How does a director leave a company? Dismissal of the CEO at his own request. Legal basis for dismissal

15.11.2020

Dismissing a leader who does not want to terminate an employment relationship voluntarily is not an easy task. Any lawyer faced with such a problem will carefully prepare documents, procedures, revise legislation, consult with colleagues in the shop. Arbitrage practice Here the most different and sometimes, let's be frank, contradictory, causing many questions.

Let's look at those grounds for terminating the contract and terminating labor relations with a leader who directly sets Labor Code RF. After all, if the main labor law names them, so they must be actually applicable without negative legal consequences for the enterprise!

Dismissal by agreement of the parties

Perhaps the first thing that comes to mind for many is the dismissal of a manager who does not want to terminate the employment relationship due to own will, is to invite him to terminate the contract by agreement of the parties, indicating in the agreement any additional payment. Indeed, until recently one could say so. However, it is now risky to “persuade” the director into an agreement between the parties with “tasty” compensation: this is precisely the opinion expressed by the Supreme Court of the Russian Federation in the ruling of 10.08.2015 No. 36-KG15-5.

In a nutshell about the essence of this dispute, the plaintiff referred to the fact that she was dismissed from work by agreement of the parties, while the compensation established by the termination agreement employment contract, the defendant did not pay her. The Supreme Court of the Russian Federation refused to satisfy the claim, since, in accordance with the Labor Code Russian Federation the payment of severance pay to an employee is not due for any dismissal, but only for dismissal as specified in Art. 178 of the Labor Code of the Russian Federation grounds. The payment provided for by the agreement on termination of the employment contract by agreement of the parties is not a severance pay, is not aimed at reimbursing the employee for the costs associated with the execution of job duties, is not provided for by the employer's remuneration system and is essentially arbitrary. The court, taking into account the general legal principle of the inadmissibility of abuse of the right, concluded that there were no grounds for recovering the specified payment in favor of the plaintiff.

As you can see, this applies to any persons who are in labor relations, therefore, managers too. As a result, when proposing to the head of the organization to terminate the employment relationship by agreement of the parties, the founder must now bear in mind this position of the Supreme Court of the Russian Federation. However, in order to interest him in the terms of termination of labor relations, in our opinion, you can offer him the payment of a bonus. If compensatory payments indeed semantically come from compensation, the purpose of which is to compensate for any working conditions, then these same amounts can be provided in the form of bonuses. At the same time, it is strongly recommended that this bonus be consistent with the remuneration systems in the organization, and not be some kind of one-time, randomly paid to only one employee from the entire enterprise - the manager.

Dismissal under paragraph 9 of part 1 of Art. 81 of the Labor Code of the Russian Federation

The difficult grounds for dismissal, provided for in paragraph 9 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

According to paragraph 49 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004, the question of whether the committed violation was gross is decided by the court, taking into account the specific circumstances of each case. At the same time, the obligation to prove that such a violation actually took place and was of a gross nature lies with the employer.

A rather confident version of this dismissal, in our opinion, when, subject to the procedure, the dismissal is based on an act and an order to eliminate the identified violations, issued as a result of an audit by the supervisory and control agencies. In this case, it will be difficult for the plaintiff to talk about any bias on the part of the founder towards him, because the state itself, represented by its departments, revealed violations in its work.

D. carried out labor duties as director of the Federal State Unitary Enterprise.

In accordance with the order of the FASO of Russia in the enterprise headed by the plaintiff, unscheduled inspection use of federal property.

According to the act, based on the results of an inspection for real estate of the Federal State Unitary Enterprise (76 objects), the property right of the Russian Federation granted to the enterprise was not registered land plot registered without clarification of boundaries, the right of permanent indefinite use for the right to lease land plots, concluded with OOO "A." the joint activity agreement does not comply with the provisions of Decree of the Government of the Russian Federation of 03.12.2004 No. 739, in violation of the Federal Law of 18.07.2011 No. 223-FZ, the enterprise executed contracts for the total amount of XXX rubles.

By order, the director was dismissed under clauses 9, 10, part 1, art. 81 of the Labor Code of the Russian Federation.

The court took into account that labor legislation does not contain an exhaustive list of interpretations of the concept of gross violation, and therefore it is subject to judicial assessment when considering a labor dispute. The legal status of the head of the organization differs significantly from the status of other employees in the specifics of his work activity and role in the organization's management mechanism. The head must act in the interests of the organization in good faith and reasonably; the safety of the organization's property depends on the quality of the work of the head.

Resolving the stated claims, the court came to a reasonable conclusion that D.'s actions to conclude a joint activity agreement with LLC "A" in violation of the rules established by law, repeated facts of concluding lease agreements for the enterprise's buildings in violation of the law, as well as the lack of control over the proper use of buildings, structures and land, lack of control over the technical condition of buildings (90% - unsatisfactory condition) and the purchase of material assets bypassing the procedures established by law in the amount of XXX rubles. testify to the adoption of unreasonable decisions by the head of the organization, which entailed a violation of the safety of property, its misuse. In addition, these circumstances indicate a gross violation of labor duties.

Thus, the court concluded on the legality of D.'s dismissal from work under paragraphs 9 and 10 of Part 1 of Art. 81 of the Labor Code of the Russian Federation.

The court took into account that the order to dismiss D. from 10/20/2014 was issued on 10/16/2014, and the certificate of incapacity for work submitted by the plaintiff was issued to him on 10/20/2014. On October 20, 2014, D. did not inform the management about the fact of the disease and the possible absence from the workplace.

Based on the foregoing, the court came to the rightful conclusion that the plaintiff, on the day of termination of the employment contract on October 20, 2014, hid from the employer the fact of his temporary disability, abusing the right granted to him, which is the basis for refusing to satisfy the claim.

Plaintiff's claim deniedDetermination of the Moscow City Court dated June 30, 2015 No. 4g / 8-6044).

In addition, the court in the above ruling made another important conclusion - bringing to disciplinary liability on two grounds at once does not indicate a repeated prosecution, since the employer in the actions of the plaintiff simultaneously identified as signs disciplinary offense, responsibility for which occurs in accordance with paragraph 9 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, as well as the composition of a disciplinary offense corresponding to the provisions of paragraph 10. Part 1 of Art. 81 of the Labor Code of the Russian Federation.

Dismissal under paragraph 10, part 1 of Art. 81 of the Labor Code of the Russian Federation

The basis of paragraph 10, part 1 of Art. 81 of the Labor Code of the Russian Federation is also complex. It is necessary to prepare for it, in our opinion, even more carefully than for any other grounds for terminating labor relations with the director.

By order, labor relations with K. were terminated on the basis of clause 10, part 1, art. 81 of the Labor Code of the Russian Federation for a single gross violation the head of the branch of the organization of his labor duties, expressed in the failure to perform labor functions for the proper management of the branch, ensuring its effective sustainable operation, as well as ensuring the rule of law in the activities of health facilities in terms of subsoil use, the application of a mechanism for material incentives for employees of the branch, organizing activities in the field of construction And overhaul objects, accounting of fixed assets, tax and accounting costs for the maintenance of objects, safety, use of property and accounting of inventory items, personnel discipline, causing damage to society.

The plaintiff considered these orders unlawful due to the lack of grounds for applying measures of disciplinary liability to him, as well as the disproportionate nature of such.

The fact of committing a disciplinary offense for the misuse of special equipment is confirmed, which follows from the report on the official investigation, which predetermined the issuance of the punishment order. The fact of committing a disciplinary offense for the misuse of the property of a legal entity has been established, which follows from the conclusion based on the results of an internal investigation, which led to the prosecution of the plaintiff. The fact of committing a disciplinary offense for non-performance of labor functions for the proper management of the branch was recorded by the conclusion based on the results of the audit of financial and economic activities.

Job responsibilities of the plaintiff are regulated by the employment contract, job description the head of the medical facility, according to which the latter undertakes to organize the fulfillment of production tasks, ensure the maximum use of production capacities, efficient and correct operation of equipment, manage all types of current economic and financial activities of the branch, ensuring its efficient and stable operation, ensure the organization, proper condition and reliability of accounting , reporting on economic and production activities branch, timely submission of the annual report and other reporting, ensure the legality of the activities of the branch, take care of the safety of equipment and other property of the Company. The plaintiff is also empowered to manage and coordinate the activities of health facility workers, organize their interaction and interchangeability, rational distribution of responsibilities, bookkeeping and storage of accounting documents, ensure the safety of property and the legality of its use in the manner determined by the Company and the law, take measures to prevention of damage to the Company, direct management of groups on organization, labor rationing and economic analysis, personnel and labor relations, property protection and control room.

Meanwhile, as can be seen from the case, the plaintiff, authorized to implement the above measures, did not properly organize the work in the named areas of activity of the medical institution.

In this regard, the court concluded that the defendant had grounds for applying disciplinary measures to K. (andappeal ruling of the court of Yamalo-Nenets autonomous region June 25, 2015 in case No. 33-1548/2015).

In this example, the employer was also helped by the act of verification and internal investigations, which predetermined the order to impose a disciplinary sanction, which did not testify to discrimination of the rights of the director.

Dismissals under Art. 278 of the Labor Code of the Russian Federation

This basis is actively developing a practice that, on the whole, is in favor of the founder: it is enough for him to make a decision to terminate the employment relationship with the director and, without indicating reasons, terminate the employment contract. It does not apply to disciplinary dismissals, it is not a measure of punishment. This basis maintains a balance of interests of the parties - the founder has the right to decide who will manage his enterprise. The employee is compensated for such a “surprise” cash payments compensatory nature, provided for by Art. 279 of the Labor Code of the Russian Federation.

The director asks to reinstate him at work, as he believes that his dismissal under Art. 278 of the Labor Code of the Russian Federation illegally: the founders made a decision about this during his temporary disability.

The court pointed out that, in accordance with Part 6 of Article 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee at the initiative of the employer (except in the event of liquidation of an organization or termination of activity by an individual entrepreneur) during his temporary disability and during his vacation. By its legal nature, termination of an employment contract under paragraph 2 of Article 278 of the Labor Code of the Russian Federation is among the grounds for termination of an employment contract at the initiative of the employer.

By virtue of the provisions of Article 84.1 of the Labor Code of the Russian Federation, the termination of an employment contract is formalized by an order (instruction) of the employer. Thus, the temporary disability of the plaintiff, as the head of the company, could affect the possibility of issuing an appropriate order formalizing the termination of the employment contract, but not the adoption by the authorized body of a decision on its early termination.

Meanwhile, as established by the court and not disputed by the parties in the case, the corresponding order in respect of the plaintiff has not been issued to date. Thus, the termination of employment with the plaintiff is not formalized.

Under these circumstances, the court of first instance had no grounds to satisfy the claim for reinstatement and the recovery of earnings for the time of forced absenteeism and compensation for non-pecuniary damage (andappeal ruling of the St. Petersburg City Court dated March 12, 2015 No. 33-3901/2015).

In other words, the court reasonably divorces the concepts of terminating an employment contract and making a decision on its early termination.

The plaintiff - the director - did not agree with the dismissal under Art. 278 of the Labor Code of the Russian Federation, because the decision to terminate the employment contract with him early was due to circumstances that indicate discrimination and abuse of the right on the part of the employer, since any claims regarding personal, business and professional qualities the employer never showed him. He also believed that the provisions of Art. 261 of the Labor Code of the Russian Federation, since he is the father of 3 young children, the youngest of whom has not reached the age of 3 years. He is the only breadwinner in the family, his wife is not in an employment relationship.

Resolving the dispute, the court indicated that the legislator, without imposing on the owner the obligation to indicate the motives for the dismissal of the head of the organization on the grounds provided for in paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, does not consider the termination of an employment contract on this basis as a measure of legal liability, since it proceeds from the fact that the dismissal in this case is not caused by the unlawful behavior of the head. Giving the owner the right to decide on the early termination of the employment contract with the head of the organization implies providing the latter with adequate legal guarantees of protection from the negative consequences that may occur for him as a result of losing his job, from possible arbitrariness and discrimination. The court found that when the plaintiff was dismissed by the employer, the guarantee established by Art. 279 of the Labor Code of the Russian Federation, the plaintiff was paid compensation for the early termination of the employment contract in the amount of three months' average earnings.

Circumstances indicating discrimination of the plaintiff or abuse of the right when deciding on the early termination of the employment contract with the plaintiff have not been established.

The plaintiff is the father of 3 young children, the youngest of whom is 6 months old. The plaintiff's wife is in an employment relationship - she works as the chief accountant of the MUP<...>, which is confirmed by the relevant certificate submitted to the materials of the civil case by the plaintiff. Under such circumstances, the court concluded that the plaintiff's spouse is in an employment relationship and grounds for applying to the plaintiff a guarantee in the form of a ban on dismissal, provided for in Part 4 of Art. 261 of the Labor Code of the Russian Federation, not available (butappeal ruling of the Sverdlovsk Regional Court dated March 18, 2015 in case No. 33-3660/2015).

conclusions

When proposing to the head of the organization to terminate the employment relationship by agreement of the parties, the founder must now keep in mind what to establish severance pay taking into account the position of the Supreme Court of the Russian Federation, it is now still not recommended.

Temporary disability of the head of the company affects the possibility of issuing an order formalizing the termination of the employment contract under Art. 278 of the Labor Code of the Russian Federation, but not for the founder to decide on its early termination.

Bringing to disciplinary liability (including in the form of dismissal) on two grounds at once does not indicate a repeated prosecution, since the employer in the plaintiff's actions was simultaneously identified as signs of a disciplinary offense, liability for which occurs in accordance with paragraph 9 of part 1 of Art. . 81 of the Labor Code of the Russian Federation, as well as the composition of a disciplinary offense corresponding to the provisions of paragraph 10 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

A rather confident option of dismissal “without the consent of the director”, when, subject to the procedure, the dismissal is based on an act and an order to eliminate the identified violations, issued as a result of an audit by the supervisory and control agencies. In this case, it will be difficult for the plaintiff to talk about any bias on the part of the founder towards him, because the state itself, represented by its inspection departments, revealed violations in its work.

Andrey Kovalev, Associate, Kovalev & Partners Law Firm, e-mail: [email protected]

The dismissal of an ordinary employee is a common thing. Enterprises face such personnel decisions every day. But not every lawyer knows how the director of the company calculates. Here you need to consider the reason for dismissal and the main factors that contribute to this. Let's take a closer look at how this process works.

Reasons for dismissal

In order to “provoke” the dismissal of the head of the enterprise, good reasons are needed. It should be noted right away that attempts to say goodbye to a director who has benefits, for example, those associated with disability, loss of a breadwinner, etc., are completely “hopeless” in this regard. Even for a gross repeated violation, the court may refuse in favor of such an employee.

reorganization processes at the enterprise (liquidation, bankruptcy, "merger of companies", etc.);
gross violation or failure to fulfill obligations under the contract of employment;
unforeseen circumstances stipulated by the contract.

The ideal option for dismissal is the expiration of the employment contract. As a rule, in this case, the parties disagree "amicably", and the situation is not aggravated by litigation.

If the head of the enterprise falls under one of the above criteria, he may face sudden dismissal. The procedure for early termination of an employment contract with the head of the company is as follows:

All founders of the organization are invited to hold a general meeting. In this case, the "culprit" of the fees must be notified in advance of the date and place of the meeting. However, according to the current legislation of the Russian Federation, he may not be present there, if this is not provided for by the Charter of the enterprise.
At the meeting, the issue of dismissal of the head is considered. The parties express their opinion, give reasons and arguments. At the same time, all information is recorded in the minutes of the meeting, where it is mandatory to indicate:
- grounds for dismissal;
- link to the article of the law;
- a list of supporting documents necessary to resolve the issue (report, medical certificate, etc.).

A separate item addresses the issue of paying material compensation to the head. According to Art. 279 of the Labor Code of the Russian Federation, if the dismissal is not related to the inaction of the boss, he is entitled to financial assistance in the amount of at least three monthly salaries.

The document is signed by all participants of the meeting and brought to the attention of the head.

Important: the meeting of directors must be held taking into account all the formalities that depend on the form of ownership of the enterprise. So, for example, if we are talking about joint stock company, it is necessary to place an advertisement in the newspaper about the upcoming training camp 20 days before the meeting.

Own wish

If the manager wishes to leave on his own initiative, the meeting of shareholders cannot be avoided either. In this case, an application is written with a request to terminate the employment contract and a detailed explanation of the reason for the calculation. The document is submitted to the founders of the company for consideration and is put on the agenda of the general council. When calculating in work book a record is made of a personal desire to leave the workplace.

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Consequences

When the general meeting decides to dismiss the director, another problem arises - the search for a new candidate to replace him. As a rule, it is not easy to quickly find a reliable person, therefore, for the normal functioning of the company, it is necessary to assign duties to another person, for example, a deputy or assistant to a former leader. In this case, a meeting of founders is convened again, and a candidate for the position of the head of the enterprise is discussed. The decision taken is recorded in the corresponding order indicating the new official and detailed description his work responsibilities. Upon request, the document can be notarized.

A copy of the order must be sent to the following authorities:

tax inspection (together with an accompanying sheet, which describes in detail the situation with the "change of power");
banking institution with which the company cooperates;
Pension Fund.

In the activities of a company-legal entity, a key role is played by the founder, who is endowed with managerial functions and has other rights:

Control accounting reports.
To receive profit in proportion to their share in the authorized capital of the organization.
Get out of society on your own.
Dispose at your own discretion of your own share in the LLC.
Hire or fire employees, incl. And CEO.

It often happens that the founder is also a director, and in this case he can independently remove his authority. How to dismiss the director of an LLC if he is the founder:

The first option is to terminate the employment relationship at will. To do this, you need to write a letter of resignation, issue an appropriate order, put down all the entries in the work book with reference to the article on the basis of which the contract is terminated.
The second way is the adoption of a decision by the authorized body of the LLC with reference to paragraph 2 of Art. 278 of the Labor Code of the Russian Federation.

Most often, the founders choose the first method, because. in the second case, they are obliged to pay compensation to themselves, the amount of which is equal to three times the average wage.

Thus, the dismissal of the CEO - sole founder An LLC is practically no different from terminating an employment contract with an ordinary employee, but there are a few nuances that every shareholder in a company should be aware of.

For the dismissal of the director of an LLC at the initiative of the founder, there may be the following grounds:

Commitment by him of actions that entailed damage to the property or financial position of the organization.
Disclosure of secret information about the activities of the enterprise.
Employment in another organization part-time.
A single gross violation during the performance of labor duties.
Declaring the company bankrupt.
When the owners of the property of the company change.

If the termination of the employment contract occurs due to circumstances beyond the control of the director and it is not his fault, then upon dismissal he is entitled to compensation in the amount of three times the average salary, and it is not taxed (Article 217 of the Tax Code of the Russian Federation).

Legal basis for dismissal

If the founder decided to dismiss the director unreasonably, then the latter can go to court, and if the outcome of the proceedings is favorable, he can be reinstated. For this reason, when determining the grounds for dismissal, a number of points must be taken into account:

If the CEO made a decision that caused damage to the organization, this must be proved by collecting all the documents, from his order to the financial statements, which will reflect the financial condition of the enterprise. At the end of the internal audit, an act is issued, which reflects all the facts.
If you plan to fire the director for drunkenness at work, you need to draw up an act, find two witnesses and invite the offender for a medical examination. If he refuses to pass it, a corresponding entry is made in the act. All these documents can serve as evidence in further legal proceedings if the employee considers the termination of the employment contract unlawful.

If the fact of disclosure of trade secrets has been established, this is a gross violation and grounds for dismissal. To terminate the employment contract for this reason, you need to record the very fact of disclosure, and then request a written explanation from the director. If he refuses to explain his act, an act of this is drawn up in the presence of two witnesses.

In case of bankruptcy of an enterprise, the dismissal of a director is carried out in a special order:

First, a decision on insolvency is made, a liquidation commission is formed.
An interim manager is appointed, who submits a petition to the Arbitration Court for the dismissal of the general director.
If the application is satisfied, the procedure for terminating the employment contract is carried out on the general grounds for each employee.

If the owner has changed in the organization, then the following sequence must be observed during the dismissal procedure:

Documents are prepared confirming the transfer of property from one person to another.
Within 3 months from the date of occurrence of ownership, notify the dismissal of the director.
Issue a dismissal order, register it in the journal and familiarize it with the director against signature.
On the last working day, pay wages and compensation, issue a work book.

Features of the dismissal of the CEO by decision of the founder

According to the norms of the Labor Code of the Russian Federation, if there are several founders in an organization, then the decision to dismiss the director should be made at a general meeting, following which an appropriate act is drawn up. In some cases, the charter of a joint-stock company indicates the possibility of terminating an employment contract by holding a board of directors.

With regard to non-profit organizations that are legal entities and belong to the state or municipality, the decision to dismiss the general director is also entitled to be taken by the owner of the property on general, special or additional grounds. Despite this, the general meeting must still be held, because. during it, those present must vote "for" or "against" the dismissal of the head of the enterprise.

Dismissal of the director by decision of the founder: procedure

If the organization has only one founder, and he wants to dismiss the CEO, the procedure for terminating the employment contract is as follows:

The board of directors or other authorized structure makes a decision to dismiss the director, draws up an act to that effect.
On the basis of the act, a Dismissal Order is drawn up, it also indicates the reasons for the termination of the employment relationship.
The dismissed person gets acquainted with the Order against signature, and on the last working day receives a salary and other payments, takes the work book. It must indicate serial number records, date of completion, reason for dismissal with reference to an article in the Labor Code of the Russian Federation, as well as a document on the basis of which the employment contract is terminated - an order, its number and date of publication. In conclusion, the authorized person and the dismissed person put their signatures, which are sealed with the seal of the organization.
Old CEO gives written notice of his resignation tax office by submitting an application for amendments to the Unified State Register of Legal Entities. This must be done within three days, because. the new director will not have the right to sign until information about him appears in the Unified State Register of Legal Entities.

It is worth noting that a few days before the dismissal, the procedure for accepting and transferring cases should be started. Its features and procedure are usually indicated in the constituent documents of the company.

If the director decides to resign on his own, this is quite possible by agreement of the parties. For the dismissal procedure, he must perform the following steps:

Submit a written application to the founders (lyu).
Wait for the results of the meeting of the founder, at which a decision is made to dismiss and the nuances of the agreement are negotiated.
The founder draws up an agreement and acquaints the director with it against signature. If he does not agree with the conditions, a corresponding entry is made on the document.
If the head agrees with all the clauses of the agreement, then the founder issues an order to dismiss, and in the future, the procedure for terminating the employment contract is carried out in the usual manner.

All compensation upon dismissal of the director by the decision of the founder must be paid on the last day of work, and this includes not only average salary at least three times the amount, but also payments for unused vacation. It is worth noting that such a calculation is made only if the employment contract is terminated in the absence of the manager's fault. If the director was absent from the workplace on the last day of work, then the settlement with him is made on the day following the day of filing a written application.

Sometimes, even if there is a decision of the founders to dismiss the director and commit a violation, he cannot be dismissed (Article 81 of the Labor Code of the Russian Federation):

If he is on sick leave.
During the period of vacation.

The only exception is the liquidation of the organization: in this case, the director-employee must be notified of the upcoming dismissal by an appropriate notice 60 days before the start of the termination of the enterprise.

What responsibility is assigned after the dismissal of the director of the LLC?

The founder (s) of the company is only liable if the CEO was dismissed illegally and decided to appeal his dismissal through the courts. In such a situation, if there are no grounds for terminating the contract, he can be reinstated and demand compensation for legal costs and non-pecuniary damage.

The dismissed directors themselves bear not only moral, but also liability. It is not uncommon for the facts of theft of the organization's property to be revealed after the termination of labor relations with them, and in such a situation sanctions of the Criminal Code of the Russian Federation can be applied to them after investigative actions and court proceedings.

When a leader is liable:

If through his fault the profit was lost.
If through his fault the property of the company was damaged.

Administrative offenses for which not only the director, but also other employees of the enterprise may be held responsible include the following:

Sale of goods without a cash register.
Use of someone else's trademark.
Illegal currency transactions, systematic violation of the deadlines for paying taxes and fees.

The criminal liability of the former general director occurs when, after his dismissal, economic crimes or serious violations of the rights of employees of the enterprise. According to the law, he can be sentenced both to imprisonment and to the payment of huge fines: it all depends on the severity of the act committed.

What problems most often arise when terminating an employment contract with an old CEO:

He submitted his resignation a month ago, but a new director has not been found since then. In this case, the former head may apply for the creation of a general meeting of founders, at which the issue of transferring affairs will be decided and one of them will be able to assume the duties of a director.
The LLC participant did not make a decision to dismiss the director, although the term of the notification submitted by him had expired. In such a situation, the head may dismiss himself on the basis of Art. 80 of the Labor Code of the Russian Federation, stop fulfilling your official duties and independently make an entry about the termination of the contract in the work book.
It is not possible to transfer documents to the new CEO of the company. There can be many reasons for this, but the old leader has several options: leave the files on behalf of the organization for storage with a notary, transfer them to an archival institution, or store them at home, but provide the founders at the first request.

It should also be borne in mind that illegal dismissal and the absence of the necessary acts from the meeting of founders or directors are gross violations, therefore, in order to avoid problems, everything must be filled out properly and in accordance with the forms, if they are approved by legislative acts.

Knowing how to properly dismiss the CEO by decision of the founder, you can avoid not only paperwork in the organization, but also litigation, because if the rules of the procedure for terminating the employment contract are not followed former leader Within a month, he can challenge his dismissal in court.

Resigning the director of an LLC of his own free will is a task that requires strict adherence to a certain procedure, namely coordination with the founders, amendments to the documentation, and notification of authorized state bodies (when a new head is appointed). Below we will consider how this process is organized in relation to Russian legislation.

The head of the company and his powers

The General Director is the governing body of an LLC, which has the right to act on behalf of the company without issuing a power of attorney. On his "shoulders" lies the responsibility for the state of the business and compliance with the law. In addition, the CEO is responsible for the actual damage that the organization may incur in the course of its activities.

To understand how the CEO of an LLC quits, it is worthwhile to clearly understand a number of points. The main body authorized to dismiss or appoint the head of the company is the general meeting. But there are situations when participants withdraw from such decisions, which complicates the process.

The obligations and rights of the employer are carried out by the management bodies of the LLC, which is prescribed in the Labor Code of the Russian Federation (Article 20). As for the rights and obligations of the CEO, they are also fixed by law, but in Article 33 of the Federal Law No. 14. It also states that the hiring of such an employee and his release from duties is the right of the general meeting.

Here it is worth highlighting Federal Law No. 14 and its article 31, which says that dismissal of one's own free will is possible. All employees have this right, and the manager is no exception. But with this type of dismissal, many nuances must be taken into account. Violation of the law may lead to a number of problems in the future, including the appointment of a new director.

The head of an LLC can quit on his own, without the help of lawyers. It is enough to follow the recommendations that are described below.

Step #1. Notice to company founders

To start the procedure for dismissal of his own free will, the CEO must notify the general meeting of the company 30 days before leaving. It is important to notification took place taking into account the requirements of the law and the norms of the charter of the LLC. To begin with, a notification is formed about the meeting of the founders for an extraordinary meeting, after which the information is sent to the addresses specified in the register of participants. The document must indicate:

The date of the.
Place and time of the meeting.
Items on the agenda. In relation to the case under consideration, it is prescribed that the main issue is the dismissal of the head, as well as the appointment of another general director.

Simultaneously with the notification, an application is sent for the dismissal of the head at will. These papers are sent by mail with the condition of notification of receipt of correspondence. A description of the attachments in the letter is also required here. If these procedures are followed, the notification of the founders of the LLC can be considered correct. The requirement discussed above is reflected in the Federal Law No. 14, article 36, paragraph one.

The same Federal Law No. 14, but article 35 states that the director of an LLC has the right to convene a general meeting when resolving vital issues of the company. The decision to quit voluntarily can be attributed to those. Within a 30-day period, the founders must find a replacement for the old director of the company. If this fails, the director of the LLC has the right to call a meeting again to transfer cases. In practice, any of the founders can assume the functions of an interim head. All that is required for this is to decide on a suitable applicant and draw up an appropriate act.

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Step #2. Drawing up an order

At the next stage, a voluntary dismissal order is filled out, and a corresponding entry is made in the work book. If the director of the LLC sent out letters to everyone, but the founders of the company ignore the general meeting, he has the right to use the Labor Code of the Russian Federation (Article 2), as well as the Constitution of the Russian Federation (Article 37), which reflect the principles of freedom of labor.

Thus, the second article of the Labor Code of the Russian Federation states that forced labor is inadmissible. This means that the founders do not have the right to prevent the dismissal of the general director of an LLC at their own request. At the same time, the meeting of participants is required only to formalize this desire, to accept the completed application.

Given the fact that the director has the right to terminate the employment agreement at any time, the inaction of the founders can be classified as an abuse of the right. Consequently, the manager may, at the end of the 30-day period from the moment of notification, terminate his activity (resign), based on Article 80 of the Labor Code of the Russian Federation. To do this, it is enough to issue an order and put a signature on it.

Moreover, the director of an LLC has the right not only to quit at his own request, but also to independently make an entry in the work book. This possibility is spelled out in Decree of the Government of the Russian Federation under number 225 (p. 45).

Step #3. Features of the transfer of cases

There are no rules in the law that would clearly stipulate the procedure for transferring powers from a manager to another person in case of dismissal of his own free will. If the organization of this procedure is impossible for various reasons, the issue of preserving the securities of the company should be decided taking into account current circumstances. At the same time, the head of the LLC has the following rights:

Keep paper LLC.
Transfer documents to the archive, taking into account their return if there is a corresponding request from the founders.
Hand over the papers to the notary for storage on behalf of the LLC.

In turn, the notary also has a number of powers, including the certification of documents in the process of receiving them, receiving money for deposit storage, as well as accepting papers for storage. It is legally prescribed that the acceptance of documentation from the resigning director should be carried out according to the inventory. But at the request, another procedure is also possible - acceptance of papers without an inventory. This is true for the case when the documents are properly packaged, and the package itself has a notary seal or signature of the person who provided them. In such situations, the notary takes responsibility for the integrity of the packaging. The director depositing documents does so on behalf of the company. If the procedure is performed correctly, the new manager will be able to pick up the papers.

If the resigning manager has material assets in his hands, they can be deposited with a notary in the absence of a person who could accept them. In the role of the creditor, a specific LLC is indicated.

In order to provide an evidence base, the notary has the right to interrogate witnesses and examine material and written evidence, as well as give instructions on the examination. When performing these operations, the notary is guided by the provisions of the Civil Code of the Russian Federation. It also provides information to interested parties about the place and time of the collection.

From the foregoing, we can conclude that the head has the right to turn to a notary to provide evidence. This may be confirmation that he closed the safe, handed over documents or material values. Security is carried out through the involvement of witnesses, as mentioned above. In practice, employees of the LLC, who know about the director’s desire to resign of their own free will, can also be interrogated. At the same time, employees can confirm the implementation of certain actions by the manager.

The manager who started the dismissal process may ask for the following tasks - inspection of the premises, material assets or papers. Documents that are provided by a notary and confirming the fact of security, in the presence of disputes, can be presented in court or in another body where disputed issues will be resolved.

Step number 4. Notification of the Federal Tax Service on the dismissal of the CEO to make adjustments to the information from the Unified State Register of Legal Entities

Federal Law No. 129 states that in the event of a change in information about the head, a legal entity is obliged to report this to the Federal Tax Service in order to amend the Unified State Register of Legal Entities. The notification process takes place by filing an application (form P14001). The entities that have the right to submit such an application for state registration are prescribed in Federal Law No. 129.

As soon as the director of an LLC is dismissed in accordance with the requirements of the law, he loses the right to act on behalf of the company without a power of attorney. If the former head managed to quit, and the new director has not yet been appointed, a situation develops in the society when there is no one to act on behalf of the LLC. It is worth noting one more fact. Form P14001 does not provide for informing about the dismissal of the general director. There is information only about the new leader of the company. If the paper is submitted in an unapproved form, the Federal Tax Service has all the powers to refuse registration. This means that the CEO cannot make changes to the Unified State Register of Legal Entities only taking into account his dismissal. Data on the old leader will be until a new executive body appears.

But this feature of the legislation does not at all limit the right of the director to resign at his own request. He can terminate his powers and not worry about the need to make appropriate changes to the Unified State Register of Legal Entities.

Results

Above, we answered the question of whether the director of an LLC can fire himself. Based on Russian legislation, this is possible even in cases where the founders ignore the invitation and do not come to the general meeting. The main thing for the leader is to strictly follow the procedure and warn the participants about the meeting. After 30 days, he can write a statement and quit.

Ignorance or incorrect execution of the procedure for dismissing the head of an organization can lead to serious problems up to the paralysis of the enterprise. In particular, a manager who considers himself unfairly dismissed, or dismissed without following the procedure for transferring cases, may retain documents and the seal of the organization, which will lead to the impossibility of making payments, filing reports, etc.

That is why it is necessary to follow such a procedure in full compliance with the law.

Legal basis dismissal of the leader.

The head of the organization is responsible for its activities and development, which not least depend on his personal qualities. When hiring a leader, the owners of the organization, as a rule, are aware of such qualities and place certain hopes on the leader. If the hopes are not justified, the owners of the company (participants in the general meeting, shareholders, owners of the property of the institution, etc.) should be able to correct their own mistake to the maximum short term. There are other reasons for the dismissal of leaders.

Labor legislation provides for special grounds for the dismissal of the head of the organization.

Regulatory basis	More
P. 4, Art. 81 of the Labor Code of the Russian Federation - change of ownership of the organization's property	on this basis, you can dismiss the chief accountant
P.9 Art. 81 of the Labor Code of the Russian Federation - making an unreasonable decision by the head of the organization, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization	It should be noted that it is the responsibility of the employer in this case to prove such an unreasonable decision. This may be a transaction that does not comply with the requirements of the law, while the damage must be obvious. Of course, dismissal on the indicated grounds must be properly formalized: the formation of a commission, investigation of circumstances, drafting of acts, etc. The dismissal of the head on this basis is the right, not the obligation of the employer.
P.10 Art. 81 of the Labor Code of the Russian Federation - a single gross violation by the head of the organization of his labor duties	The “rudeness” of the violation in this case is rather subjective, however, dismissal on this basis is not the employer’s responsibility
Clause 1, Art. 278 of the Labor Code of the Russian Federation In connection with the removal from office of the head of the organization - the debtor in accordance with the legislation on insolvency (bankruptcy).	In accordance with Art. 69 of the Bankruptcy Law, the head is removed from office due to violation of the requirements of the bankruptcy law. To do this, the arbitration manager sends a corresponding petition to the court, which is considered by the court. If the petition is satisfied, the arbitration court shall issue a ruling on the removal of the head from office. In this case, the bodies of the legal entity, which are entrusted with the obligation to conclude an agreement with the head, terminate this agreement with the wording in the order “in connection with the dismissal of the head of the debtor organization in accordance with the legislation on insolvency (bankruptcy) (paragraph 1 of article 278 Labor Code of the Russian Federation)"
P.2 Art. 278 of the Labor Code of the Russian Federation - in connection with the adoption by the authorized body of a legal entity, or by the owner of the property of the organization, or by the authorized owner of the person (body) of the decision to terminate the employment contract. The decision to terminate the employment contract on the specified grounds in relation to the head of the unitary enterprise is taken by the body authorized by the owner of the unitary enterprise in the manner established by the Government of the Russian Federation.	In accordance with the procedure established by law, the supreme body of the organization, or the owner of the property of the institution, or another body entrusted with the function of concluding an agreement with the head, decides to terminate such an agreement. In the absence of guilty actions of the head, the head is paid compensation not less than three times the average monthly salary. The specified compensation is not subject to income tax in accordance with paragraph 3 of Art. 217 of the tax code of the Russian Federation. The Supreme Court of the Russian Federation in the Determination of November 1, 2007 N 56-В07-15 recognized the conclusion of the court of first instance that the grounds for dismissal under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation do not imply an analysis of the "guilty" of the leader's activities, and the termination of an employment contract with the head of an organization does not require an indication of the motives for making such a decision. Interpretation of the content of paragraph 2 of Art. 278 of the Labor Code of the Russian Federation in its systemic connection does not imply unrestricted arbitrary discretion of the employer in resolving the issue of dismissal of the head of the organization, and the right to terminate the employment contract with the head of the organization is not an absolute and unrestricted right of the employer. In any case, the court will check the motives for dismissal of the employee, including his references to the discriminatory nature of such motives.
P.3 Art. 278 of the Labor Code of the Russian Federation - on other grounds provided for by the employment contract	This can include almost any reason, if it is established by the Employment contract with the manager. For example, disclosure of certain information, even if it is not a trade secret; failure to achieve certain indicators; identification of personal family ties with one of the employees; part-time work in another organization, etc.

In turn, the head of the organization has the right to terminate the contract concluded with him at any time. However, in the event of dismissal of the head of his own free will, he is obliged to notify the employer of this at least a month in advance, while for an ordinary employee this period is two weeks.

Features of the dismissal of the head, depending on the organizational and legal form of the enterprise

As a general rule, the same body is in charge of the appointment and dismissal of the head of the organization. Procedurally, the issues of dismissal are resolved in the same way as the issues of concluding an employment contract.

So, in a limited liability company, as well as in a joint-stock company, the head is dismissed by the general meeting of participants (shareholders) of the company or, if provided for by the charter, by the board of directors of the company.

In a state or municipal unitary enterprise (SUE, MUP), the issues of dismissal of the head are decided by the owner of the property of such an enterprise.

In non-profit organizations, management issues are resolved based on the charters of these organizations. As a rule, the head is dismissed by the owner of the property non-profit organization. In any case, the termination of the employment contract with the manager must be preceded by a meeting of the General Meeting of Shareholders (Participants) of the economic company, or by the decision of the owner, drawn up in the appropriate protocol.

At the same time, violation of the procedure for convening and holding such a meeting may lead to the recognition of the dismissal of the head as illegal through the court.

Real life example (labor conflict)

In a certain society with a limitlimited liability, the founders of which were several legal entities and individuals, the post of General Director was held by the founder - individual, whose share in the authorized capital of the Company was slightly more than 20%.

As a result of a personal conflict between the General Director and one of the leaders of the Founder - a legal entity (with a share in the authorized capital of the Company equal to 60%), it was decided to remove the head, that is, to terminate employment relations with him. The founder-initiator of the dismissal immediately held an "extraordinary general meeting", at which he decided to dismiss the General Director from his post. After that, an appropriate order was issued, which was sent by mail to the general director. The specified Participant did not send the minutes of the meeting to other participants, as well as to the General Director.

On the one hand, a member of the Company, having 60% of the authorized capital, in any case, had the opportunity to decide on the termination of the employment contract with the General Director, since he was provided with the necessary majority of votes for this. On the other hand, during this procedure, the norms of the law were significantly violated, namely the requirements of Articles 35, 36 of the Federal Law "On Limited Liability Companies", which regulate the procedure for convening and holding an extraordinary General Meeting:

- An extraordinary general meeting of the company's participants is convened by the company's executive body (that is, in our case, the General Director) on its initiative, at the request of the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor, as well as the company's participants possessing in aggregate not less than one tenth of the total number of votes of the company's participants.

The executive body of the company is obliged, within five days from the date of receipt of the request to hold an extraordinary general meeting of the company's participants, to consider this request and make a decision to hold an extraordinary general meeting of the company's participants or to refuse to hold it.

The body or persons convening the general meeting of the company's participants are obliged not later than thirty days before its holding to notify each participant of the company about this by registered mail at the address indicated in the list of the company's participants, or in another way provided for by the charter of the company.

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

The information and materials to be provided to the company's participants in the preparation of the general meeting of the company's participants include the company's annual report, the conclusions of the audit commission (auditor) of the company and the auditor based on the results of the audit of the company's annual reports and annual balance sheets, information about the candidate (candidates) to the executive bodies of the company, the board of directors (supervisory board) of the company and the audit commission (auditors) of the company, the draft amendments and additions to the company's charter, or the draft charter of the company in a new edition, draft internal documents of the company, as well as other information (materials) provided for by the charter society.

Not later than within ten days after the minutes of the general meeting of the company's participants are drawn up, the executive body of the company or another person who maintains the said protocol must send a copy of the minutes of the general meeting of the company's participants to all the company's participants in the manner prescribed for the notification of the general meeting of the company's participants.

Thus, the specified meeting was held with a significant violation of the law:

Violated the procedure for convening a meeting,

The procedure for notifying the members of the Company and executive body,

Meeting order not followed

The requirements to send the protocol to the company's participants were not met.

In accordance with paragraph 2 of Art. 43 of the Federal Law “On LLC”, the Court has the right, taking into account all the circumstances of the case, to uphold the contested decision if the vote of the company member who filed the application could not affect the voting results, the violations committed are not significant and the decision did not cause losses to this company member.

Indeed, the voting of other participants could not affect the results in this case, however, the violations committed are significant and entail losses to the Company's participants (the replacement of the director caused an unexpected impossibility to manage the account, as a result of which the contract was not concluded or paid, which caused losses to the Company, and therefore and losses to a participant owning more than 20% of the share in the UK). Failure to notify a participant of a meeting and holding a general meeting of participants in a limited liability company in his absence is a material violation. ( Resolution of the Federal Antimonopoly Service of the Far Eastern District of May 11, 2010 N Ф03-2995 / 2010 in case N А51-15225 / 2009 rightfully satisfied the claim to invalidate the decision of the general meeting of the company's participants to conclude the transaction, indicating all the essential conditions, since the court established non-compliance with the procedure for convening the general meeting participants, which was carried out in the absence of the plaintiff with a material violation of the law.)

Thus, the judicial prospect of an appeal against such a dismissal by the CEO was more than likely.

Considering all these circumstances, General meeting members of the Company recognized the dismissal of the General Director as invalid

Approximate algorithm for the dismissal of the head.

1. Adoption of a decision by an authorized body (in a business entity, such a decision is preceded by the convening and holding of a general meeting of participants (board of directors) in accordance with the procedure established by law). By the same decision, a new head is appointed (elected), as well as a person responsible for the transfer of cases.

2. Issuance of an order to resign from the powers of the head of the organization. This happens on the last day of work.

3. Registration of the act of acceptance and transfer of cases. This happens on the last day of work of the dismissed leader, when he transfers the affairs (print, documents, reporting, if he is its custodian, etc.) to the new leader. The procedure for the transfer of cases can be established by the internal documents of the organization.

4. Calculation, making an entry in the work book.

5. Within three working days after the change of the head of the organization, it is necessary to make appropriate changes to the unified state register legal entities. Otherwise, the organization will not be able to change the bank card and, as a result, manage the account and conduct business. In addition, violation of the specified period (established by clause 5 of article 5 of Law N 129-FZ) entails administrative liability (in accordance with clause 3 of article 14.25 of the Code of Administrative Offenses of the Russian Federation, untimely submission of information about the legal entity to the body that carries out state registration of legal persons and individual entrepreneurs, in cases where such representation is provided for by law, entails a warning or the imposition of an administrative fine on officials in the amount of five thousand rubles).

6. Change of bank card

Conclusions.

The legal status of the head of the organization is unique from the point of view of law, since the head of the company is not just an employee, but also a body of a legal entity. Thus, the issues of dismissal of the head are regulated, firstly, by labor legislation, and secondly, by the relevant corporate legislation. Therefore, the procedure for dismissal of the head of the organization is complicated compared to the dismissal of another employee.

What are the main differences between this procedure?

1. In accordance with the Labor Code of the Russian Federation, in addition to the general grounds for dismissal, there are special grounds for the dismissal of a manager.

2. The dismissal of the head, in addition to the order, is based on the decision of the owner of the organization or the authorized body.

3. To make a decision on the dismissal of the head of the organization, it is necessary to carry out special procedures (General meeting of participants, meeting of the Board of Directors, members of the cooperative, etc.)

4. In case of dismissal of the head of his own free will, the notice period is at least one month.

5. After changing the head of the organization, it is necessary to make appropriate changes to the Unified State Register of Legal Entities.

Literature:

1. Federal Law No. 14-FZ of February 8, 1998 "On Limited Liability Companies"

2. Labor Code of the Russian Federation of December 30, 2001 N 197-FZ

3. Tax Code of the Russian Federation (part two) dated 05.08.2000 N 117-FZ

4. Ruling of the Supreme Court of the Russian Federation of November 1, 2007 in case No. 56-В07-15

5. Determination of the Supreme Arbitration Court of the Russian Federation dated September 30, 2010 N VAC-12731/10 in case N A51-15225/2009

6. Determination of the Supreme Arbitration Court of the Russian Federation of July 9, 2007 N 7966/07 in case N A43-11065 / 2006-1-280

7. "Code of the Russian Federation on Administrative Offenses" dated December 30, 2001 N 195-FZ

8. Federal Law No. 129-FZ of 08.08.2001 "On state registration legal entities and individual entrepreneurs"

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