Gap registration system employment contract or contract has a number of its own special nuances that must be observed by both each employer and the employee himself. At the same time, regulatory legal acts divide the process into a simplified and a more complex one, depending on who was going to leave work and on whose initiative the process of ending the employment relationship was carried out.
A group of complicated procedures includes dismissal general director. Thus, it is much easier to find general rules for registering a severance of employment 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. About what specific features has this procedure and what actions should be carried out first - you can read below.
The decision to dismiss a director – who has the right to make it?
When studying the issue of terminating an employment contract or contract with a person holding a leadership 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 subject composition itself.
So, let's look at who can be considered a general director today. This position is a leadership position and is considered at the level of regulatory legal acts as a set of special job responsibilities with coordination, organizational, administrative and other functions. The employment contract with such a citizen must clearly stipulate exactly what position the person holds and what official duties are assigned to him.
There is a director in any company and organization. Such a position represents the subordination of a number of employees to his instructions and the direct management of the affairs of a company or enterprise. It is sometimes believed that the CEO is highest level management. Therefore, the question arises: how can such an official be dismissed?
But the process has its way out. Often, the general director is just a hired citizen to manage a company that is owned by completely different individuals. They hire a specially trained employee for such a position in order for him to manage 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 type of position.
When considering the issue of terminating the employment of such a person, it is worth noting that the procedure for dismissal largely depends on the provisions of the employment contract, the status of the official, and his involvement in the ownership of the company. Therefore, at the level of regulatory and legal guidelines, two main options for the gap can be distinguished: labor contract or contract. These include:
- dismissal of the director of at will;
- the initiative to terminate the performance of their labor functions comes directly from the owners who 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 general director 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, for specific factors that may allow the director to take this step.
If we talk about the dismissal of a director by the owners of a company or enterprise, then such a procedure will be more complicated. This is explained by the fact that regulatory legal acts today clearly indicate cases when 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 provided for by law. There can be no other way, since the discrepancy established rules will lead to legal liability, which is expressed in reinstatement to the previous place and payment of a fine.
Dismissal of the director at his own request
Most often in practice you can find cases when a manager is the direct initiator of his resignation from his position. So, working as a general director means not only a fairly large income and a high position, but also a huge number of responsibilities, time and effort spent. 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 formalize the standard procedure. That is, a corresponding application is submitted, which is considered within two weeks. On its basis, a special internal document is issued, which directly notes the end of the labor relationship.
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 exclusively of general directors, as specific subjects. First of all, this is expressed in who the resignation letter is sent to. So, in common system such a document is written in the name of the manager himself. But, in our case, it is the director himself who resigns. What happens: does he need to write an application in his own name?
Here it is worth knowing one general rule - an application for termination of an employment contract or contract is submitted to those persons who directly hired the 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 dismissal system remains virtually unchanged.
That is, as we see, the manager needs to contact the owners of the organization. If there are several of them, then the decision to terminate labor relations with the general director should take place at special meetings, which should be attended by at least half of the total number of owners. Therefore, the application for dismissal of the director, as such, will not be included in this procedure. The manager must notify all owners of the upcoming fees. At the same time, the information about the meeting must indicate that the current general director is resigning and resigning.
That is, the first step in such a process is a meeting of all founders to make a decision on approving the dismissal of the director. As a rule, fees can be urgent - within one week, or not - within a month. Everything depends on the specific location of the office and the place of residence of the owners.
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 in person against a receipt or by mail with notification of receipt.
What is this for? Sometimes it happens that an organization cannot find a suitable replacement for the current director. Therefore, the owners deliberately delay the time of collecting and satisfying the manager’s decision to dismiss. To ensure that these actions do not violate a citizen’s legal right to terminate an employment contract, he has the right, in the event of a refusal to hold a meeting or a meeting of the founders, to resign from his duties within two weeks and transfer the necessary documentation that he was previously in charge of. However, such actions cannot be regarded as failure to comply job functions, since there is written confirmation that the person 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 severing the working relationship takes the following form. So, at the next meeting, the owners of the company decide to revoke the director’s employment contract and, on its basis, issue a special order to dismiss the director. This document is one of the parts of the paperwork for conducting the training camp as a whole. But for the manager himself, it is decisive, since it secures the possibility of further formalizing his resignation from his position.
Once the order is issued, the procedure will be standard view. Thus, special entries are made in the work book about the dismissal of the director, all funds are recalculated, documentation kept by the director is submitted, etc. At the same time, the order must indicate exactly from what date the citizen stops performing his work 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 that in order to formalize the dismissal it is necessary to gather all the founders. It's all about ending a relationship. labor type In accordance with the law, only the body that hired him can interact with a citizen. Therefore, there is no other way to resolve the issue.
Dismissal of the founding director
Also, there are situations when, when creating an organization or enterprise, persons who have a direct interest in the company’s activities are appointed as managers. In this case, we are talking about one of the owners of the organization’s capital. At the same time, he can be either the sole owner of the company or a co-owner along 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 meetings to terminate the employment contract. That is, the general director at such a meeting will act both as a member of the owners and as a manager who wishes to resign.
The person himself also takes part in voting on the acceptance of the resignation letter. At the same time, they sign the corresponding protocol on an equal basis with other participants. In the future, the procedure will be the same as we described above. But, there is one important nuance.
Thus, after dismissal, a director 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 the 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 an employment contract will be in the case when we are talking about the boss, who is directly the sole owner of the company. The most common such system is in societies with limited liability. Therefore, the dismissal of an LLC director in such cases has a number of its own nuances and features.
For example, the most common question is whether a person has the right to independently sign a decree on his own dismissal? So, if you follow general provisions, then the citizen who hired the person on a labor basis can stop working with him labor relations. This point concerns 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 of 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 terminating 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 manager, but also the business in general.
Sample of dismissal of the general director at the initiative of the owners
As we noted above, another way to break an employment relationship is to identify an immediate desire for such actions on the part of the owners of the company managed by the manager. But, compared to the previous option, this method will have quite a lot of limitations.
First legal framework– directly the grounds for termination of the 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 on which the employer, represented by the co-owners, can rely.
The most common options for terminating an employment relationship today are:
- Inadequacy of the director for his position. At the same time, this aspect concerns exclusively the professional qualities of a citizen and does not in any way 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, this must be confirmed during a special certification. Mere assumptions or someone’s subjective opinion cannot become a full-fledged basis for dismissal.
- Guilty of 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 the citizen holds a leadership position. As a rule, such situations arise through the fact that a person speculates on his position and significantly exceeds his capabilities. If the director is proven guilty of theft in court proceedings, the owners have every right to terminate the employment contract with this person.
- Economic crimes. In this case, only those general directors are considered whose employment contract directly states the obligation to manage the company’s financial flows. If the Themis authorities establish that a person has committed a crime in economic sphere– the co-owners of the company can fire 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 a reduction or change in staff. In this case, based on the fact that the current CEO, due to his set of functions and skills, is not suitable for the reformatted activity, the owners of the company reserve the right to dismiss such a manager.
There are a number of other reasons. For example, if a manager comes to work drunk or under the influence of toxic or narcotic substances, he may be relieved of his duties without his own will. Also. This category also includes situations where a citizen missed his work day without a good reason. At the same time, absence from the workplace for a time exceeding 3 hours will be sufficient for a valid reason.
As you can see, there are still many reasons. Their main difference is a direct indication in regulatory legal acts. At the same time, they can all be found in the Labor Code Russian Federation. It is this document that consolidates all the provisions in relation to the procedure for severing labor relations.
The process of final termination of one’s duties has a standard form. So, first of all, management must inform the director of the decision made. In addition, the latter must confirm in writing that he has familiarized himself with such data.
In the next two months, the citizen has the right to continue to hold his position. The owners of the company do not have the right to force him to leave earlier than at the end of this period. The only exceptions can be those situations when the director himself agrees to such a step. Then the calculation process can be carried out earlier and without negative consequences for both sides.
After the date for severing the employment relationship has been agreed upon, on a specific day the manager is given all his documents, in particular the work book. He, in turn, must transfer all internal orders, instructions, reports and other papers to the office or to the new director. All reports must be submitted 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 severing an employment relationship is the payment of all obligatory amounts. It is worth noting that today the legislator obliges to provide every citizen who resigns with funds in 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 payment is based on the last salary 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 agreement or contract itself. If for last year the manager was not 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 directly constitute vacation. The same calculation rule is also used if the leave was taken in a certain part.
It is also worth noting that in some cases there are other payments. You need to pay attention to your employment contract. It may stipulate 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 illegally dismissed director has the right to go to court. To do this, he needs to find relevant violations of the law. Based on all the events, a special claim is drawn up. Sample application for illegal dismissal director you can download from us:
LLC directors can resign at their own request, as well as at the initiative of the company owners.
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Perhaps this is even without giving reasons after the shareholders meeting at general meeting and after drawing up the dismissal order. But how to formalize the dismissal procedure correctly and correctly?
Grounds
Statement
The application must be submitted at least 2 weeks before the person leaves a managerial position. It is drawn up in the name of the general director or other person responsible for this action. The application is agreed upon and signed by him.
Who signs the order?
The order is signed by both the resigning employee and the general director, founders, if necessary, if this is specified in the company’s charter.
It is also necessary to coordinate the action with the owner of the company to minimize the conflict situation.
Entry in the work book
IN work book The date of dismissal is noted, the position and department are indicated. The final date and the signature of the employer and employee from the personnel department are also affixed here.
After reading the record, the person resigning also puts his signature. He can then receive a settlement.
Transfer of cases
The director must transfer his powers before dismissal. The order is not regulated in any way. This applies not only to directors, but also to ordinary citizens.
This point is important, so every company tries to describe the algorithm of actions:
- return valuables and property received to help fulfill obligations;
- providing reporting on the expenditure of the amount issued by the accounting department for needs.
If this is the general director, then he must convey constituent documents new leadership.
Payments and compensations
The director receives all the same payments and compensation as an ordinary employee. In particular:
- salary for the period of work;
- compensation for unused vacation;
- payment for 2 months in case of liquidation of the organization.
Responsibility after dismissal
Let's see how a director is appointed to a position, dismissed from it and what documents are used to document this.
Hiring
STEP 1. Checking a director candidate for “disqualification”.
The appointment of a disqualified person to the position of director (that is, a person deprived by the court of the right to occupy leadership positions) is fraught with a fine for the organization in the amount of up to 100 thousand rubles. Part 2 Art. 14.23 Code of Administrative Offenses of the Russian Federation
Therefore, before hiring a director, you need to request information from any Federal Tax Service Inspectorate about him from the Register of Disqualified Persons Part 2 Art. 32.11 Code of Administrative Offenses of the Russian Federation; pp. 2, 3, 5 of Appendix No. 1 to the Order of the Federal Tax Service dated 03/06/2012 No. ММВ-7-6/141@. The request can be submitted by an organization or a participant (shareholder). For providing information from the Register, a fee of 100 rubles is charged. clause 4 of Government Decree No. 805 dated 11.11.2002; clause 11 of Appendix No. 1 to the Order of the Federal Tax Service dated 03/06/2012 No. ММВ-7-6/141@
STEP 2. The owners make a decision to appoint a director.
The decision to elect a director is made by the general meeting of participants (shareholders) or the board of directors, depending on whose competence this issue falls within the charter clause 1 art. 40 Law No. 14-FZ; clause 3 art. 69 of Law No. 208-FZ.
In this case, a protocol is drawn up clause 6 art. 37 Law No. 14-FZ; Art. 61, paragraph 4 of Art. 68 of Law No. 208-FZ. Here is a sample short protocol.
PROTOCOL No. 4
extraordinary general meeting of participants of LLC "Akvarel"
Moscow
Present:
Antonov Valery Vladimirovich - share in the authorized capital 50%
Kolmakov Alexander Vladimirovich - share in the authorized capital 50%
Decided:
1. Elect Ivan Demyanovich Grazhevich (passport series 7708 No. 123456, issued by the Lefortovo Department of Internal Affairs of Moscow on August 15, 2005) to the position of General Director from August 22, 2012 for a period of 3 years.
2. Authorize Valery Vladimirovich Antonov to sign an employment contract on behalf of Akvarel LLC with Ivan Demyanovich Grazhevich.
3. Assign Ivan Demyanovich Grazhevich the obligation to submit to the registration authority in established by law deadline for documents to register changes in information in the Unified State Register of Legal Entities in connection with the change of the general director of Aquarelle LLC.
Antonov Valery Vladimirovich
Kolmakov Alexander Vladimirovich
And if there is only one participant (shareholder), then the appointment of a director is formalized by a decision Art. 39 of Law No. 14-FZ; clause 3 art. 47 of Law No. 208-FZ. It can be formatted like this.
SOLUTION #3
sole participant of Akvarel LLC
Moscow
Sole participant of Akvarel LLC Antonov Valery Vladimirovich
DECIDED
In connection with the dismissal of the General Director of Akvarel LLC, Evgeniy Alekseevich Romanov, from 08/21/2012, to assume the powers of the General Director from 08/22/2012.
Antonov Valery Vladimirovich
STEP 3. Familiarization of the director with local regulations.
Before hiring, you must familiarize the director, against signature, with all local regulations of the company that relate to his rights and obligations as an employee (internal labor regulations, regulations on remuneration, etc.) Art. 68 Labor Code of the Russian Federation. It is logical if this is done by the participant (shareholder) who is authorized to sign an employment contract with him.
STEP 4. Conclusion of an employment contract.
To learn how to correctly draw up an employment contract, read:An employment contract on behalf of the organization can be concluded by clause 1 art. 40 Law No. 14-FZ; clause 3 art. 69 of Law No. 208-FZ:
- <если> director elected by the general meeting of participants(shareholders), then the chairman of the meeting or a participant (shareholder) authorized by the decision of the meeting;
- <если> the director is appointed by the board of directors, then the chairman of the council or a person authorized by a decision of the council.
If there is only one participant (shareholder) and has appointed himself as a director, he can sign an employment contract on both sides:
To find out whether it is possible for a director - the only participant (shareholder) not to pay a salary, read:- on your own behalf as an employee;
- on behalf of the organization as its legal representative.
Don't be surprised, this is completely legitimate Resolutions of the Federal Antimonopoly Service of the North-West District dated May 20, 2010 No. A21-9825/2009, dated April 9, 2009 No. A21-6551/2008.
An employment contract with a director must meet the same requirements as contracts with ordinary employees and Art. 57 Labor Code of the Russian Federation. Let us dwell on some of the features of such an agreement:
- You can conclude a fixed-term employment contract with the director Art. 59 Labor Code of the Russian Federation. Moreover, if the company’s charter states that the director is elected for a certain period, then the contract is concluded for this period. clause 1 art. 40 Law No. 14-FZ; pp. 2, 3 tbsp. 11 of Law No. 208-FZ. It can be anything, even more than 5 years Articles 58, 275 of the Labor Code of the Russian Federation;
- the director can be installed probation lasting up to 6 months Art. 70 Labor Code of the Russian Federation. Moreover, even if the appointment to a position was preceded by the procedures for selecting candidates provided for by the charter, for example, competition with Articles 5, 275 of the Labor Code of the Russian Federation;
- There is no need to include a provision on full financial responsibility in the employment contract, and there is no need to conclude a separate agreement on such responsibility. Since the director already bears it by virtue of his position, being responsible for direct actual damage caused to the organization b clause 1 art. 243, Art. 277 Labor Code of the Russian Federation.
The Labor Code provides special grounds for dismissal of management pp. 9, 10 tbsp. 81, art. 278 Labor Code of the Russian Federation. It is not necessary to indicate them in the employment contract. For example, participants (shareholders, board of directors) can terminate an employment contract with a director at any time, even in the absence of any valid reasons or grounds for doing so. clause 2 art. 278 Labor Code of the Russian Federation. True, in this case you will have to pay compensation to the director in the amount of at least 3 times the average monthly salary Art. 279 Labor Code of the Russian Federation.
STEP 5. Issuing an order to take office.
Although Rostrud believes that such an order can be drawn up in any form Letters of Rostrud dated September 22, 2010 No. 2894-6-1, dated December 19, 2007 No. 5205-6-0, it is still better to formalize it according to the unified form No. T-1. This is both more convenient and correct. After all, an order in form No. T-1 must be drawn up for all employees accepted into the organization on the basis of an employment contract Art. 68 Labor Code of the Russian Federation; clause 2 of Goskomstat Resolution No. 1 dated 01/05/2004 (hereinafter referred to as Resolution No. 1);.
In this case, the director should sign not only for the employer, but also for the employee in the column indicating familiarization with the order. This must be done within 3 days from the date of taking office. Art. 68 Labor Code of the Russian Federation.
STEP 6. Making an entry in the work book.
Within a week from the day the director started work, you need to make an entry in his work book about hiring a job from (hereinafter referred to as the Rules). The basis for making an entry will be an order for admission clause 3.1 of Appendix No. 1 to the Resolution of the Ministry of Labor of October 10, 2003 No. 69; clause 10 of the Rules. And if for some reason the order is not issued, then an entry can be made on the basis of the owners’ decision to elect a director (minutes of the general meeting of participants (shareholders) or the board of directors, decision of the sole participant) Letter of Rostrud dated September 22, 2010 No. 2894-6-1.
(1) This entry must exactly correspond to the text of the order or protocol (decision), for example: “Accepted to the position of director”, “Elected to the position of director”, etc. clause 10 of the Rules, approved. Government Decree No. 225 dated April 16, 2003 (hereinafter referred to as the Rules) .
STEP 7. Assignment of accounting functions.
If the company does not have a chief accountant, then the director can take charge accounting upon himself by issuing an order subp. "g" clause 2 of Art. 6 of the Law of November 21, 1996 No. 129-FZ.
Limited Liability Company "Akvarel"
ORDER No. 14k
Moscow
Due to the absence of the position of chief accountant in the staffing table of Aquarel LLC, I have assumed responsibilities for accounting and preparation of financial statements since August 22, 2012.
In this case, introduce the position of chief accountant in staffing table no need Letter of Rostrud dated December 28, 2006 No. 2263-6-1.
STEP 8. Registration of a personal T-2 card.
Like all other employees, the director must have a personal card in form No. T-2 Instructions, approved. Resolution No. 1; clause 12 of the Rules.
Do not forget that when appointing a new director, you need to re-issue the signature sample card at your bank. And also - report the new director to the registering Federal Tax Service. To do this, the new director must submit an application in form No. P14001 within 3 days from the date of his appointment subp. “l” clause 1, clause 5 art. 5, paragraph 2 art. 17 of the Law of 08.08.2001 No. 129-FZ. If this deadline is not met, the organization will face a fine of 5 thousand rubles. Part 3 Art. 14.25 Code of Administrative Offenses of the Russian Federation But there is no need to inform the funds about the change of director - the Federal Tax Service will do this for you.
Dismissal
STEP 1. The owners make a decision to dismiss the director.
If a director resigns due to the expiration of his employment contract or at his own request, then the participants (shareholders, board of directors) do not need to make a separate decision on termination of the director’s powers. In other cases, it will be needed.
You can find out what needs to be done when the director’s term of office has expired, but he continues to work:The director can be dismissed on the same grounds as other employees and Art. 77 Labor Code of the Russian Federation. But the Labor Code also provides special grounds for it. For example, a director can be fired if:
- adoption by the general meeting (board of directors) of a decision to terminate the employment contract with him clause 2 art. 278 Labor Code of the Russian Federation;
- removal from office in the event of bankruptcy of an organization in accordance with the laws on insolvency and clause 1 art. 278 Labor Code of the Russian Federation;
- making an unreasonable decision that resulted in damage to the organization’s property and clause 9 art. 81 Labor Code of the Russian Federation;
- one-time gross violation of one’s labor duties clause 10 art. 81 Labor Code of the Russian Federation;
- disqualification and clause 11 art. 77, paragraph 8 of Art. 83 Labor Code of the Russian Federation.
STEP 2. Warning about upcoming dismissal.
Read about the procedure for dismissing a disqualified director:Depending on the reason for termination of the employment contract, the parties are subject to, in particular, the following notice periods:
- <если> the director resigns of his own free will, then he must notify the owners (board of directors) about this at least 1 month in advance Art. 280 Labor Code of the Russian Federation;
- <если> labor fixed-term contract, then the director must be notified of the upcoming dismissal 3 days before the end of the employment contract and Art. 79 Labor Code of the Russian Federation. This must be done by a person authorized by the charter or a decision of the general meeting (for example, the chairman of the board of directors; a participant (shareholder) convening the general meeting). Rostrud specialists also think the same.
FROM AUTHENTIC SOURCES
Deputy Head Federal service on labor and employment
“ The employee must be notified in writing at least 3 days in advance of the termination of the employment contract due to its expiration. calendar days before dismissal. This provision does not provide for any exceptions for heads of organizations. Thus, the manager should be warned in writing about the termination of the employment contract. Such an instruction is given, as a rule, to a representative of the organization’s owners, who has been tasked with concluding an employment contract with the manager. If there is only one owner, he does it on his own.”
Here is a sample warning.
To the Director of LLC "Akvarel"
E.A. Romanov
Warning about termination of employment contract
Dear Evgeniy Alekseevich, we notify you of your upcoming dismissal on 08/21/2012 due to the expiration of the employment contract No. 1 dated 08/22/2009 concluded with you.
At the same time, we draw your attention to the fact that at the extraordinary general meeting of participants of Akvarel LLC, which will take place on August 17, 2012, your candidacy will again be considered for appointment to the position of General Director of Akvarel LLC. And if you are re-elected to this position, your employment contract will be extended for a new term. . For example, if the employment contract was concluded for a period of 2 years, then the agreement can set a period of 4 years. Rostrud does not object to this procedure Letter of Rostrud dated October 31, 2007 No. 4413-6. At the same time, keep in mind that if the validity period of the employment contract after its extension is more than 5 years, then the contract will not become indefinite.
STEP 3. Issuance of a dismissal order.
IN last days execution of his powers, the dismissed director must issue an order on his dismissal in Form No. T-8 and sign in it about familiarization and Art. 84.1 Labor Code of the Russian Federation; Instructions, approved. Resolution No. 1. If he did not do this, then in principle, one decision of the owners (board of directors) is sufficient to formalize the dismissal. Rostrud also agrees with this.
FROM AUTHENTIC SOURCES
“ All issues related to the registration of the dismissal of a manager are resolved by the owner of the organization or his authorized person. An order to dismiss a manager is not issued. In the work book, in column 4, the decision of the owner is indicated.
Rostrud
But since such an order is still required by law, claims from the labor inspectorate cannot be ruled out during the inspection.
STEP 4. Making an entry about dismissal in the work book.
On the day of dismissal, the director's work book must include: general rules make a notice of dismissal and Art. 84.1 Labor Code of the Russian Federation; pp. 10, 14 Rules; pp. 5.1-5.6 of Appendix No. 1 to the Resolution of the Ministry of Labor dated 10.10.2003 No. 69. The entry must exactly correspond to the text of the order and the wording of the Labor Code and can be, for example, like this.
After recording, you need to put the signature of the person responsible for maintaining work records (this can be the director himself) and the seal of the organization. And then, against signature, familiarize the director with the notice of dismissal and clause 35 of the Rules.
STEP 5. Making an entry in your personal T-2 card.
Based on the dismissal order, complete the director’s personal card in Form No. T-2 and ask him to sign on it clause 41 of the Rules; Instructions, approved. Resolution No. 1.
STEP 6. Settlement with the director and issuance of a work book.
On the last working day, the director needs to issue a work book against signature (in the work book movement book) and pay the amounts due to him. Art. 84.1 Labor Code of the Russian Federation; pp. 35, 41 of the Rules. Let us remind you that the calculation of dismissal payments is drawn up by a note-calculation in form No. T-61 Instructions, approved. Resolution No. 1.
He also needs to issue a certificate about the amount of salary and other payments for which insurance premiums, and other work-related documents requested by the director Art. 84.1 Labor Code of the Russian Federation; subp. 3 p. 2 art. 4.1 of the Law of December 29, 2006 No. 255-FZ.
WE WARN THE MANAGER
The director is also an employee. Therefore, in order to avoid problems with the tax office, the Social Insurance Fund, or the labor inspectorate, the same number of personnel papers must be drawn up for him as for any other employee.
Do not ignore the obligations established by the Labor Code to document labor relations with the director, even if he is the only participant (shareholder) of the company. Draw up an employment contract, orders using standardized forms and other necessary papers. This way there will be fewer complaints against you from labor inspectors, the Social Insurance Fund, and the tax authorities. Indeed, in the absence of mandatory personnel documentation, labor inspectors may fine the company for violating labor legislation. Part 1 Art. 5.27 Code of Administrative Offenses of the Russian Federation, FSS authorities - to refuse benefits. And tax authorities may try to exclude accruals in favor of the director from “profitable” labor costs. clause 1 art. 252
Any employee of the organization can resign at will. The leader is no exception.
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How to formalize the voluntary dismissal of the general director of an LLC in 2019? The CEO is vested with unlimited powers within his organization.
Accordingly, his responsibility is quite great. Due to these factors, the process of dismissing a manager becomes somewhat more complicated, even if done at will.
What is the correct way to fire the CEO at your own request in 2019?
Highlights
According to Labor Code Every employee has the right to resign at will. To do this, it is enough to express such a wish in writing and, after proper registration, interrupt your work activity.
But certain positions require a special dismissal procedure. This is due to the large volume.
An example of such a situation is the voluntary dismissal of the general director of an LLC.
When an LLC manager wishes to cease operations voluntarily, careful compliance with the delegation of authority is required.
The slightest legal inaccuracy leads to a violation of current legislation.
For any employee of the organization, the process of dismissal at will consists of submitting an application two weeks before the final payment date.
Notification from the general director must follow no later than a month in advance. The reason is that it is the manager who is responsible for all production processes and the preparation of proper reporting.
The general director is the only executive body of the LLC. He is responsible for the legality of all actions carried out by the company.
Therefore, dismissal will require lengthy documentation. In addition, it will take a lot of time to find a suitable person to replace the manager.
Advance notice of dismissal is also important for the director himself.
In this way, he distinguishes between the periods when he carried out leadership activities and the period of withdrawal from making management decisions.
The rights and obligations of the LLC director are determined by the general meeting of all participants. Only it has the right to appoint a head and terminate his powers.
Before dismissal, the general director must notify the founders of the company. For this purpose, he has the right to convene a general meeting at any time.
What is it
The head of an LLC or CJSC is the sole executive body that manages all current activities of the organization.
However, an ordinary employee can leave his job exactly two weeks later, regardless of the employer's wishes.
In some cases, settlement without working out is possible. In the case of a director, he cannot resign from his post until he completely surrenders his powers and transfers the affairs.
The transfer of affairs is necessary in order to differentiate the degree of responsibility over time between two managers, the resigning and the newly appointed.
The dismissal of the general director is also complicated by the fact that the director is the representative of the LLC registered in the Unified State Register of Legal Entities.
The legal entity is obliged to notify the tax authorities of all changes regarding the sole executor. Moreover, the application submitted for this purpose contains information about the new director.
As soon as the general director resigns, he loses the right to submit an application to the tax office.
That is, a resigned director cannot independently submit documents to change the registration data on termination of powers.
Changes to information in the Unified State Register of Legal Entities occur only after a new person is appointed to the post of manager. It will submit the required application on its own behalf.
An important point is the transfer of cases. The retiring general director must hand over all matters to the new manager.
In the absence of such a case, one of the founders can accept it. But the whole process must be formalized by appropriate acts.
What could be the reasons
There are several reasons why a CEO may be dismissed at his own request. OJSC or LLC does not matter, the list of grounds is the same.
Some correspond to the dismissal of ordinary employees, others relate to special rules regarding a managerial employee.
Reasons for dismissal of a CEO may include:
- own desire;
- expiration of the employment contract;
- agreement of the parties;
- initiative of the founders on the grounds set out in Article 81 of the Labor Code;
- additional grounds predetermined by the employment contract;
- initiative of company participants without specifying a reason;
- change of ownership of company property;
- removal from office of the head of a bankrupt company;
- dismissal of a manager due to liquidation of the organization.
Legal aspects
The dismissal of a manager at his own request is regulated.
The procedure for dismissing the general director of an LLC at his own request
For all employees, including the manager, the employer is the LLC. It operates through its governing bodies.
And upon dismissal, the general director is obliged to notify the highest management body of the organization:
- general meeting of founders;
- the only participant.
In theory, the director does not need the permission of the company's participants to dismiss; he can formalize his own dismissal.
But the members of the society must appoint a new leader. Which necessitates the convening of the meeting. In addition, it is necessary to transfer the affairs of the society.
Absolutely all participants must be notified thirty days in advance of the meeting. When notifying by mail, you should take into account the delivery time of the letter from .
Stages of the procedure
The process of dismissing a CEO at will consists of the following steps:
| Notification of participants | About holding a meeting and upcoming dismissal |
| Acceptance and approval of the minutes by the meeting | Or the decision of the sole participant to terminate the employment contract with the director. In this case, the reason for dismissal must be indicated. |
| Issuing an order to terminate the contract | And its registration in the journal of such documents |
| Transfer of affairs by the manager | And the property of the organization according to the act |
| Payment of all due amounts | Based on the formalized |
| Making an entry about dismissal in the director’s personal card () | B familiarization with it to the director against signature |
| Making a notice of dismissal | In the work book and handing it over to the former manager |
| Bank notice | On the termination of the powers of the General Director |
| Notification within three days from the date of appointment of a new director | Federal Tax Service on changes in registration information with submission |
The powers of the director terminate from the moment the order is issued, the entry is made in the work book and the cases are transferred to them.
Documentation
The process of dismissing a manager begins with him submitting a corresponding application. Next, a notice of the general meeting is drawn up and sent to all participants.
Regardless of the reason for the dismissal of a director, it is necessary to draw up minutes of the general meeting or decision sole founder.
Based on decision taken An order is issued to dismiss the general director. Next, a proper entry about the dismissal is made in the manager’s work book, indicating a link to the protocol or decision.
The director, according to the act, transfers affairs and property to the newly appointed manager or one of the company participants. From this moment on, the general director is considered fired.
We form an order
An order for the dismissal of the general director is drawn up using.
This is standardly used to dismiss any employee of an organization. According to Article 84.1, the director himself issues the order, endorses it himself and signs for familiarization.
If the company does not use unified forms, then the order can be drawn up according to its own approved template that meets the requirements.
The order states:
- title of the document and date of preparation;
- name of the organization;
- type of document;
- description of the fact, namely the personnel decision;
- job title responsible person, his signature with transcript.
How to write an application
The general director's application for resignation at his own request is drawn up in free form. There is no unified option for this.
When writing, standard wording is used - “I ask you to resign at your own request.” The employer is not required to indicate specific reasons.
The employer has no right to demand any explanations. If it is necessary to reduce the time and leave without working, write down the date on which dismissal is desired.
Video: how to fire a director
The date and signature are placed under the text. The application is submitted at the general meeting or may be attached to a notice to the company's participants.
Recording in labor
An entry in the work book of the general director is made in accordance with generally accepted rules.
That is, the date is indicated, a direct written statement of the fact of dismissal, the basis and a link to the supporting document.
The details of the general minutes of the meeting of company participants or the decision of the sole founder are indicated as the basis document. The record is certified by the seal of the organization.
In case of inaction of LLC participants, the director can independently formalize the procedure for his dismissal.
What payments are due?
The law stipulates two cases when a director receives compensation upon dismissal. This is a change in the ownership of property or the dismissal of a manager by the founders without explanation.
The amount of compensation in this case is not less than three monthly salaries.
A compensation payment of one month's salary, with the preservation of average earnings for a period of up to two months, is due to the director of the LLC upon liquidation of the organization.
The settlement by agreement of the parties is not accompanied by mandatory compensation, but in practice the parties determine a certain amount of severance pay independently.
When the general director is dismissed at his own request, compensation is not provided by law.
However, there may be a condition for severance pay upon dismissal for this reason.
Its amount is limited only to heads of government agencies and organizations with a state share of ownership of more than fifty percent.
