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Compensation for the dismissal of a director by decision of the founder. Who should calculate the director of the CBM upon his dismissal Compensation payments upon dismissal of the director

1. Upon dismissal under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation to the head, according to Art. 279 of the Labor Code of the Russian Federation, compensation must be paid in the amount determined by the employment contract, but not less than three times the average monthly earnings. Since in this case, the amount of compensation for this situation is not defined in the employment contract with the general director, upon dismissal the general director must be paid an amount equal to three times the average monthly salary.

Article 139 of the Labor Code of the Russian Federation establishes a unified procedure for calculating the amount of average earnings for all cases when it must be determined in accordance with the norms of the Labor Code of the Russian Federation (payment of vacation pay, business trip and other cases). Calculation of the average monthly earnings when paying compensation to the manager on the basis of Art. 279 of the Labor Code of the Russian Federation is no exception and is also made according to the rules established by Art. 139 of the Labor Code of the Russian Federation and the Regulations on the specifics of the procedure for calculating the average wages approved by Decree of the Government of the Russian Federation of 24.12.2007 No. 922.

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

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

2. The procedure for filling out work books is established by the Rules for maintaining and storing work books, making forms of work books and providing employers with them, approved by the Government of the Russian Federation dated 04.16.2003 No. 225 "On work books" (hereinafter referred to as the Rules), as well as the Instructions for filling out work books books, approved by the decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69 (hereinafter referred to as the Instruction).

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

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

3. The order of dismissal must be drawn up according to the unified form of the order (order) on the termination (termination) of the employment contract with the employee (dismissal) (form No. T-8), which is approved by the decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1 1. According to the instructions for filling out form No. T-8, the order is drawn up by an employee personnel service, signed by the head of the organization or a person authorized by him.

The general director, without a power of attorney, acts on behalf of the company, including approving the states, issuing orders and giving instructions that are binding on all employees of the company (clause 3 of article 40 Federal law dated 08.02.1998 No. 14-FZ "On limited liability companies"). It seems clear that the CEO has this authority throughout his work, including on the last day of work.

Thus, the general director has the right to sign the order of his dismissal on the last day of work. In the event that on that day the general director for some objective reasons (for example, due to temporary disability) did not work or did not sign the order of his dismissal himself, this can be done by the person authorized by him to sign such orders.

1 From 1 January 2013 application unified forms documents are optional, companies can approve and use their own forms.

The term "golden parachute" is used to denote certain material benefits recorded in writing in an employment contract and paid to representatives of the organization's top management in a situation of termination (termination) of relations with the employer. The conditions are in place in many cases, providing a lucrative benefit to the recipient upon termination of employment.

Who receives gold payments and when

The types of compensations provided for by law (Art.181, Art.279 of the Labor Code of the Russian Federation) for the payment of a number of categories of executives (directors, their deputies, chief accountants, members executive bodies), with whom employment contracts have been drawn up when joining the company, includes a golden parachute upon dismissal of the listed categories from:

  • societies in which part authorized capital(from 50% of shares) refers to state or municipal property;
  • non-budgetary funds of the country;
  • corporations, institutions, state-owned companies;
  • enterprises (institutions) of municipal affiliation;
  • state unitary organizations.

A popular option for this type of payment is cash reimbursement. In addition to cash bonuses, organizations can provide managers who have completed their labor relations with other forms of material incentives (shares, corporate pensions).

According to the legislation (art. 80, art. 81 of the Labor Code of the Russian Federation), the conditions for obtaining material compensation prescribed in an employment contract or in an additionally drawn up agreement between the parties (employer, employee) and paid in a situation of termination of industrial relations when leaving the company are options for dismissal :

  • at the personal request of the employee;
  • on agreement of the parties;
  • due to the reduction of the staff of the enterprise.

The basis for payment is also the liquidation of the organization or a change in the composition of its owners.

Why large sums are paid when the tops are fired

The significant compensation payments are intended to reduce the frustration of a senior executive with whom a working relationship is terminated.

In the event of a takeover of the company by a significant amount of "weekend" payments, the dismissed employees are softened Negative consequences deprivation of a well-paid job.

The purpose of the “parachute” is to mitigate the consequences of dismissal as much as possible. Therefore, when determining the amount of the benefit, the length of the period until the end of the term of the employment contract and the income that the dismissed person could receive if he continued to work is taken into account.

What is the size of the "parachute" for the leader

Legislatively in the Russian Federation, compensations for the management staff (directors, members of the board of directors) with whom industrial relations are terminated ahead of schedule have been allowed since 2009 after amendments were made to the RF law on joint stock companies... Considering the many problematic issues that employers faced when issuing "golden parachutes", including disputes over the amount of the paid amount, since 2014 legislatively determined and established restrictions for payments to resigning top managers.

The labor agreement determines the specific amount of the severance pay, but according to general rule upon dismissal from the position of the head of the organization, the latter is entitled to receive compensation, the amount of which cannot be less amount 3 times average monthly earnings (Article 279 of the Labor Code of the Russian Federation).

To exclude the receipt of unjustified multimillion-dollar benefits by top employees of state (municipal) organizations, the value of the latter upon leaving the service is limited to three times the monthly salary (Federal Law No. 56, 04/02/2014).

In court, it is allowed to limit the amount of these benefits for the heads of other forms of organizations (Resolution of the Plenum of the RF Armed Forces No. 21, 02.06.2015). In addition, reimbursements will not be awarded to employees whose work contract is terminated due to disciplinary or other penalties.

The aggregate indicator of the severance pay provided to the top management of state-owned companies, limited to 3 times the amount of monthly earnings, does not include the following payments (Art. 127, Art. 178, Art. 318 of the Labor Code of the Russian Federation):

  • salary for the last month of work of the dismissed person;
  • reimbursement of expenses business trips;
  • reimbursement of costs incurred when moving to work in another area;
  • accrual for unused regular (labor) vacation;
  • average monthly earnings saved for the period of subsequent employment.

Example

The general director of company "A" received an average monthly salary of 200,000 rubles. Upon dismissal due to the liquidation of the organization, he received 990,000 rubles. The "golden" allowance was 600,000 (200,000 x 3), and the remaining amount was wages for the last working month, funds for the unused part of the next vacation and spending on business trips before dismissal.

Important! The norms of state legislation apply to directors, their deputies, chief accountants. For other categories of top managers, the “parachute” payment is not provided as mandatory and is regulated by the clauses of labor contracts and internal regulations.

Is the refusal to provide the "golden parachute" acceptable?

In practice, often there are controversial situations related to the refusal of the company to pay benefits or the amount due to be paid.

The parachute clause is often part of contracts with top managers for employment, so the company has no right to refuse payment. The court decision may recover the amount of the "parachute", interest for failure to comply with the calculation period, compensation for moral damage (Article 394 of the Labor Code of the Russian Federation).

Upon dismissal of an employee on their own He is not entitled to a "golden" allowance. Even if the manufacturing contract contains a similar clause, termination labor relations initiated by the employee does not provide for the payment of an increased amount of compensation under the law.

In case of improper performance job duties related to disciplinary action, you cannot pay severance pay (Article 181 of the Labor Code of the Russian Federation).

An unmotivated large amount of compensation may violate the interests of the owners of the company. When calculating the amount of compensation, the performance results of the top manager must be taken into account. For example, compensation cannot include quarterly or annual bonuses, issued depending on the achievement of certain labor indicators, if these indicators were not achieved by the dismissed.

The unfavorable financial situation of the organization may serve as the basis for refusing to provide increased compensation in the event of the dismissal of a senior employee. In addition, the amount of the severance pay should be adequately correlated with the salary fund and the company's profit.

Taxation of "gold" payments

Benefit of the category "golden parachute", paid taking into account the current criteria of labor legislation and on the basis of issued labor agreements, is taken into account by enterprises in expense items to determine the amount of income tax (Article 255 of the Tax Code of the Russian Federation). Amendments to the Tax Code of the Russian Federation are allowed to include in the composition of expenses accruals for the dismissed, provided for:

  • individual or collective agreements;
  • separate (additional) agreements of the parties to the production contract, including agreements on the termination of the employment contract;
  • internal regulations.

There are taxes on personal income tax for compensations up to 3 times the monthly earnings or 6 times the monthly earnings for those who worked before dismissal in enterprises in the Far North (Article 217 of the Tax Code of the Russian Federation). The indicator of the non-taxable minimum does not depend on the position of the employee or on the reasons for the termination of industrial relations.

Important! In a situation where “parachutes” are paid several times during one calendar year, the non-taxable minimum for personal income tax applies to each payment (letter of the Ministry of Finance of Russia No. 03-04-06 / 14970, 04/29/2013).

Insurance premiums are subject to payments to the head, his deputies, chief accountants in the amount of more than 3-fold or 6-fold (for the territory of the Far North) average monthly earnings (Federal Law No. 212, 24.07.2009).

178 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) upon termination of an employment contract in connection with the liquidation of an organization (clause 1, part 1 of Art.

1 tbsp. 81 of the Labor Code of the Russian Federation) or a reduction in the number or staff of the organization's employees (cl. 2 hours

1 tbsp. 81 of the Labor Code of the Russian Federation), the dismissed employee is paid severance pay in the amount of the average monthly earnings, as well as the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

In exceptional cases, the average monthly salary is retained for the dismissed employee for the third month from the date of dismissal by the decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by him. Severance pay paid to an employee in the amount established by Art.

The exception is payments in the form of severance pay, average monthly earnings for the period of employment, compensation to the following categories of persons (para.

8 p. 3 art. 217 of the Tax Code of the Russian Federation): the head of the organization; deputy head; chief accountant.

So, if the listed payments in total exceed three times (six times - for workers in the Far North and equivalent areas) the average monthly earnings, then the amount of excess is subject to personal income tax. According to the norms of the Labor Code of the Russian Federation, compensation is due to the head of the organization only on the condition that the basis for dismissal is the adoption by the authorized body of the legal entity or the owner of the organization's property of a decision to terminate the employment contract with it (in the absence of any culpable actions (inaction) on the part of the head) (Art.

Compensation for the dismissal of the chief accountant

from 03.07.2018) (as amended)

and add. entry

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 earnings or six times the average monthly earnings for employees, dismissed from organizations located in the Far North and equivalent areas; Articles, comments, answers to questions.

Compensation upon dismissal of the CEO

from 03.07.2018) "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 for the dismissal of a CEO. A guide to corporate disputes.

Compensation for dismissal of a manager

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 participant(founder), a member of the organization, the owner of its property, as well as cases when the management of the organization is transferred management organization or an entrepreneur.

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

Payment of golden parachutes: clarifications of the RF Armed Forces

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

This was done to exclude the possibility of payments to top managers of companies with state participation unmotivated multimillion-dollar benefits (see, for example, Definition of the Armed Forces of the Russian Federation No. 307-ES14-8853 dated March 30, 2015).

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

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

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

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

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

Additional grounds for the dismissal of a company director

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

  1. The director can be dismissed from the position of the head of the debtor company due to its bankruptcy.
  2. The director can be asked to vacate his seat by the decision of the owner of the enterprise or an authorized body without giving reasons.
  3. The head can be removed from office on the grounds listed in article 278 of the Labor Code of the Russian Federation.

As a rule, the director of the company leaves his place by personal will, by agreement with the employer, due to violations of the law or by decision of the authorized bodies. The easiest way is to terminate the relationship by mutual agreement - then the case will not come to court proceedings. In such a situation, the law provides for only one option for canceling the dismissal - the simultaneous refusal of the employer to dismiss the director and the desire to remain in the place of the manager himself. But then there is nothing to go to court for - you can re-sign a cooperation agreement.

The company and its owner are obligated to provide the director with certain labor guarantees, including payment of compensation upon termination of employment. If nothing was said about compensation in the employment contract, this does not mean that the payment will not have to be made - this is what the law says, this is an indispensable condition for early termination of the contract with the director on the initiative of the employer.

Another feature of the dismissal of the director of the company is the need to warn about the upcoming resignation from office by personal will at least 30 days before the date of the actual resignation from work. Longer working off than in the general case is due to the fact that it is much more difficult to find a new manager than an ordinary employee. Plus, this month the director must clarify the state of affairs to his successor or temporary substitute.

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

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

  1. He at least once violated the duties that are assigned to the CEO:
  2. He issued an order due to which the integrity of the property was violated, the company's property was improperly used, or the company suffered damage.

Before dismissing the director and recovering funds from him for lost property or anything else, you need to prove his guilt and degree of guilt.

How compensation is paid to a director upon dismissal, if the contract does not contain a clause on its payment

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

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

Despite the importance of an employment contract, first of all, it is necessary to take care of the implementation of the provisions of federal regulations, since they always have a priority over any local acts of companies. Therefore, even if labor contract does not contain a clause on the payment of compensation to the dismissed director, it must be paid, since he is deprived of a job not of his own free will.

When the director of the enterprise is dismissed, an act is drawn up between him and the owner of the company (signed by the person who accepts the case), in which it is written:

  • important points related to the functioning of the company;
  • the current state of affairs in the firm;
  • material assets transferred by the head upon dismissal;
  • the fact of transfer of certificates of ownership of real estate, primary accounting documentation, licenses, registration and constituent documents;
  • a list of agreements and contracts that were signed during the work of the firm under the management of the director;
  • a list of powers of attorney that were issued by the company to delegate certain powers to someone, and issued bills.

On the last day of work, the director must familiarize himself with the order of his dismissal, after which the documents are transferred to the accountant and the employee of the personnel department. The manager will receive on the same day work book with a record of the reasons for dismissal and the remainder of the money he earned. He will be paid his salary for the last month, compensation for the leave to which he was entitled, did not have time to take it, severance pay in case of dismissal not of his own free will and not for disciplinary actions or violation of the law.

How much compensation is paid to the director upon dismissal

If the employment contract does not contain instructions regarding the payment of compensation to the dismissed director, the amount is determined in agreement with current legislation and is paid only when the dismissal occurred by the decision of the employer and not for guilty actions on the part of the director.

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

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

Legislative acts on the topic

Typical mistakes

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

In the employment contract with the General Director there is a clause "In the cases established by law, upon termination of the Agreement, the General Director is paid severance pay in the amount of 3 monthly official salaries." Director General voluntarily, should we pay him severance pay? And is it subject to personal 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 when an organization is liquidated, when staff is laid off, in connection with conscription, etc. Dismissal of their own accord is not named in these articles.

Article 178 states: "The employment contract or collective agreement may provide for other cases of payment of severance pay." 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 CEO if he leaves of his own free will.

Severance payments upon dismissal in the amount of 3 months 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 their own accord (by agreement of the parties), personal income tax and contributions are not paid only if such payment is provided for by the employment contract.

Justification

In what cases the organization is obliged to pay the dismissed employee severance pay, 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 fired due to:
- liquidation of the organization;
- reduction in the number (staff);
- the employee's refusal to transfer to another job that he needs for health reasons according to the medical report, or the lack of organization of such work;
- conscription for military or alternative service;
- reinstatement at work of an employee who previously performed this work;
- the employee's refusal to transfer due to the relocation of the organization to another locality;
- the onset of complete incapacity for work of the employee;
- refusal of an employee to work after changing the terms of the employment contract;
- violation of the rules for concluding an employment contract established by labor legislation through no fault of the employee.

This list of cases of payment of severance pay is established by articles and the Labor Code of the Russian Federation.

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 labor contracts. In other cases, regardless of the reason for dismissal, do not pay severance pay to them. This is stated in article 292 of the Labor Code of the Russian Federation.

Compulsory dismissal benefits can be established not only Labor Code RF, but also by other laws. For example, these laws include:

  1. From recommendation
    Nina Kovyazina, Deputy Director of the Department medical education and personnel policy in healthcare of the Ministry of Health of Russia
    • - provides for the payment of severance pay to prosecutors, scientific and educators upon retirement, retirement, for health reasons or disability, etc. ();
    • - provides for the payment of a lump sum to employees of the internal affairs bodies upon dismissal from service ().
  2. From recommendation

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

How to reflect in accounting and in 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 purpose 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). With payments exceeding this standard, it is necessary to withhold personal income tax and charge 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 the change of owner (). Also, the head is entitled to compensation if the decision on his dismissal was made by the owner of the organization's property (the authorized body of the legal entity). Compensation is paid in the absence of guilty actions (inaction) of the manager. 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 when managers (their deputies, chief accountants) are dismissed on these grounds. For more details see.

For the purposes of calculating personal income tax and insurance premiums, such compensations are standardized. 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 earnings (six times the average monthly earnings - for employees working in the Far North and equivalent areas). With payments exceeding this standard, it is necessary to withhold personal income tax and charge 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 (at their own request). Payment of severance pay upon dismissal is provided for by an employment contract

Severance pay does not need to be taxed with 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). With payments exceeding this standard, it is necessary to withhold personal income tax and charge 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