Dismissal general director OOO by on their own
The general director of a limited liability company acts as its sole executive body (clause 1 of article 40 of the Federal Law "On limited liability companies" dated 08.02.1998 No. 14-FZ). The functions of the employer in relation to the general director of the LLC are entrusted to the general meeting of participants (subparagraph 4 of paragraph 2 of article 33 of Law No. 14-FZ). Accordingly, the decision to terminate labor relations with the general director of the legal entity is adopted at an extraordinary meeting of the participants of the LLC, which the resigning manager himself is authorized to initiate (subparagraphs 1-2 of article 35 of Law No. 14-FZ).
Important! Unlike other employees, the head of a legal entity must notify the employer in writing of his intention to quit at least 1 month in advance (Article 280 of the Labor Code of the Russian Federation of 12/30/2001 No. 197-FZ).
Wherein given time is established regardless of how long the employment contract was concluded with the general director of the organization, including in the case of short-term labor relations (Rostrud letter dated 06.03.2013 No. PG / 1063-6-1).
If the letter of resignation is sent by mail, then the date of receipt of the letter by the employer is considered the date of the notification of the employer (a note about this will be in the notice of service), and not the date of its sending (see the appeal ruling of the Belgorod Regional Court of 26.06.2012 in case No. 33- 1744).
However, a properly sent notification may not always be delivered or received by the addressee. It is recommended to resolve this situation by going to court (see practice below).
The procedure for the dismissal of the CEO of his own free will
The standard procedure is as follows:
- Notice of LLC participants:
- Notifications of an extraordinary meeting are sent by sending registered letters to the LLC participants with a list of attachments and notices of delivery (clause 1 of article 36 of Law No. 14-FZ). The charter of a legal entity may regulate another method of notification, but this one seems to be one of the most reliable and simple.
- The notification must indicate the date, time and address of the meeting, the agenda (in this case the dismissal of the general director of the organization, but at the same time the question of the appointment of a new leader may be included). The notice should also include copies of the CEO's resignation letter of his own free will.
- The mailing of the mentioned letters must be made to the addresses of all members of the LLC. They are taken from an extract from the Unified State Register of Legal Entities or the register of LLC participants. If the addresses in the named sources do not match, it is necessary to send notifications for each of them.
- Holding a meeting of LLC participants. Based on its results, a decision is made on dismissal of the CEO, which is recorded in the protocol.
- Issuance of an order on the dismissal of the general director of the LLC on the basis of the minutes of the general meeting.
- Making payments with a dismissed employee, making an entry in his work book.
- Notification of the Federal Tax Service on the dismissal of the director.
If the members of the LLC ignore the director's statement of dismissal
Taking into account the stipulated in Art. 37 of the Constitution of the Russian Federation prohibiting forced labor, participants in the general meeting of an LLC have no right to refuse the general director to accept his letter of resignation and subsequent termination of labor relations.
Important! An extraordinary meeting in this case is not held to agree on the possibility of dismissing the general director of his own free will, but in order to comply with the stipulated in Art. 280 of the Labor Code of the Russian Federation and sub. 4 p. 2 art. 33 of Law No. 14-FZ of the rules for dismissal.
The most common expression of unfair actions on the part of the employer can be called ignoring by all participants of the LLC or one of them participating in an extraordinary general meeting, which may be expressed, among other things, in the unwillingness to receive a corresponding registered letter from the general director of the LLC with his letter of resignation.
In such cases, after the expiration of the prescribed month, the head of the LLC who wants to resign is advised to go to court with a claim challenging the inaction of the founder (founders) and demanding dismissal of his own free will. At the same time, requirements may be made to amend the information in the Unified State Register of Legal Entities (see the appellate ruling of the Kirov Regional Court of 13.06.2012 in case No. 33-1718).
Note! The courts indicate that according to Art. 80 of the Labor Code of the Russian Federation, after the expiration of the notice of dismissal, the employee is entitled to terminate the performance of his labor functions, regardless of whether the employer has complied with the termination rules employment contract or not.
At the same time, as a proper confirmation of the will of the employee, it can be recognized statement of claim relevant content, handed over to one of the founders (see the appeal ruling of the Perm Regional Court dated 05.08.2013 in case No. 33-7154).
Notification of the tax and non-budgetary funds about the dismissal of the director
Notification of the territorial body of the Federal Tax Service at the location of the legal entity about a change in information about a person authorized to act without a power of attorney on behalf of the organization is made within 3 days from the date of implementation of such changes (sub. O state registration legal entities and individual entrepreneurs"Dated 08.08.2001 No. 129-FZ) by filling out and sending form P14001 approved by order of the Federal Tax Service of Russia dated 25.01.2012 No. ММВ-7-6 / [email protected]
Note! The legislation does not establish that the termination of the powers of the executive body of an LLC and their assignment to a new person should occur simultaneously. So while a new general director of the LLC has not been appointed, a message should be sent to the tax office on the termination of the powers of a particular individual (see sheet K of Appendix 6 to Order No. ММВ-7-6 / [email protected]).
Based on practice, the tax authorities are extremely rarely ready to accept from a resigned head of an organization an application to exclude him from the Unified State Register of Legal Entities as a person entitled to act on behalf of the organization without a power of attorney. The refusal of the Federal Tax Service to register changes is usually explained by the fact that the specified form P14001 cannot be signed former head, because in fact his powers were terminated, although information about him is still contained in the Unified State Register of Legal Entities (see the decision of the Supreme Arbitration Court of the Russian Federation "On Invalidation ..." dated May 29, 2006 No. 2817/06).
At the same time, there is also law enforcement practice, according to which the courts quite often oblige the Federal Tax Service authorities to exclude from the Unified State Register of Legal Entities information about the former general director of the organization at his request. They proceed from the fact that the inability to submit an application drawn up in accordance with the requirements of the law cannot in itself be a reason for refusing to satisfy a legal claim of a person (for example, the decree of the 19th AAC dated 03/02/2016 in case No. A36-4738 / 2015).
Obligation to notify off-budget funds, Rosstat and other government agencies in order interagency cooperation assigned to the Federal Tax Service.
Sample application for dismissal of the CEO
In its structure, the letter of resignation on behalf of the CEO is absolutely identical to the statements that all other employees write in similar cases.
CEO resignation letter assumes the following content:
- addressee: the body of the legal entity that entered into an employment contract with the director (this can be the founder, general meeting of participants, etc.);
- position, surname, name, patronymic of the applicant;
- a request to dismiss the applicant from the position held, indicating a specific date of dismissal;
- date of application submission;
- the signature of the applicant with a transcript.
Sample order for the dismissal of the CEO
The order to dismiss any employee is signed by the head of the legal entity-employer. The same applies to the order to dismiss the general director of the LLC. Despite the fact that in this case the dismissed employee and the sole executive body coincide in one person, the CEO signs the order on his own dismissal himself (see Rostrud's letter of 11.03.2009 No. 1143-TZ).
In a situation where the general director, due to certain circumstances, cannot independently sign an order (for example, due to temporary disability, etc.), a person authorized by him to sign the orders can do it for him. The head can transfer such powers by issuing local act or issuing a power of attorney.
Note! Usually, to draw up an order on the dismissal of the general director, they use the unified form T-8, approved by the decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1. However, from 01.10.2013 this form became optional (see the information of the Ministry of Finance of Russia "On the entry into force ..." No. PZ- 10/2012). So the order can be issued in any form.
CEO dismissal order(in a unified form) can be downloaded below:
Dismissal of the CEO by the decision of the founder
The founder is entitled to terminate the employment relationship with the head of the legal entity by his own decision. Possible grounds are set out in Art. 81, 83, 278 of the Labor Code of the Russian Federation.
The issue of dismissing the general director is submitted to the general meeting of the founders (participants) of the LLC (subparagraph 4, paragraph 2, article 33 of Law No. 14-FZ).
Upon dismissal of the general director on the grounds of clause 2 of Art. 278 of the Labor Code of the Russian Federation, if no guilty actions were revealed on his part, he is paid compensation in the amount of at least 3 times the average monthly earnings (Article 279 of the Labor Code of the Russian Federation).
Important! The dismissed employee has the right to appeal against judicial procedure motives own dismissal presented by the founder, since the rather abstract formulation of the norm of clause 2 of Art. 278 of the Labor Code of the Russian Federation, however, does not mean that the employer is not limited in any way in deciding the issue of dismissing the general director of the organization and resolves the problem at his own discretion (see the definition of the RF Armed Forces dated 01.11.2007 No. 56-B07-15).
At the same time, the dismissal of an employee under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation without specifying the reasons is recognized as fundamentally admissible. In this case, the dismissal does not act as a measure of legal responsibility and is accompanied by a mandatory payment of compensation (see the definition of the Constitutional Court of the Russian Federation of 07/14/2011 No. 1015-О-О).
Terminate the employment relationship with the CEO on the grounds of pp. 7-7.1 Art. 81 of the Labor Code of the Russian Federation is possible only in the cases listed in these norms. The Plenum of the RF Armed Forces in its resolution of 17.03.2004 No. 2 explains that the persons specified in clause 7 of Art. 81 of the Labor Code of the Russian Federation, can be dismissed on this basis, including when it is established that they committed theft, bribe taking or other illegal actions of a mercenary nature, even if they were not related to their work (paragraph 45 of Resolution No. 2).
Thus, dismissal of the CEO of his own free will involves notifying them to their employer at least 1 month before the date of dismissal. The functions of the employer in relation to the general director of the LLC are entrusted to the sole participant or the general meeting of the participants of the LLC. The CEO is authorized to sign his own order of dismissal himself.
Let's see how the director is appointed to the position, dismissed from it and what documents this is formalized.
Recruitment
STEP 1. Verification of a candidate for director “for disqualification”.
Appointment to the position of director of a disqualified person (that is, a person who has been disqualified by a court from leadership positions) is fraught with a fine of up to 100 thousand rubles for the organization. h. 2 tbsp. 14.23 of the Administrative Code of the Russian Federation
Therefore, before hiring a director, you need to request information about him from the Register of Disqualified Persons from any Inspectorate of the Federal Tax Service. h. 2 tbsp. 32.11 of the Administrative Code of the Russian Federation; nn. 2, 3, 5 of Appendix No. 1 to the Order of the Federal Tax Service dated 06.03.2012 No. ММВ-7-6 / [email protected] ... The request can be submitted by an organization or a participant (shareholder). For the provision of information from the Register, a fee of 100 rubles is charged. p. 4 of the Government Decree of 11.11.2002 No. 805; clause 11 of Appendix No. 1 to the Order of the Federal Tax Service dated 06.03.2012 No. ММВ-7-6 / [email protected]
STEP 2. Owners' 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 is attributed to the charter clause 1 of Art. 40 of Law No. 14-FZ; clause 3 of Art. 69 of Law No. 208-FZ.
In this case, a protocol is drawn up clause 6 of Art. 37 of Law No. 14-FZ; Art. 61, paragraph 4 of Art. 68 of Law No. 208-FZ... Here is a sample of a short protocol.
PROTOCOL No. 4
extraordinary general meeting of participants of LLC "Aquarelle"
Moscow city
Attended by:
Antonov Valery Vladimirovich - 50% share in the authorized capital
Kolmakov Alexander Vladimirovich - share in the authorized capital of 50%
Decided:
1. To elect Grazhevich Ivan Demyanovich (passport series 7708 No. 123456, issued by the Lefortovo Department of Internal Affairs of Moscow on August 15, 2005) to the post of General Director from August 22, 2012 for a period of 3 years.
2. To authorize Valery Vladimirovich Antonov to sign an employment contract on behalf of Aquarelle LLC with Ivan Demyanovich Grazhevich.
3. To entrust Ivan Demyanovich Grazhevich with the obligation to submit to the registering authority, within the time limit established by the legislation, documents for registering 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 made out by decision m Art. 39 of Law No. 14-FZ; clause 3 of Art. 47 of Law No. 208-FZ... It can be designed like this.
DECISION No. 3
the only participant of LLC "Aquarelle"
Moscow city
The only member of Aquarelle LLC Valery Antonov
DECIDED
In connection with the dismissal of the General Director of Aquarelle LLC Evgeny Alekseevich Romanov, from 08.21.2012 to entrust 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 need to familiarize the director against signature with all the local regulations of the company that relate to his rights and obligations as an employee (internal labor regulations, regulations on remuneration, etc.) Art. 68 of the 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.
For information on how to draw up an employment contract correctly, read:An employment contract on behalf of the organization can be concluded clause 1 of Art. 40 of Law No. 14-FZ; clause 3 of 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> director appointed by the board of directors, then the chairman of the board or a person authorized by the decision of the board.
If the participant (shareholder) is only one and has appointed himself a director, he can sign an employment contract on both sides:
About whether it is possible for the director - the only participant (shareholder) not to pay salaries, read:- on his own behalf as an employee;
- on behalf of the organization as its legal representative.
Do not be surprised, this is quite legitimate about Resolutions of the FAS SZO dated 20.05.2010 No. A21-9825 / 2009, dated 09.04.2009 No. A21-6551 / 2008.
An employment contract with a director must meet the same requirements as contracts with ordinary employees and Art. 57 of the Labor Code of the Russian Federation... Let's dwell on some of the features of such an agreement:
- you can conclude a fixed-term employment contract with the director. Art. 59 of the Labor Code of the Russian Federation... Moreover, if the company's charter says that the director is elected for a certain period, then the contract is concluded for this period clause 1 of Art. 40 of Law No. 14-FZ; nn. 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;
- director can be set probation lasting up to 6 months in Art. 70 of the Labor Code of the Russian Federation... Moreover, even if the appointment to the position was preceded by the procedures for selecting candidates provided for by the charter, for example, jumping with Articles 5, 275 of the Labor Code of the Russian Federation;
- an employment contract does not need to include a condition on full financial responsibility, and a separate contract on such responsibility does not need to be concluded. Since the director already bears it by virtue of the position held, being responsible for the direct actual damage caused to the organization clause 1 of Art. 243, art. 277 of the Labor Code of the Russian Federation.
The Labor Code provides for special grounds for the dismissal of managers and nn. 9, 10 Art. 81, art. 278 of the Labor Code of the Russian Federation... It is not necessary to indicate them in the employment contract. So, for example, participants (shareholders, board of directors) can terminate the employment contract with the director at any time, even if there are no good reason and founding clause 2 of Art. 278 of the Labor Code of the Russian Federation... True, in this case, the director will have to pay compensation in the amount of at least 3 times the average monthly salary a Art. 279 of the Labor Code of the Russian Federation.
STEP 5. Issuance of an order to take office.
Although Rostrud believes that such an order can be drawn up in any form e Rostrud letters dated 22.09.2010 No. 2894-6-1, dated 19.12.2007 No. 5205-6-0, nevertheless, it is better to issue it according to the unified form No. T-1. This is both more convenient and correct. After all, an order in the form No. T-1 should be drawn up for all employees admitted to the organization on the basis of an employment contract a Art. 68 of the Labor Code of the Russian Federation; p. 2 of the Resolution of the State Statistics Committee of 01/05/2004 No. 1 (hereinafter - the Resolution No. 1);.
In this case, the director should sign not only for the employer, but also for the employee in the column on familiarization with the order. This must be done within 3 days from the date of taking office. Art. 68 of the Labor Code of the Russian Federation.
STEP 6. Making an entry in work book.
Within a week from the day the director started work, it is necessary to make an entry in his work book about employment with (hereinafter - the Rules)... The basis for making an entry will be the order for admission. p. 3.1 of Appendix No. 1 to the Resolution of the Ministry of Labor dated 10.10.2003 No. 69; Clause 10 of the Rules... And if the order for some reason is not issued, then the entry can be made on the basis of the decision of the owners on the election of the director (minutes of the general meeting of participants (shareholders) or the board of directors, the decision of the sole participant) Rostrud letter of 22.09.2010 No. 2894-6-1.
(1) This entry must exactly correspond to the text of the order or protocol (decision), for example: "Adopted to the position of director", "Elected to the position of director", etc. p. 10 of the Rules, approved. Government Decree of 16.04.2003 No. 225 (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 over accounting on himself by issuing an order sub. "G" clause 2 of Art. 6 of the Law of 21.11.96 No. 129-FZ.
Limited Liability Company "Aquarelle"
ORDER No. 14k
Moscow city
Due to the absence of the position of chief accountant in the staffing table of Aquarelle LLC, from 22.08.2012, I assume the responsibility for maintaining accounting records and drawing up financial statements.
In this case, enter the position of the chief accountant in staffing table not necessary Rostrud letter dated 28.12.2006 No. 2263-6-1.
STEP 8. Registration of a personal card T-2.
As with all other employees, the director needs to have a personal card in the form of number 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-register the sample signature card at your bank. And also - inform the registering IFTS about the new director. For this new director within 3 days from the date of his appointment must submit an application in the form No. P14001 sub. "L" clause 1, clause 5 of Art. 5, p. 2, Art. 17 of the Law of 08.08.2001 No. 129-FZ... If this deadline is not met, then the organization will face a fine of 5 thousand rubles. h. 3 tbsp. 14.25 Administrative Code of the Russian Federation But there is no need to inform the funds about the change of director - the Federal Tax Service Inspectorate will do it for you.
Dismissal
STEP 1. The decision by the owners to dismiss the director.
If a director is dismissed due to the expiration of his employment contract or of his own free will, then the participants (shareholders, the board of directors) do not need to make a separate decision to terminate the director's powers. In other cases, it will be needed.
You can find out what to do when the director's terms of office have expired, but he continues to work:The director can be dismissed on the same grounds as other employees and Art. 77 of the Labor Code of the Russian Federation... But the Labor Code also provides for special grounds for it. For example, a director can be fired if:
- the general meeting (board of directors) makes a decision to terminate the employment contract with him clause 2 of Art. 278 of the Labor Code of the Russian Federation;
- removal from office in case of bankruptcy of an organization in accordance with the legislation on insolvency and clause 1 of Art. 278 of the Labor Code of the Russian Federation;
- making an unreasonable decision that caused damage to the property of the organization and clause 9 of Art. 81 of the Labor Code of the Russian Federation;
- one-time gross violation of their labor duties clause 10 of Art. 81 of the Labor Code of the Russian Federation;
- disqualification and clause 11 of Art. 77, paragraph 8 of Art. 83 of the Labor Code of the Russian Federation.
STEP 2. Warning about the upcoming dismissal.
Read about the procedure for dismissing a disqualified director:Depending on the reason for the termination of the employment contract, the parties are subject to, in particular, the following warning periods:
- <если> the director leaves at his own request, then he must notify the owners (board of directors) about this at least 1 month in advance Art. 280 of the Labor Code of the Russian Federation;
- <если> labor urgent contract, then the director must be warned about the upcoming dismissal 3 days before the end of the employment contract and Art. 79 of the Labor Code of the Russian Federation... This must be done by a person authorized by the charter or by a decision of the general meeting (for example, the chairman of the board of directors; participant (shareholder) convening the general meeting). The specialists of Rostrud think the same way.
FROM AUTHORIZED SOURCES
Deputy Head Federal Service for labor and employment
“The employee must be warned in writing about the termination of an employment contract due to the expiration of its validity period at least 3 calendar days before dismissal. This provision does not provide for any exceptions for the heads of organizations. Thus, the manager should be warned in writing about the end of the employment contract. Such an order is given, as a rule, to a representative of the owners of the organization, who was instructed to conclude an employment contract with the head. If the owner is alone, he does it on his own about ”.
Here's a sample warning.
Director of LLC "Aquarelle"
E.A. Romanov
Notice of termination of an employment contract
Dear Evgeny Alekseevich, we inform you about the upcoming dismissal on 08/21/2012 due to the expiration of the employment contract No. 1 of 08/22/2009 concluded with you.
At the same time, we would like to draw your attention to the fact that at the extraordinary general meeting of participants of Aquarelle LLC, which will take place on August 17, 2012, your candidacy will again be considered for appointment to the post of General Director of Aquarelle LLC. And if you are re-elected to this position, the employment contract with you will be extended for a new term. ... For example, if an employment contract was concluded for a period of 2 years, then a period of 4 years can be set in the agreement. Rostrud do not mind this order. Rostrud letter dated 31.10.2007 No. 4413-6... At the same time, keep in mind that if the term 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 in the exercise of his powers, the dismissed director must issue an order on his dismissal in form No. T-8 and sign in it that Art. 84.1 of the 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 (the board of directors) is enough to formalize the dismissal. We agree with this in Rostrud.
FROM AUTHORIZED SOURCES
“All issues related to the execution of the dismissal of the head are decided by the owner of the organization or a person authorized by him. The order to dismiss the manager is not issued. In the work book in column 4, the decision is indicated by the owner a ”.
Rostrud
But since, according to the law, such an order is still mandatory, then during the inspection, claims from the labor inspectorate are not excluded.
STEP 4. Making a record of dismissal in the work book.
On the day of dismissal in the director's work book, you need to general rules make a note of dismissal and Art. 84.1 of the Labor Code of the Russian Federation; nn. 10, 14 of the Rules; nn. 5.1- 5.6 of Appendix No. 1 to the Decree 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 the entry, you need to sign the person responsible for maintaining work books (this may be the director himself) and the seal of the organization. And then, against signature, to acquaint the director with the letter of dismissal and Clause 35 of the Rules.
STEP 5. Making an entry into a personal T-2 card.
Based on the order of dismissal, complete the director's personal card in form No. T-2 and ask him to sign on it. p. 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 book of accounting for the movement of work books) and pay the amounts due to him Art. 84.1 of the Labor Code of the Russian Federation; nn. 35, 41 of the Rules... Recall that the calculation of dismissal payments is drawn up by a note-calculation in the form of number T-61 Instructions approved Resolution No. 1.
He also needs to issue a certificate of the amount of salary and other payments on which they were charged insurance premiums, and other documents related to the work that the director will ask for. Art. 84.1 of the Labor Code of the Russian Federation; sub. 3 p. 2 art. 4.1 of the Law of December 29, 2006 No. 255-FZ.
WARNING THE LEADER
The director is also an employee. Therefore, so that there are no problems either with the tax, or with the FSS, or with the labor inspectorate, it is necessary to draw up as many personnel papers for it as for any other employee.
Do not ignore the obligations established by the Labor Code to document the employment relationship with the director, even if he sole participant(shareholder) of the company. Draw up an employment contract, orders according to unified forms and other necessary papers. So there will be fewer claims against you from labor inspectors, and from the FSS, and from the tax authorities. Indeed, in the absence of mandatory personnel documentation, labor inspectors can fine the company for violating labor legislation e h. 1 tbsp. 5.27 of the Code of Administrative Offenses of the Russian Federation, FSS authorities - to refuse benefits. And the tax authorities may try to exclude charges in favor of the director from the "profitable" labor costs and clause 1 of Art. 252,
It can be one of the founders, or the only founder, he will be an employee of the enterprise. Therefore, when registering an employment relationship with him, all the required documents must be drawn up, as well as when terminating an employment relationship.
CEO - is primarily an employee
Since he is one of the employees of the company, he can quit on the same grounds as all other employees. But at the same time, due to the specificity of his position, there are a number of reasons for the termination of labor relations, established specifically for the heads of enterprises.
General grounds - on a general basis, an employment contract is terminated both at the initiative of the employer and at the initiative of the employee. Reasons for termination initiated by the employer:
- one-time gross violation;
- repeated and job description in the presence of previously imposed penalties;
- loss of trust;
- expiration, etc.
The expiration of an employment contract is the most common ground, since, as a rule, a fixed-term employment contract is drawn up with the general director. At the same time, no one can prohibit the general director from submitting a letter of resignation of his own free will, like all other employees.
In this case, there is only one difference. If an ordinary employee is obliged to notify the employer of the upcoming dismissal at least 14 days in advance, then in the case of the general director, this period is increased to 1 month.
That is, a person in the position of general director has the right to submit an application for dismissal to the general meeting of founders and, after this period, terminate his labor activity, regardless of whether there was a meeting of shareholders during this period.
As with the dismissal of an ordinary employee, in the case of the general director, the employer (general meeting or one authorized person) can, in agreement with the employee, shorten the warning period, even dismiss on the same day.
In the case when the general director is the only founder of the LLC, the submission of an application turns into a formality necessary to comply with the requirements of labor legislation when registering employees.
It is also possible to terminate the employment contract between the general director and the owners of the organization by agreement of the parties.
Special grounds
Employment record of dismissal
An expert lawyer's opinion:
The decision to dismiss or hire the head of the enterprise is always made by the owner. The article describes the entire procedure for dismissing a manager. It is correctly stated that the owner can exercise his powers alone if he is the only participant (shareholder). Or maybe through the governing bodies authorized by the charter.
For example, general meeting, board of directors, or board. But in any case, an order must be issued signed by the dismissed director. In it, instead of the usual wording, the decision of the owner (meeting, board of directors or board) can be announced. This decision is attached to the order. This will comply with business and labor laws.
Our lawyers are ready to help you in difficult cases. Please refer to the specified contact information.
But the video material will acquaint you with the specifics of hiring a CEO: https://www.youtube.com/watch?v=vTzaWOrwv0Q
Dismissal of a CEO is a complex procedure that differs significantly from the classic termination of cooperation with an employee.
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The fact is that the CEO is the only one executive body OOO. For this reason, it is important to understand in advance the specifics of the procedure.
Foundations
You can only fire a CEO if you have good reason. Their list is clearly indicated in the current legislation of the Russian Federation.
The reasons for the termination of interaction with the person in this position may be:
- General grounds for dismissal, enshrined in Articles 77, 81 and 83 of the Labor Code of the Russian Federation. So, the general director can leave his post or stop carrying out activities in connection with the end of the term of cooperation.
- Special bases. The CEO may be asked to leave the position if his decision resulted in a violation of labor obligations or the provisions of applicable law. A similar procedure can be performed in the event that the owner of the property of a particular organization changes.
- Additional grounds. The general director can be removed from office if he declared bankruptcy.
There are other grounds on which the CEO can be fired. A similar action is performed if the person in office has committed a crime or other illegal actions.
What does the law say?
Before proceeding with the procedure for dismissing the general director, you should familiarize yourself with the current legislation of the Russian Federation. The features of the manipulation are regulated.
It should be remembered that it is necessary to focus on the provisions enshrined in regulatory legal act edited by ФЗ №197.
The section of the Labor Code of the Russian Federation contains the following rules:
- the person holding the position of CEO may unilaterally terminate contract of employment by notifying the employer 14 days before the planned termination date labor activity unless otherwise provided in the contract;
- the employment contract can be terminated earlier than the specified period, but only with the consent of the employer;
- if the general director cannot fulfill the duties assigned to him in connection with the state of health, the termination of cooperation is carried out in one day;
- before the date of termination of employment, the general director may withdraw the letter of resignation, regardless of the opinion of the founders of the LLC;
- when the term of work ends, the general director has the right to stop working even if the employer did not properly carry out the dismissal procedure.
Dismissing a CEO is different from the classic procedure. Thus, the notice period can be increased from 2 to 4 weeks. In fact, the CEO is obliged to notify himself.
However, the dismissal procedure must be carried out in compliance with all formalities.
Dismissal of the CEO
The procedure for dismissing the general director depends on the reasons for the termination of cooperation. Depending on the reasons that led to this, the features of the manipulation may vary.
By agreement of the parties
If the CEO is dismissed, the participants in the procedure will have to go through the following steps:
- The employee submits an application, drawn up in accordance with the established template, to the founders or other persons authorized to terminate the employment contract.
- A meeting of founders is held, at which a decision is made on the dismissal of the general director and the main points of the agreement are discussed.
- An agreement is being drawn up. The employee must read the paper and sign it.
- A corresponding order is issued.
- An entry is made in the work book of the general director with reference to the current legislation.
- Notified tax authority... The action is carried out within three days.
- A work book is handed over.
- Provided.
Wage for the month worked and must be provided on the day of termination of the employment agreement.
Of your own free will
If an employee leaves the company of his own free will, the dismissal procedure is almost identical to termination of cooperation on the basis of an agreement.
However, the document itself is not compiled. Instead, the minutes of the meeting are drawn up, in which the decisions made by the founders are recorded.
If is the only founder
If the General Director is the sole founder of the Company, the dismissal procedure takes place according to a simplified scheme.
According to article 273 of the Labor Code of the Russian Federation, the sole founder has the right to relieve himself of his post at any time.
In this situation, the CEO independently decides on his dismissal. An employee's work book is recorded on voluntary dismissal, indicating the relevant provisions of the current legislation of the Russian Federation.
Upon liquidation of an LLC
If an LLC is liquidated, the resignation from the CEO is part of the mandatory measures. The law does not allow the old leader to retain managerial functions.
Responsibility for the implementation of the norm lies with:
- general meeting;
- investors;
- a trustee appointed by the court or selected on a competitive basis.
They are the ones who make the decision to dismiss the general director and take other measures to remove powers from the former managing staff of the LLC.
By the decision of the founder
The founders of the LLC can also decide on the dismissal of the general director. The verdict on the termination of cooperation is adopted at the general meeting. It is drawn up in a protocol, in which all the features of the event are recorded.
If violations are committed during the dismissal process, the founders will be held administratively liable.
Procedure
The dismissal of the CEO in 2019 must be carried out in strict accordance with.
Sample application
To be recognized as valid, it must be drawn up in accordance with existing rules.
The following information must be reflected in the paper:
- the addressee to whom the application is sent;
- position and full name of the employee who made the application;
- a request for dismissal indicating the date of termination of cooperation;
- date of submission of the document;
- applicant's signature with a transcript.
If the general director finds it difficult to draw up a document on his own, he can use a ready-made sample.
Order
When the decision to dismiss the CEO is made, it is formalized. The paper is drawn up on a letterhead unified form T-8. The order is issued by the CEO himself.
The procedure is carried out on the last working day of the employee. The text of the order indicates the grounds for dismissal with references to the relevant regulatory legal acts.
Employment record
Contributed by the founder of the organization. The document specifies the reasons for dismissal with reference to the relevant regulations.
The procedure for terminating an employment contract with the head of the enterprise has a number of features. However, the execution of the order of dismissal in the form of T-8 remains unchanged. In the article, we offer several samples of filling out the T-8 form upon dismissal of the director of an organization on various grounds - of his own free will, for violations.
The head is appointed to this position after such a decision is made at the general meeting of the founders of the company. The director can also be dismissed after such a decision has been made by the LLC participants. The result of the meeting is the Protocol, which contains the decision to terminate the employment contract with the person performing the functions of the manager. If the organization has one participant, then the decision of the sole founder is drawn up.
The dismissal of the director can be caused by the initiative of the employee himself, when he writes 1 month before the expected end of employment. 1 month is the working period set for managers.
Also, the director can be dismissed under the article of the Labor Code of the Russian Federation for various kinds of violations, for example, for exceeding powers, gross violation of duties, actions that entailed significant damage to the organization, in case of bankruptcy of an LLC or its liquidation. In addition, the reason may be the expiration of a fixed-term employment contract. The last reason applies when a director has been hired for a limited period.
How to fill out an order to dismiss the director of an LLC
For registration, a standard T-8 form is taken. Filling out the order is standard, however, it is necessary to correctly fill in the fields to indicate the basis of the Labor Code of the Russian Federation and list the details of all documents of the grounds, the list of which depends on the reason for dismissal.
In the header of the order form T-8, the details of the LLC and the employee being dismissed are filled in. In the upper part, the number and date of the employment contract to be terminated is put down. Slightly lower is the number of the last working day of the manager.
The order line for indicating the grounds for dismissal can be completed as follows:
- termination on the initiative of the employer, clause 3, part 1. Article 77 (when the director writes a statement of his own free will);
- one-time gross violation by the director of labor duties of clause 10 of article 81;
- unreasonable decision of the head, which caused damage to clause 9 of article 81, etc.
The next line of the order contains information about all documents related to the dismissal of the director and the indicated grounds for labor code... For example, upon termination of the contract under clause 3 of part 1 of article 77, the details of the statement of the head about his own desire to quit are given. If this is a gross violation of duties, then reports, explanatory notes, acts that fixed the fact of violation.
Order T-8 is signed by the director himself. Since the leading person is financially responsible, it is necessary to take an inventory of the property upon his dismissal. The revealed damage due to the fault of the dismissed must be compensated in full.
Sample orders
A sample order for the dismissal of the director of an LLC of his own free will -.
A sample of filling out an order to dismiss a manager for violations -.
