Dismissal of a director according to the rules and without problems

Basic rules for dismissing a director

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

if the manager is a pregnant woman, the exception is liquidation of the company (Part 1 of Article 261 of the Labor Code of the Russian Federation);
if the manager belongs to the category of persons named in Part 4 of Art. 261 Labor Code of the Russian Federation;
during a period of temporary disability or the director is on vacation, with the exception of liquidation of the organization (Part 6 of Article 81 of the Labor Code of the Russian Federation).

Notarial assistance

What exact steps should you take to ensure that everything is completed? It would be nice to have witnesses to all actions performed, the main one of which may be a notary. He may be present during the transfer of authority, when archiving securities and signing statements. The authority of this specialist also includes the ability to interview all employees and personally inspect, check, and order an examination of the presence, integrity or transfer of valuables. And he has the right to act as a legal intermediary to provide factual data to both parties.

If one of the parties involved fails to appear at the process (the notary officer in this case determines the place and time of the action), what was planned will still happen, and the dismissal of the general director will still take place. After all, now the notary is responsible for the documentation and acts as the main evidence that the previous manager did everything possible for legal dismissal.

Other company employees can also play a role in this process. Their testimonies about the director can mostly help. After all, they, like no one else, witnessed all the incidents. And they know about the director’s desire to leave his job, his actions regarding the protection of the material assets of the enterprise and their safety. Especially when closing an LLC, employees can help inspect and verify all property, and certify their evidence with the help of a notary. Now, having all the documented evidence in hand, there is no need to worry the moment a conflict arises.

The procedure for leaving your position as a CEO is quite labor-intensive. But attentiveness and knowledge of your rights will help you achieve your intended goal.

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Dismissal of a director at the initiative of the owner

Since the general director is an employee of the company, his relations with the owners are regulated by labor law. Accordingly, when dismissing a director, it is important for owners to coordinate their actions with labor legislation.

In addition, the general director is a person with whom relations are regulated by corporate law. And this should also be taken into account.

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

If there is a change in the owner of the company (clause 6 of article 77 of the Labor Code of the Russian Federation). The norm does not apply to cases where the composition of participants simply changes, as well as to reorganization in the form of affiliation.
If a transformation of society has occurred, that is, the organizational and legal form has changed (division and separation). In this case, the owners may decide that it is necessary to terminate relations with the general director without indicating the reasons for dismissal.
If by his actions the director caused damage to the interests of society (clause 9 of article 81 of the Labor Code of the Russian Federation).

If the director grossly violated his job duties one time (Clause 10, Article 81 of the Labor Code of the Russian Federation).

Dismissal of a director due to a change in property ownership

The new owner of the property has the right, no later than three months from the date the right of ownership arises, to terminate the employment contract with management persons.

Having decided to terminate the employment contract with the general director, the owner must pay him compensation in the amount of no less than three times the average monthly salary (Article 75 of the Labor Code of the Russian Federation).

Dismissal due to damage caused by the actions of an official

In paragraph 9 of Art. 81 of the Labor Code of the Russian Federation defines a closed list of actions that can cause damage. According to the totality of labor law norms, in this case any actions that may be grounds for termination of an employment contract with an official are recognized. But such a procedure is quite complicated, since the fact will have to be proven. In particular, it will be necessary to conduct an internal investigation, demand explanations, etc.

Auditors, external consultants who conducted an analysis of economic and financial activities, as well as employees of the company can testify to the infliction of property damage by some decision of the general director. In this situation, it will be sufficient if the employee sees in the actions of the official a violation of the interests of society and informs the employer about this in writing. Based on the message, a decision is made to order an internal audit, an order is issued to create a commission, the issues that this commission will consider, as well as the facts and circumstances that it must establish, are determined.

Upon dismissal under Art. 81 of the Labor Code of the Russian Federation, it is necessary to remember that all decisions that entail a violation of the safety of property or its unlawful use are methods of disciplinary action. Dismiss the director under clause 9, part 1, art. 81 of the Labor Code of the Russian Federation is possible if two conditions are simultaneously met:

If the decision was made by the director unreasonably or beyond his competence, without a proper analysis of the situation, based on incomplete data, on an emotional level.
If the decision should entail negative consequences in the form of violation of the safety of property, its unlawful use or other damage to the organization’s property (clause 48 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

How can the owner find out that the general director has committed a violation regarding the safety of property? One of the employees can tell him. But often owners learn about this from consultants’ reports.

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

It happens that the general director falls under the provisions of clause 10 of Art. 81 Labor Code of the Russian Federation. According to the owners, a gross violation can be any violation of duties that are named in the employment contract. For example, the director must agree on the candidacy of an acting director during his absence. If he forgot to do this, it means he grossly violated the provisions of the employment contract.

A serious violation may be considered failure to submit required reports on time or failure to meet indicators that are named in the employment contract as responsibilities. It is worth noting that clause 10, part 1, art. 81 of the Labor Code of the Russian Federation applies only to managers and deputy managers.

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

Algorithm for conducting an internal investigation

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

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

Informing the Federal Tax Service and banks

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

1. Federal Tax Service.

Tax authorities must be informed about this within 3 days from the moment the new director takes up his position using form P13014. Based on this document, the Federal Tax Service will make changes to the Unified State Register of Legal Entities - about the new head of the organization.

Form P13014 is generally submitted to the tax service by the founders themselves (since the new director at that time - before changes to the Unified State Register of Legal Entities - from the point of view of administrative legislation, does not have the authority to submit any documents to the Federal Tax Service). But in some cases, the Federal Tax Service agrees to accept this document from the former director (since, despite the termination of work in the company under the Labor Code of the Russian Federation, from the point of view of the Federal Tax Service, he still remains the head of the organization).

If the tax authorities are not notified in a timely manner about the change of director, the company may be fined 5,000 rubles (Clause 3, Article 14.25 of the Code of Administrative Offenses of the Russian Federation).

2. Servicing financial institution.

The bank in which the company's current account is opened must also know that the director has changed and, therefore, the person who likely has the authority to carry out payment transactions in this bank (in particular, using an electronic digital signature). In addition, when the new director starts work, he will need to prepare the documents necessary to gain access to the bank, for example, a certificate and digital signature media. You will also need to submit to the bank a card with a sample signature of the new director, new powers of attorney issued by him to persons who have access to the bank for one reason or another.

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

1. Situation No. 1: The company is introducing bankruptcy proceedings (clause 1 of Article 278 of the Labor Code of the Russian Federation)

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

Key points for this situation:

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

2. Situation No. 2: The authorized body of the legal entity decided to terminate the contract (clause 2 of Article 278 of the Labor Code of the Russian Federation)

An employment contract with a director may be terminated by a general meeting of shareholders or the board of directors. Dismissal of the head of the organization on the basis established in clause 2, part 1, art. 278 of the Labor Code of the Russian Federation, can happen at any time and without specifying motives.

Is the consent of the founders required?

To correctly answer this question, you need to correctly evaluate the position of director in the company. On the one hand, the Labor Code allows any working person to quit (resign) from their position at any time, they just need to work for the established period after writing the application (for business managers it is up to 30 days). However, if we rely on the provisions of the Civil Code, it says that in an LLC the general director is appointed and removed from office solely by the decision of the founders. In addition, information about the director is stored in the Unified State Register of Legal Entities and remains there until a new director is appointed. Thus, in order for the general director to have the right to leave his post, it will be necessary to convene a general meeting of the founders, consider the resignation letter at it, and only after making a positive decision on it, the director will be able to fully resign. However, there is a loophole that allows a director to resign without obtaining the consent of the LLC co-founders, and below we will look at how this can be done.

Dismissal at the initiative of the General Director

The manager has the right to terminate the employment contract early, but he must notify all owners of his intention to resign, in writing and no later than one month in advance (Article 280 of the Labor Code of the Russian Federation). Letters are sent to all founders, owners, shareholders according to the register, with notification of delivery. In the letters, the director asks to convene an extraordinary meeting with a summons to terminate the employment contract. The procedure for transferring affairs and property is determined in advance so that the owner does not initiate arbitration processes.

If a manager resigns at his own request, he is not paid monetary compensation in an amount not less than three times his average monthly salary.

Reception of documents and property

The current director is usually entrusted with a large number of different documents on the basis of which he exercises his powers (the same powers of attorney and digital signature for transactions with a bank account). Upon completion of work in the company, he is obliged to hand over them to the new manager or other competent persons of the organization (decision of the Arbitration Court of the Sverdlovsk Region dated January 21, 2014 No. A60-34604/2013).

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

The transfer of documents by the resigning director may be reflected in a special act.

You can learn more about drawing up the relevant act in the article “Act of acceptance and transfer of documents upon change of director.”

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

Since the executive body is appointed for three or five years, the powers of the director may be terminated due to the expiration of the contract. In this situation, dismissal is carried out in the general manner - the same as in the case of ordinary employees. However, the director must be warned by the employer (company owner) no later than three days before the expiration of the employment contract.

The employer sends the employee a corresponding notice, which is signed by him or an authorized person (for example, the head of the human resources department).

Next, a dismissal order is issued, a corresponding entry is made in the work book (Part 4 of Article 66 of the Labor Code of the Russian Federation) and a calculation is made.

Civil law

In accordance with the law, an organization cannot exist without a leader. If he decides to resign, the founders must find another director to replace him. If they refuse to do this, then the head of the company dismissed under the Labor Code of the Russian Federation will be obliged to continue to perform leadership functions.

The fact is that according to the Civil Code of the Russian Federation, only the founders can appoint and dismiss the director of an organization with their consent. It turns out that according to the Labor Code of the Russian Federation, the head of the company can resign. And according to the Civil Code of the Russian Federation, he is obliged to obtain the consent of the owners of the company. What to do in such a situation?

This is important to know: How many days in advance is a resignation letter written?

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.