation for unused days holidays, balance wages etc.);
issue a work book to a former top manager;
hand over all other documentation that was directly related to labor activity employee.

To avoid trouble, the employer is advised to send all documents by registered mail using the Russian Post service. If, for example, the manager's book is lost, then the latter can file a lawsuit (the same applies to any other documents).

Sometimes it is impossible to pay off a former manager on the last day of his work due to some objective reasons (a problem with a bank transfer, the employer cannot arrive at the place of work, etc.). In such a situation, the employer (or his authorized representative) must necessarily transfer all payments to the employee's account no later than one day from the date of receipt of the application for the accrual of the due funds.

Taxation of executive severance pay

income tax

It is important for a company's staff accountant to know whether compensation is subject to taxation, because in most situations we are talking about fairly substantial amounts of funds. Due to the fact that material compensation is paid on the last working day, Article 255 of the Tax Code of the Russian Federation considers this type of payment as labor costs, so the tax base will remain the same. The employer can agree with the director on the partial payment of benefits after the actual date of dismissal (this and other similar conditions can be specified in the supplementary agreement), which will slightly reduce the total amount of income tax.

personal income tax and unified social tax

It is not necessary to collect both personal income tax and unified social tax from the amount of compensation, in those situations when it comes to too large amounts, it may be necessary to pay income tax from part of the compensation.

Responsibility of the CEO

It goes without saying that the work of a top manager is a serious and highly paid position, which at the same time implies a high level of responsibility. Responsibility can be material or criminal (if the organization has suffered serious losses as a result of the activities of the dismissed person as head). Degree of responsibility criminal liability already defined by the Criminal Code. This information primarily refers to the dismissal under Article 81 of the Labor Code of the Russian Federation, while the dismissal of the head by agreement of the parties usually implies a “peaceful” scenario for the termination of employment.

Compensation upon dismissal of the chief accountant

dated 07/03/2018) (as amended.

and additional intro.

in force from 01.10.2018) the amount of payments in the form of severance pay, average monthly earnings for the period of employment, compensation to the head, deputy heads and chief accountant of the organization in the part exceeding in general three times the average monthly salary or six times the average monthly salary for employees, dismissed from organizations located in the regions of the Far North and equivalent areas; Articles, comments, answers to questions.

Compensation upon dismissal of the CEO

dated 07/03/2018) "On insurance premiums in Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund” compensation to the head, deputy heads and chief accountant of the organization in the part exceeding three times the average monthly salary; Articles, comments, answers to questions.

Compensation upon dismissal of the CEO A guide to corporate disputes.

Compensation upon dismissal of the head

2 tbsp. 246 of the Labor Code of the Russian Federation.

the provisions of this chapter apply to the heads of organizations, regardless of their organizational and legal form and form of ownership. The exception is when the manager is sole member(founder), member of the organization, owner of its property, as well as cases when the management of the organization is transferred managing organization or an entrepreneur.

The head of the organization means a person authorized to manage it, as well as to take actions on behalf of the organization to implement its rights and obligations.

Payment of golden parachutes: explanations of the RF Armed Forces

No. 56-FZ). The listed subjects can receive upon dismissal only their triple monthly earnings, no more.

This was done to exclude the possibility of paying top managers of companies with state participation unmotivated multimillion-dollar benefits (see, for example, Determination of the Supreme Court of the Russian Federation No. 307-ES14-8853 of March 30, 2015).

Now, however, it is allowed to limit in court the amount of these payments to the heads of all other organizations - on the basis of the Decree of the Plenum of the RF Armed Forces dated June 2, 2015 No.

Calculation of the average monthly earnings for payment to the head of the organization of compensation in connection with the dismissal

139 of the Labor Code of the Russian Federation. According to Ch.

3 art. 139 of the Labor Code of the Russian Federation, in any mode of operation, the calculation of the average salary of an employee is based on the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains the average salary.

A commission is appointed by the founders of the company or by the relevant body that has the authority to make decisions regarding the closure of the company.

When dismissing all employees, both ordinary workers and managers, an extended notice period is provided - at least two months before the enterprise is liquidated. This paragraph does not apply to seasonal workers, as well as those with whom a 2-month employment contract has been concluded.
The warning must be sent in the form of a written notice. At the same time, in addition to the copy handed to the employee, there must be a second one remaining with the employer.

Director's retirement compensation

Further, since minimum size compensation is equal to 3 times the average monthly earnings, to determine the amount of compensation, it is necessary to multiply the result by 3. Thus, in general view the calculation formula looks like this: Amount of compensation upon dismissal of the CEO = Total salary for 12 months / Number of days actually worked for the period × Number of working days in a month by production calendar× 3 Amount of compensation upon dismissal of the general director The legislator does not specify the amount of compensation upon dismissal of the general director (such conditions are part of the employment agreement), however, art. 279 set the minimum compensation limit - three times the average monthly earnings. If the compensation is less, the employee has the right to recover the difference.

What is the procedure for the dismissal of the director of the municipal unitary enterprise in connection with the liquidation?

The legal position of the head of the organization is unique from the point of view of law, since the head of the company is not just employee but also by the body of a legal entity. Thus, the issues of dismissal of the head are regulated, firstly, by labor legislation, and secondly, by the relevant corporate legislation. Therefore, the procedure for dismissal of the head of the organization is complicated compared to the dismissal of another employee.
What are the main differences between this procedure? 1. In accordance with the Labor Code of the Russian Federation, in addition to the general grounds for dismissal, there are special grounds for the dismissal of a manager. 2. The dismissal of the head, in addition to the order, is based on the decision of the owner of the organization or the authorized body. 3.

Dismissal of the head of the municipal unitary enterprise under item 2. Article 278 of the Labor Code of the Russian Federation

Rules for calculating compensation upon dismissal of the CEO There are several rules for calculating compensation for a dismissed CEO:

The calculation of the payment takes place with a reference to the size of the average salary per day (clause 9 of the regulation on the calculation of the average salary, approved by the government decree “On the features of the procedure for calculating ...” dated December 24, 2007 No. 922). According to the provisions of h. 3 Article. 139 of the Labor Code of the Russian Federation, the average daily income is equal to the division of annual income by the number of days that the employee actually worked.
When calculating compensation, incentive payments are taken into account (p.

How to file a director's dismissal in liquidation

In particular, when making a decision during the meeting, the director has the opportunity to file an application addressed to the founder that he leaves his position of his own free will. The founder, however, is given a thirty-day period by law to make a definite decision on this matter. As a rule, everything ends with consent and entry into work book all required entries.
It is the day on which this was carried out that is considered the boundary of the loss of the director's powers. In case of formation liquidation commission its chairman assumes all the rights that allow him to carry out managerial functions at the enterprise. In this case, the corresponding order of the commission may serve as a basis for the dismissal of the director.

Attention

Also, with the employees who are part of the liquidation commission, with their consent, employment contracts can be terminated (at their own request or by agreement of the parties) and concluded civil law contracts. However, such termination can be regarded as an evasion of the payment of compensation due upon dismissal in connection with the liquidation of the organization (part 1 of article 178 of the Labor Code of the Russian Federation). If the composition of the liquidation commission includes citizens from the outside, then more often a civil law contract is concluded.

At the same time, a fixed-term employment contract can also be concluded with them. This conclusion follows from articles 20, 57, 72, 77 of the Labor Code of the Russian Federation, chapters 37, 39 Civil Code RF. The remuneration of the members of the liquidation commission (liquidator) is carried out by the liquidated organization itself (art.

57, 129 of the Labor Code of the Russian Federation, Art. 709, 781 of the Civil Code of the Russian Federation).

Who should pay the director of veg upon his dismissal

Important

These include, among other things, the transfer of compensation upon termination of employment. Lack of mention in the contract compensation payments does not remove from the enterprise the obligation to transfer them. Ultimately, the implementation of this payment can be equated to mandatory conditions early termination of the employment contract at the initiative of the employer.

Termination of an employment relationship at the initiative of an employee is also applicable to executives. In accordance with Article 280 of the Labor Code of the Russian Federation, they must notify in advance of the date of the proposed dismissal, at least a month in advance. A longer period of "working off" is associated with the difficulty of selecting applicants for a managerial position.
In addition, during this time, the dismissed director will have to transfer all files and documents to his successor, deputy or employee who will temporarily perform his duties.

Who should pay the director of the MUP upon his dismissal

For example, disclosure of certain information, even if it is not a trade secret; failure to achieve certain indicators; identification of personal family ties with one of the employees; part-time work in another organization, etc. In turn, the head of the organization has the right to terminate the contract concluded with him at any time. However, in the event of dismissal of the head of his own free will, he is obliged to notify the employer of this at least a month in advance, while for an ordinary employee this period is two weeks. Features of the dismissal of the head, depending on the organizational and legal form of the enterprise general rule the same body is in charge of the appointment and dismissal of the head of the organization. Procedurally, the issues of dismissal are resolved in the same way as the issues of concluding an employment contract.

At the same time, violation of the procedure for convening and holding such a meeting may lead to the recognition of the dismissal of the head as illegal through the court. Real life example (labor conflict) In a certain Limited Liability Company, the founders of which were several legal entities and individuals, the post of General Director was held by the founder - an individual whose share in authorized capital Society accounted for just over 20%. As a result of a personal conflict between the General Director and one of the leaders of the Founder - a legal entity (with a share in the authorized capital of the Company equal to 60%), it was decided to remove the head, that is, to terminate employment relations with him.

The founder-initiator of the dismissal immediately held an "extraordinary general meeting", at which he decided to dismiss the General Director from his post.

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Such conclusions follow from the totality of the provisions of articles 72, 278, 279 of the Labor Code of the Russian Federation, a review of the judicial practice of the Supreme Court of the Russian Federation for the II quarter of 2012. Attention: the head, dismissed by the decision of the owner without payment of compensation, can go to court and demand not only payment of compensation with interest, but also compensation for moral damage. The legitimacy of this position is supported by arbitrage practice(See, for example, the appeal ruling of the Moscow Regional Court dated July 29, 2013 No.

No. 33-16024/2013). The amount of compensation for non-pecuniary damage is determined by the court and indicates it in its decision. At the same time, judges must take into account the nature of the harm caused to the employee and the degree of guilt of the organization (paragraph 63 of the decision of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
The current legislation does not provide special order dismissal of the head during the liquidation of the enterprise. Thus, it is necessary to apply the general procedure, including the employer (Administration) must notify the director against signature of dismissal due to liquidation at least two months before dismissal (Article 180 of the Labor Code of the Russian Federation). Payments will also be made in general order according to Art. 178 of the Labor Code of the Russian Federation. That is, a severance pay will be paid in the amount of the average monthly salary, and the director will retain the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including the severance pay).