Compensation payments upon dismissal of the director. Compensation upon dismissal of the director by decision of the founder. Regulations: Compensation upon dismissal of the CEO

It is commonly assumed that leadership positions obey different rules than the ordinary. At the same time, in terms of dismissal, the procedure is not much different, the only thing is the grounds for termination employment contract with the head of the enterprise can be more. But, as in the general case, compensation will be paid to the director upon dismissal.

Additional grounds for dismissal of the director of the company

Along with the standard reasons for dismissal of employees, there are also special grounds for dismissal of directors of enterprises:

1. The director may be dismissed from the position of the head of the debtor company due to its bankruptcy.
2. The director can be asked to vacate the place by decision of the owner of the enterprise or the authorized body without giving reasons.
3. The head may be removed from office on the grounds listed in Article 278 of the Labor Code of the Russian Federation.

As a rule, the director of the company leaves his place by personal will, by agreement with the employer, due to violations of the law or by decision of authorized bodies. The easiest way is to terminate the relationship by mutual agreement - then the matter will not come to litigation. The law in such a situation provides for only one option for canceling the dismissal - the simultaneous refusal of the employer to dismiss the director and the desire to remain in the position of the manager himself. But then there is nothing to go to court for - you can re-sign a cooperation agreement.

The company and its owner are obligated to provide the director with certain labor guarantees, including payment of compensation upon dismissal. If nothing was said in the employment contract about compensation, this does not mean that you will not have to make a payment - this is what the law says, this is an indispensable condition for the early termination of the contract with the director at the initiative of the employer.

Another feature of the dismissal of the director of the company is the need for a warning about the upcoming resignation from the position by personal will at least 30 days before the date of the actual departure from work. Longer working out than in the general case is due to the fact that it is much more difficult to find a new leader than an ordinary employee. Plus, this month the director must explain the situation to his successor or temporary replacement.

If the CEO leaves workplace on own will, he is not entitled to compensation, except in cases where its payment is provided for by the employment contract.

Dismissal of the head may be the result of disciplinary violations. You can fire a director if:

1. He at least once violated the duties that are assigned to the CEO:
   • committed a violation of labor protection;
   • illiterately took into account material values;
   • misguided statistical reporting;
   • exceeded the authority to obtain benefits.
2. He gave an order that caused the integrity of the property to be violated, the property of the company to be misused, or the company to be damaged.

Before dismissing a director and recovering funds from him on account of lost property or something else, you need to prove his guilt and the degree of guilt.

How is compensation paid to the director upon dismissal, if the contract does not contain a clause on its payment

If the conditions for the implementation of the duties of an employee, indicated in the employment contract, worsen his position, which is determined at the legislative level, such conditions are invalidated.

An employment contract is developed in such a way as to discuss and secure in advance the obligations and rights of the parties to the agreement, prescribe the position, size wages, any additional payments and allowances, as well as the procedure for terminating the contract.

Despite the importance of an employment contract, first of all, it is necessary to take care of the implementation of federal regulations, since they always take precedence over any local acts of companies. Therefore, even if the employment contract does not contain a clause on the payment of compensation to the dismissed director, it must be paid, since he loses his job against his will.

When the director of the enterprise is dismissed, an act is drawn up between him and the owner of the company (signed by the person accepting the cases), which states:

• important points related to the operation of the company;
• the current state of affairs in the company;
• material values ​​transferred by the head upon dismissal;
• the fact of transfer of certificates of ownership of real estate, primary accounting documentation, licenses, registration and constituent documents;
• a list of agreements and contracts that were signed during the work of the company under the management of the director;
• a list of powers of attorney that were issued by the company to transfer certain powers to someone, and promissory notes issued.

On the last day of work, the director must familiarize himself with the order of his dismissal, after which the documents are transferred to the accountant and the personnel department employee. On the same day, the manager will receive a work book with a record of the reasons for dismissal and the balance of the money he has earned. He will be paid a salary for the last month, compensation for the vacation to which he was entitled, did not have time to use it, severance pay in case of dismissal not of his own free will and not for disciplinary acts or violation of the law.

How much compensation is paid to the director upon dismissal

If the employment contract does not contain instructions regarding the payment of compensation to the dismissed director, the amount is determined in accordance with current legislation and is paid only when the dismissal occurred by the decision of the employer and not for guilty actions on the part of the director.

The amount of compensation to be paid on the day of dismissal of the head of the enterprise must be indicated in the employment contract. In any case, its size should not be lower than the average monthly salary of the director for the 3 months preceding the dismissal (or 6 months if the company operates in the Far North and equivalent areas).

The foregoing does not apply to managers who have lost their jobs for allowing guilty actions or who have decided to leave the enterprise on their own will. But the director can count on such a payment, but only if the employment contract provided for generous amounts of compensation.

Legislative acts on the topic

Common Mistakes

Error: The employer hired CEO. They entered into an employment contract, which did not stipulate the payment of compensation upon dismissal. When the director was dismissed by decision of the authorized body, compensation was not paid.

), by agreement of the parties to the employment contract (Article 78 of the Labor Code of the Russian Federation), at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation), etc.

Except common grounds, it is allowed to dismiss the director on special additional grounds (Article 278 of the Labor Code of the Russian Federation):

• removal from office of the head of the debtor company in accordance with bankruptcy law (clause 1 of article 278 of the Labor Code of the Russian Federation);
• the authorized person made a decision to terminate the employment contract with the director (clause 2, article 278 of the Labor Code of the Russian Federation);
• other grounds provided for by the employment contract (clause 3 of article 278 of the Labor Code of the Russian Federation). At the same time, the Labor Code does not limit the list of additional grounds for the dismissal of a director of a company.

The main thing is that they are indicated in the employment contract (additional agreement to it) and comply with current legislation.

Who can terminate the employment contract with the director

The decision to terminate the powers of the head of the company (general director) can be made (clause 2 of article 278 of the Labor Code of the Russian Federation):

• authorized body of the company, for example, the board of directors (subclause 2, clause 2.1, article 32, clause 4, clause 2, article 33, article 40 federal law dated 08.02.98 No. 14-FZ, signed. 8 p. 1 art. 48, sub. 9 p. 1 art. 65 and paragraph 3 of Art. 69
• the sole owner of the company's property (clause 2, article 7 of the Federal Law of February 8, 1998 No. 14-FZ, clause 2 of Article 3 and clause 3 of Article 47 of the Federal Law of December 26, 1995 No. 208-FZ);
• person (body) authorized by the owner.

The decision does not need to indicate specific circumstances confirming the need to terminate the employment contract.

Compensation to the director upon dismissal in connection with the early dismissal of the director

If a decision is made to terminate the employment relationship with the director in the absence of guilty actions (inaction) of the head, compensation is paid to him (Article 279 of the Labor Code of the Russian Federation).

The amount of compensation to the director upon dismissal is established by the employment contract. But the amount of compensation cannot be less than three times the average monthly salary of the employee. The parties to the employment contract should establish its size even at the conclusion of the employment contract. If this does not happen, its size can be determined and fixed later in an additional agreement.

Sometimes the condition of compensation upon dismissal is not included in the employment contract with the director either at the time of hiring or later. According to some employers, in this case, when the director is dismissed on the basis of paragraph 2 of Article 278 Labor Code, the company does not have to pay compensation: there is no entry in the contract - there is no obligation to pay.

However, judges do not agree with this. Supreme Court RF. They believe that the absence in the employment contract with the director of the clause on the payment of compensation and on its amount does not relieve the owner of the property from the obligation to pay it (Determination of the Supreme Court of the Russian Federation dated January 25, 2008 No. 5-B07-170).

The obligation to pay compensation also arises from the owner in cases where the contract was concluded before the entry into force of the Labor Code, and the necessary changes were not made to it. The dismissal of a director without payment of compensation, if he did not commit guilty acts that give rise to his dismissal, is a violation of the procedure for dismissal. The court may decide to reinstate the dismissed person at work (clause 4.3 of the decision of the Constitutional Court of the Russian Federation dated March 15, 2005 No. 3-P).

The amount of compensation not established by the employment contract

It turns out that in the absence of a condition on compensation to the director upon dismissal in the employment contract, it still needs to be paid. In what size?

The parties to an employment contract may conclude supplementary agreement to the employment contract immediately before the dismissal. In it, they will fix the amount and procedure for paying compensation.

In the event of a dispute between the owners of the company and the dismissed director, the decision on the amount of compensation and the procedure for its payment may be taken by the court, taking into account the actual circumstances.

This payment is compensation for the adverse effects caused by the loss of a job. Its size can be determined taking into account the time remaining until the expiration of the employment contract, as well as the amounts that the manager could receive by continuing to work in his previous position, and additional expenses that he may have to incur as a result of early termination of the contract (clause 4.2 of the Resolution of the Constitutional Court of the Russian Federation of March 15, 2005 No. 3-P).

Example
Employment contract with the General Director of Olimpstroybak LLC R.L. Khitretsov was concluded for a period until January 31, 2015. However, the owner of the company decided to dismiss the employee from December 20, 2014 for no apparent reason. The amount of compensation in the employment contract at the time of dismissal was not indicated, but the owner is ready to pay it, taking into account the time remaining until the expiration of the employment contract.

The employee's salary is 100,000 rubles. Also, the company pays an annual bonus in the amount of salary, if during the year the employee did not have disciplinary actions and absences of working hours, except for 28 calendar days of annual paid leave. According to the provision on bonuses, if the employee had unworked days for other reasons, including in connection with dismissal before the end of the year, the amount of the bonus is calculated in proportion to the number of working days actually worked during the year. At the same time, 28 calendar days of vacation are equated to 20 unworked working days.

R.L. Khitretsov was absent from work for 28 calendar days during 2014 annual leave and did not work 7 working days in December due to dismissal. The amount of the average monthly earnings at the time of dismissal is 92,424.24 rubles.

The amount of earnings not received in December 2014 will be 31,818.18 rubles. (100,000 rubles: 22 working days × 7 working days). For January, he will not receive a full salary of 100,000 rubles. The amount of the annual bonus will be calculated in proportion to the actual hours worked and will amount to 89,068.83 rubles. . If the employee had not been fired, his annual bonus would have been equal to his salary. As a result, he will receive less than 10,931.17 rubles. (100,000 rubles - 89,068.83 rubles). The total amount of lost earnings will be 142,749.35 rubles. (31,818.18 rubles + 100,000 rubles + 10,931.17 rubles).

The amount of three times the average monthly earnings is 277,272.73 rubles. (92,424.24 rubles × 3 months). The amount of earnings lost in connection with the dismissal is less than this amount (142,749.35 rubles.

I. Grigoriev,
expert on labor law

ON THE. Macepuro, lawyer

How can the director of an LLC resign voluntarily

The leader is an employee with a special status. So, in an LLC, he is appointed to a position and dismissed from it by a general meeting of participants (sometimes by the board of directors, but we will not talk about such a situation) sub. 4 p. 2 art. 33, paragraph 1 of Art. 40 of the Law of 08.02.98 No. 14-FZ (hereinafter - Law No. 14-FZ). Because of this, the procedure for dismissing the head of many raises a lot of questions. Especially in the case when he wants to quit, and the participants in response remain silent and inactive. So let's find out what is the procedure for early dismissal of the director of an LLC at their own request, including in the case when the participants do not appoint a replacement for him.

Notification of participants about dismissal and convening of a general meeting

The head has the right to quit by notifying the employer in writing no later than 1 month before Art. 280 of the Labor Code of the Russian Federation. Moreover, such a warning period is valid upon termination of both fixed-term employment contracts (regardless of their term) and indefinite Art. 280 of the Labor Code of the Russian Federation; Rostrud Letter No. PG/1063-6-1 dated March 6, 2013. The same is considered in Rostrud.

FROM AUTHENTIC SOURCES

Deputy Head of the Federal Service for Labor and Employment

“Article 280 of the Labor Code of the Russian Federation provides for the procedure for terminating an employment contract at the initiative of the head of the organization, regardless of the type of employment contract - fixed-term or open-ended”.

The employer for all employees, including the head, is LLC. It, we recall, acts through its governing bodies. Therefore, the manager must warn about his dismissal supreme body LLC management articles 20,,, 280 of the Labor Code of the Russian Federation; paragraph 1 of Art. 53 of the Civil Code of the Russian Federation; paragraph 4 of Art. 32 of Law No. 14-FZ:

• <или>general meeting of participants;
• <или>the only member.

In general, participants are not required to decide on the dismissal of the leader if he wants to quit himself. But to elect a new candidate for the sole executive body OOO they owe. And the resigning director should convene their extraordinary general meeting to resolve this matter. pp. 1, 2 art. 35 of Law No. 14-FZ.

Notify participants of the general meeting no later than 30 days before the date of the meeting paragraph 1 of Art. 36 of Law No. 14-FZ. Please note that within this period, each participant must already receive a notice. Therefore, if it is sent by mail, then the date of the meeting should be set taking into account the "mileage" of the letter.

Since in the notice of convening a general meeting in without fail the issues put on the agenda are indicated, then this document will also be a notice of dismissal.

You can format it like this.

To the participant of Techservice LLC
I.N. Agafonov

Notification of an extraordinary general meeting of participants of Techservice LLC

Dear Ilya Nikolaevich!

Based on the powers granted to me by clause 5.6 of the Charter of Techservice LLC, clause 2 of Art. 35 and pp. 1, 2 art. 36 of the Federal Law of February 8, 1998 No. 14-FZ “On companies with limited liability”, I inform you about the convening of an extraordinary general meeting of participants of Techservice LLC with an agenda for the election of a new general director in connection with the early dismissal of the current general director at his own request. Statement by A.S. Petrov's notice of dismissal is attached (entry No. 227 dated 07/21/2014).

The meeting will be held on September 1, 2014 at 10:00 am at the address of the company's location: 111401, Moscow, st. 1st Vladimirskaya, 31, building 2, office 106.

When an LLC consists of one participant, then from the day it receives the said notification, it is considered notified of both the dismissal of the head and the need to make a decision on the appointment of a new candidate for this position Decree 17 AAS dated July 24, 2014 No. 17AP-6075/2014-GK.

Since it is the general meeting that needs to be formally notified of this, and not the participants, it will be considered notified on the day on which its meeting is scheduled (regardless of whether the meeting is held by the participants or not). Therefore, before quitting, the manager must work for 1 month after the date of the general meeting (in the absence of other agreements with the general meeting). That is, a total of at least 2 months from the date of receipt by the participants of the notification of the convening of an extraordinary general meeting.

The courts are liberal in this matter. In their opinion, the LLC is considered to have been notified of the dismissal from the date of receipt of the relevant notice by the last of the participants in Appeal ruling of the Belgorod Regional Court dated June 26, 2012 No. 33-1744.

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.

The legal address of participating organizations can be found using the electronic service for verification of counterparties: website of the Federal Tax Service → Electronic Services→ Business risks: check yourself and your counterparty

Data on the addresses of the participants-citizens must be with the LLC, because it is obliged to maintain a list of participants in pp. 1-3 tbsp. 31.1 of Law No. 14-FZ. Moreover, if the address is already outdated, and the participant did not inform the LLC about this, then notifying him at the existing address will be considered appropriate. Since all the risks associated with the participant’s failure to provide up-to-date information about himself to the society, the participant bears pp. 1, 3 art. 31.1 of Law No. 14-FZ; Appeal ruling of the Omsk Regional Court dated November 21, 2012 No. 33-7337/2012.

If, for some reason, the list of participants was not kept, then you can search for their addresses in other LLC documentation. Such data can be found, for example, in 2-NDFL certificates (if any were submitted to the Federal Tax Service Inspectorate), in memorandum of association sometimes in the charter.

It will not be possible to obtain this information from the IFTS, since the addresses of individual participants are protected personal data and tax secrets, and pp. 1, 2 art. 102 of the Tax Code of the Russian Federation; p. "d" part 1 of Art. 5, part 1, art. 6 of the Law of 08.08.2001 No. 129-FZ (hereinafter - Law No. 129-FZ). In the extract from the Unified State Register of Legal Entities, only f. and. about. participants. And the only thing you can get from the IFTS is an answer about the compliance of the data you provided about the address of the participants with the data contained in the Unified State Register of Legal Entities Part 2 Art. 6 of Law No. 129-FZ; Clause 11 of the Order, approved. Order of the Ministry of Finance dated November 23, 2011 No. 158n.

Date of dismissal of the head

At the general meeting, the participants must decide on the election of a new sole executive body and determine from what day he should begin to exercise his powers, taking into account the date of dismissal of the current head.

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

• <или> the date indicated by the head in the letter of resignation, with which the participants agreed;
• <или> the date on which 1 month expires, assigned to the manager to warn the employer about his dismissal and 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 of the employment contract in the notice of dismissal. A month is counted from the day following the day the employer is notified of the dismissal and articles 20,,, 280 of the Labor Code of the Russian Federation;. And if the monthly period expires on a day off, then the last day of work of the head will be the first working day after this day off Art. 14 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 specified by him Art. 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.

FROM AUTHENTIC SOURCES

“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 (the owner of the organization’s property, his representative) about this 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 of his own free will is 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.

Rostrud

• <или> other date according to the agreement reached between the head and the participants (it should be drawn up in writing, and it will be signed by the participant authorized to this meeting m) 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 the dismissal will no longer be the head's own desire, but the decision of the general meeting paragraph 2 of Art. 278 of the Labor Code of the Russian Federation; Appeal ruling of the Vladimir Regional Court dated August 13, 2013 No. 33-2553 / 2013; Determination of the Leningrad Regional Court of October 12, 2011 No. 33-5012 / 2011. And in this case, we recall, the head is entitled to compensation upon dismissal and Art. 279 of the Labor Code of the Russian Federation.

Pre-discharge chores

The leader bears the full liability for direct actual damage caused to the company by itself, and for losses caused to the company by its actions, in cases provided for by law Art. 277 of the Labor Code of the Russian Federation; paragraph 2 of Art. 44 Law No. 14-FZ.

Therefore, the resigning manager should, in particular:

• report on accountable amounts, if any, are on him, keep copies of all advance reports and documents attached to them and hand over all surpluses to the cashier;
• notify the certifying authority and the bank of his dismissal to prevent cases of misuse of his verification key certificate electronic signature on documents for counterparties and on payments in the Bank-Client system after he leaves the company;
• on the last day of work, transfer the keys, seals and documentation of the LLC to the new manager on the acceptance certificate.

The process of "self-dismissal"

The procedure for dismissing a manager is no different from the procedure for dismissing any other employee. articles 16, , 84.1, ch. 43 of the Labor Code of the Russian Federation. The only peculiarity is that the manager himself can sign all the documents related to his dismissal - an order, as well as a work book, if the LLC does not have another employee responsible for maintaining work books for pp. 35, 45 of the Rules, approved. Decree of the Government of April 16, 2003 No. 225.

At the same time, the wording of the dismissal entry in column 3 of the section "Information about work" of the work book will be the same as when other employees are dismissed at their own request: "Dismissed at their own request, clause 3 of part 1 of article 77 of the Labor Code of the Russian Federation" pp. 13-15 Rules, approved. Decree of the Government of April 16, 2003 No. 225; pp. 5.1, 5.2 Instructions, approved. Decree of the Ministry of Labor dated 10.10.2003 No. 69. That is, referring to Art. 280 of the Labor Code of the Russian Federation (“Early termination of an employment contract at the initiative of the head of the organization”) instead of Art. 77 of the Labor Code of the Russian Federation, as is sometimes the case in practice Appellate ruling of the Kemerovo Regional Court dated March 14, 2012 No. 33-2803, no need. This was confirmed to us in Rostrud.

FROM AUTHENTIC SOURCES

“According to the Rules for maintaining work books, upon termination of an employment contract on the grounds provided for in Art. 77 of the Labor Code of the Russian Federation (with the exception of cases of termination of the employment contract at the initiative of the employer and due to circumstances beyond the control of the parties), a dismissal entry is made in the work book with reference to the corresponding paragraph of the first part of this article. Therefore, when the head of the organization submits to the employer a letter of resignation of his own free will in the order of dismissal and work book as the basis for dismissal, paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation”.

Rostrud

Making changes to the Unified State Register of Legal Entities

The new head, within 3 working days from the date of appointment, must submit to the Federal Tax Service Inspectorate an application for amendments to the Unified State Register of Legal Entities in connection with the change of a person who has the right to act on behalf of a legal entity without a power of attorney paragraph 1 of Art. 40 of Law No. 14-FZ; p. "l" part 1, part 4, 5 art. 5 of Law No. 129-FZ. IFTS within 5 working days from the date of receipt of this application will register the changes and exclude from Unified State Register of Legal Entities about the former leader Part 1 Art. 8 of Law No. 129-FZ.

The former head himself cannot submit such an application to the IFTS. Therefore, he should make sure that information about him is excluded from the Unified State Register of Legal Entities. After all, while he is listed in the register as the head of an LLC, he may have difficulties, for example: Decree 5 of the AAC dated 09.10.2013 No. 05AP-7814/2013.

Features of dismissal in case of inaction of participants

If the participants, who were notified of the convening of the general meeting and its agenda, did not hold a meeting and did not appoint a new leader, then the current leader may still resign. Since there are no other conditions for his dismissal, except for notifying the employer in the person of the general meeting of participants within the prescribed period, the legislation does not provide for Art. 280 of the Labor Code of the Russian Federation. In this case, the dismissal procedure will be the same as described above.

The reasons why the participants did not appear at the convened meeting may be different. For example, leaving or being in a hospital for treatment. If so, it is only a matter of time before they appoint a new leader.

ATTENTION

The notice of dismissal and convening of the general meeting, postal receipts of its sending to the participants and the return receipt returned to the manager should be kept to confirm the fact and legality of the dismissal.

In this case, if there is a deputy in the state (another employee whose duties include replacing the absent head), the manager needs to:

• issue an order to transfer the relevant powers to the deputy articles 60.1, 60.2 of the Labor Code of the Russian Federation. And to represent the interests of the company in relations with third parties, it is necessary to issue him a power of attorney paragraph 1 of Art. 185 of the Civil Code of the Russian Federation. In this case, we are talking about the transfer of only certain powers. Since the decision to transfer to someone all the functions of the sole executive body is already the prerogative of the general meeting of participants;
• issue temporary bank cards with sample signatures of the deputy pp. 7.5, 7.13 Instructions of the Central Bank dated 30.05.2014 No. 153-I;
• transfer seals, keys, company documentation to the deputy on the act of acceptance and transfer.

It also happens that participants simply leave their company. In such LLCs, the head is usually the only employee.

In this situation, after following the entire dismissal procedure, the manager will definitely have to go to court with a request to the participants to exclude information about him from the Unified State Register of Legal Entities.

And the leaving head of the LLC can dispose of the documentation of the LLC (at the expense of the funds remaining at the LLC), in particular, as follows:

• <или>send a parcel with an inventory to one of the participants (for example, to one of them who has the largest share) Appeal ruling of the Kirov Regional Court dated June 13, 2012 No. 33-1718;
• <или>transfer to custody a notary or an organization or entrepreneur specializing in the provision of such services by sending a notification to the participant m p. 12 h. 1 art. 22.1, paragraph 16 of Art. 35 Fundamentals of the legislation of the Russian Federation on notaries, approved. Sun 11.02.93 No. 4462-1.

In a similar manner, the employment contract is terminated ahead of schedule by the head of the joint-stock company. At the same time, shareholders must be notified of the convening of an extraordinary general meeting at least 70 days before the date of its holding. And if the issue of appointing a sole executive body falls within the competence of the board of directors, then a notice of termination of the employment contract must be sent to the board of directors in Art. 273 of the Labor Code of the Russian Federation; sub. 8 p. 1 art. 48, paragraph 1 of Art. 52,

The procedure for dismissal and payment of compensation to the head are ambiguously determined labor law. The director is included in the list of groups of specialists who cannot be fired in the standard way. This material will consider all the features of terminating an employment contract with a manager under article 78 of the Labor Code of the Russian Federation. In particular, they will consider possible reasons and the procedure for dismissal of the head by agreement of the parties, as well as the responsibility of both parties upon termination labor relations.

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Definition of the term "head of companies"

The head (manager, director) is a natural person who is responsible for conducting the activities of the enterprise. Do not confuse such concepts as an employer and a leader, since the latter cannot always act as an employer and does not have absolute control over what happens in the company. Usually, they talk about the dismissal of the head when it comes to LLC, where such a decision is made by the board of directors. All labor relations with the head and other managers of the company are regulated by article No. 43 of the Labor Code of the Russian Federation.

Articles of the Labor Code of the Russian Federation, on the basis of which the head is dismissed

Within the framework of this material, the procedure for dismissing a director by agreement of the parties with further payment of compensation is considered, however, there are also other ways to dismiss the director of a company. Each of them is discussed below.

1. Article 280 of the Labor Code of the Russian Federation (own desire).
2. Article 79 of the Labor Code of the Russian Federation (termination of the working contract).
3. Article 78 of the Labor Code of the Russian Federation (by mutual agreement of the parties), when a certain amount of compensation is offered to the head in order to vacate the position as quickly as possible.
4. Article 81 of the Labor Code of the Russian Federation (the dismissal process is initiated by other participants in the LLC).
5. Article 75 of the Labor Code of the Russian Federation (the enterprise has another owner).
6. Article 69 of Federal Law No. 127 (in case of reorganization or bankruptcy of a company).
7. Other reasons specified in the Labor Code of the Russian Federation.

Dismissal of the head by agreement of the parties

The desire of the employer to cancel the work contract of the company's manager by agreement of the parties indicates that he does not want to allow any important data on the company's activities to reach third parties. It is not surprising that the CEO has the opportunity to go to a competitor company, so the disclosure of a “production secret” will harm the enterprise.

Any of the parties to labor relations can initiate a dismissal process under Article 78 of the Labor Code of the Russian Federation. If the manager is the initiator, then he must send the employee a statement, where the reason for dismissal can optionally be indicated. Next, the employer must consider the application and decide whether he agrees to part with the general manager in this way.

"Golden Parachute"

Upon dismissal by agreement of the parties, the director is paid substantial material compensation, which is commonly called the "golden parachute". The amount of this compensation is not limited at the legislative level, therefore it depends solely on the “generosity of the employer”. According to article 255 of the Tax Code of the Russian Federation, compensation is considered as an employee's salary costs. If the amount of compensation exceeds three times the average salary of the employee, then it is subject to income tax individuals. The need to pay compensation is indicated either in the employment contract, which the director and his employer signed directly during employment, or in an additional agreement, which acts as an addition to the contract.

Upon dismissal by agreement of the parties, the payment of compensation to the director is optional, but there are two cases when the dismissed manager receives compensation is a prerequisite:

• change in the owner of the company;
• cancellation of the contract by decision of the members of the board of the LLC (except for situations where dismissal was a disciplinary measure).

If the employment contract is terminated at the manager's own request, then no compensation is paid to him, since the person being dismissed was the person concerned, and it simply does not make sense for the employer to pay compensation. And in those situations where the termination of labor relations takes place under Article 81 of the Labor Code of the Russian Federation, the dismissed person may additionally be fined for the damage caused to the company (of course, the other party has the right to appeal such a decision of the commission in court).

For managers who have worked in public institutions, there are limits on the amount of compensation. This rule also applies to enterprises that are partially state-owned.

Cancellation procedure

Many HR specialists are wondering how to dismiss a director by agreement of the parties. The algorithm for dismissal of a leading person by agreement of the parties is as follows:

1. If the dismissal was initiated by members of the board of directors, then first it is necessary to draw up a minutes of the meeting, which must indicate the reason for terminating the contract. By the way, the director's statement of dismissal can serve as a reason, if the initiative came from him.
2. The next step is the issuance of an order to terminate the employment relationship form T-8 (this local regulatory legal act must be registered in the journal).
3. The dismissed director is given a work book in his hands, in which an entry on the termination of the employment contract should have been previously made.
4. The fact that the person no longer fulfills his powers as a director in the company is notified to the bank and the tax office.

Negotiations and drafting a letter

For voluntary dismissal, the employee is not required to draw up a written application if the employer is the initiator of the termination of the contract. If, as a result of negotiations, the founders of the LLC came to the conclusion that the director should be dismissed, and we are not talking about disciplinary violations (Article 81 of the Labor Code of the Russian Federation), then a notice is sent to the current manager in writing, which must contain the following data:

• the legislative framework for the termination of labor relations (in this case, this is Article 77 of the Labor Code of the Russian Federation);
• date of cancellation of the contract;
• the time limit for receiving a written response to the notification;
• the signature of the initiator of the dismissal process, without which the application will not have legal force.

Russian law does not require that the notice indicate the grounds for dismissal of the employee. If an employee quits for no reason, not by agreement of the parties, then he must be entitled to compensation.

In many companies, there can be only one founder. If there are several of them, then the decision of the founders of the LLC or joint stock company verified by protocol.

Drawing up an additional agreement on termination of the employment contract
The Labor Code does not regulate the procedure for drawing up, as well as the form of an additional agreement on the annulment of a work contract with a manager. It goes without saying that this document must be drawn up exclusively in writing, and two duplicates must be made - one of them is kept by the employer, and the other is handed over to the manager. The agreement may include a large number of requirements, but in general it should include the following information:

• date of drawing up the supplementary agreement;
• information about the employee and employer;
• information about the work contract;
• the reason for the cancellation of the contract;
• the actual date of dismissal, which also coincides with the date of cancellation of the director's contract;
• financial obligations of the parties (optional).

Important! After the signing of the additional agreement, its terms are not subject to change. Any adjustments can only be made with the consent of both parties, so the manager cannot return to his place within two weeks after the issuance of the order to dismiss and receive compensation. It is noteworthy that dismissal by agreement of the parties may provide for such a possibility.

Since 2014, data on the payment of compensation to the head cannot be entered into the supplementary agreement, while we are talking not only about the payment of a specific amount of money, but also about the receipt by the dismissed person of certain company property (for example, a block of shares).

Dismissal order

Before the offensive last day work of the dismissed employer must issue a decree dismissing the director by agreement of the parties (sample order 2017). The decree must be signed by the director himself, having previously familiarized himself with its contents. In some cases, another authorized person of the company (for example, the chief personnel officer) can sign the order. The order (form T-8) reflects the following aspects:

• information about the dismissed leader;
• legislative framework for termination of labor relations (a specific article of the code is indicated);
• date of dismissal;
• signature of the director or authorized person.

To documentation dismissal procedures by mutual agreement of the parties must be approached with all due responsibility, since any inaccuracies (for example, incorrect date indication) are fraught with litigation. In case of termination of employment relations with the director, his deputy takes over the duties.

Mark in the work book

An entry in the work book is made in accordance with the Instruction, with which each HR specialist must be familiarized in advance. The entry looks something like this: "Fired in accordance with Article 78 of the Labor Code of the Russian Federation." The main requirement is the indication of a specific article of the Labor Code, which acts as a regulatory framework for terminating an employment contract. The instructions are an official legal act, therefore, the provisions prescribed in it cannot be ignored.

Issuance of documents and settlement

According to article 84 of the Labor Code of the Russian Federation, the employer undertakes:

• transfer to the director all the necessary payments (compensation, compensation for unused vacation days, the balance of wages, etc.);
• extradite former top manager work book;
• hand over all other documentation that was directly related to labor activity employee.

To avoid trouble, it is recommended that the employer send all documents by registered mail using the Russian Post service. If, for example, the manager's book is lost, then the latter can file a lawsuit (the same applies to any other documents).

Sometimes it is impossible to pay off the former manager on the last day of his work due to some objective reasons(problem with bank transfer, employer cannot arrive at work place, etc.). In such a situation, the employer (or his authorized representative) must necessarily transfer all payments to the employee's account no later than one day from the date of receipt of the application for the accrual of the due funds.

Taxation of executive severance pay

income tax

It is important for a company's staff accountant to know whether compensation is subject to taxation, because in most situations we are talking about fairly substantial amounts of funds. Due to the fact that material compensation is paid on the last working day, Article 255 of the Tax Code of the Russian Federation considers this type of payment as labor costs, so the tax base will remain the same. The employer can agree with the director on the partial payment of benefits after the actual date of dismissal (this and other similar conditions can be specified in the supplementary agreement), which will slightly reduce the total amount of income tax.

personal income tax and unified social tax

It is not necessary to collect both personal income tax and unified social tax from the amount of compensation; in those situations when it comes to too large amounts, it may be necessary to pay income tax from part of the compensation.

Responsibility of the CEO

It goes without saying that the work of a top manager is a serious and highly paid position which at the same time implies a high level of responsibility. Responsibility can be material or criminal (if the organization has suffered serious losses as a result of the activities of the dismissed person as head). The degree of responsibility of criminal liability is already determined by the Criminal Code of the Russian Federation. This information primarily refers to the dismissal under Article 81 of the Labor Code of the Russian Federation, while the dismissal of the head by agreement of the parties usually implies a “peaceful” scenario for the termination of employment.

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