Basic rules for dismissing a director
Upon dismissal of the general director, an extraordinary meeting of company participants is convened with a summons to terminate the employment contract.
However, this issue can be raised among others at the scheduled regular or extraordinary meeting. You also need to issue an order to terminate the employment contract and familiarize the general director with it. The remaining technical stages in the process of dismissing a director are standard: making an entry in the work book and personal card, calculations, handing out the work book. There are several situations in which it is impossible to terminate an employment contract with the general director:
- if the manager is a pregnant woman, the exception is liquidation of the company (Part 1 of Article 261 of the Labor Code of the Russian Federation);
- if the manager belongs to the category of persons named in Part 4 of Art. 261 Labor Code of the Russian Federation;
- during a period of temporary disability or the director is on vacation, with the exception of liquidation of the organization (Part 6 of Article 81 of the Labor Code of the Russian Federation).
How can the director of an LLC resign of his own free will?
In 2021, new amendments were made to the legislation, according to which, upon termination of employment contracts, employees must be issued SZV-STAZH certificates confirming the periods of work of citizens at enterprises. If this requirement is not met, the organization may be fined up to RUB 50,000.
Termination of employment relations with the director of a limited liability company is also carried out after a meeting of the founders. Unlike the dismissal of ordinary employees, there are several nuances here:
Dismissal of a director at the initiative of the owner
Since the general director is an employee of the company, his relations with the owners are regulated by labor law. Accordingly, 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).
Dismissal of a director due to a change in property ownership
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).
Dismissal due to damage caused by the actions of an official
In paragraph 9 of 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 are recognized. But such a procedure is quite complicated, since the 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 of the Labor Code of the Russian Federation is possible if two conditions are simultaneously met:
- If the decision was made by the director unreasonably or beyond his competence, without a proper analysis of the situation, based on incomplete data, on an emotional level.
- 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 organization’s property (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? One of the employees can tell him. But often owners learn about this from consultants’ reports.
Dismissal of a director due to a single gross violation of labor duties
It happens that 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.
Algorithm for conducting an internal investigation
- An official investigation can be initiated on the basis of a report, inventory results, etc.
- An order must be issued to create a commission to conduct an investigation (it indicates the names of the commission members, their positions, purpose, date of creation, validity period, powers).
- All members of the commission must familiarize themselves with the order.
- Acts and other documents are drawn up during the investigation, and a final act is prepared based on the results of the internal investigation.
- The manager must familiarize himself with the acts.
- A written explanation is taken from the manager.
- An order is issued to apply a disciplinary sanction, which the manager must familiarize himself with.
It is important to remember that two disciplinary sanctions cannot be applied for gross violations of an employment contract. You will have to decide what disciplinary action to take.
The procedure for dismissing the director of a municipal enterprise at his own request 2021 step-by-step instructions
Your email will not be published. Unsubscribe All Replies to my comments Notify me of new comments by email. By filling out this form you agree to the site's privacy policy. Contents of the article 1 In what cases is work required 2 When can you quit without work 3 Step-by-step instructions in the year 3.
The procedure for voluntary dismissal in 2021
The employer has the right to allow the employee not to work the period established by law. However, the decision on this is made only by the company's management. In cases where a fixed-term contract is concluded with an individual for a period of two months, the employee is required to notify the company’s management at least three days in advance. When an employee is a member of the company’s management team, the employer’s notice period for dismissal is one month.
In the work book of the head of the institution, make a record of dismissal with reference to the founder’s decision (details of the protocol, order or instruction of the employer), which was the basis for dismissal (clause 5.1 of the Instructions, approved by Resolution of the Ministry of Labor of Russia dated October 10, 2021 No. 69, section 1 instructions approved by Resolution of the State Statistics Committee of Russia dated January 5, 2021 No. 1). The entry can be made by the employee responsible for maintaining work books in the institution, or by a person specially authorized by the body that made the decision to dismiss the manager. In the latter case, this person must be indicated in the decision made (for example, the protocol). Under the dismissal record, the person in charge indicates his position, signs with a transcript and certifies the record with the seal of the institution. Next, he introduces the manager’s dismissal record, and he also puts his signature in the work book.
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Answer to question: 3.1. Can we fire the director of a municipal unitary enterprise and calculate it within 1-2 months after the dismissal. And what documents confirming payment to the dismissed director of the municipal unitary enterprise must be provided, so that all payments due to him after dismissal will be paid at a later date?
Answer
At the same time, if the organization does not have the necessary amount to make a full settlement with the dismissed employee, you can pay him on the day of dismissal part of the amount due (possibly in the amount of the minimum wage), and the rest when funds arrive in the institution’s account with interest accounting in accordance with Art. 236 Labor Code of the Russian Federation. At the same time, in case of payment to an employee of part of the final settlement amount, the organization is not relieved of responsibility for violation of labor laws.
It is possible to include other conditions in it (on granting leave before dismissal, etc.), and it is also recommended to include conditions on the procedure for transferring affairs by the head to the new General Director of the Company, the procedure for transferring documents related to the activities of the Company.
On the last day of work with the employee, a full payment is made. He is entitled to pay compensation for unused vacation and the balance of wages that were not transferred. At the same time, an entry is made in the director’s work book.
Director of a municipal enterprise dismisses at his own request
It should be noted that the employer’s responsibility in this case is to prove such an unreasonable decision. This may be a transaction that does not comply with the requirements of the law, and the harm caused must be obvious. Of course, dismissal on the specified basis must be properly formalized: formation of a commission, investigation of circumstances, drawing up reports, etc.
In general, participants do not need to make a decision to fire a manager if he wants to resign himself. But they are obliged to elect a new candidate for the sole executive body of the LLC. And the resigning director must convene their extraordinary general meeting to resolve this issue
Dismissal of a manager on the basis of Art. 278 Labor Code of the Russian Federation
1. Situation No. 1: The company is introducing bankruptcy proceedings (clause 1 of Article 278 of the Labor Code of the Russian Federation)
The decision to remove the manager from office in this case is made by the arbitration court. The following may apply for the removal of the head of a debtor organization from office: a temporary manager, a meeting of creditors, an administrative manager, or persons who provided security.
Key points for this situation:
- The basis for issuing the order is the ruling of the arbitration court on the removal of the head of the organization from office.
- The last day of work is the day when the owner of the organization’s property became aware of the entry into force of the court’s ruling.
- The director is not paid severance pay (with the exception of cases where such payment is provided for in an employment contract or other local regulatory act of the organization).
2. Situation No. 2: The authorized body of the legal entity decided to terminate the contract (clause 2 of Article 278 of the Labor Code of the Russian Federation)
An employment contract with a director may be terminated by a general meeting of shareholders or the board of directors. Dismissal of the head of the organization on the basis established in clause 2, part 1, art. 278 of the Labor Code of the Russian Federation, can happen at any time and without specifying motives.
Employer's liability for non-payment of compensation upon dismissal of a director
On the director’s last day of work, the employer must make a full settlement with him, namely, pay wages for time worked, compensation for unused vacation and due compensation upon dismissal.
The employer will violate the procedure for terminating an employment contract if he does not pay the dismissed manager the required compensation and at the same time incur large losses. In this case, the employee can go to court and recover not only the amount of compensation, but also interest for each overdue payment, as well as compensation for moral damage. In addition, for non-payment or violation of payment deadlines, the employer bears administrative and criminal liability.
Dismissal at the initiative of the General Director
The manager has the right to terminate the employment contract early, but he must notify all owners of his intention to resign, in writing and no later than one month in advance (Article 280 of the Labor Code of the Russian Federation). Letters are sent to all founders, owners, shareholders according to the register, with notification of delivery. In the letters, the director asks to convene an extraordinary meeting with a summons to terminate the employment contract. The procedure for transferring affairs and property is determined in advance so that the owner does not initiate arbitration processes.
If a manager resigns at his own request, he is not paid monetary compensation in an amount not less than three times his average monthly salary.
Dismissal of the director due to the expiration of the employment contract
Since the executive body is appointed for three or five years, the powers of the director may be terminated due to the expiration of the contract. In this situation, dismissal is carried out in the general manner - the same as in the case of ordinary employees. However, the director must be warned by the employer (company owner) no later than three days before the expiration of the employment contract.
The employer sends the employee a corresponding notice, which is signed by him or an authorized person (for example, the head of the human resources department).
Next, a dismissal order is issued, a corresponding entry is made in the work book (Part 4 of Article 66 of the Labor Code of the Russian Federation) and a calculation is made.
Dismissal at your own request in 2021
As for the reasons for leaving, they must be mentioned when drawing up the document. Since only a written notice of them will become evidence if the attempt to separate peacefully and without delay is unsuccessful. Before you write a letter of resignation of your own free will, you need to focus more on the content and arguments specified in it than on the date of departure. It will be taken into account as a wish; the employer has the right to count the period of service himself, based on the fact of receipt of the document. If the employee has good reasons to quit before the expiration of the notice period, then they must be recorded in writing in the application. Learn more about how to correctly write a resignation letter of your own free will with all the nuances.
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The most reliable and convenient way to legally comply with the notice period and avoid working time is to resign at your own request during the vacation period. To do this, you need to go on vacation in advance and, after it has begun, write a statement and then send it to the company. Of course, the duration of the vacation must be longer than the required notice time (more than 14 or 30 days).
What guarantees can a director count on upon dismissal?
First of all, compensation is provided in the form of three times the average monthly earnings (Article 279 of the Labor Code of the Russian Federation). However, as noted above, there are cases when this compensation is not paid - upon dismissal as a result of bankruptcy of a legal entity, upon expiration of the contract and at the request of the employee.
Compensation must be paid if the owner of the organization’s property changes (Article 181 of the Labor Code of the Russian Federation). At the same time, simply a change of company participants does not constitute a change of property owners.
