Is it possible for a director to go on indefinite leave at his own expense?

Is it necessary to submit a director’s application for leave without pay? The personnel officer needs a sample of such a statement. It is clear that life is unpredictable, and in addition to the next paid vacation, the head of the organization may need leave without pay. The procedure for granting such leave to ordinary employees usually does not raise questions. However, in this case we are talking about the leader. We will tell you in the article whether a director’s application for leave without pay is necessary for himself

Vacation period

The maximum duration of unpaid leave granted by agreement of the parties is not established by law. But unpaid leave cannot be indefinite. The explanation here is different. Law No. 14-FZ does not suspend the powers of the director for the period of granting him leave, since the LLC is not relieved from performing its duties during this time. Therefore, during any vacation, the director has full authority. The number of vacations and their duration is not limited (Article 128 of the Labor Code of the Russian Federation). The main thing is that the vacation cannot be indefinite; in any case, it is necessary to indicate from what date and on what date the director goes on vacation, and at the end, if necessary, go on the next vacation.

When is it illegal to leave without pay?

Many employers have found what they think is a good way out of overcoming economic difficulties: sending workers on unpaid leave. If you believe the personnel services, throughout the country the broad working masses are suddenly inflamed with the desire to rest at their own expense. The bosses, of course, meet people halfway, and in good faith, and let the workers go for a walk without money.

Bad news for simple-hearted bosses: they are being deceived; people do not want to chill for free. And forced unpaid leave can be challenged in court. Practicing lawyers are already expecting a wave of such lawsuits in the near future.

The Institute of Legislation and Comparative Law under the Russian Government held a special webinar “Regime of non-working paid days: what should an employer do?”, during which many controversial issues were clarified. The moderator of the event was the leading researcher of the department of labor and social security legislation of the institute, candidate of legal sciences Tatyana Korshunova.

One of the hot topics: in practice, employers often, in order to save on salaries, either send employees on unpaid leave or transfer them to part-time work.

“Leave without pay cannot be granted without taking into account the employee’s opinion,” emphasized Tatyana Korshunova. “It is always provided only upon a written application from the employee.”

However, many workers, in response to calls not to succumb to pressure and not write applications for unpaid leave, skeptically remark: they say, why write resignation letters right away?

“Of course, when an employer puts pressure on employees, they write statements,” says Tatyana Korshunova. — But the question arises: is it legal to provide such leaves? The employee must still write this statement voluntarily. And I can’t say how the court will look at all the circumstances if the employee subsequently makes a claim.”

Unpaid leave is provided only voluntarily

According to the expert, the court may well decide that the employee wrote the statement under pressure, and accordingly the unpaid leave will be declared illegal.

“If an employee goes to court and provides evidence that writing a statement was a forced measure, then the judge considering a particular case will have to comprehensively evaluate all the evidence,” says Tatyana Korshunova. — How to assess whether an employee’s desire to not receive wages for a month or two was voluntary if, for example, he has minor children, a non-working wife, or a mortgage. One can hardly believe that he wrote such a statement absolutely disinterestedly, wanting to help his employer stay afloat.”

How to apply

The charter of the LLC may directly indicate that issues related to the provision of leaves to the director are authorized to be resolved by the general meeting of company participants (the only participant of the company) or the board of directors (Articles 32 and 33 of Law No. 14-FZ). In this case, leave without pay can be granted to the director only if the general meeting of the company's participants (its only participant) or the board of directors makes an appropriate decision in the presence of an application from the general director for such leave submitted to the relevant body of the company. However, if the charter does not contain special provisions, the general director has the right to decide independently on the issue of granting himself leave without pay.

3.1 If the Charter provides for discussion of vacation

If the director is not a founder, then he needs to write an application addressed to the founder or the general meeting. The meeting participants make a decision on the director’s leave, select an acting director, and the decision is recorded in the minutes, which are signed by all persons present at the meeting. An order is drawn up based on the protocol.

If the director is the only founder, then there is no need to write an application; you need to issue a decision of the founder and, on the basis of it, an order to grant leave without pay.

3.2 If the Charter does not provide for discussion of vacation

An employee’s application for leave without pay is his written initiative, which can be approved or rejected by the employer. Therefore, in a situation where the general director alone decides the issue of going on vacation, there is no need to submit an application for leave. For personnel records, fill out an order.

Application example:

—

The founder of Primer LLC O.O. Olegov from director I.I. Igoreva Statement I ask you to grant me leave without pay from May 14, 2021 for 20 calendar days for personal reasons. —

Firmmaker, May 2018 (updated annually) Anastasia Chizhova (Konatova) When using the material, a link is required

Registration of leave without pay

To receive leave without pay, the employee must write an application indicating the reasons for leaving, as well as the duration. It is worth noting that vacation can be either one day (several days) or part of a working day (several hours).

Sample of filling out an application for leave without pay

If the employer does not object to providing unpaid leave, then the head of the organization endorses the employee’s application (“agreed”, “I do not object”, etc.). Next, an order is issued to submit leave according to the unified form No. T-6 (approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1)

Order form No. T-6

The order indicates the number and date, personnel number and full name of the employee, structural unit and position, as well as the period for which leave is granted.

Section “A” of the order does not need to be filled out, since data on annual paid leave is entered there.

In section “B” of the order, it is necessary to indicate “vacation without pay,” as well as the duration and calendar dates on which the vacation falls.

Next, fill out section “B”, which indicates the total number of vacation days and its calendar dates. Please note that completing section “B” is mandatory. If any section of the order is not completed, then section “B” actually copies the completed one.

After the order has been issued, it should be signed by the manager or authorized person. It is also necessary to familiarize the employee with this order against signature.

Attention

If an employee goes on vacation immediately after submitting an application, even if the manager’s “I agree” visa is stamped on it, but the order is not drawn up and signed, then such actions by the employee are regarded as a violation of labor discipline. Consequently, disciplinary measures may be applied to him.

The next document that needs to be issued after the order is the employee’s personal card. In Section VIII of the unified form No. T-2 (approved by Resolution of the State Statistics Committee of the Russian Federation of January 5, 2004 No. 1), an entry is made that leave is granted without pay, the period of work for which leave is granted, the duration and calendar dates of leave are also indicated, reference is made to the basis (number and date of the order, employee statement).

In addition, it is necessary to make notes on the working time sheet (form No. T-12 or No. T-13) depending on the reasons for granting leave.

Since leave without pay does not imply payment to the employee for the time spent on leave, a calculation note in form No. T-60, necessary for calculating wages when granting paid leave, does not need to be drawn up.

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Leave without pay: sample director's statement

Leave without pay can be issued for any period, but the exact period must be indicated in the order for granting leave (from what date to what date). If necessary, leave without pay can be extended an unlimited number of times, again for any period. To do this, you need to issue a new order for a new period of leave without pay.

Attention

Indefinite unpaid leave for the director Therefore, the absence of such a document will not be considered an error. How to write an application for leave to the head of an LLC It is another matter if the charter provides for regulation of the leave of the general director by the founders.

How to arrange a vacation at your own expense for the director

The activities of the head of the organization are regulated not only by labor, but also by civil legislation.
Question: Can the general director of an LLC, having taken a vacation (1 month), not assign his duties to another official? Can he sign documents and issue powers of attorney, taking into account the fact that he will be at his workplace during his vacation? December 14, 2010 Answer: Having considered the question, we came to the following conclusion: the General Director of an LLC is not obliged to delegate his powers to other persons while on vacation. During vacation, the director of the company retains all his powers, including the right to sign the necessary documents and issue powers of attorney. Rationale for the conclusion: The General Director is the sole executive body of the company (Art.

53, 91 Civil Code of the Russian Federation, art. 32, 40 of the Federal Law of February 8, 1998

Question: How to correctly arrange an indefinite unpaid leave for the general director? Answer: Unpaid leave cannot be indefinite. Let me explain. In accordance with Part 1 of Art. 128 of the Labor Code of the Russian Federation, for family reasons and other valid reasons, an employee, upon his written application, may be granted leave without pay, the duration of which is determined by agreement between the employee and the employer.

Thus, leave without pay is granted only for a certain period, and therefore the employee in the application for leave must indicate a specific end date for the leave, which the organization must reflect in the order. If the general director is the only founder, he has the right to decide on his vacation independently by issuing an appropriate order.

As for the signature of this order, he himself signs the order, and, in addition, puts his signature in the information line (on the one hand as an employee, on the other as an employer). It should also be noted that during the general director’s vacation, it is necessary to formalize the temporary performance of his duties.

We suggest you familiarize yourself with: How many votes of owners are decisions made at a general meeting of owners

Application from the director to the founder for leave at his own expense Such rules are established in paragraph 1 of Article 186 of the Civil Code of the Russian Federation. The principal may revoke the power of attorney at any time.

And the employee to whom it was issued has the right to refuse it at any time. Cases when a power of attorney is terminated are given in Article 188 of the Civil Code of the Russian Federation.

The question came from a company that has temporarily suspended its activities: The organization has only a director, but there is no activity temporarily; is it possible for the director to go on indefinite leave at his own expense? How to apply? General rules The norms of the Labor Code of the Russian Federation apply to the relationship between the organization and the executive body, taking into account the features provided for in Chapter 43 of the Labor Code of the Russian Federation.

For family reasons and other valid reasons, the employee, upon his written application, may be granted leave without pay, the duration of which is determined by agreement between the employee and the employer (Article 128 of the Labor Code of the Russian Federation).