The dismissal of the head of an enterprise with any organizational form at his own request is regulated by the Labor Code and is based on the principle of freedom of relations between the employee and the employer. The general director, although he has a special status, is an employee, and his right to terminate the contract cannot be infringed.

If the company is an LLC, this employee, as a rule, takes office and resigns by decision of the general meeting of co-founders (owners). In view of this provision, various difficulties often arise, including how to dismiss a director if he has submitted an application, but the members of the organization are inactive. The right to freedom of labor relations should not be infringed in this case either. The head of the organization will be able to leave his place of work without obtaining permission from the meeting.

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Legal basis for dismissing a director at will

The Labor Code of the Russian Federation provides the basis for termination of mutual obligations for this reason in Part 3 of Article 77 and Article 80. Also in Art. 280 indicates the right of the manager to terminate the contract early, being the initiator. In this case, the director must notify his employer at least one month before the expected date of resignation. It is important to correctly determine the moment of notifying the meeting of your decision.

Since the director of an enterprise is one of the most important employees, whose activities in most cases are related to trade secrets, and also has other serious features, when dismissing him, it is necessary to strictly follow the procedure and legal requirements. Otherwise, the organization may face serious negative consequences, litigation and unwanted expenses.

Dismissal of the head of an enterprise at his own request is one of the most common resignation processes used today. This method of terminating mutual obligations, like terminating a contract under , presupposes a peaceful outcome of the matter. Using this reason, the director can terminate both a fixed-term and an open-ended contract. When dismissing a manager at his own request, an employer does not have the right to retain an employee longer than the notice period established by law.

Procedure for terminating obligations at will

The dismissal of the head of an LLC, OJSC, CJSC or an enterprise of another organizational form must occur according to the following algorithm:

• The person resigning notifies the participants of the general meeting. This must be done in writing by sending a notification by mail.
• A meeting is held during which the issue of resignation by the director and the appointment of a new employee to this position is decided. The fact of this event is recorded in a protocol, which indicates the reason for the termination of the contract.
• An order is issued to terminate the contract with the director. As a rule, this document is drawn up in the T-8 form and is recorded in the journal. The text of the order must indicate the reason for the resignation with reference to the article of the Labor Code.
• Cases are transferred to a new employee or other authorized person.
• On the day of dismissal, the director is paid the funds due upon termination of the contract.
• The employee’s personal card is filled out. The director signs it, which confirms that he is familiar with the recording.
• The manager's work book is filled out. Moreover, he can enter information into it himself, if there is no other person responsible for filling out this documentation at the enterprise.
• Information about the change of manager is transmitted to the financial organization.
• Within 3 days, the Federal Tax Service is notified of a change in the managerial person at the enterprise.

The employee has the right to request a duly certified copy of the order. The correct execution of documents and the correctness of the entries made in the work book must be monitored in order to avoid negative consequences during future employment.

Procedure for notifying the founders of the organization

As mentioned above, the manager has the right to resign with or without the consent of the founders, but he is obliged to notify of his desire at least one month in advance. This period does not change depending on the duration of the employment contract. In such relations, the employer is the organization itself, its governing body, therefore it is necessary to notify the general meeting or the individual participant of the desire to terminate mutual obligations.

In order to terminate a contract on his own initiative, an employee does not need to obtain permission from the founders. The right to freedom of labor relations is guaranteed by the legislator. But it is necessary to inform the organization. At a general meeting, which must be convened in advance by the retiring director, a decision will be made to appoint a new person to act as director. According to the law, notification of this event must be given 30 days before it takes place. Moreover, the period should be calculated so that each participant receives a letter a month before the planned date for which the meeting is scheduled.

The notification must indicate the issues that the event will focus on. It should also be accompanied by a document confirming the director’s desire to terminate mutual obligations. The sample application can be used in accordance with the forms accepted at the enterprise for such documentation. In fact, the very notification of convening a meeting will also be a notification of the desire to resign. So, if there is only one participant in the organization, he will be considered informed from the moment of receipt of such a document. If there are several participants, then formally the day of notification can be considered the date of the meeting. However, judicial practice shows that the co-founders will be considered informed from the day when the last of them received the notification letter. The manager has the right to notify the participants personally, confirming this fact with a receipt, or by registered mail with acknowledgment of receipt.

Determining the date of resignation

During the general meeting, the participants must decide to appoint a new manager and determine the date upon which he will begin his duties. They need to take into account the term of resignation of the resigning director. Thus, the date of resignation may be:

• The day that the resigning person indicated in the application. This date is accepted by the participants if they have no objections.
• The day on which the advance warning period expires. This date is also used when the director did not indicate the desired term of resignation in the application. If the end of the advance notice period falls on a weekend, the day of dismissal will be considered the next worker.
• Date determined by agreement. Upon dismissal, the parties have the right to enter into an agreement and set the day of dismissal independently. In this case, the basis and article of the Labor Code of the Russian Federation for terminating the contract will change.

Important! If the general meeting decides to terminate mutual obligations with the manager before the date specified by him, this will be considered dismissal by decision of the general meeting, and not on the initiative of the employee. If the director resigns for this reason, he is entitled to compensation.

Do not forget that in some cases employees have the right to terminate mutual obligations without working out or in a short time. For example, upon termination of a contract due to the inability to perform work functions or due to retirement. This rule is fully applicable to the heads of organizations.

Statement from the manager on resignation

A letter of resignation on the manager’s own initiative is a document recording the employee’s will aimed at resigning. The Labor Code regulates the time in which it must be drawn up and submitted: one month before the desired date of termination of employment in the organization. An ordinary employee has the right to resign on his own initiative by submitting an application two weeks before the day of resignation. Article 280 of the Labor Code of the Russian Federation extends this period for enterprise managers twice. This is quite justified, since the official duties of the director are of an extremely important nature. He is actually the main executive body of the company.

In order to terminate mutual obligations, the manager does not have to write and submit an application. A notice of convening a general meeting with an agenda to discuss dismissal is sufficient confirmation of the director’s desire to terminate the contract with the organization. But if desired, a statement can be drawn up and attached to the notification of the co-founders. The legislation does not impose any mandatory requirements for the text of this paper, but it must contain basic information that will allow it to be identified as a document confirming the expression of will aimed at dismissal. So, it should indicate:

• Information about the employee and employer.
• Date of resignation.
• An indication of the desire to resign on your own initiative.
• Date of preparation and signature of the resigning person.

Since the general director’s employer is a meeting of company participants, this document must be sent to them and in their name. The application can be delivered to the co-founders in person or sent by registered mail with notification. It is important to obtain confirmation that each participant has received the document.

Procedure for transferring cases

Since the head of the organization is an employee with a special status, his duties have significant consequences for the company, and he bears financial responsibility, before dismissal it is necessary to implement a procedure for transferring affairs to a new employee. This is necessary, first of all, for the director himself in order to differentiate responsibilities. If, after resignation, confirmation of any violations is discovered that could even conceivably occur during the performance of the employee’s duties, the manager will be held liable, despite the fact that he has already resigned.

In practice, this means transmitting the following documentation:

• Constituent and registration papers of the organization.
• Minutes of general meetings, decisions of co-founders.
• Accounting and banking documentation.
• Documents confirming the title to the property of the enterprise (fixing the right to real estate, vehicles and other valuables).
• Personnel documentation.
• Agreements with counterparties.
• Seal of the organization, keys to the safe.
• Other important documentation.

The legislation does not regulate a clear procedure for transferring cases to a new employee in such cases. Since the manager is a financially responsible employee, it is necessary to conduct an inventory of the company’s property. It is also advisable for the director to make a report on accountable funds, keeping copies of all documentation, and hand over excess amounts to the cashier. It would be useful to notify the certification center and the banking organization about the change of the head of the company. When transferring cases to a new employee, it is advisable to document the procedure with an acceptance certificate.

On the last day of work with the employee, a full payment is made. He is entitled to pay compensation for unused vacation and the balance of wages that were not transferred. At the same time, an entry is made in the director’s work book. It should be formulated clearly, indicating the basis for termination of the contract with reference to the article of the Labor Code of the Russian Federation.

After taking office, the new manager is required to submit information about the change of director of the organization to the Federal Tax Service within 3 working days. The person who quits must ensure that changes are made to the Unified State Register of Legal Entities. If he continues to be part of the organization, he may have difficulties finding employment in a leadership position in the future. If the enterprise is inactive, the director has the right to oblige him to provide information through the court, since he himself cannot do this.

Nuances of resignation by a director in the event of inaction of the founders

If the participants were duly notified, but did not appear at the general meeting, and do not take any action to appoint a new employee to the position, the director also has the right to resign. The only condition for terminating the contract on his own initiative is advance warning to the participants. The procedure for resigning powers in such a situation does not differ from the above. The director can also delegate some powers and affairs to his deputy.

It is extremely important to retain all postal receipts and notifications of delivery of notice to participants of the convening of the general meeting. This is necessary to argue your position if litigation arises and to prove the legality of the resignation.

The director is the main executive body of the company. Without it, the functioning of any organization is not possible.

The functions of the employer in relation to the general director of the LLC are assigned to the general meeting of participants. Dismissal of the general director of an LLC at his own request is possible for various reasons, and no one has the right to prohibit him from leaving the organization.

The procedure for dismissing the general director at his own request consists of the following stages:

1.Preparing a resignation letter;

2. Notification of company participants about leaving the organization at their own request;

3.Holding a meeting of founders (to select a new director);

4.Issuing an order to terminate the employment relationship;

5. Making an entry about the termination of the contract in the work book;

6. Issuance of final payment;

7.Issuance of a work book and other documents;

8. Notification of the tax authorities about the departure of the director of the enterprise (in order to exclude the data of the former director from the Unified State Register of Legal Entities).

To avoid questions from the labor inspectorate, it is necessary to fully comply with the procedure for terminating a contract with the director of the organization.

Application for termination of contract

Let's consider how the director of an LLC is dismissed at his own request. Registration begins with compilation.

Unlike other employees, the director of the organization writes a statement a month before the expected date of leaving the organization. There is an indication of this in Art. 280 Labor Code of the Russian Federation. The application is addressed to the general meeting of participants of the organization or the owner of the company.

The document must contain:

employee data;

employer details;

day of termination of the contract;

date of document preparation;

applicant's signature.

Also, the director must express his desire to leave the organization in a notice, which should be given to the founders of the company.

Notice of director's resignation

A month before leaving the company, the manager must submit a notice to the employer of his desire to resign.

This document is sent by registered mail or delivered in person. It indicates a request to hold an extraordinary meeting of the participants or owners of the company. The document contains the following information:

location of the meeting;

• issues to be discussed.

Coordination of dismissal with the founders of the organization

At the meeting, the founders discuss the dismissal of the general director at their own request. Members of the company do not have the right to refuse the manager to leave the organization earlier than the period specified in the contract.

During the meeting, the founders agree on the date for the dismissal of the general director at their own request. This is necessary in order to determine the time to find a suitable candidate to replace the departing manager.

Dismissal of the general director at his own request, sample order

Published on behalf of the founders of the company, based on the decision. The document states:

name of the company and its details;

information about the person leaving;

reason for leaving the organization;

date of termination of the contract.

To issue an order, use the unified form of document No. T-8, approved. Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1. The order can also be issued on the company’s letterhead.

Making an entry in the work book

Entered by the HR employee. After which the information is certified by the signature of the employer and the seal of the organization.

The document must indicate the reason for dismissal with a reference to the law. The basis is also indicated - an order or decision.

Final settlement

Upon dismissal, the first person of the company is required to pay:

salary for hours worked;

compensation for unused vacation;

other payments provided for in the employment contract.

Also, the former general director transfers affairs to the new head of the enterprise. The procedure for the transfer by the manager of papers related to the activities of the company upon his departure from the organization is not established by law. If a successor has not yet been found, the cases may be transferred to the archives or notary for storage.

Notification of the tax service about the dismissal of a manager

According to sub. "l" clause 1 and clause 5 of Art. 5 Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs” dated 08.08.01 No. 129-FZ, the organization is obliged to report to the tax authorities information about the departure of the head of the enterprise and changes in the executive body of the company. It should be submitted to the tax office. The document must be notarized. The application is submitted by the new general director within three days from the date of appointment to the position. After this, the tax service enters information about the change of head of the company in the Unified State Register of Legal Entities.

If a new CEO is not selected, the application may be signed and submitted by the former CEO.

How can the general director resign of his own free will if he is the sole founder of the organization?

Let's consider how to dismiss the director of an LLC at his own request in the case where the director is both the sole organizer of the company and its owner.

The first person of the company has the right to write a letter of resignation at any time and make a decision about his dismissal. There is no need to notify anyone of your upcoming dismissal. The maintenance procedure is significantly reduced. Simultaneously with the decision to dismiss, the sole founder can appoint a new general director of the company.

Responsibility of the CEO after dismissal

The manager is responsible for his decisions even if he is dismissed from his position.

It can be either material (in case of loss or damage to the organization’s property) or criminal (in case the manager has committed illegal actions)

In this case, the former employer has the right to file a lawsuit demanding that the dismissed employee be held accountable. The maximum period during which a resigned manager can be subject to administrative punishment is one year from the moment the violation was established. There is an indication of this in Art. 4.5 Code of Administrative Offences, Art. 6.1 Code of Criminal Procedure of the Russian Federation, Art. 78 of the Criminal Code of the Russian Federation.

Current legislation pays special attention to labor relations with the general director. Naturally, the procedure for dismissing such an important person, who has something to “blackmail” his former employer, also has its own specifics.

Legal basis

Quite often, the sole founder of a company is its CEO. This is especially true for small businesses. However, if an organization has more than one founder, or if, for example, we are talking about a joint-stock company, then the employment contract, under which the general director is the employee, is signed by the founder or a person authorized by him on the employer’s part. This means that the employment agreement with the general director, like the agreement with any other employee, can be terminated. In practice, this happens both on general grounds (for example, agreement of the parties, employee initiative, etc.) and on additional ones. Article 278 of the Labor Code is devoted to the specifics of the dismissal of the general director. Thus, it states that it is possible to lose such an important post in the event of bankruptcy of the company and on other grounds provided for in the employment contract.

In addition, the severance of labor relations with the manager is possible if the authorized body of the legal entity, or the owner of the company’s property, or a person (body) authorized by the owner makes a decision to terminate the contract. If the general director has not compromised himself in any way during his work, then upon dismissal on this basis he will be paid compensation in the amount determined by the employment contract. The minimum severance pay is three times the average monthly salary. This is stated in Article 279 of the Labor Code. Let's consider this situation in more detail.

Consumption or not?

So, the founder of the company decided to fire the CEO. But what should an accountant do with the benefits paid in such a situation?

As is known, the company’s labor costs include any accruals to employees in cash and in kind (Article 255 of the Tax Code). It must be remembered that these costs reduce taxable profit only if they are reflected in the employment contract concluded between the employee and the employer.

Based on paragraph 4 of Article 272 of the Tax Code, “labor” costs are recognized as expenses on a monthly basis, based on the amount of all charges. If an employee is dismissed upon termination of the employment contract, he is paid all amounts due on the last working day (Article 140 of the Labor Code). Consequently, the payment of compensation to the head of the organization on his last working day in full is immediately taken into account for profit tax purposes as a labor expense.

However, part of the severance pay to the general manager may be accrued after his dismissal based on the financial and economic performance of the company. The fact is that the parties have the right to prescribe such a “gradual adaptation” mechanism in the employment contract (additional agreement to it). Such payments also reduce the tax base for income tax during the period of their accrual (letter of the Ministry of Finance dated September 11, 2008 No. 03-03-06/1/525). After all, termination of an employment contract obliges the employer to make all payments provided for by the norms of the Labor Code.

laquo;Salary" section

As you can see, for the employer this “operation” is relatively painless. As for the ex-employee, from his point of view, dismissal looks like this: neither “income” nor unified social tax is paid on severance pay - compensation established by current legislation associated with dismissal is exempt from these taxes (clause 3 Article 217, subparagraph 2, paragraph 1, Article 238 of the Tax Code). Therefore, the payment of severance pay to the head of the organization in the event of early termination of the employment contract in the situation under consideration is not subject to personal income tax and unified social tax. In particular, this opinion is shared by representatives of the Federal Tax Service for Moscow (letters dated May 14, 2005 No. 21-11/34150 and dated September 14, 2007 No. 28-17/1331). Similar conclusions are contained in the resolution of the Federal Antimonopoly Service of the Moscow District dated December 20, 2004 No. KA-A40/11908-04.

V. Myasnitsky, expert at the Federal Financial Information Agency

How to fire a manager - the question is not the simplest. To do this, it is necessary to determine the basis for dismissal, follow its procedure, including making changes to the state register, and not forget about the guarantees due to the employee.

Legal status of the manager

The head of the organization, in accordance with clause 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/02/2015 No. 21, is an employee performing a special labor function, which, according to Art. 273 of the Labor Code of the Russian Federation, lies in the management of the organization.

Management, in turn, also implies the performance of the functions of the sole executive body, namely:

• powers of the owner of the organization’s property;
• powers and responsibilities of the employer in relation to other employees of the organization;
• powers of the copyright holder of the results of intellectual activity, including rights to a trademark, domain name, business name and other means of individualization, etc.

When performing the functions of an executive body, the manager goes beyond the scope of the Labor Code, since a number of powers are granted to him by the Civil Code and other laws. In particular:

From the above, it is logical to conclude that the manager has a special status: on the one hand, he is an employee who has entered into an employment relationship with the employer-organization and has entered into an employment contract, on the other hand, he acts on behalf of the employer and represents its executive body, whose activities are largely regulated by civil law.

IMPORTANT! The specifics of regulating labor relations with the participation of the head of the organization are established by Chapter 43 of the Labor Code of the Russian Federation. The provisions of this chapter, in accordance with paragraph 1 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 21, can be extended to members of collegial management bodies, if this is provided for by the constituent document of the organization or the law.

The special status of the head of the organization is due, among other things, to an expanded list of grounds for his dismissal compared to other employees.

Dismissal of a manager on general grounds

The general grounds for dismissal apply to all employees, including the manager. Among the general grounds under Art. 77-81, 83, 84 of the Labor Code of the Russian Federation distinguish dismissal:

1. At the initiative of an employee who is a manager, expressed by:
   • in the desire to terminate the employment contract;
   • refusal to continue work due to a change in the owner of the organization’s property;
   • refusal to continue work due to a change in subordination or reorganization of the organization;
   • in the desire to transfer to another employer;
   • refusal to continue working due to changes in the terms of the employment contract;
   • refusal to transfer to another job, the need for which is caused by health conditions;
   • in refusing to be transferred to another location together with the employer.
2. At the initiative of the employer in case of: unsatisfactory test results;
   • liquidation of the organization;
   • insufficient qualifications identified during the certification;
   • gross violation of duties (for example, disclosure of secrets, theft, truancy, etc.);
   • repeated failure to fulfill labor duties, not justified by a valid reason, in the event of a disciplinary sanction;
   • inaction in case of conflict of interest, etc.
3. By agreement of the parties.
4. Due to objective circumstances preventing the continuation of the employment relationship, such as:
   • the expiration date of a fixed-term employment contract;
   • identification of violations of the rules for concluding an employment contract (for example, concluding it with an employee for whom this work activity is contraindicated for health reasons).
5. Due to circumstances beyond the control of the manager and employer:
   • conscription of a leader for military service;
   • recognition of him as incapacitated;
   • occurrence of emergency circumstances, etc.

Dismissal of a manager on grounds applicable to employees of certain positions

Additional grounds for dismissal of a manager are provided for by the Labor Code in Art. 81 as grounds on which employees of certain positions can be dismissed.

Thus, additional grounds for terminating an employment contract with a manager are reduced to dismissal at the initiative of the employer:

1. When the owner of the employer's property changes.

   In accordance with paragraph 32 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, a change of ownership of property implies the following processes:

   • privatization (transfer of ownership from the state to a private person);
   • nationalization (the reverse procedure consisting in the transfer of property from private individuals to the state);
   • transfer of property between the municipality and the state enterprise;
   • transfer of an enterprise between federal and regional authorities.
2. In case of gross violation by the manager of his duties.

   A gross violation, according to paragraph 49 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, will be failure to fulfill duties, resulting in damage to the employer’s property or harm to the health of subordinates. Each case of a violation being considered gross is considered by the court, taking into account the specific circumstances.

3. When the manager makes an unfounded decision that results in damage to the employer’s property.

   As stated in the ruling of the Constitutional Court of the Russian Federation dated April 23, 2015 No. 779-O, the factual circumstances that can be interpreted as unfounded decisions are so diverse that it is impossible to establish an exhaustive list in the law.

   For example, the decision of the Supreme Court of the Russian Federation dated June 4, 2009 No. 53-B09-4 recognized as legal the dismissal of the head of a bank branch due to his unjustified decision to issue a loan.

Special grounds for dismissal of a manager

In Art. 278 of the Labor Code of the Russian Federation lists special grounds that apply exclusively to the dismissal of organizational leaders:

1. Removal from the position of a manager due to violation of the provisions of the Law “On Insolvency (Bankruptcy)” dated October 26, 2002 No. 127-FZ during the bankruptcy procedure of the employer.

   For example, in the resolution of the Federal Antimonopoly Service of the West Siberian District dated May 26, 2010 in case No. A27-24225/2009, the fact of the manager’s failure to present the documents necessary for supervision to the temporary manager is indicated as such a violation.

2. The adoption by the owner of the organization’s property, an authorized body, of a decision to terminate the employment contract.

   Clause 9 of Resolution No. 21 of the Plenum of the Supreme Court of the Russian Federation states that dismissal when the property owner or other authorized person makes a decision to terminate an employment contract is not a measure of liability, and is therefore accompanied by payment of compensation to the manager. In this case, dismissal is permitted without specifying the reasons for dismissal.

As stated in paragraph 50 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2, dismissal on this basis is dismissal at the initiative of the employer, therefore the manager retains a guarantee of maintaining employment relations during the period of vacation or temporary disability.

The employment contract with the hired manager may also provide for other grounds for dismissal.

The procedure for dismissing the head of an organization

The dismissal of a manager, depending on its grounds, is initiated by different acts; in addition, in some cases additional actions are required, but in general the dismissal algorithm is the same. Let's present it in the form of a table:

1 The ruling of the Constitutional Court of the Russian Federation dated April 23, 2015 No. 779-O states that in case of dismissal due to an unjustified decision made by the manager, an objective assessment of the act committed by the manager precedes the decision to dismiss. In this case, the validity of the dismissal can be verified by the court.

Don't know your rights?

The head of an LLC is the sole executive body that manages the current activities of the company. The position of a manager can be called in different ways, but its most common name is “general director” or simply “director”. The director acts on behalf of the organization without a power of attorney, but does not have complete freedom, because accountable to the founders of the company.

On the one hand, the director is an employer for the employees of his organization, on the other hand, he is an employee, on whose actions or inaction the economic success of the company that hired him largely depends. The specifics of labor relations with the manager are regulated by special Chapter 43 of the Labor Code.

Is it possible to fire a director? Who is authorized to do this? How to carry out the procedure for dismissing a director? Let's figure it out.

Grounds for dismissal of a director

Let us list the reasons for the dismissal of the director. Some of them will be the same as when dismissing other employees, but there are also a number of special rules regarding the manager, which are prescribed in separate articles of the Labor Code.

1.At the manager’s own request. The dismissal of a director at his own request is regulated by Article 280 of the Labor Code of the Russian Federation. Unlike an ordinary employee, a manager must submit a letter of resignation no later than a month before terminating the employment contract. Is it possible to fire a director earlier? Although Chapter 43 of the Labor Code of the Russian Federation does not directly provide for such a possibility, judicial practice confirms that the general norms of Article 80 of the Labor Code are allowed to be applied here. Thus, if there is an agreement between the parties, then the period for dismissal of the LLC director at his own request can be reduced.

2. Due to the expiration of the employment contract. The term of office of a director is specified in the charter and the decision on his appointment. Upon expiration of the employment contract, it is considered terminated. No later than three days before the end of the period, participants must inform the director in writing about this fact (Article 79 of the Labor Code of the Russian Federation). If the work of the manager suits the owners, then a new fixed-term contract can be concluded with him.

3.By agreement of the parties. According to Article 78 of the Labor Code of the Russian Federation, an employment contract can be terminated by agreement of the parties. This option is also called “soft dismissal,” when the owners of the organization do not want to continue working with the director, but at the same time strive to remain on good terms with him. It must be admitted that even after dismissal, a manager can maintain business ties with the organization’s partners and competitors and have access to trade secrets or compromising information. The size of the compensation or “golden parachute” for the loyalty of the former director can reach the amount of the annual salary or several million rubles.

4.On the initiative of the company’s participants on the basis of Art. 81 Labor Code of the Russian Federation. In the process of ongoing management of the company, situations are possible when the director makes unfounded decisions or does not fulfill his official duties. If this caused harm to the health of employees or caused damage to the organization’s property, then the manager may be dismissed under Article 81 of the Labor Code (clauses 9 and 10). Such dismissal is a disciplinary measure, and it is initiated by the LLC participants.

The owners of the organization must keep in mind that a manager dismissed under Article 81 of the Labor Code of the Russian Federation has the right to demand in court that such dismissal be declared illegal. In this case, the defendant must reasonably prove that harm to the health of employees or damage to the property of the organization was caused precisely by unjustified actions or inaction of the director.

5.On additional grounds provided for in the employment contract. Paragraph 3 of Article 278 of the Labor Code of the Russian Federation does not provide an interpretation of what these additional grounds may be. At the same time, for heads of state organizations such grounds are directly indicated in departmental regulations. This may be failure to meet set economic indicators; refusal to comply with the decision of the owner of the organization; carrying out transactions in violation of the provisions of the charter. For private organizations these conditions may be similar.

The difference between additional grounds for dismissal and dismissal under Article 81 of the Labor Code of the Russian Federation is that such actions of the director will not necessarily lead to damage to the organization’s property or harm to the health of employees. But this, in essence, is the manager’s inadequacy for the position held, so the LLC participants have the right to indicate here any conditions that do not directly contradict the law.

6.At the initiative of the organization’s participants, but without specifying a reason. A specific feature of terminating an employment contract with a director is his dismissal by decision of the LLC participants without explanation. Although Article 278 of the Labor Code of the Russian Federation does not directly indicate that a director can be dismissed without cause, there are also by-laws that confirm this possibility.

Thus, in the matter of dismissal of a director by decision of the participants, all judicial authorities are required to be guided by the explanations of the resolution of the Plenum of the Armed Forces of the Russian Federation dated June 2, 2015 No. 21. Paragraph 9 of this document indicates that the owners of the organization have the right to terminate the employment contract with the director without explaining their reasons. It does not matter whether the contract with the director was fixed-term or indefinite. You can fire a director without giving reasons at any time.

7.When the owner of the organization’s property changes. If the owner of an organization changes, then he has the right to terminate employment contracts with the director, his deputies and the chief accountant (Article 75 of the Labor Code of the Russian Federation). Sometimes a change of owner is understood as a change in the composition of LLC participants, but this is not so. The owner of property created from the contributions of the founders of the LLC, as well as produced or acquired in the course of its activities, is the company itself, and not its participants (Article 66 of the Civil Code of the Russian Federation).

The Plenum of the Supreme Court of the Russian Federation indicated in paragraph 32 of Resolution No. 2 of March 17, 2004 that a change in the owner of an organization’s property should be understood, in particular, as a transfer of ownership during the privatization of state or municipal property, and not a change of participants. It is also not a change of owner or a change in his subordination (jurisdiction). Thus, the dismissal of the director of a commercial enterprise on this basis is very rare, but it is necessary to know about such a rule in order not to mistakenly indicate a change of owner as the reason for terminating the employment contract.

8. Removal from office of the head of a bankrupt organization. According to Article 69 of the Law “On Bankruptcy” No. 127-FZ, the head of the debtor organization is removed from office, and management of the company’s activities passes to a temporary manager.

9. Dismissal of the director upon liquidation of the organization. The director must be notified in writing of the liquidation of the company no later than two months in advance. The powers of the director terminate after the appointment of a liquidator, while the duties of the liquidator can be performed by the former director himself, but within the framework of a civil law contract.

How to fire a founding director? If an employment contract has been concluded with the founder, then there are no special features in the procedure for his dismissal. After relinquishing his powers as a director, he remains a member of the participants. In the case where the director is the only founder, he will have to sign the order to dismiss the director twice - on behalf of the director and on behalf of the founder. It must be said that Rostrud and the Ministry of Finance, in principle, do not allow the possibility of concluding, but the courts often take the opposite position.

Transfer of cases upon dismissal of a director

The manager is responsible for the safety of property and documents related to the activities of the organization. Upon dismissal, the director must hand over the files, which in practice means transferring, according to the act, to the new manager or acting director:

• constituent and registration documents of LLC;
• minutes of general meetings and decisions of participants;
• accounting and banking documents;
• documents confirming the organization’s ownership of real estate, transport and other property;
• personnel documents;
• licenses, approvals and permits issued to the company;
• agreements with counterparties and other important documents;
• seal and stamps of the organization, keys to the safe.

Although there is no procedure for transferring cases specified by law, the manager bears full financial responsibility in accordance with Article 277 of the Labor Code of the Russian Federation. Based on this, before dismissal it is also worth conducting an inventory of the organization’s property.

Such a transfer of affairs is in the interests of the former director himself, because He may be held liable for damage caused to the organization even after his dismissal. If the director refuses to transfer affairs under the act, then the owner of the organization must create a commission that conducts an inventory of affairs and property and confirms the fact that the director refused to sign. Further, if the director’s actions actually caused damage to the organization, issues of recovery of damages are resolved in court.

Compensation to the director upon dismissal

The law stipulates only two special situations when the owners of an organization are obliged to pay compensation to the director upon dismissal:

• change of owner of the organization's property;
• dismissal of the director by decision of the founders without explanation (clause 2 of Article 278 of the Labor Code of the Russian Federation).

In both cases, the amount of compensation cannot be less than three monthly salaries. If the director was dismissed due to the liquidation of the LLC, then, like other employees, he has the right to receive compensation under Article 178 of the Labor Code of the Russian Federation (one monthly salary, as well as previous earnings for the period of employment, but not more than two months).

Payment of monetary compensation upon dismissal by agreement of the parties, although it occurs in practice, is not mandatory. There is no obligation to pay compensation to the director if he resigns at his own request, however, the employment contract may still provide for a certain severance pay.

In the case when the director is dismissed under Article 81 of the Labor Code of the Russian Federation, there is no question of any compensation; on the contrary, a claim for damages may be brought against the former director.

As for the amount of compensation upon dismissal of a director, it is limited only for heads of state and municipal organizations and those in which the share of state property exceeds 50%. For directors of such organizations, the amount of compensation cannot exceed three monthly salaries.

Procedure for dismissing a director

So, what actions should be taken if it becomes clear that the dismissal of the director for any of the reasons discussed above is inevitable?

1. Prepare the minutes of the general meeting of participants or the decision of the sole participant to terminate the employment contract with the director. The document must indicate the reason for the dismissal of the director. The basis may be the director's statement of resignation at his own request; agreement of the parties; decision of the participants to terminate the employment contract with the director; a report on the director’s actions under Article 81 of the Labor Code of the Russian Federation.
2. Issue an order to terminate the employment contract and register it in the journal.
3. Accept from the head the affairs and property of the organization according to the act.
4. Make payment of the last salary, compensation for unused vacation, severance pay, and other agreed payments based on the calculation note.
5. Enter a notice of dismissal in the director’s personal card in Form No. T-2. The entry on the manager’s card must be reviewed against signature.
6. Make a note of dismissal in the work book and hand it over to the director.
7. Notify the bank about the termination of the director's powers.
8. Within three working days from the date of transfer of the director’s powers to the new director, inform your INFS about changes in registration information in Form 14001.