Due to the wide range of duties and powers of a manager, the procedure for his dismissal will differ significantly from the dismissal of an ordinary employee and require special care in compliance with the law. If there are possible errors, it may turn out to be illegal.
The specifics of the dismissal procedure are described in the Labor Code of the Russian Federation and additional Federal laws. They indicate all possible grounds, terms, as well as the required guarantees and compensation for termination of the employment contract.
Upon dismissal of the general director, it is necessary to convene an extraordinary meeting of the company's participants with the appropriate agenda. Federal Law No. 14-FZ specifies the procedure for organizing such a meeting. You also need to issue an order, which the manager must be familiar with. The tax authority and some other organizations must be notified of the dismissal of the head of the company. In particular, this is stated in Art. 5 and 9 Federal Law No. 129.
Often, additional conditions for terminating the employment relationship are specified in the company’s internal documentation, as well as in the employment contract.
What are the grounds for early termination of an employment contract with a director?
The owners of a business company can, on their own initiative, dismiss the head of the company on the basis of:
1. The provisions of Art. 81 Labor Code of the Russian Federation.
Namely, as a result of the director making decisions that caused harm to the health of the organization’s employees or damage to the company’s property. In addition, dismissal under Art. 81 is possible if the director fails to fulfill his duties properly.
2. Provisions of Art. 278 of the Labor Code of the Russian Federation (taking into account the position of the Armed Forces of the Russian Federation).
Namely, based on the decision of the owners, regardless of the reasons that influenced its adoption (clause 9 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated June 2, 2015 No. 21).
If a director is dismissed on the grounds given in clause 1, no compensation is expected to be paid in his favor. If the director resigns under clause 2, compensation is due, and its amount should not be less than 3 monthly salaries (unless a larger payment is provided for in the employment contract).
Another possible mechanism for dismissing a director is liquidation of the company. Let's consider its specifics in more detail.
On our forum you can get an answer to the question that arose in your mind during the preparation of various types of documents. For example, here you can exchange experience on the procedure for terminating an employment contract with the head of the organization.
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How to fire a director during liquidation of a company
The procedure for dismissing the general director by decision of the founder during the liquidation of the organization (that is, in the context of the voluntary liquidation of the company) is not fundamentally different from the procedure for dismissing any other hired employee in this situation.
The director must be notified that such dismissal is pending 2 months before the termination of the employment relationship. But the employer may offer him to terminate the employment contract before the expiration of this period.
Upon dismissal due to the liquidation of the company, the director receives all types of severance pay and compensation that are provided for by the Labor Code of the Russian Federation for employees dismissed during liquidation: severance pay, compensation for unused vacation, etc. In addition, the agreement with the director may provide for additional payments in case of various types of layoffs.
When a company is liquidated, it is possible to terminate the employment relationship with the director, even if he is on vacation, sick leave or maternity leave.
The dismissal of a director is a procedure that is implemented in the jurisdiction of not only labor legislation, but also civil law - in the part regulating corporate legal relations.
Regardless of the grounds for dismissal of a director, there are procedures regulated by labor and civil law that must be carried out. Let's look at them.
How to fire an incompetent employee (inconsistency with the position)
To begin with, let us remind you that the dismissal of an employee at the initiative of the employer must be carried out within the framework of the Labor Code of the Russian Federation.
Inconsistency with the position held is one of the most popular reasons for dismissal.
Let's repeat. An employment contract with written job responsibilities of an employee is an excellent tool that every company manager should adopt. The more thoroughly an employee’s functionality is specified, the easier it is to prove its non-compliance.
Periodic assessments carried out in the company are a way to determine how well an employee copes with the obligations assigned to him.
This aspect is regulated by the second paragraph of Article 40 of the Labor Code and allows an enterprise to part with an employee if he has not passed the certification or is unable to complete the tasks assigned to him.
An option for an easier resolution of the dispute may be to transfer an employee who cannot cope to a position that is more suitable for him, if the company has such an opportunity, and the proposed position will correspond to the level of competence and capabilities of the employee.
The procedure for terminating the powers of a director of an LLC or JSC
The dismissal of a director on the initiative of the owners of the company (unless we are talking about liquidation, which is characterized by complex procedures, in many cases with the participation of the court) involves them taking the following actions:
1. Publication of the minutes of the meeting of founders on the termination of the powers of the head of the company. This document must contain references to the provisions of the Labor Code of the Russian Federation, on the basis of which the founders dismiss the director.
If the company has 1 owner, then a decision of the sole founder is prepared.
Often, along with the protocol on the dismissal of the director, a document is drawn up on the appointment of a new person - indicating his full name and the date of assuming the position of director (or the clause on the appointment of a new director is included in the protocol).
2. Initiation of the issuance of a dismissal order (possible using the unified form No. T-8).
3. Entering information about dismissal into the manager’s personal card, familiarizing yourself with this record of the director against signature.
4. Entering information about dismissal into the director’s work book.
5. Making a decision to appoint a new head of the organization (if this decision is not made simultaneously with the preparation of the protocol on dismissal).
6. Within 3 days after the appointment of a new director, inform the Federal Tax Service about this using form P13014.
At the same time, it is necessary to inform the bank servicing the current account about the change of the person who has the right to use the digital signature, and also ask the bank to block the digital signature of the dismissed director.
7. Reception from the director of documents and property of the organization used by him (for example, keys, bank cards, digital signature carriers).
8. Carrying out settlements with the director, issuing documents to him.
Each of these procedures is characterized by a number of nuances. Let's study them.
If the director is the only founder
If the company is small, then the owner and manager of the production process are one person. The procedure for self-dismissal from a position can be carried out in one of two ways. The first is submitting a handwritten application for termination of authority. The citizen himself draws up a full package of papers and hires a new director in his place.
The second is registration of dismissal on behalf of the founder, that is, on behalf of the legal entity. In this case, after termination of the contract, a mandatory deduction of severance pay from the enterprise budget will have to be made to the personal account of the dismissed boss.
You may be interested in: How does dismissal occur during liquidation of an enterprise?
The dismissal procedure is completed by entering the relevant data into the person’s work book. In addition to information about the date of termination of the contract and the reasons for the dismissal of the director, the date of the meeting of the founders and the details of the minutes drawn up are indicated.
How to draw up a notice of dismissal (download sample)
The protocol on dismissal (or the decision of the sole founder) may contain the following information blocks:
1. Block indicating the name of the document, business entity, date and place of preparation.
2. Indicating the founders and invitees present (among whom may be, for example, the dismissed general director).
3. Indicating the issue that is on the agenda - the dismissal of the general director of the company from his position.
As we noted above, the issue of appointing a new head of the organization may also be on the agenda.
4. Indicating the persons who spoke at the meeting. For example, the owner who initiated the dismissal of the director and his partner who proposes a candidate to replace the dismissed director.
5. Block, which reflects the decision of the meeting of founders. In this case, it will consist in the dismissal of the director from his position - on the basis of such and such an article of the Labor Code of the Russian Federation, as well as in the appointment of the proposed candidate as a new director.
6. Indicating information about those who voted. If the decision is made, the majority of votes or the fact that the decision was made unanimously should be reflected here.
7. Block signed by the chairman of the meeting of founders.
It can also be supplemented by the signature of the secretary.
You can find the owners' decision to dismiss the director on our website using the link below.
How to fire a CEO: order of dismissal
Above, when considering the procedure for releasing a director of a company from a position, we reflected the need for the dismissed director to initiate the issuance of an order to actually relieve himself of his position. This is due to the requirements of Art. 84.1 Labor Code of the Russian Federation.
At the same time, an expanded interpretation of these requirements is acceptable: the specified article of the Labor Code of the Russian Federation states that the order (or instruction) must be drawn up by the employer, and this is not necessarily the head of the company. At the same time, functionally this order or instruction (and with an expanded interpretation of the term “order” - also legally) may correspond to the decision or protocol of the founders on the release of the director. Thus, it is permissible to refuse to draw up the order in question, especially if the director himself suddenly refuses to sign it.
Whether the order in question is applied or not determines the specifics of filling out the work book of the dismissed director.
Compensation
By order of the board of founders or the outgoing director upon termination of the cooperation agreement, compensation is paid .
Also, the general director or the sole executive body of a unitary or government institution has the right to apply for it (clause 2 of article 278, article 349.3 of the Labor Code, paragraph 2 of clause 1 of Resolution of the Armed Forces of the Russian Federation No. 21 of June 2, 2015). Only they can be released from office at the request of the founder.
So, everyone can be fired, including the head of the company. At the same time, in no case is a careless or purely formal approach to the procedure allowed, especially oral agreements, since this is fraught for the company with a serious suspension of business and subsequent litigation.
Dismissal of a director: entry in the work book and personal card
If the director’s order to dismiss himself has not been issued, then in his work book in the column “Name of the document on the basis of which the entry is made” you must provide a link to the minutes adopted at the meeting of the founders.
In the column “Information about hiring” you need to provide wording that corresponds to the reason for dismissal, which is reflected in the protocol (that is, there must be a link to the applicable article of the Labor Code of the Russian Federation).
An entry in the work book of a dismissed director can be made and certified by a HR specialist or another competent person of the company (it can be determined by the same minutes of the meeting of founders).
Otherwise, the work book is filled out and certified in the same way as when dismissing an ordinary employee.
You can learn more about the features of filling out work books when dismissing employees in the article “Filling out a work book when dismissing - a sample.”
Again, based on the protocol or order (if any), an entry is made in the personal card (which can be drawn up according to the unified form No. T-2). The dismissed director must also sign it.
Features of dismissal of the CEO
As described above, there are two groups of reasons for terminating a contract with a boss. The contract with the director can be terminated on a general basis, as well as due to specific conditions related to the exercise of managerial functions. In practice, it is customary to distinguish the following features of termination of a contract:
- the decision must be made by a majority of the founders;
- discussion and decision-making takes place at a general meeting and is necessarily reflected in the minutes;
- the reason for termination of the agreement must be provided for by the Labor Code or the local charter of the company.
The boss, like ordinary employees, is hired by signing a contract, so his dismissal should not contradict the provisions of this document.
Informing the Federal Tax Service and banks
As soon as internal corporate documents are drawn up, it’s time to inform third-party subjects of legal relations with the organization from which the director is leaving. Namely:
1. Federal Tax Service.
Tax authorities must be informed about this within 3 days from the moment the new director takes up his position using form P13014. Based on this document, the Federal Tax Service will make changes to the Unified State Register of Legal Entities - about the new head of the organization.
Form P13014 is generally submitted to the tax service by the founders themselves (since the new director at that time - before changes to the Unified State Register of Legal Entities - from the point of view of administrative legislation, does not have the authority to submit any documents to the Federal Tax Service). But in some cases, the Federal Tax Service agrees to accept this document from the former director (since, despite the termination of work in the company under the Labor Code of the Russian Federation, from the point of view of the Federal Tax Service, he still remains the head of the organization).
If the tax authorities are not notified in a timely manner about the change of director, the company may be fined 5,000 rubles (Clause 3, Article 14.25 of the Code of Administrative Offenses of the Russian Federation).
2. Servicing financial institution.
The bank in which the company's current account is opened must also know that the director has changed and, therefore, the person who likely has the authority to carry out payment transactions in this bank (in particular, using an electronic digital signature). In addition, when the new director starts work, he will need to prepare the documents necessary to gain access to the bank, for example, a certificate and digital signature media. You will also need to submit to the bank a card with a sample signature of the new director, new powers of attorney issued by him to persons who have access to the bank for one reason or another.
Reception of documents and property
The current director is usually entrusted with a large number of different documents on the basis of which he exercises his powers (the same powers of attorney and digital signature for transactions with a bank account). Upon completion of work in the company, he is obliged to hand over them to the new manager or other competent persons of the organization (decision of the Arbitration Court of the Sverdlovsk Region dated January 21, 2014 No. A60-34604/2013).
In relation to the property transferred by the director (the same applies to documents), it is necessary to carry out an inventory (clause 22 of the Methodological Instructions by order of the Ministry of Finance of Russia dated December 28, 2001 No. 119n).
The transfer of documents by the resigning director may be reflected in a special act.
You can learn more about drawing up the relevant act in the article “Act of acceptance and transfer of documents upon change of director.”
Issuance of documents and payment of compensation
On the last day of work of the director, he must be issued a work book, as well as pay the due compensation. For these purposes, it may be necessary to prepare other documents, for example, calculation of payments using the unified form No. T-61.
If the director cannot receive the documents in person, he must be sent a notification by registered mail about the need to appear at the company to receive them. Postal documents certifying the sending of this notice will simultaneously confirm the company’s fulfillment of this obligation during the inspection of the labor inspectorate, if by that time the documents are not in the possession of the resigned director.
It is advisable for the director to fill out a bypass sheet, but even if he does not do this, then all the documents must be given to him one way or another.
You can learn more about using a bypass sheet when dismissing an employee in the article “Bypass sheet when dismissing an employee - sample and form” .
Results
The founders can dismiss a director for various reasons. If the dismissal of the director from his position is carried out under Art. 278 of the Labor Code of the Russian Federation (in this case, the founders have the right not to explain to him the reasons for dismissal), then the director is entitled to additional compensation. The procedure for dismissing the head of an organization is under the jurisdiction of labor, civil, and in a number of legal relations - administrative legislation.
You can learn more about the specifics of how employers use certain mechanisms for dismissing managers in the following articles:
- “Dismissal of the General Director at his own request”;
- "St. 81 Labor Code of the Russian Federation: questions and answers" .
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