Early dismissal of the CEO by decision of the founder. Compensation upon dismissal of the director by decision of the founder

The figure of the head of an organization, including LLC, is so special that employment, responsibility and dismissal CEO LLC - is taken out separately in chapter 43 of the Labor Code.

How and why can you fire the CEO of an LLC?

Important! It should be borne in mind that:

• Each case is unique and individual.
• Careful study of the issue does not always guarantee a positive outcome of the case. It depends on many factors.

To get the most detailed advice on your issue, you just need to choose any of the proposed options:

The director is the only employee who is both self-employed and hires others. He is responsible for all processes in the enterprise, organizes them and controls the course. And, despite the fair opinion that there are no irreplaceable employees, quickly finding a new leader is not so easy. Perhaps that is why, even if the director decided to leave the post on his own, article 280 of the Labor Code of the Russian Federation almost doubled the notice period compared to the requirements of art. 80 TC for the rest of the team (up to a month).

Article 280 of the Labor Code of the Russian Federation requires the manager to give 30 days notice of his decision to quit.

The paradox of sole leadership position consists in the fact that when the role of the employer and the hired is combined, the director cannot consider his duty to notify fulfilled if he writes an application addressed to himself. The law establishes that the director must notify the founders (owners) of the company about this, and aspects are prescribed showing how the dismissal of the general director takes place. Unfortunately, the Labor Code of the Russian Federation does not specify how the notification should take place.

Despite the fact that the Labor Code of the Russian Federation speaks of a one-month warning period, it is unlikely that the general director will be able to quit so soon. Judicial practice indicates that the date of the notice of dismissal will not be the date the letter was sent, but the latest date the invitation was delivered to each founder. Therefore, you need to send papers and schedule a meeting in advance, but no later than 45 days from the date of writing the application (paragraph 3 of article 35 of 14-FZ). All this time, the current leader will have time to prepare matters for transfer, and the owners will have time to find a candidate for the vacant seat.

Preparing the decision of the general fees

On the appointed day at the general meeting (if there is a quorum in accordance with the charter), the decision of the hired director to dismiss is ascertained and recorded in the minutes. If a suitable applicant for this post has already been found, then in the same document they approve or reject his candidacy. If the receiver is not found, then the protocol indicates the person who will take over and temporarily manage the enterprise.

You can speed up the dismissal procedure if the LLC is organized solely: then the deadlines can be the declared 30 days. Even faster, you can fire the CEO if the head and founder are the same person.

1. Issuance of an order for the dismissal of the "old" general director in the standard form T-8.
2. Salary and compensation for unused days recreation.
3. Issuance of a work book.

From the moment the participants of the LLC sign the protocol, the “old” general director loses his powers, which means that he is no longer authorized to sign an order on his own dismissal, make an entry in the labor or sign any other documents of the organization.

Notification of the State Registration Service

Within three days, a package of documents must be submitted to the registration authorities (FTS) to fix changes in the state register of the LLC. It includes: application P14001 (the signature in it is certified by a notary) and a copy of the protocol. Only the new CEO can sign and submit this to the department that conducted the registration of the LLC. If his candidacy is not approved, then changing the data in the registry will be problematic.

Notification of social insurance funds and other interested parties

The powers of the director are so broad that information about his change should be sent not only to government agencies for failure to warn which there is an administrative responsibility. It is better to inform everyone who, one way or another, interacts with the enterprise.

Change of data in the bank

Since the dismissal of the general director, the enterprise has been formally deprived of the opportunity to conduct non-cash financial operations, because there is, in fact, no one to sign them. You can resume settlements only after transferring new cards to the bank with a certified signature of the management.

Revocation or confirmation of issued powers of attorney

In the process of managing the company, the former director could delegate part of the authority to other persons by issuing powers of attorney to perform certain actions. With his departure, their action is not canceled, and ends only after the expiration of the validity period indicated there. The enterprise, traditionally, keeps a log of such documents, so it will not be difficult to establish which of them have not lost their relevance.

Cancellation of nominal seals, facsimile prints, electronic digital signatures. Production of new ones in the name of the director who took office.

To-do list for a departing CEO

Firstly, preparing and conducting the transfer of cases. It is best to do this under an act with the receiver, other interested persons may also be present, whose signature on the document will confirm the legitimacy of the transfer. At the same time, do not forget to transfer all seals, stamps, keys to safes and premises, it is also better to arrange this in writing. It may happen that there will be no one to take over the cases or there will be a conflict with the owners. There are several ways out of this situation: keep the documents with you, transfer them to the archive or to a notary, send them in a package with a list of the contents, if there is only one founder in the LLC. Of course, the most reliable places of storage, in this case, will be an archival organization and a notary's office, but the cost of their services is unlikely to fit into the symbolic framework.

Transfer of affairs and property, which was administered by the general director of the LLC, in the interests, first of all, of the outgoing director. But it is necessary to transfer only with written registration. If sign Required documents there is no one, it is better to use alternative storage options.

Secondly, take care of the fulfillment of all duties for the upcoming deadlines: control the filing of reports for the dates closest to the dismissal, make payments to the team.

Thirdly, hand over all the cash on hand to the bank and report on all accountable amounts. While everything is calm in the official field, few people remember that it is necessary to keep tear-off stubs of receipt orders and receipts. Even less officials knows that, when submitting advance responses for verification, the accountable person must return the tear-off part of the form, which indicates which documents are handed over to the accounting department. You may come across recommendations to simply make copies of these reports, but without the original tear-off part, it will be impossible to prove anything.

Fourth, if the successor has not been approved at the post, it is worth notifying the Federal Tax Service of the dismissal of the general director. Since the approved form P14001 implies a notice of the removal of powers from one person and their transfer to another, it will not be possible to submit it before the approval of the new director. For your own insurance, you can send a letter in a free presentation with a message about the dismissal of the CEO for own will.

How can a CEO expedite the process of voluntary termination?

Since the director is still an employee, he is subject to the provisions of Art. 80 of the Labor Code, in the part that allows some employees to avoid working off. So pensioners, pregnant women, those who move and other employees who can document the impossibility of continuing work can be dismissed on the day they submit an application of their own free will or on a date determined by them independently.

How it is possible to exercise this right in practice, and to carry out the dismissal of the general director of an LLC on the day of application, remains a big question. Here it remains to rely on the loyalty of the founders, who can enter the position of an employee.

Theoretically, an employee whose rights have been violated can apply to Labor Inspectorate and require them to assist in expediting the dismissal process, as well as holding the employer accountable. In reality, it will turn out that the manager will write a complaint against himself, since it is he who will accept the State Labor inspection, it will not work to involve the founders in it.

Dismissal of the CEO without his will

In the course of a long joint work mutual claims and dissatisfaction with each other can accumulate between business owners and a hired manager. Then the founders can become the initiator of dismissal of the general director. Articles 278 and 81 of the Labor Code give them such a right and grounds for dismissal of the general director of an LLC. And although such an impulse for the director is unlikely to come as a surprise, the code still obliges to comply with the deadlines and guarantees supporting payments.

Base	Terms of warning	Supporting documents	Minimum compensation amount
Company liquidation	For two months	Protocol general meeting and notice of reduction	Severance pay and support during the search new position(three months salary)
Decision of the general meeting of founders	30 days	Minutes of the general meeting indicating the reason for dismissal. You can not voice it, but then there is a high probability that the court will reinstate the dismissed person	Three months salary
Bankruptcy	Not established by law	Decision of the Arbitration Court, minutes of the general meeting	It is not provided, in case of detection of guilty actions or inaction of the director.
Guilty actions according to Art. 81 TK	As a result of consideration of actions	Minutes of the general meeting and other documents confirming the guilt of the head and the fact of causing damage or non-receipt of profit.	Not provided
For additional reasons specified in the employment contract	At least a month or by agreement	Minutes of the general meeting	At least three salaries or the amount fixed in the contract.

More often, no one wants to carry “dirty linen from the hut,” therefore, he uses streamlined wording from paragraph 2 of Art. 278 of the Labor Code, except in cases where the guilt of the general director has been unconditionally proven.

What will the former general director of an LLC, an employee, be responsible for?

The dismissal of the general director of an LLC at his own request will not be able to protect him from administrative or criminal prosecution in the future.

Having parted with the former company, no matter for what motivation, he will not be able to forget about this segment of his working life immediately. Even if the transfer of cases during the period of dismissal went smoothly, there is a possibility that shortcomings in the work will be discovered after the signing of the order.

A minimum statute of limitations is provided for administrative violations. Even if the most serious of them is admitted, but discovered after a year after its commission, the administrative fine is not applied.

Most serious look liability is provided for in criminal law, for example falling under Articles 165 and 201 of the Criminal Code of the Russian Federation. So even for infringements defined as mild and minor, the statute of limitations is 24 months. For moderate offenses - six years, and for grave offenses - 10 years.

In addition to the provisions of the criminal administrative codes liability, there is a possibility of material liability. It will be applied in case of detection of damage as a result of abuse by the former director or negligent attitude towards his work. Usually, government audits or audits initiated by new management help to identify financial losses and their causes. It is possible to file charges and file a lawsuit demanding compensation for losses within a year from the date of establishing their fact and obtaining evidence of the guilt of the resigned general director of the LLC (Article 392 of the Labor Code). Another unpleasant consequence of satisfying the employer's claim will be a ban on holding leadership positions.

Responsibility of the co-founding director

In this case, the loss of his share in the capital of the LLC will be added to all types of liability of the employee, if the result of the activity was the bankruptcy of the company. Since the LLC form does not provide for additional material liability for the organization's obligations in the process of liquidation, as a founder, he will not lose anything more.

What can the former CEO be responsible for if he is the sole founder?

In this case, the owner's attempt to compensate the dismissed general director for damages or lost profits will look strange. So the rules of Art. 392 TK you can not be afraid. But administrative and criminal liability in case of violations in the field of labor and tax legislation may well come as a result of inspections of fiscal government agencies and social insurance funds.

The departure of such an important person in the enterprise as the general director is a delicate matter for both parties. Most often, the most effective way parting becomes an amicable agreement on the terms and conditions of dismissal. If the handover process goes smoothly, the company will only benefit.

Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other normative documents to regulatory authorities.

The head of the LLC is the sole executive agency, which manages the current activities of the company. The position of a manager can be called in different ways, but its most familiar name is “general director” or simply “director”. The director acts on behalf of the organization without a power of attorney, but does not have complete freedom, because. accountable to the founders of the society.

On the one hand, the director is an employer for the employees of his organization, on the other hand, employee, whose actions or inaction largely determine the economic success of the company that hired him. Peculiarities labor relations with the head is regulated by a special chapter 43 of the Labor Code.

Can a director be fired? Who is authorized to do this? How to proceed with the dismissal of a director? Let's figure it out.

Grounds for dismissal of a director

We list the reasons for the dismissal of the director. Some of them will be the same as when other employees are dismissed, but there are also a number of special rules regarding the manager, which are spelled out in separate articles. Labor Code.

The owners of the organization should keep in mind that the leader dismissed under Article 81 of the Labor Code of the Russian Federation has the right to demand in court that such dismissal be recognized as illegal. In this case, the defendant must reasonably prove that the harm to the health of employees or damage to the property of the organization was caused precisely by unjustified actions or inaction of the director.

The difference between additional grounds for dismissal from dismissal under Article 81 of the Labor Code of the Russian Federation is that such actions of the director will not necessarily lead to damage to the property of the organization or harm to the health of employees. But this, in fact, is a discrepancy between the head of the position held, therefore, LLC participants have the right to indicate here any conditions that do not directly contradict the law.

So, in the matter of dismissal of the director by decision of the participants, all judicial instances are obliged to be guided by the clarifications of the Decree of the Plenum of the Supreme Court of the Russian Federation dated 02.06.15 No. 21. Clause 9 of this document indicates that the owners of the organization have the right to terminate the employment contract with the head without explaining their motives. It does not matter whether the contract with the director was fixed-term or indefinite. You can dismiss a director without giving reasons at any time.

The Plenum of the Supreme Court of the Russian Federation indicated in paragraph 32 of Resolution No. 2 of March 17, 2004 that the change of ownership of an organization’s property should be understood, in particular, as the transfer of ownership during the privatization of state or municipal property, and not a change of participants. It is also not a change of ownership or a change in its subordination (subordination). Thus, the dismissal of the director commercial enterprise on this basis, it is very rare, but it is necessary to know about such a norm in order not to mistakenly indicate the change of owner as the reason for terminating the employment contract.

1. At the discretion of the leader. The dismissal of the director at his own request is regulated by Article 280 of the Labor Code of the Russian Federation. Unlike an ordinary employee, the manager must apply for dismissal no later than one month before the termination of the employment contract. Can a director be fired early? Although Chapter 43 of the Labor Code of the Russian Federation does not directly provide for such an opportunity, arbitrage practice confirms that it is allowed to apply the general rules of Article 80 of the Labor Code here. Thus, if there is an agreement between the parties, then the term for the dismissal of the director of the LLC at his own request can be reduced.
2. Due to the expiration of the employment contract. The term of office of the director is specified in the charter and the decision on his appointment. Upon expiration of the term of the employment contract, it is considered terminated. Not later than three days before the expiration of the term, the participants must inform the director of this fact in writing (Article 79 of the Labor Code of the Russian Federation). If the work of the manager suits the owners, then a new fixed-term contract can be concluded with him.
3. By agreement of the parties. According to article 78 of the Labor Code of the Russian Federation, an employment contract can be terminated by agreement of the parties. This option is also called “soft dismissal”, when the owners of the organization do not want to continue working with the director, but at the same time they strive to remain on good terms with him. It must be admitted that the leader, even after dismissal, can retain business connections with partners and competitors of the organization, have access to trade secrets or compromising information. The amount of compensation or "golden parachute" for the loyalty of the former director can reach the amount of an annual salary or several million rubles.
4. At the initiative of the participants of the company on the grounds of Art. 81 of the Labor Code of the Russian Federation. In the course of the current management of the company, situations are possible when the director makes unreasonable decisions or does not fulfill his official duties. If this caused harm to the health of employees or caused damage to the property of the organization, then the head may be dismissed under Article 81 of the Labor Code (paragraphs 9 and 10). This dismissal is disciplinary action, and its initiators are the participants of the LLC.
5. For additional reasons provided employment contract . Paragraph 3 of Article 278 of the Labor Code of the Russian Federation does not provide an interpretation of what these additional grounds may be. At the same time, for the heads of state organizations, such grounds are directly indicated in departmental regulations. This may be a failure to comply with the set economic indicators; refusal to comply with the decision of the owner of the organization; making transactions in violation of the provisions of the charter. For private organizations, these conditions may be similar.
6. At the initiative of the members of the organization, but without specifying the reason. A specific feature of the termination of the employment contract with the director is his dismissal by decision of the LLC participants without explanation. Although Article 278 of the Labor Code of the Russian Federation does not directly indicate that a director can be dismissed for no reason, there are also by-laws that confirm this possibility.
7. When changing the ownership of the organization's property. If the organization changes its owner, then he has the right to terminate employment contracts with the head, his deputies and the chief accountant (Article 75 of the Labor Code of the Russian Federation). Sometimes a change of ownership is understood as a change in the composition of the participants in an LLC, but this is not so. The owner of the property created at the expense of the contributions of the founders of the LLC, as well as produced or acquired in the course of its activities, is the company itself, and not its participants (Article 66 of the Civil Code of the Russian Federation).
8. Removal from office of the head of a bankrupt organization. According to Article 69 of the Law "On Bankruptcy" No. 127-FZ, the head of the debtor organization is removed from office, and the management of the company's activities is transferred to an interim manager.
9. Dismissal of the director upon liquidation of the organization. The director must be notified in writing of the liquidation of the company no later than two months in advance. The powers of the director terminate after the appointment of a liquidator, while the duties of the liquidator can be performed by the former director himself, but already within the framework of a civil law contract.

How to fire a founding director? If an employment contract is concluded with the founder, then there are no peculiarities in the procedure for his dismissal. After the removal of the powers of the director, he remains in the composition of the participants. In the case when the director is the sole founder, he will have to sign the order to dismiss the director twice - on behalf of the director and on behalf of the founder. I must say that Rostrud and the Ministry of Finance, in principle, do not allow the possibility of concluding, however, the courts often take the opposite position.

Transfer of cases upon dismissal of the director

The head is responsible for the safety of property and documents related to the activities of the organization. Upon dismissal, the director must hand over the affairs, which in practice means to transfer by act to the new head or acting director:

• founding and registration documents of LLC;
• minutes of general meetings and decisions of participants;
• accounting and banking documents;
• documents confirming the organization's ownership of real estate, transport and other property;
• personnel documents;
• licenses, approvals and permits issued to the company;
• contracts with contractors and other important documents;
• seal and stamps of the organization, keys to the safe.

Although the procedure for the transfer of cases stipulated by law has not been established, the head bears the full liability in accordance with article 277 of the Labor Code of the Russian Federation. Based on this, before dismissal, it is also worthwhile to conduct an inventory of the organization's property.

Such a transfer of affairs is in the interests of the former director himself, since responsibility for the damage caused to the organization can be presented to him even after dismissal. If the director refuses to transfer cases under the act, then the owner of the organization must create a commission that conducts an inventory of cases and property and confirms the fact that the director refuses to sign. Further, if the actions of the director really caused damage to the organization, the issues of recovery of damages are resolved in court.

Compensation for the director upon dismissal

The law stipulates only two special situations when the owners of the organization are required to pay compensation to the director upon dismissal:

• change of ownership of the property of the organization;
• dismissal of the director by decision of the founders without explanation (clause 2 of article 278 of the Labor Code of the Russian Federation).

In both cases, the amount of compensation cannot be less than three monthly salaries. If the director was dismissed due to the liquidation of the LLC, then, like other employees, he has the right to receive compensation under Article 178 of the Labor Code of the Russian Federation (one monthly salary, as well as previous earnings for the period of employment, but not more than two months).

The payment of monetary compensation upon dismissal by agreement of the parties, although it occurs in practice, is not mandatory. There is no obligation to pay compensation to the director even when he leaves of his own free will, however, the employment contract may still provide for a certain severance pay.

In the case when the director is dismissed under Article 81 of the Labor Code of the Russian Federation, there is no question of any compensation; on the contrary, a claim for damages may be brought against the former head.

As for the amount of compensation upon dismissal of a director, it is limited only to heads of state and municipal organizations and those in which the share of state property exceeds 50%. For directors of such organizations, the amount of compensation cannot exceed three monthly salaries.

The procedure for the dismissal of a director

So, what actions should be taken if it became clear that the dismissal of the director for any of the reasons discussed above is inevitable?

1. Prepare the minutes of the general meeting of participants or a decision sole member on termination of the employment contract with the director. The document must indicate the reason for the dismissal of the director. As a basis, the director's statement of resignation of his own free will may be indicated; agreement of the parties; the decision of the participants to terminate the employment contract with the director; a memorandum on the commission by the director of actions under article 81 of the Labor Code of the Russian Federation.
2. Issue an order to terminate the employment contract and register it in the journal.
3. Accept from the head of the case and property of the organization according to the act.
4. Make the payment of the last salary, compensation for unused vacation, severance pay, other agreed payments on the basis of a note-calculation.
5. Make a record of dismissal in the personal card of the director in form No. T-2. With the entry in the manager's card, you must familiarize yourself with signature.
6. Make a record of dismissal in the work book and hand it over to the director.
7. Notify the bank about the termination of the powers of the director.
8. Within three working days from the date of transfer of the director's powers to the new head, inform your INFS about the change in registration information in the form 14001.

The reasons for this decision are:

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

Labor Code of the Russian Federation. Article 77. General grounds for termination of an employment contract
The grounds for termination of an employment contract are:

• agreement of the parties (Article 78 of this Code);
• expiration of the term of the employment contract (Article 79 of this Code), except for cases when the employment relationship actually continues and none of the parties has demanded their termination;
• termination of the employment contract at the initiative of the employee (Article 80 of this Code);
• termination of the employment contract at the initiative of the employer (Articles 71 and 81 of this Code);
• transfer of an employee at his request or with his consent to work for another employer or transfer to elective work (position);
• the employee's refusal to continue working in connection with a change in the owner of the organization's property, with a change in the jurisdiction (subordination) of the organization or its reorganization, with a change in the type of state or municipal institution(Article 75 of this Code);
• refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);
• refusal of the employee to transfer to another job, necessary for him in accordance with the medical certificate issued in the manner prescribed federal laws and other regulatory legal acts the Russian Federation, or the absence of an appropriate job for the employer (parts three and four of Article 73 of this Code);
• the employee's refusal to be transferred to work in another locality together with the employer (part one of Article 72.1 of this Code);
• circumstances beyond the control of the parties (Article 83 of this Code);
• violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).

An employment contract may also be terminated on other grounds provided for by this Code and other federal laws.

Part three is no longer valid.

By decision of the founder

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

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

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

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

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

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

Given this, the decision of the founder to dismiss the CEO can only be based on the decision of the general meeting of founders, shareholders or board of directors, depending on the form of ownership of the organization.

Also, such a decision can be made solely by the owner of the property. Once approved, the process proceeds as normal.

Labor Code of the Russian Federation. Article 278. Additional grounds for terminating an employment contract with the head of an organization
In addition to the grounds provided for by this Code and other federal laws, an employment contract with the head of an organization is terminated on the following grounds:

• in connection with the removal from office of the head of the organization - the debtor in accordance with the legislation on insolvency (bankruptcy);
• in connection with the adoption by the authorized body legal entity, or by the owner of the property of the organization, or by the person (body) authorized by the owner of the decision to terminate the employment contract. The decision to terminate the employment contract on the specified basis in relation to the head unitary enterprise adopted by the body authorized by the owner of the unitary enterprise in accordance with the procedure established by the Government of the Russian Federation;
• on other grounds stipulated by the employment contract.

Without the consent of the founder

Can the CEO of an LLC resign without the consent of the founder? How to dismiss yourself from office general manager?

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

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

But the first step in this case is standard statement on dismissal from office.

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

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

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

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

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

In cases where the employee's application for dismissal on his own initiative (of his own free will) is due to the impossibility of continuing his work (enrollment in educational organization, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts containing norms labor law, local regulations, conditions collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee's application.

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

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

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

An important nuance making such a decision becomes:

• need data transfer to the Unified State Register of Legal Entities about the new personal of the General Director;
• signing the consent on the own dismissal leaving work, since such a document can only be signed by the general director specified in the Unified State Register of Legal Entities, changes to which cannot be made until the fact of the dismissal of the old one and the appointment of a new general director is fixed.

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

Statement

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

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

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

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

Order

On the basis of what provisions and how is the Order prepared? An order on the fact of leaving work of an employee of this level is being prepared on the basis of a decision taken by the board of directors, founders or other similar structure within the organization.

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

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

Compensation calculation

What compensation is due to the CEO upon dismissal? Size compensation payments calculated as standard just like when you end a relationship with any other employee.

In the event of termination of the relationship by agreement of the parties initiated by the founder, the employee has the right to compensation, the amount of which is three average monthly payments.

Deadline for filing care information

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

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

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

Features of making an entry in the work book

Given the level official position, it will be necessary to observe certain features of entering data on the changed status of the general director in his work book. They are entered into standard mode, except for the information entered in the 4th column of this document.

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

Changing the date of dismissal

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

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

The change is made by internal order.

Responsibility of the former leader

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

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

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

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

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

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

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

shall be punishable by a fine in the amount of up to 300 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to two years, or by compulsory labor for a term of up to two years, with or without restraint of liberty for a term of up to one year, or by deprivation of liberty for a term of up to two years. years with or without a fine in the amount of up to eighty thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to six months, and with or without restriction of liberty for a term of up to one year.

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

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

shall be punishable by compulsory labor for a term of up to five years, with or without restraint of liberty for a term of up to two years, or by deprivation of liberty for a term of up to five years, with a fine in the amount of up to 80 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to six months, or without it and with restriction of freedom for a term of up to two years or without it.

Summary

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

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

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

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

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It often happens that the founder of a business company occupies the position of the head of the company. In this case, it may be necessary to dismiss him from the relevant position. Under what legal mechanisms is it possible to dismiss the founding director of an LLC? Who can initiate this procedure?

What are the mechanisms for dismissal of the founding director?

The dismissal of the founding director of an LLC at his own request or at the order of other persons is a procedure that differs greatly in legal nature and substance. The dismissal of the head of the organization, who founded it, from his position can be carried out, one way or another, within the framework of the following main mechanisms:

1. Dismissal of the director, who is the sole founder and owner.
2. Dismissal of a director who is not the sole founder (owner).

Within the framework of each of the 2 indicated legal mechanisms, it is possible to dismiss the director from his position:

• at his own request;
• at the request of third parties.

At the same time, the term "dismissal" in the context of legal relations with the participation of a director can be interpreted in different ways - as de facto dismissal (regardless of the application of certain legal mechanisms), as de jure dismissal under the Labor Code of the Russian Federation, or as dismissal de jure in accordance with civil law.

Let us study the specifics of these mechanisms, taking into account the noted features of the combination of labor and civil law, in more detail.

Dismissal of the director-sole founder and sole owner

The dismissal of the general director, the sole founder of an LLC, who is also the sole owner of the enterprise, is almost always carried out at the discretion of the head.

An exception is if the owner of the company, for some reason, decided to give the authority to hire the general director to a separate structure - the supervisory board of the LLC. In this case, of course, it is possible to initiate the dismissal of the head of the company at the request of other persons - members of the relevant supervisory board.

The sole owner of the company can act as a director without concluding an employment contract (while the supervisory board, in turn, is obliged to conclude an employment contract with the director). It may be enough for the founder to release himself from his position by issuing an order to dismiss the director of the LLC. After that, be sure to inform the Federal Tax Service about this so that the tax authorities enter into the state register information that the company does not have a general director.

At the same time, the owner of the company needs to keep in mind that his company will not be able to enter into legal relations without a director. His personal signature will be illegitimate. That's why, new director the firm will need, and its owner should think in advance who, in the event of dismissal of himself, can be appointed to the appropriate position.

If the authority to hire and dismiss the director is vested in the supervisory board of the LLC, then the dismissal of the director from the relevant position is carried out on the basis of the provisions of Art. 278 of the Labor Code of the Russian Federation and others (for example, due to their admission negative consequences decision-making - according to Art. 81 of the Labor Code of the Russian Federation). The dismissal of a director under Article 278 of the Labor Code of the Russian Federation can be carried out without any explanation from the Supervisory Board. In this case, the order to dismiss the head is issued by the supervisory board, after which the necessary personnel documents are drawn up.

Important nuance: if the basis for dismissal is the provisions of Article 81 of the Labor Code of the Russian Federation, then former director no compensation is due. If the head is dismissed under article 278 of the Labor Code of the Russian Federation, then compensation is due, provided for by law and, possibly, by an employment contract.

The supervisory board also informs the Federal Tax Service about the change of director, and also appoints a new one so that the company can enter into legal relations.

Dismissal of non-sole founding director

The dismissal of the director in the case under consideration is possible:

Above, we noted that dismissal is a procedure that may have different interpretations based on what legislative norms are being considered - those that relate to civil law, or those that are reflected in the Labor Code of the Russian Federation.

Thus, the dismissal by the founder of himself from the position of the head of the economic company in this case implies the termination of legal relations with the LLC, which are regulated by:

• labor law;
• civil law rules.

Regarding the norms of labor law, the dismissal of the founder from the position of director of the company at his own request is quite simple. It is enough for him:

• write a letter of resignation of their own free will, transfer it to other owners;
• initiate an extraordinary meeting of LLC owners, on the agenda of which will be the dismissal of the director and the appointment of a new one;
• take part in this meeting and, if necessary, justify your dismissal.

At the same time, the application must be transferred to other owners of the LLC no later than 30 days before the appointed date of the extraordinary meeting.

Actually, those documents that are supposed to be adopted at the meeting will be published in the jurisdiction of just the same civil law. We are talking about the same order to dismiss the director, and also, if the meeting is ready for this, an order to appoint a new leader (with whom an employment contract will subsequently be concluded).

But the most remarkable thing here is that the rest of the business owners may not take the necessary actions to release the director from his powers. From the point of view of civil law, he will continue to hold his position and fulfill his duties.

Given this feature, it would make sense for the director to take the following additional actions:

• prepare documents confirming the sending of the letter of resignation to other owners (for example, this may be a postal document certifying that they received registered letter);
• send to the Federal Tax Service form R14001, which will reflect that the director is leaving.

The Federal Tax Service, however, may refuse to change entries in the state register on the basis of Form P14001 alone (since general case the document reflecting the desire of the owners to dismiss the director will be the order of the general meeting). In this case, the leader who resigns at his own request has the right to file a complaint against the actions of the tax authorities. If it is not satisfied, file a lawsuit against the Federal Tax Service. There is a good chance that the tax authorities will be required to remove from the state register the record that the plaintiff is the director of the company, by court order.

Another option is also possible - filing a lawsuit directly against the owners who did not respond to the director's application for dismissal. The court, if there are strong arguments on the part of the plaintiff, may oblige them to take the necessary actions to dismiss the director from his position and inform the Federal Tax Service.

It is worth noting that the functions of the meeting of owners in terms of hiring and dismissal of the director can be performed, as in the scenario when the company has a single owner, the supervisory board.

1. Dismissal of the director at the initiative of other participants.

In this case, at the general meeting of owners, an order may be issued to dismiss the director from his position, for example, on the basis of the same articles 81 and 278 of the Labor Code of the Russian Federation, as a result of which the head is dismissed in full accordance with the law.

The initiation of the issuance of an order for the dismissal of the director may, however, be carried out against his will. In this case, the document can only be issued if the majority of owners vote in favor of the decision to issue this order (or if other criteria prescribed in the organization's charter are met).

It may well turn out that the director has a major stake in the business, as a result of which the general meeting will not be able to issue an order to dismiss the director. However, in this case, the co-owners of the business have the right to achieve the dismissal of the director through the court.

The chances of a court decision in favor of the plaintiffs in this case will be especially high if the director gives a reason for dismissal precisely under Article 81 of the Labor Code of the Russian Federation, that is, he makes miscalculations in his work that will lead to losses for the company. In turn, one of the possible factors for the court to make a decision on the side of the plaintiff upon dismissal of the director on the basis of Article 278 of the Labor Code of the Russian Federation is a large compensation to the head, prescribed in the employment contract.

Summary

So, the dismissal of the director, who is the founder of the company, is possible:

1. At his own request:

• if he is the sole founder and owner - no problem;
• if he is not the only owner of the business - if the general meeting of owners or the supervisory board does not create obstacles for formalizing the dismissal procedure (at the same time, these obstacles can be overcome in court).

2. At the request of third parties:

• if the director is the sole owner of the business, then in accordance with the order of the supervisory board (if it is established);
• if the director is not the sole owner of the business, then in accordance with the order of the meeting of owners or the supervisory board.

If the director is dismissed at the request of third parties, then in cases provided for by law, in particular, if he is dismissed on the basis of Article 278 of the Labor Code of the Russian Federation, then he is entitled to compensation.

In life there are various situations when the founder is forced to make a decision to dismiss the director from his position. It happens that the director is also the sole founder of the enterprise, and then he himself will have to decide on his dismissal.

Grounds for dismissal of the CEO

Labor Code Russian Federation There are two articles on the basis of which a director can be dismissed:

1. Article 81 according to which dismissal may occur in case of unlawful actions of the head, as a result of which harm was caused to the employee and his health

2. Art.278 depending on the circumstances that have arisen by the decision of the owners

And also the director can independently write a letter of resignation or in case of liquidation of the organization or transfer to another place.

Important! In case of liquidation of the organization, the director, as well as other employees, should be paid compensation in the amount of three salaries.

The procedure for dismissal by decision of the founder

If directors are dismissed by decision within the firm, the process includes the following steps:

Stages	Detailed description
1. Gather all the founders	Make a decision on the dismissal of the General Director, fixing this with the protocol following the account
2. Based on the protocol, the personnel department issues a dismissal order	Order in the standard form T-8, indicating the article of dismissal and personnel number
3. Make entries in your personal card	The entry is made in the appropriate section under the signature of the director himself
4. Make an entry in the work book	The director also puts a painting there, which is familiar
5. Issue a protocol on the appointment of a new director	You can do this at the same time as the dismissal of the former
6. Report to the tax office	Within three days, you must submit a notarized application to change the head of the enterprise, before that contact a notary, pay about 2400 rubles for the re-registration of the directorate
7. Inform the servicing bank	Submit a record sheet to the bank with tax office on the change of director, the minutes of the meeting or the decision of the owner, the passport of the new director and the order to take office, as well as to make a new certificate of keys with a signature and seal

When drawing up a protocol on dismissal, it is necessary to comply with some formalities:

1. above we indicate the details of the organization and its name

2. Then the protocol next by number and the city of compilation

4. The next step is to describe the agenda, on what occasion they met: dismissal of the general director from his position and appointment of a new one

6. The chairman and the secretary, if any, sign.

Personnel documents upon dismissal

After drawing up and signing the minutes of the general meeting of founders, an order is issued to dismiss the director for unified form. Its director signs for himself.

The accountant then calculates wages and compensation for unused vacation, if any, transfers income tax on the day of dismissal individual, but insurance premiums pay at the end of the month.

Prepares for the issuance of a certificate:

• 2 personal income tax for each year of work
• SZVM for each month
• SZV experience per year
• RSV for each quarter
• Issues a payslip and statement for signature
• As well as a certificate for the employment center on the amount of payments

Then they make an entry in the personal card about the dismissal, the director signs, and they issue a work book, also filled out against signature. And also you must not forget to make a mark for signature in the traffic log work books.

Important! Dismissing the CEO from his position during illness or vacation is prohibited!

Dismissal of the director if he is the founder

This procedure does not differ much from the previous one, with the only difference being that in the case when the director is at the same time the founder, he does not draw up a protocol, but a decision of the sole participant, in which it is necessary to indicate the removal of his powers from office at his own request, and on the basis decision to write a letter of resignation in his own name. And then the process proceeds in the same way.

Responsibility of the founder upon dismissal of the CEO

The founder will be liable if he illegally dismissed the general director and he filed a lawsuit, if the court decides in his favor, then the directors can be reinstated.

The director himself also bears financial responsibility at the enterprise in the following cases:

• For some reason, the profit for the enterprise is lost
• Due to his fault, the property of the company was damaged

Administrative violations include:

• The goods were sold without the use of cash registers
• Constant irregularities in reporting and paying taxes

Important! Even if, after the dismissal of the CEO, the fact of a violation in his actions is discovered, he may be held criminally liable. Depending on the severity, either a large fine or imprisonment will be imposed.

What problems may arise during dismissal

• The director wrote a letter of resignation in two weeks, as provided by law, but a new director was not found, then it is necessary to gather the founders and decide at the meeting who to transfer the business to.
• The participants of the LLC did not decide to dismiss the director, although the term of the notification submitted by him had expired. In such a situation, the head may dismiss himself on the basis of Art. 80 of the Labor Code of the Russian Federation, stop fulfilling your official duties and independently make an entry about the termination of the contract in the work book.
• It was not possible to transfer the cases to the new leader, the cases can be left in the archive or at home and presented upon request.

Important! Knowing how to fire the CEO correctly allows you to avoid unnecessary clarifications and evidence during the audit.

Answers to common questions

1.Question #1:

Can the CEO be fired by decision of the founder?

Answer:

Yes, you can, there are several options: either the dismissal occurs on the basis that the director violated something and the employees suffered through his fault, or the company is liquidated or he himself decided to quit of his own free will. To do this, it is necessary to convene a board of shareholders, if there are several of them, then draw up a minutes of the meeting, at which to introduce the main point - the dismissal of the general director and on what basis. Having violated the law, the founder bears criminal and administrative liability if he dismisses the head illegally.

2.Question #2:

What personnel documents are issued upon dismissal of a director?

Answer:

An employee of the personnel department issues an order to dismiss the director on the basis of the minutes of the general meeting, which is indicated in the work book, making an entry about the dismissal, the accountant is also obliged to issue certificates of payments and for pension fund, for the employment center, a certificate of its form, indicating the amounts of payments by year, for registration as unemployed. The director, like other employees, is entitled to receive compensation for non-vacation leave, which is calculated at the rate of approximately two days per month. Next, do not forget to take the manager's signature in the work book record book, which must be kept at the enterprise without fail and the employee signs it upon dismissal.