The procedure and nuances of dismissing the general director at his own request

Reasons for dismissing a CEO

1. At the initiative of the employer, regardless of the actions performed by the manager. The Labor Code of the Russian Federation and the federal laws “On Joint Stock Companies” and “On Limited Liability Companies” grant the general meeting of participants (shareholders) the right to make a decision on the early termination of an employment contract with the general director at any time, without linking the dismissal to certain actions on the part of the employee. General Director The authorized body receives a similar right upon dismissal of heads of municipal and state unitary enterprises. When terminating a contract with a manager, the owner must follow the provisions of labor legislation. The employer does not have the right to dismiss the general director while he is on vacation or temporarily incapacitated.
2. When the owner of the organization’s property changes (clause 6 of Article 77 of the Labor Code of the Russian Federation). The new owner has the right to dismiss the general director within 3 months (Article 75 of the Labor Code of the Russian Federation). A change in the owner of an organization's property involves the transfer (transfer) of ownership of the company's property to another person or persons. This can happen in the process of privatization of municipal or state property, during the transfer of state enterprises to municipal ownership or vice versa. A change of shareholders (participants) cannot be considered grounds for termination of an employment contract. After all, the society in this case remains the owner of the property. It is also impossible to use the “change of ownership of property” as a basis for dismissing the general director in the event of a reorganization of a company from which a new company is spun off or merged. This rule will only apply in the process of reorganization in the form of a merger, transformation or division.
3. If the actions of the general director caused damage to the company (clause 9 of article 81 of the Labor Code of the Russian Federation). The provisions of the Labor Code allow the dismissal of the general director in the event of an unjustified decision that entailed a violation of the safety of property, its unlawful use or other damage to the organization’s property on his part. The dismissed director can appeal this decision in court. In this case, the owner must prove the guilt of the general director. If evidence is not provided, the dismissal will be invalid. In this case, the owner is obliged to reinstate the dismissed director in his position.
4. For a one-time gross violation of labor duties by the general director (clause 10 of article 81 of the Labor Code of the Russian Federation). The owner can fire the head of the company in case of gross violation of his labor duties. This basis is valid for any hired employee, but there are some differences. In the case of ordinary employees, the list of offenses that can be regarded as gross is limited. As for the dismissal of the general director, there is no such list. The court will consider cases of failure to fulfill the obligations established by the employment contract, which could lead to damage to the health of employees and material damage to the organization, to be a gross violation. If the general director goes to court, the employer must also prove the fact of non-fulfillment or gross violation of his duties.
5. In connection with the bankruptcy of the company (in this case, the general director may be removed from the position of head of the company in accordance with paragraph 1 of Article 278 of the Labor Code of the Russian Federation). The powers of the hired manager are terminated from the date of introduction of external management into the organization.
6. On the CEO’s own initiative (Article 80 of the Labor Code of the Russian Federation).
7. By agreement of the parties (Article 78 of the Labor Code of the Russian Federation).

This is also important to know:
How to correctly write a letter of resignation at your own request

On other grounds established by the employment contract. For example, in case of delay in payment of wages, failure to meet agreed upon indicators of the organization’s economic efficiency, etc.

Dismissal of the general director at his own request, sample order

An order to resign a manager at his own request is issued on behalf of the founders of the company, based on the decision. The document states:

• name of the company and its details;
• information about the person leaving;
• reason for leaving the organization;
• date of termination of the contract.

To issue an order, use the unified form of document No. T-8, approved. Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1. The order can also be issued on the company’s letterhead.

Documenting

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 the minutes of the general meeting or the decision of the sole founder.

Based on the decision made, an order to dismiss the general director is issued. 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 the unified form T-8.

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 of Federal Law No. 402.

The order states:

• title of the document and date of preparation;
• Name of the organization;
• document type;
• description of the fact, namely the personnel decision;
• name of the position of the responsible person, his signature with a transcript.

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

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

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

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

Order to dismiss the director

Thus, it should be formatted:

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

Registration scheme using the example of dismissal of the general director of an LLC at his own request

In part, this process, as with the dismissal of an ordinary employee, comes down to agreeing on the decision to dismiss, recording it properly in the administrative document, the work book of the dismissed person, as well as issuing a calculation.

But, since we are still talking not about an ordinary employee, but about the general director, the typical dismissal scheme acquires new components. Thus, the founders take part in making decisions and actually formalizing the dismissal. And their final decision requires making appropriate changes to the Unified State Register of Legal Entities. The procedure for entering information about dismissal in the work book is also somewhat different.

The final payment to the general director is made as standard on the day of dismissal. The payment includes: salary due, compensation for unused annual leave, benefits (if applicable).

Application for termination of contract

Let's consider how the director of an LLC is dismissed at his own request. Registration begins with drawing up a letter of resignation from the general director.

Unlike other employees, the director of the organization writes a statement a month before the expected date of leaving the organization. There is an indication of this in Art. 280 Labor Code of the Russian Federation. The application is addressed to the general meeting of participants of the organization or the owner of the company.

The document must contain:

• day of termination of the contract;
• date of document preparation;

Also, the director must express his desire to leave the organization in a notice, which should be given to the founders of the company.

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

According to Art. 275 of the Labor Code of the Russian Federation if, in accordance with Part 2 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract is concluded with the head of the organization; the validity period of this employment contract is determined by the constituent documents of the organization or by agreement of the parties. The consequences of the expiration of a fixed-term employment contract are provided for in Part 4 of Art. 58 and part 1 of Art. 79 of the Labor Code of the Russian Federation and apply, among other things, to labor relations between an organization and its leader, since no other special rules are established by labor legislation.

According to the established rules, the employee must be warned in writing about the termination of an employment contract due to its expiration at least three calendar days before dismissal, except in cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires. .

Since the general director is the head of the company, his responsibilities include, among other things, written notification of the termination of the employment contract with the employee due to its expiration. At the same time, legislation and judicial practice proceed from the fact that if a fixed-term employment contract is not terminated on time, the employee is not notified in advance about its expiration, then the fixed-term employment contract is transformed into an open-ended one in accordance with the provisions of Art. 58 Labor Code of the Russian Federation. This means that it will no longer be possible to dismiss an employee due to the expiration of the employment contract, and the issuance of a dismissal order will be unlawful. To prevent this from happening, the employee must be warned in time that the employment contract with him will not continue. In order to avoid conflict situations with the general director, whose powers have come to an end, the owners can send notice of the expiration of his employment contract.

Thus, the procedure formally looks approximately the same as for voluntary dismissal; the difference will only be in the wording and article of the Labor Code of the Russian Federation.

Transfer of accounting documents

When changing the manager, the organization must ensure the transfer of accounting documents. The organization can develop the procedure for their transfer independently and approve it with internal documents.

This is stated in Part 4 of Article 29 of the Law of December 6, 2011 No. 402-FZ.

Advice: During the period of transfer of affairs, you can conclude a fixed-term employment contract or a civil law contract with the former manager.

This is possible if the employment contract with him does not stipulate the obligation to transfer affairs to the newly appointed manager. A former manager can be hired as a deputy, provided that this position is vacant. In this case, enter into a fixed-term employment contract with the employee (Articles 58, 59 of the Labor Code of the Russian Federation). If there is no vacant position for a deputy manager, you can conclude a civil contract with him.

Dismissal of a director at the initiative of the owner

It must be remembered that the general director is an employee of the company, therefore his relations with the owners are regulated by labor legislation. When dismissing a director, it is important for owners to coordinate their actions with labor legislation. In addition, the general director is a person with whom relations are regulated by corporate law. And this should also be taken into account.

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

• If there is a change in the owner of the company (clause 6 of article 77 of the Labor Code of the Russian Federation). The norm does not apply to cases where the composition of participants simply changes, as well as to reorganization in the form of affiliation.
• If a transformation of society has occurred, that is, the organizational and legal form has changed (division and separation). In this case, the owners may decide that it is necessary to terminate relations with the general director without indicating the reasons for dismissal.
• If by his actions the director caused damage to the interests of society (clause 9 of article 81 of the Labor Code of the Russian Federation).
• If the director grossly violated his job duties one time (Clause 10, Article 81 of the Labor Code of the Russian Federation).

1) Dismissal of a director due to a change in the owner of the company’s property

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

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

2) Dismissal due to damage caused by the actions of an official

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

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

Upon dismissal under Art. 81 of the Labor Code of the Russian Federation, it is necessary to remember that all decisions that entail a violation of the safety of property or its unlawful use are methods of disciplinary action. Dismiss the director under clause 9, part 1, art. 81 is possible if two conditions are simultaneously met: 1. If the decision was made by the director unreasonably or outside his competence, without a proper analysis of the situation, based on incomplete data, on an emotional level. 2. If the decision should entail negative consequences in the form of violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 48 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

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

3) Dismissal of the director due to a single gross violation of labor duties

The General Director falls under the provisions of clause 10 of Art. 81 Labor Code of the Russian Federation. According to the owners, a gross violation can be any violation of duties that are named in the employment contract. For example, the director must agree on the candidacy of an acting director during his absence. If he forgot to do this, it means he grossly violated the provisions of the employment contract. A serious violation may be considered failure to submit required reports on time or failure to meet indicators that are named in the employment contract as responsibilities. It is worth noting that clause 10, part 1, art. 81 of the Labor Code of the Russian Federation applies only to managers and deputy managers.

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

Dismissal of the CEO by decision of the founder

The dismissal of a director at the initiative of the founders is a complex process, which is often accompanied by various conflict situations. You need to remember that compliance with all formalities in such cases will save you from unwanted consequences.

A founder who wishes to dismiss the director needs to convene a meeting and make a corresponding statement. The board of founders determines the legality of the requirements and makes a decision. In most cases, the director may be subject to a probationary period.

If a positive decision is received from the participants, the minutes of the Council are sent to the manager.

It must have his signature on it. Its presence indicates that the director was promptly and properly notified.

Payment of compensation to a dismissed director

The amount of monetary compensation that is supposed to be paid to a director upon dismissal depends on:

• From the conditions specified in the employment contract;
• From the circumstances under which the manager leaves the company. Naturally, if the director is clearly at fault, he will not be awarded bonuses;
• It depends on the availability of terms and conditions of additional agreements concluded between the parties during the work process.

The amount of compensation depends on:

1. From the time actually worked at the enterprise;
2. The time remaining until the end of the employment contract is taken into account;
3. Based on the amounts that he would receive if he continued to carry out his work duties;
4. Additional expenses that the manager will incur in case of early dismissal.

Compensation paid upon dismissal is not subject to personal income tax. It is equal to the average monthly salary, taken three times.

However, if the employment contract does not contain any conditions for the payment of compensation to the dismissed manager, this does not mean that the LLC is exempt from paying it. If no illegal actions were established in the director’s actions, then the employer is obliged to pay the amounts due. You should remember that a dismissed employee retains the right to go to court, and he may decide to be reinstated.

Possible problems during the dismissal process and ways to solve them

1. During the one-month period of notice of dismissal, a new candidate for the position of head of the LLC was not found.

In this case, the “old” director has the right to again convene a general meeting of participants to decide on the transfer of affairs.

The general meeting of LLC participants may instruct one of the participants to take over the affairs of the resigning director by signing a corresponding act with him.

2. The notice period for dismissal has expired, the LLC participants have been duly notified, and the corresponding decision of the general meeting of LLC participants has not been made.

In this case, the “old” director, on the basis of Art. 80 of the Labor Code of the Russian Federation may stop performing his labor duties.

He can also independently make a record of dismissal in his work book, guided by clause 45 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation No. 225 of April 16, 2003.

3. Transfer of LLC documents to the new general director is impossible for some reason.

Free legal consultation

We will answer your question in 5 minutes!

Free legal consultation We will answer your question in 5 minutes!

Call: 8 800 511-39-66

Ask a Question

In this case, depending on the specific situation, the general director may:

• submit documents to a notary for safekeeping on behalf of the organization;
• on a contractual basis, transfer documents to an archival institution for storage, providing for the possibility of return at the request of the society;
• store documents yourself.

Payments upon dismissal

As mentioned above, in case of forced dismissal (except for cases where the former manager committed gross violations), the director of the LLC is entitled to compensation in the amount of at least three times the average monthly salary.

The specified compensation can be paid:

• in full on the last working day of the General Director, together with all other payments due to him (for example, wages);
• in parts, for example, partly immediately, partly after dismissal, if such a possibility is provided for in the LLC documents.

What are the final payments?

The amount of monetary compensation is regulated depending on the circumstances that caused the dismissal:

• if the employment contract was terminated by mutual consent or at the request of the manager himself - in the amount established by the contract, but not less than three times the average monthly salary (Article 279);
• if the owner has changed - similar to the previous situation (Article 181 of the Labor Code of the Russian Federation);
• upon liquidation of an organization, severance pay is paid in the amount of average monthly earnings (Article 178 of the Labor Code of the Russian Federation) + basic payments due upon dismissal.

Transfer of cases upon dismissal of a director

The manager is responsible for the safety of property and documents related to the activities of the organization. Upon dismissal, the director must hand over the files, which in practice means transferring, according to the act, to the new manager or acting director:

• constituent and registration documents of LLC;
• minutes of general meetings and decisions of participants;
• accounting and banking documents;
• documents confirming the organization’s ownership of real estate, transport and other property;
• personnel documents;
• licenses, approvals and permits issued to the company;
• agreements with counterparties and other important documents;
• seal and stamps of the organization, keys to the safe.

Although there is no established procedure for the transfer of cases, the manager bears full financial responsibility in accordance with Article 277 of the Labor Code of the Russian Federation. Based on this, before dismissal it is also worth conducting an inventory of the organization’s property.

Such a transfer of affairs is in the interests of the former director himself, because He may be held liable for damage caused to the organization even after his dismissal. If the director refuses to transfer affairs under the act, then the owner of the organization must create a commission that conducts an inventory of affairs and property and confirms the fact that the director refused to sign. Further, if the director’s actions actually caused damage to the organization, issues of recovery of damages are resolved in court.

Violation of the dismissal procedure

By law, illegal actions upon termination of a contract must be appealed in court. The result of such a challenge will depend on the nature of the mistakes made:

1. Mistakes that lead to a person being reinstated to a position. This is possible in case of violation of the direct ban on dismissal or failure to provide compensation guaranteed to the unemployed subject.
2. Errors that prevent a citizen from being reinstated. This assumes that there is no violation of human rights to work. For example, for late return of a work book, a person will not be reinstated, but an administrative fine may be imposed on the employer.

Also, practice knows situations in which the court’s decision will depend on the individual aspects of the case.

When a director cannot be fired

Secondly, according to Art. 81 of the Labor Code, it is impossible to dismiss a director, like any other employee, during vacation or temporary disability (an exception here would be the liquidation of an organization or the termination of the activities of an individual entrepreneur). Despite all the illogicality of this rule regarding the change of management body, its failure to comply entails the illegality of dismissal (clause 50 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). This position of the Supreme Court deserves criticism, since the literal interpretation of the articles of the Labor Code does not allow dismissal to be attributed to clause 2 of Art. 278 of the Labor Code of the Russian Federation to the termination of an employment contract at the initiative of the employer, namely, these guarantees apply, and the Supreme Court allowed a broad interpretation. In practice, this creates serious problems for the owner in the event of a conflictual dismissal of a director, who only needs to have a sick leave certificate “just in case” on the date of the decision to dismiss him.

In the future, we can predict the emergence of disputes where the basis for challenging the dismissal of a manager will be based on discriminatory motives. Here, the courts will also have serious problems, but so far this kind of basis for disputes is not common in Russia.

Pros and cons of the agreement

An agreement regarding the dismissal of a person in a higher position has its advantages and disadvantages, affecting the interests of each party. The advantages include the following:

• there is an opportunity to resign at any time, as well as without additional work;
• the presence of compensation, which may be higher than, for example, when a person is reduced according to the decision of the meeting;
• When a person registers with the employment service after dismissal, an agreement between the parties will allow him to receive a higher benefit.

Also, the advantages correspond to the disadvantages . The agreement involves the following disadvantages:

• Dismissal is allowed even if a person is on vacation or sick leave;
• this option of stopping work is not controlled by trade unions;
• does not provide for compensation or guarantees, only if the employer himself determines such;
• consent to dismissal cannot be revoked or challenged in court.

Despite the presented aspects, the option under consideration is considered the most preferable in practice.

Registration of changes in the Unified State Register of Legal Entities

The further procedure is to register changes about the company in the Unified State Register of Legal Entities. Within 3 days after the decision to change the director is made, a notarized application in form P14001 must be submitted to the registration authority, as well as the minutes of the meeting with the decision to dismiss the general director and appoint a new one; in addition - an order to appoint a new director. These documents can be submitted by both the old and the newly approved director. There is no state duty.

Step-by-step instruction:

• minutes of the meeting of founders are drawn up with a decision to dismiss the former general director and appoint a new one (both issues can be reflected in one protocol);
• an order is issued to terminate the powers of the dismissed director;
• an order for the appointment of a new director is issued;
• a fresh extract from the Unified State Register of Legal Entities, originals of the Charter, TIN and OGRN certificates are taken;
• the 14th form is filled out (the signature of the new director on the last sheet is carried out exclusively in the presence of a notary);
• with a new director with the latter’s passport, the signature on the 14th form is certified by a notary;
• within three days, all specified documents are submitted to the tax office;
• within five days, the tax office receives a new extract from the Unified State Register of Legal Entities.

Upon receipt of documents on state registration of the change of director, it is advisable to prepare an order for the newly appointed director to take office.

After the changes have been registered, it is necessary to notify the bank in which the organization’s current account is opened about the change in management, and also certify samples of the signature of the new management in the card with sample signatures and the organization’s seal. If the company had digital signatures or something similar for the previous director, then they also need to be replaced.

Information is sent to the Social Insurance Fund, Compulsory Medical Insurance Fund, Pension Fund of the Russian Federation in electronic form without the participation of the applicant; visits to these authorities are not required.

In conclusion, I would also like to note that it is advisable to draw up an act of transferring the affairs of the company from the previous, dismissed director to the newly appointed one. It is advisable to indicate in the employment contract with the director regarding the payment of compensation upon dismissal by decision of the owner that this is made after the signing of the corresponding act on the transfer of affairs in the company.

What if the old one is no longer there, but the new one has not yet been appointed and the position is empty?

The functioning of an organization without leadership is almost impossible. If the constituent assembly or the owner of the property is not in a hurry with the appointment, the enterprise may face the following problems:

• untimely submission of tax reports (the signature of the manager is required) - liability under Art. 15.5 Code of Administrative Offenses of the Russian Federation;
• impossibility of concluding agreements with counterparties without a power of attorney issued by the manager;
• inability to hire or terminate contracts with employees.

The way out of this situation is to appoint an interim director before the election of a permanent director. At the same time, the VRIO is not entered into the Unified State Register of Legal Entities, and before the appointment of a permanent boss, the dismissed person is indicated in the information.

Thus, the head of an organization can be dismissed in the same way as any other employee, but taking into account certain characteristics. The decision to dismiss is made:

• general meeting of founders or shareholders;
• by the decision of the sole founder of the organization, if he himself resigns;
• decision of the owner of the enterprise property.

Like the dismissal of another employee, this procedure is accompanied by payment of compensation to the removed director.

Sources:

1. https://lawr.ru/services/trudovye-vzaimootnoshenija/uvolnenie-s-raboty/uvolnenie-generalnogo-direktora
2. https://rabotniky.com/uvolnenie-generalnogo-direktora/
3. https://pravostoriya.ru/uvolnenie-generalnogo-direktora-v-ooo-poshagovaya-instruktsiya-2017/
4. https://www.eg-online.ru/article/358823/
5. https://kontur.ru/articles/4872
6. https://kakzarabativat.ru/pravovaya-podderzhka/kak-uvolit-direktora-ooo/
7. https://www.gd.ru/articles/8159-uvolnenie-generalnogo-direktora
8. https://advocat-rostov.ru/uvolnenie-generalnogo-direktora-ooo
9. https://www.regberry.ru/registraciya-ooo/kak-uvolit-direktora-ooo
10. https://clubtk.ru/poshagovaya-instruktsiya-po-oformleniyu-uvolneniya-direktora-ooo-po-sobstvennomu-zhelaniyu
11. https://www.glavbukh.ru/bssreq/docmod/11_17135
12. https://regforum.ru/posts/445_uvolnenie_direktora_po_iniciative_sobstvennika_firmy/

Subscribe to the latest news