How to fire a CEO

The head of an organization simultaneously plays two roles - he is an employer on the one hand, and an employee on the other. He is appointed by the LLC participants at a general meeting.

He can resign at will, and the founders have the right to fire him. In the second case, the law provides for general and special grounds. Let's take a closer look at them.

From this article you will learn

Why can you fire the head of an LLC?
How to fire a director for poor performance
What documents should I submit for dismissal for a disciplinary offense?
Deadlines for dismissal of a director
How to dismiss a director at the initiative of LLC participants
Peculiarities of dismissal of the director - founder of an LLC
How a fired director transfers his position
Summary: what to do to fire a director

Why can you fire the head of an LLC?

If we consider the head of the organization as an ordinary hired employee, then you can terminate the employment contract with him:

in connection with the closure of the LLC;
upon expiration of the contract;
due to the director’s absence from work without good reason;
due to his disclosure of trade secrets;
due to his appearance at work in a drunken state, etc.

The procedure for dismissing an ordinary employee and the head of an LLC in these cases is the same. Therefore, in this article we will consider special grounds. So, if you dismiss a director as an official, then you can part with him due to the fact that:

The director unreasonably entered into an unprofitable deal or seriously violated tax laws, as a result of which the company suffered losses or received a large fine (clause 9, part 1, article 81 of the Labor Code of the Russian Federation);
The director did not fulfill (grossly violated) his labor duties assigned to him by the employment contract (clause 10, part 1, article 81 of the Labor Code of the Russian Federation).
The employment contract states that before concluding a lease agreement for the premises, the manager is obliged to organize and hold a meeting of the LLC’s participants and obtain their “go-ahead” for the transaction.
If he did not do this and concluded the contract himself, without notifying the owners, then as a disciplinary punishment he may be fired under clause 10 of part 1 of art. 81 Labor Code of the Russian Federation;
This decision was made by the management body - the general meeting of LLC participants, the board of directors or another authorized body (clause 2, part 1, article 278 of the Labor Code of the Russian Federation). There is no need to indicate what the manager was not satisfied with in the work. But if the employment contract was terminated with obvious abuse of this right, the court may declare the dismissal illegal (clause 9 of the RF PPVS dated 06/02/2015 No. 21).

Making an unreasonable decision or gross failure to fulfill one’s duties are disciplinary offenses that caused damage to the company. People can be fired for this in the same way as for absenteeism without good reason or for disclosing trade secrets. The same procedure is followed and the same documents are drawn up. But the facts prove differently in each case.

When not to fire a manager

Under no circumstances (except for the liquidation of a company) can a pregnant woman be fired (Article 261 of the Labor Code of the Russian Federation). An employee is not fired while he is on sick leave or on vacation (Part 6 of Article 81 of the Labor Code of the Russian Federation).

There are labor guarantees for persons with family circumstances, which include:

women who have a child under 3 years of age;
single mothers or fathers whose child is under 14 years old (18 years old for a disabled child);
the only breadwinners in a large family that includes a child under 3 years of age or a disabled child who has not reached the age of majority.

They cannot be fired either by decision of the LLC participants, or for an unreasonably made decision that led to damage to the company. The law does not allow this (Article 261 of the Labor Code of the Russian Federation, clause 26 of the RF PPVS dated January 28, 2014 No. 1).

Issuance of documents and payment of compensation

On the last day of work of the director, he must be issued a work book, as well as pay the due compensation. For these purposes, it may be necessary to prepare other documents, for example, calculation of payments using the unified form No. T-61.

If the director cannot receive the documents in person, he must be sent a notification by registered mail about the need to appear at the company to receive them. Postal documents certifying the sending of this notice will simultaneously confirm the company’s fulfillment of this obligation during the inspection of the labor inspectorate, if by that time the documents are not in the possession of the resigned director.

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

You can learn more about using a bypass sheet when dismissing an employee in the article “Bypass sheet when dismissing an employee - sample and form” .

How to fire a director for poor performance

Of course, it is impossible to fire a director with such a wording. It is necessary to clearly formulate what constitutes “bad work.”

Dismissal for making bad decisions

If the manager made a decision that led to adverse consequences, then in order to dismiss him it is necessary to prove that:

negative consequences occurred, and this happened due to the fault of the manager who made the wrong decision;
the consequences could have been avoided if the decision had been different.

Deputy General Director K. gave the command to turn off the power to the building. As a result, the system for selling tickets, registering passengers, and transferring personal data to the centralized personal data database (EGIS) was disabled.

The company suffered actual damage of 8,000 rubles (due to server repairs). This amount was enough to dismiss K. under clause 9, part 1, art. 81 of the Labor Code of the Russian Federation, the court confirmed the legality of the dismissal.

Counter example:

L.'s organization held a tender among contractors to equip garage boxes with carbon monoxide control systems.

The chief engineer violated the procedure for conducting the tender: he planted documents and deliberately chose one of the participants as the winner. For this he was fired under clause 9 of part 1 of Art. 81 Labor Code of the Russian Federation.

The court reinstated the chief engineer, indicating that the organization did not suffer any actual damage due to the actions of this employee.

Upon dismissal under clause 9, part 1, art. 81 of the Labor Code of the Russian Federation, it is necessary to prove negative consequences - actual damage that occurred to the organization as a result of the actions of the manager.

You can prove the damage, for example, using a payment document and an agreement for the repair (restoration, replacement, purchase) of equipment that broke down due to the manager.

Dismissal for gross violation of labor duties

If you dismiss the director under clause 10, part 1, art. 81 of the Labor Code of the Russian Federation, then you need to prove that:

the unfulfilled duty was specified in the employment contract and job description;
the violation was committed and it was gross, that is, as a result, employees could suffer (physically), or the company could suffer financially.

If a dispute arises, then the above is added to the need to prove that the dismissal procedure was followed.

Manager G. deliberately violated the rules of cash discipline (he took money on account and did not account for it) - the enterprise was in danger of incurring damage. He sold petroleum products at a price lower than the purchase price - the organization suffered losses.

The court determined that G. grossly violated his duties, and therefore dismissal under clause 10, part 1 of Art. 81 of the Labor Code of the Russian Federation is legal.

Note!

Dismiss under clause 10, part 1, art. 81 of the Labor Code of the Russian Federation can be the head (his deputy) of an organization, branch or representative office. The chief accountant or the head of a department, department, management or other structural unit of an organization cannot be dismissed on this basis (clause 49 of the RF PPVS dated March 17, 2004 No. 2).

What documents should I submit for dismissal for a disciplinary offense?

Before the dismissal of a manager whose work the LLC participants are dissatisfied with, the organization undergoes an internal investigation. This is necessary to establish the exact amount of material damage caused, if any (Article 247 of the Labor Code of the Russian Federation). In other situations, the commission examines the circumstances of the event, establishes the employee’s guilt, and determines the punishment.

If the organization does not have a local act establishing the procedure for conducting an internal investigation against the head of the LLC, then proceed in order:

The meeting of the Company's participants makes a decision on the formation of the commission, determines its composition, establishes the timing and purpose of the investigation;
If it is necessary to establish the amount of material damage, then an audit, inventory and other measures are carried out to determine the amount of losses;
The commission examines documents, interviews witnesses, determines the guilty person;
The head of the LLC is presented with a requirement to provide a written explanation of what happened;
If the director does not respond, 2 days after delivery of the demand, an act is drawn up stating the refusal to give explanations;
The commission draws up an official investigation report, which describes in detail the results of the investigation;
The general meeting of participants makes a decision on the dismissal of the director and appoints an acting director (hereinafter referred to as the acting director);
The acting director issues and signs an order for the dismissal of the former manager (according to the unified form No. T-8, or according to an independently developed sample). The latter signs for familiarization with this order, otherwise it is necessary to draw up an act of refusal to familiarize himself.

Order to dismiss the director

Thus, it should be formatted:

decision on the formation of the commission, its composition, the purpose of the investigation;
a document establishing the amount of damage (audit report, assessment report);
confirmation of the transfer of the request for explanations (for example, a second copy of the request with the signature of the manager);
explanatory note from the director (act of refusal to give explanations);
act of official investigation;
protocol of the decision on the appointment of an acting director and the dismissal of the current director of the LLC;
order to dismiss the director.

How to draw up a notice of dismissal (download sample)

The protocol on dismissal (or the decision of the sole founder) may contain the following information blocks:

1. Block indicating the name of the document, business entity, date and place of preparation.

2. Indicating the founders and invitees present (among whom may be, for example, the dismissed general director).

3. Indicating the issue that is on the agenda - the dismissal of the general director of the company from his position.

As we noted above, the issue of appointing a new head of the organization may also be on the agenda.

4. Indicating the persons who spoke at the meeting. For example, the owner who initiated the dismissal of the director and his partner who proposes a candidate to replace the dismissed director.

5. Block, which reflects the decision of the meeting of founders. In this case, it will consist in the dismissal of the director from his position - on the basis of such and such an article of the Labor Code of the Russian Federation, as well as in the appointment of the proposed candidate as a new director.

6. Indicating information about those who voted. If the decision is made, the majority of votes or the fact that the decision was made unanimously should be reflected here.

7. Block signed by the chairman of the meeting of founders.

It can also be supplemented by the signature of the secretary.

You can find the owners' decision to dismiss the director on our website using the link below.

Deadlines for dismissing a director for disciplinary violations

In order to dismiss a manager as a disciplinary punishment, you must meet the deadlines established by Art. 193 Labor Code of the Russian Federation.

A month is given to conduct an investigation and dismiss the employee - the period begins from the day the misconduct is discovered. During the illness or vacation of the director, the term is suspended. In this case, leave can be of any kind: annual, educational, without pay. Time off and business trips do not interrupt the period. In total, the time for imposing a disciplinary sanction can be extended to 6 months, after which it will be impossible to dismiss on this basis;
If an organization has undergone an audit or inspection, during which shortages, incorrectly executed documents or other signs of improper work (damage) were found, then a month is given to dismiss the manager. The period may increase due to sick leave and vacations and last up to 2 years. Time is counted from the day the offense was committed, not discovered. Therefore, if the audit was carried out yesterday, but the manager committed the offense more than 2 years ago, it will no longer be possible to fire him.

Liquidation

The dismissal of a director during the liquidation of an organization is no different from the dismissal of any other employee. It is also necessary to notify the director 2 months in advance, but the employer can dismiss the director with his consent earlier, without waiting for the end of this period.

If the dismissal occurs due to liquidation, then the director receives all types of compensation provided for by the Labor Code of the Russian Federation : compensation for unused vacation, severance pay and other payments provided for various standard dismissals.

But even after his dismissal, the director will not be able to avoid responsibility for offenses committed during his work in the organization. If the offense is of a material nature, then the former director will have to reimburse the cost of lost property or compensate expenses.

If the damage is due to unpaid debts, the former director will have to pay them out of his own pocket. There is also administrative and criminal liability, which are regulated by the Criminal Code of the Russian Federation.

How to file a resignation? An organization cannot exist without a director; the founders must be prepared for the emergence of management risks. To avoid a fine of 5,000-10,000 thousand rubles, it is necessary to register a new director and enter information into the Unified State Register of Legal Entities.

How to dismiss a director at the initiative of LLC participants

LLC participants may decide to change the manager without explaining the reasons. And they have such a right (clause 2, part 1, article 278 of the Labor Code of the Russian Federation).

They hold a general meeting, make a decision to fire the previous director and hire another.

What you need to pay attention to when changing the executive body:

Dismissal under clause 2, part 1, art. 278 of the Labor Code of the Russian Federation is not a disciplinary measure, but an independent basis, therefore the terms of Art. 193 of the Labor Code of the Russian Federation does not need to be observed;
There is no need to withstand a two-week or one-month warning period about upcoming dismissal. Participants can set a date for termination of the employment contract on any day;
A director dismissed on this basis is entitled to compensation in the amount of three times his average monthly salary. You can pay more, but you cannot pay less, otherwise the amount will be recovered through the court (Article 279 of the Labor Code of the Russian Federation);
Since the head of the organization is a financially responsible person by virtue of the law, the delivery of the company’s property must take place according to the act of acceptance and transfer of affairs. Before this, of course, an inventory is taken;
The director himself issues an order for his dismissal. If he doesn’t want to do this, it’s not scary - a decision of the meeting of LLC participants is enough;
Order to dismiss the director himself
Within 3 days from the date of taking office, the new director must send to the Federal Tax Service an application in form P14001 to make changes to the Unified State Register of Legal Entities. The register contains information about the head of the LLC, and if it changes, the entry must be corrected. This can be done through the Federal Tax Service website.

What guarantees can a director count on upon dismissal?

First of all, compensation is provided in the form of three times the average monthly earnings (Article 279 of the Labor Code of the Russian Federation). However, as noted above, there are cases when this compensation is not paid - upon dismissal as a result of bankruptcy of a legal entity, upon expiration of the contract and at the request of the employee.

Compensation must be paid if the owner of the organization’s property changes (Article 181 of the Labor Code of the Russian Federation). At the same time, simply a change of company participants does not constitute a change of property owners.

Peculiarities of dismissal of the director - founder of an LLC

If the founding director of an LLC agrees with his dismissal, then it occurs without any special features. Difficulties may arise if a conflict arises between the parties:

The Company's members want to change the executive body, but the director himself does not want to resign. He can challenge in court not just the fact of dismissal, but the decision made by the meeting of participants to change the manager (Article 43 of the Law on LLC No. 14-FZ). This is only possible in cases of dismissal under clause 2, part 1, art. 278 Labor Code of the Russian Federation;
The director wants to resign, but the LLC participants will not let him go. He cannot leave without the decision of the participants, so he convenes an extraordinary meeting in accordance with Art. 35, 36 of the Law on LLC No. 14-FZ.

If the participants ignore the wishes of the LLC director, do not go to the post office, do not pick up the notice, and as a result do not hold a meeting, then the director will have to go to court.

Another interesting case is the dismissal of the director of the LLC, the sole founder of the Company.

There are 2 options here:

disqualification of the executive body by court decision;
voluntary dismissal.

The process of terminating an employment contract occurs in the general manner: a decision is made to change the director, an order is issued to dismiss the previous director and appoint a new one, the documents and property of the organization are transferred to the new director.

Appointment and reception

The general director of the company is elected by the general meeting of its founders (participants). In a number of cases, if the issue of appointment or dismissal of a manager (sole executive body) is within the competence of the board of directors, the board of directors. The owners can appoint a person to this position either from among themselves or from outside. The employer in relation to the employee - general director is the organization represented by one of its participants (founders), an employment agreement (contract) is drawn up. It includes all mandatory and additional conditions provided for by the Labor Code (including remuneration - the size of the employee’s tariff rate or salary, additional payments, allowances and incentive payments), taking into account the peculiarities of the work of managers provided for in Chapter 43 of the Labor Code.

First, the corresponding decision (minutes) of the general meeting of participants or the board of directors is drawn up. Then an employment contract is signed with the manager.

In an LLC, an employment contract with the manager can be signed by:

the person presiding over the general meeting of the company's participants at which the manager was elected;
a member of the company authorized by the decision of such a meeting;
Chairman of the Board of Directors (Supervisory Board);
a person authorized by a decision of the board of directors (supervisory board) of the company (clause 1 of article 40 of the Law of February 8, 1998 No. 14-FZ).

On behalf of the JSC, the employment contract is signed by the chairman of the board of directors (supervisory board) or a person authorized by this board (clause 3 of article 69 of the Law of December 26, 1995 No. 208-FZ), as well as the sole shareholder or another person authorized by him.

An employment contract with a manager is usually concluded for a fixed-term period. Its validity period is determined by the constituent documents of the organization or by agreement of the parties (Part 1 of Article 275 of the Labor Code of the Russian Federation).

Based on the decision of the authorized body and the employment contract, the manager (or another authorized person from among the participants, the board of directors) issues an order to take office (or begin to perform the duties of a manager).

An entry about the appointment is made in the manager’s work book. Column 4 makes reference to the decision of the general meeting or the order to take office (letter of Rostrud dated September 22, 2010 No. 2894-6-1). A personal card is also issued for the elected leader.

How a fired director transfers his position

There is no statutory procedure for transferring a position; each organization determines it itself at the level of a local act. Typically the transfer goes like this:

After the decision to dismiss is made, a commission is created to transfer cases (especially if the enterprise is large);
Conduct an inventory or audit;
Draw up an act of acceptance and transfer of property and documents;
Documents are usually transferred to the deputy manager or another person specified in the dismissal order;
On the day a new director takes office, the property is transferred to his disposal also under the act of acceptance and transfer.

Summary: what to do to fire a director

Hold a general meeting of participants to consider the issue of changing the executive body;
Conduct an internal investigation if you discover a disciplinary violation by the director;
Draw up an act of internal investigation, a decision on dismissal;
If you want to dismiss the head of an LLC at the request of the management body (clause 2, part 1, article 278 of the Labor Code of the Russian Federation), then in the decision on dismissal, indicate the amount of compensation due for payment;
The manager-participant of the LLC is fired in the same way as a hired manager;
When a director changes, the Company's property and documents are transferred, so it is advisable to conduct an audit (inventory);
Consider the timing and family circumstances of the person being fired.

Expiration

A fixed-term employment contract with a manager is terminated upon expiration of its validity period (Part 1 of Article 79 of the Labor Code of the Russian Federation). The employee must be warned about this in writing at least three calendar days before dismissal. If the owner intends to extend the employment relationship with the manager, he is sent a notice of termination of the employment contract and an offer to conclude a new employment contract.

note

The validity of a fixed-term employment contract with a manager by concluding an additional agreement on extension is not allowed.

At the end of the term of the fixed-term employment contract with the manager, the entry “Dismissed due to the expiration of the employment contract, paragraph 2 of part 1 of Article 77 of the Labor Code of the Russian Federation” is made in his work book.