Whether to dismiss the supervisor. How and for what it is possible to dismiss the head of the organization? Legal status of the head

How to dismiss the director of an LLC - if he is a founder? In this article, we will consider the procedure and nuances of termination labor relations of this kind, and also we will understand the peculiarities of the dismissal of a manager who is the only participant in society.

Features of the procedure for termination of labor relations

Termination of relations with the director is made on the basis of the provisions Labor Code RF (hereinafter — Of the Labor Code of the Russian Federation) and the law "On companies with limited liability"Dated 08.02.1998 No. 14-FZ (hereinafter — LLC law). General order carrying out this procedure (drawing up personnel orders, filling out the work book, etc.) for all employees, including the director, is established by Art. 84.1 of the Labor Code of the Russian Federation. In addition, a separate chapter is devoted to the regulation of the labor of managers. 43 of the Labor Code of the Russian Federation.

IMPORTANT! The employer in relation to the director will be the society. Who will sign the contract on behalf of the company is determined depending on the distribution of powers between the LLC bodies by appointment of the director: by the chairman or a specially authorized member of the board of directors, or by the chairman general meeting participants, or one of them (Art. 40 of the LLC Law).

The nuances of the director's dismissal procedure:

1. The basis for the termination of the employment relationship will be the decision of the participants.
   According to Art. 33 of the LLC Law, the general meeting resolves issues on the election of executive bodies and early termination of their activities. The notice of the meeting is sent at least 30 days in advance. Moreover, if the director expressed a desire to resign on his own initiative, the meeting participants cannot refuse him, because forced labor is prohibited by Art. 37 of the Constitution of the Russian Federation.
2. The fact of the removal of powers from the head must be notified to:
   • tax authorities (within 3 days);
   • banks where the LLC has opened accounts;
   • counterparties (taking into account contractual relations).

Features of the general grounds for the dismissal of a director

Consider the features of the most popular common (for any employees, Article 77 of the Labor Code of the Russian Federation) grounds for terminating relations with the director:

1. Upon dismissal by on their own.
   In this case, the employee must notify the employer of his intention in writing at least 1 month in advance (Article 280 of the Labor Code of the Russian Federation). The fact of termination of relations in this case does not depend on the decision made by the meeting of participants on the issue of dismissal (resolution of the 12th Arbitration Court of Appeal of 12.11.2014 in case No. A12-31975 / 2013).
2. Upon termination of employment upon expiration employment contract.
   If the employer does not want to renew the contract concluded for a certain period, then 3 days before its end, he must warn the 2nd party about this (Article 79 of the Labor Code of the Russian Federation). Otherwise, provided that the director continues to perform his duties, the contract automatically becomes indefinite.
3. Upon dismissal due to a change in the owner of the property.
   It should be borne in mind that a change in the membership does not constitute a change in ownership. Thus, by the ruling of the Moscow City Court dated November 14, 2013 in case No. 11-35322 / 13, the dismissal of the director of the company, which occurred after he left the membership, was declared illegal.

Features of special grounds for the director's dismissal

It is required to take into account following features special (only for managers, Article 278 of the Labor Code of the Russian Federation) grounds for dismissal:

1. Upon dismissal by decision authorized body society, owner.
   Termination of the relationship can be initiated by the employer under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, and even without substantiating the reasons. However, abuse of the right or discrimination is not allowed, otherwise the dismissal may be recognized as illegal (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02.06.2015 No. 21).
   The director must be paid stipulated by the contract financial compensation not lower than triple average monthly earnings (Article 279 of the Labor Code of the Russian Federation).
2. Upon dismissal due to suspension from office in accordance with bankruptcy law.
   According to Art. 69 of the Law "On Insolvency (Bankruptcy)" dated 26.10.2002 No. 127-FZ, the temporary administrator may apply to the court to remove the director from office in case of violation of the norms of the specified act. The duties of the director are transferred to another person (for example, an employee of the debtor).

Features of dismissal of the founding director without his consent

In the event of termination of the employment contract with the manager by his consent, by mutual agreement or by coincidence, i.e. when such a decision is reasonably taken by the general meeting of participants unanimously, including the resigning person, no problems arise and the process of termination of the employment relationship occurs in the above-described manner.

If the director, who is at the same time the founder, has a negative attitude towards his dismissal on a special basis (according to clause 2 of Article 278 of the Labor Code of the Russian Federation), his dismissal may entail a legal dispute — not only labor, but also corporate. Moreover, it is easier to challenge the dismissal of a founding director than a director - an employee, since the latter has the right to challenge only the fact of dismissal, and the former is also the very decision made by the general meeting regarding his dismissal (Article 43 of the LLC Law).

Challenging the decision in this case gives the director more chances for success, since the decision of the general meeting will be the fundamental document, and the dismissal will be its consequence (for example, the appeal ruling of the Moscow City Court of 03.22.2012 in case No. 11-380).

Features of the dismissal of the director - the only participant

If the director is the only participant, then his dismissal from his position depends only on his will, except in cases of disqualification by a court decision (failure to fulfill the obligation to relieve himself of the powers of a director and exercise such powers is an administrative offense under Article 14.23 of the RFRFR Code of Administrative Offenses) ... Most often, in such a situation, the basis for dismissal is one's own desire.

IMPORTANT! It should be borne in mind that for the head - the sole participant of the company, the provisions of Ch. 43 of the Labor Code of the Russian Federation will not apply. The relationship with such an employee is governed by the general rules of labor law.

There is no unequivocal opinion on the issue of whether it is legal to register an employment contract with a director — a member of the LLC.

There is a position on the illegality of the conclusion of such an agreement. She is supported by Rostrud in a letter dated 06.03.2013 No. 177-6-1, the Ministry of Health and Social Development of Russia in a letter dated 18.08.2009 No. 22-2-3199, the Ministry of Finance of Russia in a letter dated 15.03.2016 No. 03-11-11 / 14234.

There is also an opposite point of view, set out in the letter of the FSS of Russia dated December 21, 2009 No. 02-09 / 07-2598П and jurisprudence, for example, the appeal ruling of the Krasnoyarsk Regional Court dated 20.08.2014 in case No. 33-8058 / 2014, the decision of the 9th AAC dated 26.05.2010 in case No. A40-13990 / 10-154-41. The Supreme Court of the Russian Federation, in its ruling of 28.02.2014 No. 41-KG13-37, indicated that the head - the only participant - is subject to the norms of labor legislation if an employment contract is signed with him.

Consequently, the dismissal of the director - the only participant is also carried out in accordance with the general procedure for the termination of labor relations. Moreover, the special grounds established by Art. 278 of the Labor Code of the Russian Federation, cannot be applied, because they are included in Ch. 43 of the Labor Code of the Russian Federation.

More information about the procedure for dismissing a director with a single founder can be found in the article “Change of director in an LLC with a single founder”. A feature will be the coincidence of the director and the participant in one person, but they are different subjects of legal relations.

If the director - sole participant society, he dismisses himself by his own decision. It is necessary to notify the tax authorities, counterparties, banks about his dismissal. The nuances of terminating labor relations with a director depend on the grounds for his dismissal, which may be general, as for all employees, or may be special, only for managers. All features should be taken into account and no violations of the procedure established by law should be allowed. Otherwise, the dismissal may be declared illegal by the court.

The system for drawing up the termination of an employment contract or contract has a number of its own special nuances, which must be observed by both each employer and the employee himself. At the same time, normative legal acts divide the process into simplified and more complex, depending on who is going to leave work and on whose initiative the process of ending the labor relationship was carried out.

The dismissal of the general director can be attributed to the group of complicated procedures. So, it is much easier to find general rules for formalizing a break in labor relations than special rules for certain categories of workers. Therefore, in this article we propose to consider the features of the system for dismissing citizens who hold the position of general director. You can read below about what specific features this procedure has and what actions should be carried out in the first place.

The decision to dismiss the director - who has the right to make it?

When studying the issue of terminating an employment contract or a contract with a person holding a managerial position, it is worth remembering that the procedure largely depends on who initiated the dismissal. The category of cases that we are considering in this article has quite a lot of specifics. First of all, this is manifested in the very subjective composition.

So, consider who can be considered today director general... This position is a leading one and is considered at the level of normative legal acts, as a set of special labor duties with coordination, organizational, administrative and other functions. In an employment contract with such a citizen, it must be clearly stated what kind of position the person holds and what duties of an official nature are assigned to him.

There is a director in any company and organization. Such a position is the subordination of a number of employees to his instructions and the direct management of the affairs of the company or enterprise. It is sometimes believed that the CEO is highest level management. Therefore, the question arises as to how you can dismiss such an official?

But, the process has its way out. Often, the CEO is just a hired citizen to run a company that is owned by completely different people. They hire a specially trained employee for this position in order to lead the organization or company. At the same time, both one of the owners and a person who is not related to the business and its ownership in general can exercise management with the help of this kind of position.

Considering the termination labor activity such a person, it is worth noting that the procedure for dismissal largely depends on the provisions of the employment contract, status official, his participation in the ownership of the company. Therefore, at the level of regulatory and legal instructions, two main options for breaking an employment contract or agreement can be distinguished. These include:

• dismissal of the director of his own free will;
• initiative to complete its labor functions comes directly from the owners who have hired the person to perform management functions.

What are the main differences between these methods? First of all, naturally, everything depends on the immediate desire to fire or quit. If the procedure begins with the actions of the CEO himself, then it will be simpler and faster. This is due to the fact that he does not need to look for explanations for his action, specific factors that may allow the director to take this step.

If we talk about the dismissal of a director by the owners of the company or enterprise, then such a procedure will be more complicated. This is due to the fact that in the normative legal acts today there are clearly marked cases when the owners have the right to dismiss a person from a specific position. At the same time, they are obliged to choose one of the grounds directly stipulated by the legislation. There can be no other way, since non-compliance with the established rules will lead to legal liability, which is expressed in reinstatement in the same place and the payment of a fine.

Dismissal of a director of his own free will

Most often in practice, you can find cases when the leader is the direct initiator of his resignation from office. So, working as a CEO is not only a fairly large income and a high position, but also a huge amount of responsibilities, spent time and effort. Therefore, some sooner or later come to the conclusion that it is necessary to quit such a position.

In this case, the manager, like any other employee, is given the legal right to terminate the employment relationship at any time. In order to complete his duties, the director must draw up a standard procedure. That is, a corresponding application is submitted, which is considered within two weeks. On its basis, a special internal document is issued, in which it is noted directly about the end of labor interaction.

Although in general view the procedure is identical to that used in all cases of voluntary dismissal, there are a number of special nuances that are characteristic only of CEOs as specific subjects. First of all, this is expressed in who the letter of resignation is sent to. So, in common system such a document is written in the name of the head himself. But, in our case, it is the director himself who quits. What happens: he needs to write a statement in his own name?

There is one thing worth knowing general rule- an application for a termination of an employment contract or contract is submitted to those persons who directly hired a citizen for his position. In our case, we are talking about the owners of a company, organization or enterprise. At the same time, the owner can be either one person or several. In principle, the system of dismissal from this practically does not change.

That is, as we can see, the head needs to contact the owners of the organization. If there are several of them, then the decision to terminate labor interaction with the general director should take place at special meetings, at which at least half of the general composition owners. Therefore, the application for the dismissal of the director, as such, will be absent in this procedure. The manager needs to notify all owners of the upcoming fees. At the same time, the information on the meeting should indicate that the current CEO resigns his powers and resigns.

That is, the first step in such a process is a meeting of all founders to make a decision on the approval of the director's dismissal. As a rule, fees can be urgent - within one week, or not - within a month. It all depends on the specific location of the office and the place of residence of the owners.

A written notice of the need to convene a meeting must have a special registration of its receipt. So, as a rule, documents of this kind are provided personally against receipt or by post with notification of receipt.

What is it for? Sometimes it happens that the organization cannot find a suitable replacement for the current director. Therefore, the owners deliberately delay the time of collecting and meeting the manager's decision to dismiss. So that these actions do not violate the citizen's legal right to terminate the employment contract, he has the right, if he refuses to hold a meeting or gather founders in general, within two weeks, lay down his duties and transfer the necessary documentation, which he previously was in charge of. At the same time, such actions cannot be regarded as non-fulfillment job functions, since there is a written confirmation that the person has informed the owners of the company about his decision.

If such problems do not arise and the owners come to the training camp, then the procedure for breaking the working relationship takes the following form. So, at the next meeting, the owners of the company decide to revoke the manager's employment contract and, on its basis, issue a special order to dismiss the director. This document is one of the parts of the paper documenting the collection as a whole. But, directly for the leader himself, it is decisive, since it consolidates the possibility of further registration of resignation from office.

After the order is issued, the procedure will have a standard form. So, special entries are made in the work book about the director's dismissal, all funds are recalculated, the documentation kept by the head is submitted, etc. At the same time, the order should indicate exactly from what date the citizen stops performing his labor duties. In accordance with this clause, the organization provides all the documents of the director, his salary, etc.

As you can see, such a process does not have any particular difficulties, except for the fact that in order to formalize the dismissal, you need to collect all the founders. Everything is connected with the fact that in accordance with the law, only the body that hired him can break off a labor-type relationship with a citizen. Therefore, there is no other way to resolve the issue.

Dismissal of the founder-director

Also, there are situations when, when creating an organization or enterprise, persons with a direct interest in the activities of the company are appointed by the head. In this case, we are talking about one of the owners of the capital of the organization. At the same time, he can be both the sole owner of the company and a co-owner on an equal basis with other citizens.

In this case, it is worth remembering that the dismissal process will have its own characteristics and nuances. First of all, it is worth noting that if we are talking about collective ownership, then you will still have to convene fees to terminate the employment contract. That is, the general director at such a meeting will act both as a member of the composition of the owners and as a leader who wishes to resign.

In the vote on the acceptance of the application for dismissal, the person himself also takes. At the same time, the corresponding protocol is signed by him on an equal basis with other participants. In the future, the procedure will be the same - the same as we described above. But, there is one important nuance.

Thus, a director, after dismissal, does not lose his ownership of a part of the company. That is, his role as a founder remains. He simply ceases to fulfill the duties of the head of an organization or enterprise. But, this fact does not in any way affect his role as a co-owner.

A more interesting situation with the termination of the employment contract will be in the case when it comes to the boss, who is directly the sole owner of the company. The most common such system is in limited liability companies. Therefore, the dismissal of the director of an LLC in such cases has a number of its nuances and peculiarities.

For example, most often you can come across the question of whether a person has the right to sign a decree on his own dismissal on his own? So if you follow general provisions, then the citizen who hired the person for labor basis may terminate employment with him. This point also applies to cases when two roles converge in the personality of one citizen.

That is, in fact, the general director has every right to independently sign his own order on his own dismissal. Yes, this procedure looks rather strange, so it is rarely used. But sometimes this is the only way out of the situation.

Also, another way is the process of complete liquidation of the enterprise altogether. In this case, the process of termination of the employment contract is carried out automatically. It is also worth noting that this option is typical for those cases when a citizen refuses not only the role of a leader, but also from business in general.

Sample dismissal of the CEO from the owners' initiative

As we noted above, another way to break off labor relations is to reveal an immediate desire for such actions on the part of the owners of the company, which is controlled by the head. But, in comparison with the previous option, this method will have a lot of limitations.

The first legal framework- directly the grounds for termination of an employment contract or contract. So, if in the case of independent expression of will there were no special aspects in this regard, then there is a clear list of reasons that the employer, represented by co-owners, can rely on.

The most common options for terminating an employment relationship today are:

• Inconsistency of the director with his position. At the same time, this aspect concerns exclusively professional qualities citizen and does not affect his social status... In this case, we are talking about establishing the fact that the boss has insufficient knowledge or skills to perform the functions assigned to him. At the same time, without fail, this must be confirmed during special certification... Just assumptions or someone's subjective opinion cannot become a full-fledged reason for dismissal.
• Guilt in a crime in relation to theft of property. At the same time, such property, by right of ownership, belongs directly to the organization itself, in which a citizen holds a leading position. As a rule, such situations arise through the fact that a person speculates on his position and significantly exceeds his capabilities. If, in the course of court proceedings, the director's guilt in embezzlement is proved, the owners have every right to terminate the employment contract with this person.
• Economic crimes. In this case, only those CEOs are considered in which the obligation to manage the company's financial flows is expressly spelled out in the employment contract. If the authorities of Themis establish that a person has committed a crime in the economic sphere, the co-owners of the company can dismiss him on their own initiative.
• Liquidation or reorganization of a company. Sometimes it happens that an enterprise or organization changes the scope of its activities. As a rule, such actions are associated with the reduction or change of staff. In this case, based on the fact that the current CEO is not suitable for the set of his functions and skills for the reformatted activity, the owners of the company reserve the right to dismiss such a leader.

There are a number of other reasons as well. For example, if a manager comes to work drunk or under the influence of toxic, narcotic substances, he can be released from his duties without his own will. same. This category also includes situations when a citizen skips his working day without a good reason. At the same time, absence from the workplace for a time exceeding 3 hours will be sufficient for a good reason.

As you can see, there are still many reasons. Their main difference is a direct indication in normative legal acts. At the same time, all of them can be found in the Labor Code. Russian Federation... It is such a document that fixes all the provisions in relation to the procedure for terminating labor relations.

The very process of the final termination of the performance of their duties has a standard form. So, first of all, the management should inform the director about the decision... In addition, the latter must confirm in writing that he has familiarized himself with such data.

In the next two months, a citizen has the right to continue to occupy his position. The owners of the company have no right to force him to leave earlier than at the end of this period. The only exception can be those situations when the director himself agrees to such a step. Then the settlement process can be carried out earlier and without negative consequences for both parties.

After the date of the termination of labor relations has been agreed, on a specific day, the manager is issued all his documents, in particular, a work book. He, in turn, must transfer all internal orders, instructions, reports and other papers to the office or to a new director. All reporting is submitted without fail against signature from both parties: one gave, and the other accepted. Failure to comply with this rule may subsequently lead to legal proceedings.

Compensation upon dismissal of the CEO

An important point when breaking off an employment relationship is the payment of all mandatory amounts. It should be noted that today the legislator obliges to provide every citizen who dismisses funds in full for each day worked and for the entire period of unused vacation.

Accordingly, the CEO is entitled to all of the above compensation. Daily pay is based on the last wage payment, taking into account the average daily income and the number of days worked. If we talk about vacation pay, then we are talking about unused time for rest, which is provided for by law or directly by the employment contract or contract itself. If in the last year the manager has not been on vacation, then he has the right to demand payment of his vacation funds. They are calculated depending on the average earnings per day and multiplied by the number of days that make up the vacation itself. The same counting rule is used if the vacation was taken in a certain part.

Also, it is worth noting that in some cases there are other payments. You need to pay attention to your employment contract. It may contain additional compensation for dismissal. For example, if such a decision comes from the employer himself, that is, the owner, then the director is provided with three salaries in addition to all mandatory amounts.

As you can see, the procedure has a huge number of nuances in general. Failure to comply with the above rules leads to the fact that the unlawfully dismissed director has the right to go to court. To do this, he needs to find the corresponding violations in the law. Based on all events, a special claim is drawn up. Sample application for illegal dismissal director you can download from us:

Dismissal of the head of an organization of his own free will is a rather laborious procedure, which differs significantly from the departure of an ordinary employee. This article is devoted to the study of the nuances and main stages of this process, the knowledge of which will avoid problems with the labor inspection and tax.

First of all, it is necessary to understand that the manager is the same employee of the company, therefore labor relations with his participation, first of all, are regulated by the labor law. However, at the same time, he is the sole executive body of the legal entity, therefore, when dismissing him, one should also take into account the norms of civil legislation, the requirements of the constituent documents and other internal acts of the company that regulate the activities of the head.

Sequencing

Dismissal of a manager of his own free will is a multi-stage process, which consists of the following stages:

1. Registration of a letter of resignation. The document must contain the following information:
   • Name legal entity with whom the employment contract was concluded;
   • FULL NAME. applicant;
   • a request to terminate an employment contract on the basis of Art. 80 and 280 of the Labor Code of the Russian Federation;
   • date of dismissal;
   • the date of the appeal;
   • signature with decryption.
2. Sending notifications to the members of the society about leaving the organization of their own free will.
3. Convening a general meeting of participants at which will be elected new director.
4. Issuance of a termination order labor agreement with the former leader.
5. Making a record of dismissal in the work book and personal card. We draw your attention to the fact that you should put the mark “Dismissed of his own free will on the basis of clause 3, part 1 Art. 77 of the Labor Code of the Russian Federation».
6. Issuance of the final payment on the last day of work.
7. Issuance of a work book.
8. Notification of the tax authorities about the dismissal of the director of the company (to exclude his data from the Unified State Register of Legal Entities).

Notification of the general meeting of participants

Unlike an ordinary employee, who must notify about his decision to leave the organization two weeks in advance, the director must notify about this one month in advance (Article 280 of the Labor Code of the Russian Federation). It is worth noting that in the letter of Rostrud dated 06.03.2013 No. PG / 1063-6-1 it is explained that this period applies to both the termination of indefinite and fixed-term labor relations.

The employer in labor relations is LLC, which acts through the governing bodies, namely through the general meeting of participants (less often through the board of directors). In this regard, Articles 80 and 280 of the Labor Code of the Russian Federation, as well as clause 1 Art. 53 of the Civil Code of the Russian Federation and paragraph 4 of Art. 32, pp. 1 and 2 tbsp. 35 of the LLC Law establish that the manager must warn about his departure supreme body management of the organization, which is the general meeting of participants. The notification must contain information about:

• the place of the meeting;
• the time of its holding;
• issue that will be on the agenda.

This is not necessary to obtain their consent, but to ensure that the organization is not left without leadership, and its members can appoint a new director. With the help of a notification, the resigning manager convenes an extraordinary general meeting of participants to elect a new sole proprietor. executive body LLC (Art. 35 of Law No. 14-FZ).

In accordance with paragraph 1 of Art. 36 of Law No. 14-FZ, participants must receive a notification 30 days before the meeting, and you can send it in three ways:

• hand over personally against receipt;
• by registered mail with a notification, drawing up an inventory of the attachment;
• by telegram.

When sending a letter, you must correctly indicate the address of the participant, while for participants-legal entities, correspondence must be sent to the address indicated in the Unified State Register of Legal Entities, for citizens - at the place of residence. The society must have information about the place of residence, since paragraphs. 1-3 st. 31.1 of Law No. 14-FZ oblige the organization to maintain and store lists of participants, which contains all the necessary information. In case of failure to provide up-to-date information about himself, all risks associated with this are borne by the participant himself.

When is the general meeting considered to be notified of the dismissal of the manager? If we approach this issue formally, then on the day for which the extraordinary meeting is scheduled, regardless of whether it will be held or not. Thus, the director must work for another month after the date of the proposed meeting, if he has no other agreements with the general meeting.

Judicial practice adheres to a more loyal point of view: in the opinion of law enforcement officers, the participants of the LLC are considered to be the last notified on the day of receipt of the letter.

How to determine the date of dismissal

Determining the last day of work of a resigning manager is also important because at an extraordinary general meeting, participants will have to choose a new director and establish from what day he should start work. The day of dismissal of the head can be:

• the number that he indicated in his application, if no objections were received from the participants;
• the date that comes one month after the employer is notified (Article 280 of the Labor Code of the Russian Federation). If this is a day off, then the next working day after it ( Art. 14 of the Labor Code of the Russian Federation);
• the date specified in a written agreement between the resigning director and the Company, if it was signed by a participant authorized to do so by the general meeting (Art. 84.1 of the Labor Code of the Russian Federation).

In some cases, established by Art. 80 of the Labor Code of the Russian Federation, it is not necessary to comply with the monthly term of "working off", and the manager has the right to resign on the day that he indicates in his application. These situations include:

• retirement;
• enrollment in educational institution;
• violation by the employer of labor law;
• other cases when continuation of work is impossible.

If the organization dismisses the director before the deadline specified in his statement without any objective reasons, then this will not be regarded as leaving of his own free will, but as dismissal by decision of the management body ( Art. 278 of the Labor Code of the Russian Federation). In this case, the head will be entitled to compensation of at least three times average monthly earnings, which is fixed in article 279 of the Labor Code of the Russian Federation.

Issue of an order

The order can be issued both by the sole executive body (that is, by the director himself), and by another person authorized to do so by the general meeting of the company's participants. Exist uniform form order No. T-8, which was approved by the decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1. The act must indicate:

• the name of the company and its details;
• name of the document, number and date of its preparation;
• details of the terminated employment contract;
• date of dismissal;
• FULL NAME. the resigning manager;
• reason for dismissal;
• grounds for dismissal (application);
• signatures.

Payments and compensation

Like any employee, the first person of the organization must be paid on the last working day:

• wages for hours worked;
• compensation for unused vacation;
• other payments that are provided for by the collective and labor agreement.

However, the director also has obligations to the Company - he must transfer all matters to the future leader. This can be done in two ways:

• send a package of documents by parcel post with a list of attachments to one of the participants;
• transfer all documentation to a deposit to a notary or to a specialized organization (archive) that is engaged in the storage of papers, notifying the participants about this (clause 16 of article 35 of the "Fundamentals of the legislation of the Russian Federation on notaries").

Amendments to the Unified State Register of Legal Entities

Since the Unified State Register of Legal Entities contains information about a person who has the right to represent the interests of the Company without a power of attorney, it is fundamentally important to remove information about the former head from there. However, this can only be done by a new director, having sent a corresponding application to the Federal Tax Service Inspectorate within three days after his appointment. Five days after the registration of the application for making changes, the tax authorities exclude the former head from the register.

The resigned manager cannot influence this process, however, it is necessary to monitor the introduction of changes, since otherwise:

• he may not be accepted for a leadership position in another organization;
• he may be held liable for subsidiary liability for the LLC's debts in the event of bankruptcy.

If the changes have not been registered, the former gendir can go to court with a request to remove his name from the register.

Manager's responsibility after dismissal

Since any manager has an extended range of rights and responsibilities, responsibility for their economic decisions he can suffer even after being fired. If the statute of limitations for a proven specific offense has not passed, then the guilty former leader will certainly be punished for him. So, in accordance with and 44 of Law No. 14-FZ, the head of the company is threatened with complete material liability for direct damage and losses that he caused to the Company by his actions.

In order to avoid negative consequences, before resigning, the director is recommended:

• draw up a report on advances and other accountable amounts, as well as hand over the rest of the money to the cashier;
• send a notice of dismissal to the bank in order to avoid misuse of your verification key certificate electronic signature on payment documents;
• on the day of dismissal to transfer to your successor all Required documents, seals and keys against receipt.

has a number of differences from the procedure for dismissing an ordinary employee. The reason is that such an employee is the main executive body of the company, without which it cannot continue its activities. We will talk about the features of this procedure in our article.

How to fire an LLC director of your own free will

The procedure for dismissing the director of an LLC of his own free will includes several stages:

Compliance with legal requirements at every stage can protect the organization from possible claims from the former manager and labor inspection, as well as to ensure its further full functioning.

We draw up a letter of resignation for the CEO

Application for dismissal to the founder from the director- a document that confirms the will of the employee wishing to leave the post. They make it up 1 month before the expected date of leaving work (Article 280 of the Labor Code of the Russian Federation). Writing a statement is not mandatory step... Sufficient proof of the CEO's will is the notification sent to the founders of the company.

The legislation does not establish clear requirements for the document. If for compilation it is decided to use any a sample application for the dismissal of the general director of LLC, you need to remember that the document must contain the data of the employee and employer, the date of the upcoming dismissal, the date of the document and the signature of the applicant. It should be borne in mind that for the head of the company the employer is the general meeting of the members of the company.

Submit an application to dismissal of a director of his own free will can be in person either using the mail service or courier service... In any case, the date of receipt of the document by the employer is considered the date of notification. The main thing is to record the fact of receipt of the application by the addressee - for example, to receive a mark on the delivery of the letter.

Dismissal notice from CEO

After deciding to resign from office, the director should set a date for an extraordinary meeting of company participants and send them information about the time and place of its holding. The notification rules are listed in Art. 36 of the Law "On Limited Liability Companies" dated 08.02.1998 No. 14-FZ:

1. Notice must be sent at least one month before the upcoming meeting.
2. It is necessary to notify each member of the LLC individually.
3. The notice can be sent by registered mail or in another way provided for by the company's charter.
4. The notification should contain information about the time and place of the meeting, as well as a list of issues planned for discussion.

Considering the above rules, it can be said that the best option- sending an application to dismissal of the general director of LLC at his own request to members of the organization, together with notification of the extraordinary meeting of participants.

The procedure for agreeing on dismissal with the founders of the organization

At the meeting, the founders discuss and decide on the upcoming departure of the head of the company. Since Art. 37 of the main law of the country prohibits forced labor, the participants of an LLC have no right to refuse the head of an organization in early release from powers.

Don't know your rights?

Refusal to participate in the meeting and evasion of delivery of notice are not good reasons to continue the work of the general director against his wishes. In case of such behavior of the employer, the head of the organization can go to court. The statement of claim handed to the employer is sufficient confirmation of the director's desire to leave his position. As practical example it is possible to cite the appellate ruling of the Perm Regional Court dated 05.08.2013 No. 33-7154.

During the extraordinary meeting, the founders agree on the date of the upcoming dismissal of the CEO of his own free will, and can also agree with him on a longer term of work required to search for a new candidate for the position of the head. If no agreement has been reached between the employer and the employee, the latter has the right to resign without the consent of the founders. The main thing here is to follow the procedure as required by law.

Order to dismiss the CEO of his own free will, sample order

The head of the organization can issue and sign the order of resignation on his own after the meeting. It indicates:

• the name of the company and its details;
• information about the dismissed person;
• reasons for dismissal;
• the date of the CEO's departure from office.

In this case, as a rule, a unified form of document No. T-8 is used, approved by the decree of the State Statistics Committee of the Russian Federation "On approval of unified forms of documents ..." dated 05.01.2004 No. 1. However, the use of this particular template is not mandatory, the employer, if desired, has the right to independently develop the form document. An up-to-date sample of the order for the dismissal of the head of the organization can be downloaded on our website.

Making an entry in the work book and calculating with the gene. director

An entry into the labor head of the organization can be made independently or entrusted to an authorized person of the organization. He also has the right to certify it with his signature and the seal of the organization (if any). The main thing is to comply with the requirements of the instructions for filling out work books, approved. Resolution of the Ministry of Labor of the Russian Federation of 10.10.2003 No. 69:

1. Fill in all the columns of the document.
2. Use Arabic numerals when filling in.
3. Avoid abbreviations and corrections in entries.
4. Competently formulate the reason for the dismissal.
5. Add a link to the legal norm that became the basis for the termination of employment.
6. Indicate the details of the order to terminate the contract between the dismissed and the employer.

At dismissal of the CEO of his own free will he can count on the payments and compensations required by law: salary for hours worked, compensation for unused vacation, etc. In addition, the former CEO transfers the affairs to the new head of the organization. In case of temporary absence of the legal successor, the ex-manager can:

• continue independent storage of the organization's seal and documents;
• entrust the storage to a special archival organization;
• transfer the documents and the seal to a notary for safekeeping.

The right to store documents for notaries is provided by Art. 97 "Fundamentals of the legislation of the Russian Federation on notaries" dated 11.02.1993 No. 4462-1. When transferring, it must be remembered that documents are accepted and stored on behalf of the organization. This gives the new head of the company the right to pick up the documents and the seal at any time.

Does the procedure for dismissing the CEO of an organization at his own request provide for a notification to the tax service?

The answer to this question contains sub. "L" clause 1 and clause 5 of Art. 5 of the Law "On state registration legal entities and individual entrepreneurs "dated 08.08.2001 No. 129-FZ, which require tax authority information on the dismissal of the director of a legal entity (including voluntarily) and changes in the executive body of the company. To do this, it is necessary to submit to the tax office an application drawn up in the P14001 form, having previously certified it by a notary. The application is submitted by the newly appointed head of the company within 3 days from the date of appointment to the position, after which the tax authority enters information about the new head in the Unified State Register of Legal Entities.

A person dismissed from the position of general director must make sure that his data has been removed from the Unified State Register of Legal Entities. If new leader the company is not appointed, the application can be signed and submitted by the former CEO.

Peculiarities of the procedure for dismissing the general director who is a retired person of his own free will

The process of voluntarily dismissing a person who has achieved retirement age, has one feature: such an employee has the right not to work out the period provided for by law (part 3 of article 80 of the Labor Code of the Russian Federation). Thus, the head of the organization, who is an old-age pensioner, is not obliged to meet the deadline for leaving work.

However, it is nevertheless necessary to comply with the formal procedure for dismissal (notify the founders, convene an extraordinary meeting of the company's participants and decide on the dismissal of the retired manager). In the entry in the work book, it is necessary to indicate that the reason for the termination of the employment relationship was retirement.

Dismissal procedure of the CEO - the sole founder of the company

In the case when the manager is simultaneously the only organizer of the company and its owner, the procedure dismissal of the CEO of his own free will is greatly simplified. According to Part 2 of Art. 273 of the Labor Code of the Russian Federation, the rules for regulating the work of a manager do not apply to such an employee.

In this situation, the head of the organization can at any time independently write a corresponding statement and decide on his dismissal. That is, the duration of the process is significantly reduced, since there is no need to notify oneself about the upcoming dismissal, wait 1 month and organize a meeting of participants. Simultaneously with the decision on dismissal, the sole founder can appoint the head of the company.

Responsibility of the CEO after dismissal

A manager's job involves making difficult decisions. Responsibility for his actions and decisions - both material and criminal - if there are grounds for its occurrence, he will bear even in the event of dismissal from office.

So, the financial responsibility of the head arises in the following cases:

• in case of loss of property;
• damage to the property of the organization;
• unforeseen expenses of the enterprise;
• loss of profit by the company through the fault of the head.

As a rule, these circumstances are discovered after an audit in the firm. The employer of the dismissed head of the organization can file a statement of claim with the court demanding compensation for damage caused by the actions of the general director. If the claims are satisfied, the collection may be directed to the property of the former employee.

The unlawful actions of the head may become the basis for bringing to criminal responsibility under the following conditions:

1. In his actions (inaction) there is a corpus delicti.
2. The guilt of the head is documented.
3. The statute of limitations has not expired.

In conclusion, it remains to say that the optimal solution would be peaceful negotiations and mutually beneficial agreements between the head of the enterprise and the founders, since they allow you to avoid litigation and quickly dismiss the CEO of his own free will.

The head of an organization is an important person. Traditionally, all issues related to the registration of his powers stand apart and are resolved taking into account special rules... This approach is, of course, justified. The “first person” has such serious rights and responsibilities that sometimes it is not even perceived as an employee of the organization and a member of the labor collective.

Dismissal of a manager is a responsible event that requires taking into account the norms of labor and civil legislation. Our article will help you understand this complex procedure, take into account all the nuances of terminating an employment relationship with a manager and correctly draw up the necessary documents.

Termination of labor relations with an employee - the head of the organization, on the one hand, should be carried out in accordance with the general rules established by the Labor Code of the Russian Federation. On the other hand, since the head is also the sole executive body of a legal entity, this procedure should take into account the provisions of civil legislation, as well as the requirements of the organization's constituent documents on the powers of the head and the activities of bodies entitled to terminate an employment contract with him.

WHO MAKES THE DECISION TO DISMISS THE LEADER?

In all cases, the decision to terminate the powers of the head of the organization is made by the authorized body or person who has the right to appoint or elect him to the relevant position ( tab. one).

HOW IS THE DECISION TO DISMISS THE LEADER IS MADE?

The decision to terminate labor relations with the head of the organization is made by the authorized bodies and persons in accordance with a certain procedure, depending on who makes the decision.

Table 1

Making a decision to terminate the powers of the head of the organization

... In joint stock companies

The decision to terminate labor relations with the manager in a joint-stock company is made by the general meeting of shareholders, if the charter of the company does not refer the resolution of these issues to the competence of the board of directors (supervisory board) of the company. The procedure for holding an extraordinary general meeting of shareholders is established by Art. 55 of the Law on JSC.

How is a meeting of the board of directors (supervisory board) of a joint stock company held?

If we are talking about other grounds for terminating an employment contract with the head of the organization (for example, the issue of dismissing the head under clause 2 of Article 278 of the Labor Code of the Russian Federation), then a meeting of the board of directors (supervisory board) of a joint-stock company is convened by the chairman of the board of directors (supervisory board) company on his own initiative, at the request of a member of the board of directors (supervisory board), audit commission(auditor) of the company or auditor of the company, as well as other persons determined by the charter of the company.

The procedure for convening and holding meetings of the board of directors (supervisory board) of the company is determined by the charter or internal document society. These documents may provide for the possibility of taking into account, when determining the presence of a quorum and the results of voting, the written opinion of a member of the board of directors (supervisory board) of the company, who is absent from the meeting, on agenda items, as well as the possibility of making decisions by absentee voting.

The quorum for holding a meeting is determined by the charter of the company, but must not be less than half of the number of elected members of the board of directors (supervisory board). By general rule decisions at the meeting are made by a majority vote of the members of the board of directors (supervisory board) participating in the meeting. When deciding questions, everyone has one vote. In the event of an equality of votes, the charter of the company may provide for the decisive vote of the chairman of the board of directors (supervisory board) when making decisions.

... In a limited liability company

In a limited liability company, the procedure for the activities of the board of directors (supervisory board) of the company is determined by the charter of the company.

The procedure for convening a general meeting of members of the company is determined in Art. 36 of the LLC Law.

If we talk about convening an extraordinary general meeting of LLC participants, then, in addition to the head of the company, the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor, as well as the participants of the company who in aggregate have at least one tenth of the total number of votes of the company's participants.

The head of the LLC is obliged to consider this requirement and make a decision to hold an extraordinary general meeting of the company's participants or to refuse to hold it.

If a decision is made to hold an extraordinary general meeting of participants in the company, it must be held no later than forty-five days from the date of receipt of the request for its holding.

If during the deadline no decision has been made to hold an extraordinary general meeting of the company's participants or a decision has been made to refuse to hold it, the meeting may be convened by the bodies or persons requiring it. In this case, the director is obliged to submit to the indicated bodies or persons a list of the company's participants with their addresses.

The initiator of the extraordinary general meeting of participants must notify each participant of the company about this no later than thirty days before its holding by registered mail to the address indicated in the list of participants in the company, or in another way provided

charter. The notice must indicate the time and place of the general meeting of the company's participants, as well as the proposed agenda.

How is the decision to early terminate the labor contract with the head of the LLC made?

By virtue of paragraph 8 of Art. 37 of the Law on LLC, such a decision is made by a majority of votes of the total number of votes of the company's participants, however, the Charter may provide for the need for a larger number of votes to make such a decision.

In addition, the decision on the early termination of the employment contract with the head of the organization can be made without holding a meeting by absentee voting (by poll). Such a vote can be carried out by exchanging documents by means of postal, telegraphic, teletype, telephone, electronic or other communications, ensuring the authenticity of transmitted and received messages and their documentary confirmation.

Note that the possibility of absentee voting and its procedure are determined by an internal document of the company, which should provide for the mandatory notification of the proposed agenda to all members of the company, the possibility of familiarizing all members of the company with all the necessary information and materials before voting, the opportunity to make proposals for inclusion in the agenda additional issues, the obligation to notify all members of the company before the start of voting on the amended agenda, as well as the deadline for the end of the voting procedure (Article 38 of the Law on LLC).

HOW DOES THE DECISION ON THE DISMISSAL OF A LEADER BE DRAFTED?

In the event that a meeting of the board of directors (supervisory board) or the general meeting of participants (shareholders) has taken place, a decision is made to terminate the employment contract, which is drawn up in minutes ( Annex 1).

For example, on this document indicate Art. 37 of the LLC Law, art. 63 and 68 of the Law on JSC.

The requirements for the content of the protocols can also be found in the relevant laws.

For example, the minutes of a meeting of the board of directors indicate:

• place and time of its holding;
• persons attending the meeting;
• the agenda of the meeting;
• items put to the vote and the results of voting on them;
• decisions taken.

The minutes of the meeting of the board of directors (supervisory board) of the company are signed by the chairperson of the meeting, who is responsible for the correctness of the minutes.

What are the requirements for the content and procedure for drawing up the minutes of the general meeting of shareholders?

The minutes of the general meeting of shareholders shall indicate:

• place and time of the general meeting of shareholders;
• the total number of votes held by shareholders who own the voting shares of the company;
• the number of votes held by the shareholders participating in the meeting;
• chairman (presidium) and secretary of the meeting, agenda of the meeting.

The minutes of the general meeting of shareholders of the company must contain the main provisions of speeches, issues put to vote, and the results of voting on them, decisions adopted by the meeting.

The minutes are drawn up in duplicate no later than three working days after the close of the general meeting. Both copies are signed by the person presiding at the general meeting of shareholders and the secretary of the general meeting of shareholders.

In a limited liability company, the manager himself organizes the keeping of the minutes of the general meeting of the company's participants.

How is the decision of the sole shareholder (participant) AND the company formalized?

If the shareholder (participant) is the only one, then the termination of the powers of the head of the organization is formalized by the decision of the sole shareholder (participant). This is indicated by Art. 47 of the Law on JSC, according to which in a company, all voting shares of which belong to one shareholder, decisions on issues falling within the competence of the general meeting of shareholders are made by this shareholder alone and are drawn up in writing. At the same time, the provisions of the law determining the procedure and terms of preparation, convocation and holding of the general meeting of shareholders are not applied. Similar provisions are contained in Art. 39 of the LLC Law.

FEATURES OF THE PROCEDURE IN SEPARATE SITUATIONS

Due to the peculiarities of the status, both general grounds for terminating an employment contract (for example, agreement of the parties, expiration of the employment contract) and special grounds (for example, change of the owner of the organization's property, disqualification, making an unreasonable decision that entailed a violation of the safety of property) apply to the head of the organization. , its unlawful use or other damage to the property of the organization). In addition, additional grounds for the dismissal of the head of the organization may be provided for in the employment contract itself ( tab. 2).

It is important to take into account that general labor legislation applies to the dismissal of the head of an organization.

For example, if the term of the employment contract concluded with the head of the organization comes to an end, then in accordance with Art. 79 of the Labor Code of the Russian Federation, he must be warned of dismissal in writing at least three calendar days before dismissal.

table 2

Additional grounds for the dismissal of managers with examples of dismissal entries in the work book

The term of the employment contract concluded with the director expires. Who should send him a written notice of termination of the employment contract?

The general meeting of shareholders (participants) does not have such a right, since its competence is limited to resolving issues specified in the Law on JSCs and in the Law on LLCs. The question of who should warn the manager about the expiration of his employment contract should be directly settled in the charter or local regulations organizations. In practice, this authority is often vested in the board of directors (supervisory board).

It is good if such a notification is sent to the head after it becomes clear whether his candidacy has been nominated for the next election as the sole executive body of a legal entity or not. If this issue is resolved positively, then the director in the notification can be simultaneously notified of the meeting of the board of directors (supervisory board), the general meeting of shareholders (participants), where the issue of electing the sole executive body of the company will be decided.

Another example. When dismissing the head of an organization for committing a disciplinary offense, it is necessary to follow the procedure for bringing to disciplinary responsibility, provided for in Art. 192 and 193 of the Labor Code of the Russian Federation.

Often employers are sure that they can dismiss the director at any time, even if he is on sick leave, but this is not the case. The head of the organization is covered by the guarantee provided for in Part 6 of Art. 81 of the Labor Code of the Russian Federation: it is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary incapacity for work and during his stay on vacation.

Clause 50 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation" states: taking into account that Art. 3 of the Labor Code of the Russian Federation prohibits restricting someone in labor rights and freedoms depending on official position, and also taking into account that the dismissal of the head of the organization in connection with the adoption by the authorized body of the legal entity either by the owner of the organization's property, or by the person (body) authorized by the owner (body) of the decision on early termination of the employment contract is essentially a dismissal at the initiative of the employer, and Ch. 43 of the Labor Code of the Russian Federation, which regulates the peculiarities of the work of the head of an organization, does not contain norms that deprive these persons of the guarantee established by Part 6 of Art. 81 of the Labor Code of the Russian Federation, in the form of a general prohibition on the dismissal of an employee at the initiative of the employer during the period of temporary disability and during the period of vacation (except in the case of liquidation of the organization or the termination of activities by an individual entrepreneur), an employment contract with the head of the organization cannot be terminated under paragraph 2 of Art. ... 278 of the Labor Code of the Russian Federation during the period of his temporary disability or being on vacation.

Dismissal on the initiative of the head

Such a common ground for dismissal as termination of an employment contract of his own free will, in relation to the head of the organization has one feature - the manager must notify the employer (property owner, his representative) at least one month before dismissal (Article 280 of the Labor Code of the Russian Federation).

The letter of resignation must be in writing. It is the presence of such a statement that serves as proof of the legality and validity of the dismissal. The following example from judicial practice is indicative.

The regional court on 18.10.2011 considered the case on the appeal of LLC “L” against the decision of the district court dated 24.08.2011. The district court reinstated S. in the position of director of LLC "L" from 30.06.2011, declared paragraphs 10, 11 and 12 of the decision of the extraordinary meeting of participants of LLC "L" unlawful.

At the hearing, it was established that on June 29, 2011, an extraordinary meeting of the members of the company made a decision to remove from S. the powers of director. At the same time, the plaintiff argued that he had not submitted applications for dismissal of his own free will or for the early resignation of powers of the director.

The regional court agreed with the decision of the district court, stating that on the basis of the minutes of the extraordinary general meeting of participants of LLC "L" by order No. ... dated 29.06.2011 S. was dismissed from his post. As indicated in the order, S.'s dismissal was based on his statement. It follows from the case materials that S.'s written statement on the termination of his powers of the director of LLC "L", confirming his will to terminate the employment contract concluded with him, is absent, the plaintiff himself, when considering the case, denied writing such a statement. The absence of his will to dismiss is also confirmed by the fact that during the extraordinary general meeting of participants dated June 29, 2011, S. did not vote on this issue (while he is one of the founders), which was confirmed in court by the newly elected director of the company M ...

In the case file there are two copies of photocopies made from the inventory of the company's documents, transferred on 01.07.2011 to the newly elected director M., one of which contains an indication of the presence of S.'s application, the other does not contain such an indication. Under such circumstances, the court rightfully did not take into account the original of this inventory from 01.07.2011, presented as evidence, which indicates the presence of S.'s application for termination of powers. Taking into account the circumstances established above, the court reasonably concluded that there was no voluntary expression of the will of the plaintiff S., expressed in accordance with the procedure established by law, to terminate the powers of the director of the company and the illegality of his subsequent dismissal.

To whom should the head of the organization address the letter of resignation?

Naturally, it makes no sense to write such a statement “to oneself”. In this case, an employer means an authorized body or authorized persons who have the right to terminate the powers of the head of the organization (we have already mentioned them above).

Our director wrote a termination letter and left it in the HR department with the words “send it to the address and see that the founders receive everything”. To whom should the manager pass on his statements? Can he leave them like that in the personnel department or with the secretary?

We believe that the manager should monitor the sending of his application himself. If the authority to terminate the employment contract with the director belongs to the board of directors (supervisory board), then the application should be submitted to the chairman of the board of directors (supervisory board), since it is he who organizes its work, and also convenes meetings of the board of directors (supervisory board) of the company. If the decision on the early termination of the employment contract is within the competence of the general meeting of shareholders (participants), then the manager must notify all shareholders or participants of his decision in writing. In state or municipal unitary enterprises, the head submits the application to the person who heads the state power body of the Russian Federation, the state power body of the constituent entity of the Russian Federation, the body local government who carry out the functions of the owner of the property unitary enterprise.

In this case, the letter of resignation can be sent by registered mail with acknowledgment of receipt. If in the future it is not possible to hold a meeting of the board of directors (supervisory board) or a meeting of the general meeting of shareholders (participants), then the director will be able to confirm the fact of sending the application.

In joint-stock companies, the manager does not have the right to convene a general meeting of shareholders, unless he himself is a shareholder owning at least 10 percent of the voting shares of the company. Therefore, if the manager wants to resign, it is not enough for him to warn the shareholders about this, it is still necessary to achieve the holding of a general meeting of shareholders in order to make a decision on the termination of his powers. With a corresponding request, he can apply, for example, to the board of directors (supervisory board) of the company.

The head of a limited liability company is obliged at least a month before the termination of work to send to the participants of the company an application for termination of the employment contract, as well as notify them of the convening of a general meeting of participants (clauses 1 and 2 of article 35, clause 1.2 of article 36 of the LLC Law ).

The director sent a letter of resignation to the members of the company of his own free will and a notice of convening an extraordinary general meeting to decide on the termination of his powers. But the participants ignored this information and did not appear at the meeting. Thus, by the time the notice of dismissal expired, no decision on the director had been made. Despite this, the director issued a resignation order and ceased work. Was he entitled to do so?

Article 2 of the Labor Code of the Russian Federation enshrines the principle of freedom of labor and the principle of the prohibition of forced labor. This means that the employer has no right to refuse the employee to terminate the employment contract. Consequently, if the head of the organization has duly notified the authorized body of the desire to terminate the employment contract, has done everything in his power to hold a meeting of the board of directors (supervisory board) or a general meeting, then the employment contract is terminated upon expiration of the one-month warning period. Therefore, after the expiration of the notice of dismissal, the director, like any other employee, has the right to stop working (part 5 of article 80 of the Labor Code of the Russian Federation).

Let's see what court decision was made in a similar situation.

The application for the termination of the powers of the General Director of the LLC, the decision to hold an extraordinary general meeting and a notice on the holding of an extraordinary general meeting were delivered to the members of the company in person or sent by a valuable letter with notification. In the opinion of the court, such a letter can be considered as a proper notification of the employer about dismissal of his own free will.

At the same time, the refusal of the participants from the general meeting actually deprived the CEO of the right to terminate the employment contract.

Freedom of labor is enshrined in Art. 37 of the Constitution of the Russian Federation and Art. 2 of the Labor Code of the Russian Federation. In accordance with Art. 2 of the Labor Code of the Russian Federation, forced labor is prohibited, that is, members of the society cannot deny the head of the organization the right to resign of their own free will. The general meeting is only needed to accept his statement. Given the director's right to terminate the employment contract at any time, the inaction of the participants is nothing more than an abuse of the right (clause 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the application of the Labor Code of the Russian Federation by the courts of the Russian Federation").

After a month after the employer's notification of the termination of the employment contract, the director on the basis of Art. 280 of the Labor Code of the Russian Federation had the right to stop working by issuing an appropriate order.

Dismissal by decision of the employer

The authorized body of a legal entity must decide on the early termination of the employment contract with the head of the organization. When it comes to business companies, then such a decision is made either at a meeting of the board of directors, or at an extraordinary general meeting of shareholders (participants).

In a limited liability company, such a problem may arise. According to Art. 35 of the Law on LLC, an extraordinary general meeting of the company's participants is held in the cases determined by the Charter of the company, as well as in any other cases if the interests of the company and its participants require such a general meeting. In this case, the decision to convene a general meeting of the company's participants, including at the request of the board of directors (supervisory board), is made by the head of the organization.

Recall that within five days from the receipt of the relevant request to hold an extraordinary general meeting of participants in the company, he is obliged to make a decision to hold such a meeting or to refuse to hold it.

But on the part of the head of the company, it is possible to abuse the right when, knowing about the agenda of the extraordinary meeting of shareholders, he deliberately delays its holding. This is especially true when deciding on the early termination of the powers of a leader, including for guilty actions.

Outlined his position on this matter Supreme Court RF.

The decision of the extraordinary general meeting of the participants of the LLC to terminate the employment contract with the manager is lawful even in the event of a formal violation of the requirements established by the Law on LLC for the procedure for convening a meeting.

In accordance with paragraph 2 of Art. 35 of the LLC Law, an extraordinary general meeting of participants in a company is convened by the executive body of the company at its initiative, at the request of the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor, as well as the participants in the company holding in aggregate at least one tenth of the total number of votes of the participants in the company.

The Supreme Court of the Russian Federation does not agree with the point of view that holding an extraordinary general meeting of the company's participants on the termination of the powers of the head without notifying him of this is a direct violation of this norm, since the establishment in the law of the obligation of the executive body to convene an extraordinary general meeting of participants in the company does not mean that it is prohibited to hold such a meeting without his participation.

Thus, if in accordance with constituent documents the issues of the formation of the executive body and early termination of its powers are within the competence of the general meeting of participants, the decision of this issue at the general meeting of participants without the participation of the relevant official is legal.

At the next general meeting of the company's participants, a decision was made on the early termination of the employment contract with the director under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation in the absence of his guilty actions. The director was not present at the meeting; the motives for dismissal are unknown to him. Do I need to somehow officially inform him in writing of the reasons for the dismissal, and can he challenge such dismissal?

By the decision of the authorized body of the legal entity or the owner of the property of the organization, or the person (body) authorized by the owner, the employment contract with the head of the organization may be terminated in unilaterally according to clause 2 of Art. 278 of the Labor Code of the Russian Federation. The decision to terminate the employment contract with the head of the unitary enterprise is taken by the body authorized by the owner of the unitary enterprise in the manner prescribed by the Government of the Russian Federation, after preliminary approval by the certification commission.

At the same time, the law does not give indicative list reasons and circumstances that may serve as a reason for the dismissal of the head of the organization on the basis under consideration. Thus, formally, the decision to terminate the employment contract with the head of the organization under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation does not require any justification on the part of the competent person (body) who made such a decision.

This opinion is also shared by the Constitutional Court of the Russian Federation in its resolution of March 15, 2005 No. 3-P - when the head of an organization is dismissed on the appropriate grounds, it is not required to indicate certain specific circumstances confirming the need to terminate an employment contract with him.

When drawing up the termination of an employment contract with the head of the organization, it is advisable to issue two orders: on the main activity - on the termination of the powers of the head and on the personnel - on dismissal

But one of the most important principles of labor law should not be ignored - the prohibition of discrimination in the world of work, when no one can be restricted in labor rights and freedoms or receive any advantages depending on gender, race, skin color, nationality, language, official position. and other circumstances unrelated to business qualities(Article 3 of the Labor Code of the Russian Federation). So, a manager who suspects that he was fired for discriminatory reasons has the right to challenge his dismissal in judicial procedure... And if the fact of discrimination is proven, the court will surely recognize the dismissal as illegal. Therefore, we recommend that you still inform the head of the organization in writing the reasons for his early dismissal so that there is no reason to accuse the employer of discrimination.

HOW DOES THE Dismissal be formalized?

According to Art. 841 of the Labor Code of the Russian Federation, the dismissal of an employee is formalized by an order of the employer, regardless of the basis for dismissal and the position held by the employee. Even if by position he was the general director of the organization. In any case, there are no exceptions in this regard.

Do I need to issue an order to dismiss the manager?

Advice When drawing up the termination of an employment contract with the head of the organization, it is advisable to issue two orders: on the main activity - on the termination of the authority of the head and on the staff - on dismissal

Rostrud's letter dated 11.03.2009 No. 1143-TZ states that “in the process of labor relations, the manager issues (including in relation to himself) orders (for example, about leaving on a business trip, vacation)”. But business trips and vacations are one thing, hiring and firing is another. Therefore, in practice, an order on the personnel to dismiss the head is often not issued. Instead, the head of the organization issues and signs an order for the main activity on the termination of the powers of the head ( Appendix 2).

But in the provisions of the Labor Code of the Russian Federation on the registration of dismissal, it is precisely about the order on personnel, and not about the minutes of the general meeting or the written decision of the owner of the organization's property to terminate the employment contract with the head of the organization and not about the order on the main activity. We believe that, in addition to the above documents, it is necessary to issue an order for personnel to dismiss the head.

Who should sign the order on personnel to dismiss the manager?

Shareholders and members of the company are not authorized to issue administrative documents. Orders and instructions, including those on personnel, are issued on behalf of the employer by the head of the organization.

Until January 1, 2013 in connection with the use of unified forms, approved. By the resolution of the Goskomstat of Russia dated 05.01.2004 No. 1, the legality of the dismissal of the head of the organization by the order of termination (resignation) of powers was questioned, since such an order did not correspond to the unified form No. T-8. However, from January 1, 2013, after the entry into force Federal law dated 06.12.2011 No. 402-FZ "On accounting", according to which employers (with the exception of public sector organizations) use their own forms of primary accounting documents for labor accounting and remuneration, the unified form No. T-8 has become optional. Employers can now approve a form of dismissal order that would be suitable for formalizing the termination of employment with the head of the organization.

Issuance of a work book

On the last day of work, the manager, like any other employee, must be issued a work book with a note of dismissal ( Appendix 3). Who will make such an entry is determined by the internal rules of the organization.

According to paragraph 35 of the Rules for maintaining and storing work books, making forms of work books and providing employers with them, approved. By the decree of the Government of the Russian Federation of 16.04.2003 No. 225 "On work books", the responsibility for maintaining, storing, recording and issuing work books is borne by a specially authorized person appointed by order of the employer. This could be, for example, the head of the HR department. The employee responsible for maintaining work books, upon dismissal of the manager, certifies with his signature all entries made in the work book during his work in the organization, puts the employer's stamp and invites the manager, for his part, to certify the entries made in his work book.