Dismissal of the CEO without the consent of the founders. Features of the dismissal of the director of the organization (LLC, IP). Features of the general grounds for the dismissal of a director

as my colleagues and I indicated above - a letter of resignation at least one month (30 days) before the date of termination of the TD.

where to carry, send,

Recall that the notification can be handed over to the participants personally against receipt. Or you can send a telegram or by registered mail with acknowledgment of receipt:

participants-organizations - at the address of their location indicated in the Unified State Register of Legal Entities;
citizen participants - at the address of their place of residence, which the LLC has.

what supporting documents

if by mail - an inventory of the attachment, a receipt for sending, a notice of delivery. If in person - your 1 copy with a signature, date and full name of who received the notification.

when do I stop being a director for the tax, for banks and all the others.

Accordingly, the day of dismissal of the head, and therefore the last day of his work, can be:

<или>the date indicated by the manager in the letter of resignation, which the participants agreed to;
<или>the date on which 1 month expires, allotted to the head to warn the employer about his dismissal, Articles 14, 280 of the Labor Code of the Russian Federation. This date will be considered the day of dismissal, in particular, if the manager did not indicate the date of termination in the notice of dismissal employment contract. A month is counted from the day following the day the employer was notified of the dismissal of Article 20,,, 280 of the Labor Code of the Russian Federation; Appeal ruling of the Kirov Regional Court dated June 13, 2012 No. 33-1718. And if the monthly period expires on a day off, then the last day of work of the head will be considered the first working day after this day off. 14 of the Labor Code of the Russian Federation.
Keep in mind that in some cases, there are reduced notice periods for dismissal. For example, upon dismissal due to the inability to continue work due to enrollment in educational institution, retirement or in connection with other similar circumstances, the employment contract with the employee is terminated on the day indicated by him. 80 of the Labor Code of the Russian Federation. The fact that these provisions also apply to managers was also confirmed to us in Rostrud.

“According to Article 280 of the Labor Code of the Russian Federation, the head of the organization has the right to terminate the employment contract ahead of schedule by notifying the employer (owner of the organization’s property, his representative) in writing not later than 1 month. However, according to Art. 80 of the Labor Code of the Russian Federation in cases where the employee's application for dismissal due to own will due to the impossibility of continuing his work, the employer is obliged to terminate the employment contract within the period specified in the employee's application. Because ch. 43 of the Labor Code of the Russian Federation does not provide for specifics in terms of specifying the terms for the dismissal of managers due to the impossibility of continuing work, it seems that the provisions of Art. 80 of the Labor Code of the Russian Federation in this part also apply to the heads of organizations.

SHKLOVETS Ivan Ivanovich
Rostrud

<или>other date according to the agreement reached between the head and the participants (it should be drawn up in writing, and signed by general meeting participant authorized to do so by the meeting) Articles 80, 84.1 of the Labor Code of the Russian Federation.
If the participants at the general meeting decide to dismiss the head without his consent earlier than indicated in his statement, despite the fact that there were no guilty actions on his part, then the basis for dismissal will no longer be the head's own desire, but the decision of the general meeting

Unfortunately, it is not clear from your question: how did you give the founder a letter of resignation. But in general, the procedure for dismissing a director is as follows:

a) draws up an inventory of the documents of the organization, packs them and seals them;
b) issues an order stating that until the moment of demand by the company, the documents and the seal of the LLC will be in his custody;
c) issues an order on his dismissal (in accordance with Article 84.1 of the Labor Code of the Russian Federation);
d) makes an entry about the dismissal in his work book (in accordance with paragraph 45 of the "Rules for maintaining and storing work books, making forms work book and providing employers with them", approved by Decree of the Government of the Russian Federation of April 16, 2003 No 225);
e) hermetically seals the seal of the LLC (for example, seals it in an envelope, signs on the gluing line, asks several witnesses to sign in the same way) in order to avoid accusations of illegal use of the seal after dismissal in the future;
f) delivers the documentation and the seal of the LLC to the place of storage;
g) certify a statement by a notary, which confirms the fact of dismissal and admission to responsible storage documentation and seal of LLC;
h) notifies all LLC participants by mail of the dismissal and the place of storage of documents and seals, attaching copies of supporting documents to the letter.
Upon dismissal from an LLC that has only one member, the director may not keep documents and a seal, but send it by mail to the only member of the company. In an LLC with several participants, this option, unfortunately, is not applicable, because. which of the participants should be sent the documentation and seal, in this case the director is not entitled to decide on his own without their explicit will.
Due to the fact that the procedure for referral of cases in the absence of a new elected director is not regulated by law, I believe that keeping the company's files with the former director is quite acceptable.
The inconvenience that a director may experience after dismissal is primarily due to the fact that he will still be listed in the Unified State Register of Legal Entities as the head of the organization, and the registration authority will be able to change information about the head of the organization only if a new one is appointed. Therefore, if the founders do not appoint a new director, the resigned leader will most likely be called to tax office to give explanations about the non-delivery of reporting by the organization. You should not be afraid of this, because. subject to the above procedures, the dismissal of a director will be in strict accordance with the law. It is only necessary to provide the tax authority with convincing explanations and present documents confirming the dismissal in accordance with Article 280 of the Labor Code of the Russian Federation.
To hold accountable for failure to submit reports of the former head of the company, if the deadline for submission has come after the dismissal, the tax authority has no right.
Therefore, in order to avoid possible accusations of bad faith, it is better for the director to inform the tax authority of his dismissal in advance, without waiting for a call to give explanations. The message should be sent by mail, explaining in it the circumstances of dismissal of one's own free will (unwillingness of participants to attend meetings, etc.) and attaching copies of all documents confirming the fact of dismissal. The same messages must be sent to extra-budgetary funds in which the organization is registered.
It is also desirable to notify the registration authority, which is responsible for maintaining the Unified State Register of Legal Entities, about the dismissal. And although registration of a change in information about the organization in the Unified State Register of Legal Entities in the event of the dismissal of the director without the simultaneous appointment of a new one will be denied, the fact of filing an application for this will serve as sufficient evidence of the good faith intentions of the resigned director.

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. Judicial practice here is very 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 the head, which is directly established by the Labor Code of the Russian Federation. 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 about the dismissal of a manager who does not want to terminate the employment relationship of his own free will is to offer him to terminate the contract by agreement of the parties, indicating some additional payment in the agreement. 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 fired from work by agreement of the parties, while the compensation established by the agreement on termination of the employment contract was not paid to her by the defendant. 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 Labor Code RF 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 a compensation 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 fairly 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, an unscheduled inspection of the use of federal property was carried out in the enterprise headed by the plaintiff.

According to the act, based on the results of the check for real estate Federal State Unitary Enterprise (76 objects) the right of ownership of the Russian Federation was not registered, the land plot provided to the enterprise was registered without clarification of boundaries, the right of permanent perpetual use for the right to lease land plots concluded with LLC "A." the agreement on joint activities does not comply with the provisions of Decree of the Government of the Russian Federation of 03.12.2004 No. 739, in violation of federal law dated 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. Legal status the head of the organization differs significantly from the status of other employees by the specifics of his labor activity and role in the management mechanism of the organization. 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 the actions of D. in concluding an agreement on joint activities with LLC "A" in violation of the rules established by law, the repeated facts of concluding lease agreements for the buildings of the enterprise 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 definition made another important conclusion - bringing to disciplinary liability 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, responsibility for which occurs in accordance with paragraph 1 of Art. 9 h. 1 tbsp. 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 by the head of the branch of the organization of his labor duties, expressed in non-fulfillment labor functions on the proper management of the branch, ensuring its efficient sustainable operation, as well as on ensuring the legality in the activities of medical facilities in terms of subsoil use, the use of a mechanism for material incentives for employees of the branch, organizing activities in the field of construction and overhaul of facilities, accounting fixed assets, tax and accounting costs for the maintenance of objects, safety, use of property and accounting for 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 misuse special equipment confirmed, which follows from the official investigation report, which predetermined the issuance of the punishment order. The fact of committing a disciplinary offense for the misuse of property legal entity established, which follows from the conclusion of the internal investigation, which led to bringing the plaintiff to justice. 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 vested with the authority to manage and coordinate the activities of healthcare facility employees, organize their interaction and interchangeability, rational distribution of responsibilities, bookkeeping and storage of accounting documents, ensuring the safety of property and the legality of its use in the manner determined by the Company and the law, taking 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 the Yamalo-Nenets Autonomous District of 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 disciplinary action, 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 is generally 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” by cash payments of a compensatory nature, provided for in 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 case of liquidation of an organization or termination of activities individual entrepreneur) during the period of his temporary incapacity for work and during his stay on 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 grounds for satisfying the claim for reinstatement and recovery of earnings for the time forced absenteeism and there was no compensation for non-pecuniary damage from the court of first instance (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 the 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 the loss of 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 definition of Sverdlovsky regional court 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 should now keep in mind that it is now still not recommended to establish a severance pay, taking into account the position of the Supreme Court of the Russian Federation.

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]

How to quit the director of an LLC without the consent of the founders?

How to quit the director of an LLC without the consent of the founders? This issue often worries managers in the presence of unfriendly relations with LLC participants. Our article will discuss how to properly terminate labor relations for the director in the absence of the consent of the participants.

How can a director quit without the consent of the founders

The special status of the head of an LLC leaves an imprint on the procedure for terminating an employment contract, since his appointment to a position takes place in a special order (subparagraph 2, paragraph 2.1, article 32, subparagraph 1, paragraph 2, article 33, paragraph 1, article 40 of the law " About societies with limited liability"dated February 8, 1998 No. 14-FZ).

This norm labor law does not provide for the need to approve the termination of employment relations by the employer (society). To terminate labor relations at the initiative of the director, the will of the latter is sufficient, therefore, it is possible to quit without the consent of the founders on the grounds provided for in Art. 280 of the Labor Code of the Russian Federation.

Company notice of dismissal, sample letter of resignation

As mentioned above, in order to terminate the TD, it is enough for the director to express his will by warning the LLC. However, it should be taken into account that the LLC cannot function without the executive body, therefore, the company must elect a new director.

To this end, in addition to warning of dismissal, the current director needs to organize an extraordinary meeting of LLC participants in accordance with the rules provided for by the company's charter (clauses 1, 2, articles 35, 36 of Law No. 14-FZ).

Participants of an LLC must be notified of an extraordinary meeting at least 30 days before it is held. Due to the fact that the term for warning about a meeting begins to run from the moment each participant receives a notification, a notice of its holding should be sent (delivered) in advance, that is, taking into account the time of delivery.

The notice of the meeting shall state:

• personal data (details) of the participant;
• agenda (termination of the director's TD on his initiative, indicating the date of the proposed dismissal or without such a date);
• date, time and place (address) of the meeting.

The notice must be signed by the principal. Attached is the letter of resignation.

Sample application for the dismissal of the director of an LLC to the founders can be downloaded from the link: Sample resignation letter for CEO .

A sample notice of a general meeting of LLC participants can be downloaded from the link: Sample notice of a general meeting of shareholders of an LLC.

There are several ways to notify participants:

• on purpose;
• by mail with acknowledgment of receipt;
• by telegram;
• by e-mail (other way), but only if this method enshrined in the statute.

From what date is the director considered dismissed

By general rule the issue of electing a new / terminating the powers of the current leader is decided at the general meeting of participants. Therefore, the day of termination of the TD will be the date indicated by the director in the notice, and in the absence of an exact date, the one on which the one-month notice period for terminating the TD expires.

If for some reason the general meeting was not held on the appointed date (participants avoided holding) and (or) a new executive body was not appointed, the date of termination of the TD should be determined in the same way as described above. At the same time, the one-month notice period for dismissal should be counted from the day following the day the notice of dismissal was received (for example, the appeal ruling of the Moscow City Court dated March 14, 2016 in case No. 33-8756 / 2016).

The main requirement for the legal termination of the TD with the director without the consent of the LLC participants is the performance by the director of successive actions aimed at terminating the TD at his own request (appeal ruling of the Novosibirsk Regional Court dated 06/07/2016 in case No. 33-5719 / 2016):

• preparing an application;
• calling a meeting;
• registration of personnel and organizational documentation.

The procedure for terminating the TD with the director

In addition to filling out personnel documentation on the termination of the TD, the manager is recommended to resolve the issue of excluding information about him from the Unified State Register of Legal Entities. To this end, after the expiration of the notice of dismissal in the event of inaction of the LLC participants, the head has the right to file a lawsuit with a requirement for the participants to exclude information about him from the Unified State Register of Legal Entities (appellate ruling of the Arkhangelsk Regional Court dated June 18, 2015 No. 33-3071 / 2015).

To statement of claim applied:

• dismissal notice;
• notification of the convening of participants;
• shipping receipts;
• delivery notices (for each of the addresses);
• refusal of the registration authority to amend the Unified State Register of Legal Entities (decisions of the Arbitration Court of the Volga-Vyatka District dated June 28, 2016 No. A79-1768 / 2015 and the Arbitration Court of the Volga District dated August 08, 2016 No. F06-11561 / 2016 in case No. A55-20184 / 2015).

After the court decision comes into force, the manager must notify the bank of his dismissal, as well as transfer documents and other material assets entrusted to him to the company.

Transfers can be made in the following ways:

• send by postal package to the majority participant with a description of the attachment (appeal ruling of the Omsk Regional Court dated July 31, 2013 in case No. 33-4917 / 13);
• transfer to a notary for safekeeping;
• deposited in the company's safe deposit box (if participants have access).

In conclusion, we note that the procedure for terminating a TD with a leader without the consent of the participants is a very lengthy event. For the legitimate termination of the TD (removal of the powers of the executive body), it is necessary to follow the sequence of actions for the execution of personnel and corporate documents. An important circumstance is the observance of the terms of the notice of dismissal and the proper notification of the participants of the termination of the TD.

How to dismiss the director of an LLC - if he is the founder? In this article, we will consider the procedure and nuances of terminating labor relations of this kind, as well as examine the features of the dismissal of a leader who is the only member of the company.

Features of the procedure for termination of employment

Termination of relations with the director is carried out on the basis of the provisions of the Labor Code of the Russian Federation (hereinafter — Labor Code of the Russian Federation) and the Law “On Limited Liability Companies” dated February 8, 1998 No. 14-FZ (hereinafter — LLC law). The general procedure for carrying out this procedure (drawing up personnel orders, filling out a work book, etc.) for all employees, including directors, is established by Art. 84.1 of the Labor Code of the Russian Federation. In addition, a separate chapter is devoted to the regulation of the work of managers. 43 of the Labor Code of the Russian Federation.

IMPORTANT! The employer in relation to the director will be the company. Who will sign the contract on behalf of the company is determined depending on the distribution of powers between the bodies of the LLC to appoint a director: the chairman or a specially authorized member of the board of directors, or the chairman of the general meeting of participants, or one of them (Article 40 of the Law on LLC).

The nuances of the procedure for dismissing a director:

1. The basis for termination of employment will be the decision of the participants.
   According to Art. 33 of the Law on LLC, the general meeting resolves issues of election executive bodies and early termination of their activities. Notice of the meeting shall be sent at least 30 days in advance. At the same time, if the director expressed a desire to quit on his own initiative, the participants in the meeting cannot refuse him, because forced labor is prohibited by art. 37 of the Constitution of the Russian Federation.
2. The fact of removal of authority from the head must be notified to:
   • tax authorities (within 3 days);
   • banks where the LLC has accounts;
   • counterparties (taking into account contractual relations).

Features of the general grounds for the dismissal of a director

Consider the features of the most popular general (for any employees, Article 77 of the Labor Code of the Russian Federation) grounds for terminating relations with the director:

1. When you leave of your own accord.
   In this case, the employee must notify the employer of his intention in writing at least 1 month in advance (Article 280 of the Labor Code of the Russian Federation). The fact of termination of relations does not depend on the decision taken by the meeting of participants on the issue of dismissal (decision of the 12th Arbitration Court of Appeal dated November 12, 2014 in case No. A12-31975 / 2013).
2. Upon dismissal after the expiration of the employment contract.
   If the employer does not want to renew the contract concluded for certain period, then 3 days before its end, he must warn the 2nd party about this (Article 79 of the Labor Code of the Russian Federation). Otherwise, subject to the continuation of the performance of duties by the director, the contract automatically becomes unlimited.
3. When leaving due to a change in ownership of the property.
   It should be borne in mind that a change in the composition of participants is not a change in ownership. Thus, by the ruling of the Moscow City Court dated November 14, 2013 in case No. 11-35322/13, it was recognized illegal dismissal director of the company, which occurred after his withdrawal from the membership.

Features of special grounds for the dismissal of a director

Required to take into account the following features special (only for managers, article 278 of the Labor Code of the Russian Federation) grounds for dismissal:

1. Upon dismissal by decision of the authorized body of the company, the owner.
   Termination of relations can be initiated by the employer under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, and even without justifying the reasons. However, abuse of the right or discrimination is not allowed, otherwise the dismissal may be declared illegal (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02.06.2015 No. 21).
   The director must be paid stipulated by the treaty monetary compensation not lower than the average monthly earnings in a triple amount (Article 279 of the Labor Code of the Russian Federation).
2. Upon dismissal due to removal from office under bankruptcy law.
   According to Art. 69 of the Law "On Insolvency (Bankruptcy)" dated October 26, 2002 No. 127-FZ, the interim manager may petition the court to remove the director from office if the latter violates the norms of this act. The duties of a director are transferred to another person (for example, an employee of the debtor).

Features of the dismissal of the founding director without his consent

In the event of termination of the employment contract with the manager by his consent, by mutual agreement or by coincidence, i.e. when such a decision is made reasonably by the general meeting of participants unanimously, including the resigning person, there are no problems and the process of termination of labor relations occurs in the above described order.

If the director, who is also the founder, has a negative attitude towards his dismissal on a special basis (according to clause 2 of article 278 of the Labor Code of the Russian Federation), his dismissal may lead to litigation — not only labor, but also corporate. Moreover, it is easier for the founding director to challenge the dismissal than for the director - an employee, since the latter has the right to challenge only the fact of dismissal, and the former also has the very decision made by the general meeting regarding his dismissal (Article 43 of the law on LLC).

Challenging the decision in this case gives the director more chances of success, since the decision of the general meeting will be the fundamental document, and the execution of the dismissal will be its consequence (for example, the appeal ruling of the Moscow City Court dated March 22, 2012 in case No. 11-380).

Features of the dismissal of the director - the only participant

If the director is the only participant, then his dismissal from his position depends only on his will, except for cases of disqualification by a court decision (failure to fulfill the obligation to remove the powers of the director and exercise such powers is an administrative offense under Article 14.23 of the Code of Administrative Offenses of the RFRFR) . Most often, in such a situation, the basis for dismissal is one's own desire.

IMPORTANT! It should be borne in mind that the head - the sole participant of the society of the provisions of Ch. 43 of the Labor Code of the Russian Federation will not be distributed. Relationships with such an employee are governed by the general norms of labor legislation.

There is no unequivocal opinion on the issue of whether the execution of an employment contract with the director is legal — LLC member.

There is a position on the illegality of concluding such an agreement. It is supported by Rostrud in a letter of March 6, 2013 No. 177-6-1, the Ministry of Health and Social Development of Russia in a letter of August 18, 2009 No. 22-2-3199, the Ministry of Finance of Russia in a letter of March 15, 2016 No. 03-11-11 / 14234.

There is also an opposite point of view, stated in the letter of the FSS of Russia dated December 21, 2009 No. 02-09 / 07-2598P and judicial practice, for example, the appeal ruling of the Krasnoyarsk Regional Court dated August 20, 2014 in case No. 33-8058 / 2014, the decision of the 9th AAC dated May 26, 2010 in case No. A40-13990 / 10-154-41. Supreme Court The Russian Federation in the definition of February 28, 2014 No. 41-KG13-37 indicated that the labor law applies to the head - the only participant, if an employment contract is drawn up with him.

Consequently, the dismissal of the director - the only participant is also carried out in accordance with the general procedure for the termination of labor relations. At the same time, the special grounds established by Art. 278 of the Labor Code of the Russian Federation cannot be applied, because they are included in Ch. 43 of the Labor Code of the Russian Federation.

More information about the procedure for dismissing a director with a single founder can be found in the article "Change of director in an LLC with a single founder". A feature will be the coincidence of the director and participant in one person, but they are different subjects of legal relations.

If the director is sole member society, he dismisses himself by his own decision. It is necessary to notify the tax authorities, counterparties, banks about his dismissal. The nuances of termination of employment relations with the director depend on the grounds for his dismissal, which may be general, as for all employees, or they may be special, only for managers. All features should be taken into account and violations of the order established by law should not be allowed. Otherwise, the dismissal may be declared illegal by the court.