Who can sign documents?
Naturally, the constant process of signing a wide variety of documents cannot be suspended due to the director’s vacation. After all, the company continues to function fully, take part in various transactions, prepare regular reports for authorized bodies, etc. At the same time, the right to sign documentation is always sole and belongs to the immediate manager of a particular company. However, the latter, in order to ensure the continuous functioning of his own company, still has the right to transfer the signing authority to another responsible person.
In most cases, the role of such a person is his deputy, but the law does not prohibit the transfer of powers to another person, at the discretion of the manager. In the event that additional powers are assigned to another employee, the performance of this function must be recognized as a full-fledged combination. The very fact of combination must be documented by drawing up an additional agreement.
Any manager must complete absolutely all documentation work on the transfer of authority before his own vacation, appointing a responsible person. In connection with this order, the selected person becomes the acting director - I.O. If, in addition to signing documents, this person has other obligations, for example, representing the interests of the organization in various transactions, a special power of attorney is required to record this fact.
general information
All employees without exception have the right to annual paid leave. This also applies to the head of the enterprise. He can issue it 6 months after taking office. But Article 122 of the Labor Code of the Russian Federation states that the director has the right to take days off earlier than the specified period by agreement of the parties.
He must be informed about the start of his vacation 2 weeks in advance. As for the paperwork, it depends on many factors. For example, from who specifically in the organization is responsible for providing vacations to managers. If this is the responsibility of the company founders, then minutes of the general meeting must be drawn up.
In some cases (when the boss is an employee), he is required to write an application addressed to the owner, shareholders, etc. Naturally, if the manager is a co-founder of the company, there is no need to draw up an application.
An order drawn up in any form is also issued. The unified form of the T-9 document cannot be used in this case, since it must be signed by the manager. If the director provides vacations to the bosses at the company, then he arranges his vacation independently.
Help: the manager is recalled from vacation in the same way. It is drawn up by the founders or himself.
Can a director sign documents while on vacation?
Some believe that rest time provides for the complete release of the manager from his duties and powers, including signing documentation. On the other hand, the director’s powers may be lost solely due to termination of the employment contract, but not due to registration of regular leave.
Judicial practice shows that the presence of a director on vacation has never been recognized as a sufficient reason for the absence of a signature on important documents. This once again confirms the fact that the signing of documents should not be interrupted even if the director, after going on vacation, did not transfer authority to another responsible person.
There are also slightly different situations. For example, the director went on official leave, transferred his powers to another person properly, but signed certain documents. These documents were an agreement to conduct a certain transaction and additional papers. In this case, a certain confusion occurred, and it was its presence that made it possible for the second party to the transaction to challenge it. This is not surprising, because the powers were officially transferred for a certain time, which means that at that moment the director did not have them. As a rule, the court, in most cases, decides to declare a previously concluded transaction invalid.
Thus, situations in which a director, while on vacation, signs the documentation himself can cause quite serious problems in the future, even leading to serious litigation. Therefore, in such a situation, it is better to act as precisely as possible - either transfer the authority to the person in charge and not touch the signing of documents, or not transfer them to anyone and sign everything yourself.
In most cases, the most effective option will still be to delegate authority to a responsible person, for example, a deputy director. As a rule, this person knows very well the specifics of the company’s activities, as well as all the necessary nuances of the work. In addition, such a transfer of authority will allow the director to get truly complete rest, without being distracted by constantly arising work issues and problems. And the director will always be able to return to all duties and powers immediately after returning from official leave.
“Salary”, 2013, N 1
IF THE DIRECTOR GOES ON HOLIDAY
The burden of responsibility of the head of the company is enormous; in fact, he is responsible for everything. But just like all employees, the director is entitled to annual paid leave.
A director is an employee. He is subject to all norms of labor legislation, in particular regarding vacations.
General rules for granting leave
In accordance with Art. 123 of the Labor Code, the priority for granting paid vacations is determined annually in accordance with the vacation schedule. The vacation must be planned in advance and reflected in the unified form N T-7 “Vacation Schedule”, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1.
Note. Read more about this in the article “Vacation schedule: we make it all year round” // Salary, 2012, No. 12.
The employee must be notified of the vacation no later than two weeks before it begins.
You can issue a vacation order in advance. The order specifically contains the line “The employee has become familiar with the order (instruction).” See sample 1 on the next page.
Sample 1
Order on granting leave
Note. Who will sign the order for the director’s leave?
The order for granting leave must be signed by the director himself. This is stated in the Letter of the Federal Service for Labor and Employment dated March 11, 2009 N 1143-TZ: “In the process of labor relations, the manager issues (including in relation to himself) orders (for example, about going on a business trip, vacation).”
Actions of the HR department
If the director is on vacation and there is no one to sign documents, orders of dismissal, hiring of employees, business trips, vacations, sick leave, etc., then the work of the personnel department is completely paralyzed. Signing contracts and concluding important transactions will become impossible, the financial well-being and the entire production process of the company will be at risk.
There are reliable options for transferring authority when a director goes on leave. There is no need to leave the company unattended. A wise manager, when going on vacation, should leave his deputy a reminder about the deadlines for submitting reports, paying taxes, payments under contracts, and also leave the phone numbers of clients, customers and business partners.
General Director's leave order
Based on the order, it is necessary to fill out a calculation note on granting leave to the employee (unified form N T-60) and pay vacation pay no later than three days before the start of the vacation (Part 9 of Article 136 of the Labor Code of the Russian Federation).
Special status - special procedure for vacation planning
In addition to the Labor Code, the activities of the director are also regulated by other laws.
Thus, Federal Law No. 208-FZ of December 26, 1995 “On Joint-Stock Companies” (hereinafter referred to as Law No. 208-FZ) does not prohibit the charter of organizations from prescribing a different procedure for granting leave to the manager (clause 3 of Article 11 of Law No. 208-FZ) . For example, the CEO may be required to agree on the start time of vacation and its duration with the founders or the board of directors.
Note. The company's charter may contain other provisions that do not contradict this Federal Law and other federal laws.
Delegation of powers during vacation
The director is the first person of the organization. It is he who makes transactions on behalf of the company, the state approves, issues orders and gives instructions that are binding on all employees of the company (Clause 2 of Article 69 of Law No. 208-FZ). To ensure that life in the organization does not stop during his vacation, the director must delegate his powers in advance.
I'm leaving for another vacation...
Before going on vacation, the director must sign an order transferring his duties. This is not a personnel order, but an order for the enterprise, and it can be drawn up in free form (sample 2).
Sample 2
Order on delegation of powers
I trust...
The director, being the sole executive body, acts on behalf of the company without a power of attorney, including representing its interests and making transactions, issues powers of attorney for the right of representation on behalf of the company, including powers of attorney with the right of substitution (clause 1, clause 3, article 40 Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”). The Law on Joint Stock Companies also allows only the director to act without a power of attorney (paragraph 3, paragraph 2, article 69 of Law No. 208-FZ).
Other persons to whom the duties of a manager have been transferred during the period of his annual leave can act only on the basis of an issued power of attorney. This procedure applies, in particular, to representing the interests of the organization in the tax authorities (Letter of the Ministry of Finance of Russia dated September 25, 2012 N 03-02-07/1-227).
The requirements for the execution of a power of attorney are established in Art. Art. 185 - 186 of the Civil Code: - a power of attorney on behalf of a legal entity is signed by its director with the obligatory application of a seal; — the power of attorney must indicate the date of its execution; — the validity period of the power of attorney cannot be more than three years. If the validity period is not specified, then it is valid for a year from the date of commission.
Also, the power of attorney must clearly state the list of powers that are granted to the deputy director (sample 3). It is better to issue a power of attorney on the organization’s letterhead, where its main details are indicated. There is no need for a notarized power of attorney.
Sample 3
Power of attorney
Right of first signature
In order for the organization to continue to operate uninterruptedly during the absence of the director, make purchases and sales, so that employees are paid salaries and vacation pay on time, he must transfer to the deputy the right to manage the organization’s funds.
The transfer of the right to first sign payment documents is formalized by an appropriate order or power of attorney. If the bank card does not contain a sample signature of a temporary replacement employee, then it is necessary to issue a temporary card. This procedure is contained in Bank of Russia Instruction No. 28-I dated September 14, 2006 “On opening and closing bank accounts and deposit accounts.”
Who should be left as deputy?
We showed the procedure for temporary transfer of authority using the example of a full-time deputy general director. Let's consider the nuances of such a replacement, as well as other possible options.
Full-time Deputy
In large and medium-sized organizations, as a rule, the director has full-time deputies.
Must replace.
The obligation to replace the manager during his absence is prescribed both in the terms of the employment contract and in the job descriptions of the deputy, as in sample 4.
Sample 4
Job description of the deputy director (fragment)
Additional payment for replacing a director.
Is it necessary to pay extra to an employee who is a full-time deputy for the time when he acts as a director? Previously, the deputy was not entitled to such additional payment. Explanation of the USSR State Labor Committee and the Secretariat of the All-Union Central Council of Trade Unions dated December 29, 1965 N 30/39 “On the procedure for paying temporary substitutions” directly indicated that full-time deputies do not have the right to receive a difference in salaries. But subsequently, this particular norm was canceled by the Ruling of the Supreme Court of the Russian Federation dated March 11, 2003 N KAS03-25. Now, in the issue of assigning additional payment, it is necessary to rely on the requirements of Part 1 of Art. 151 of the Labor Code: “When combining professions (positions), expanding service areas, increasing the volume of work, or performing the duties of a temporarily absent employee without release from work specified in the employment contract, the employee is paid additionally.”
The legislation does not specifically indicate the amount of additional payment in this case; it is established by agreement between the parties to the employment contract. In practice, the amount of payment is usually determined as the difference between the salaries of the director and his deputy. The corresponding entry is provided in the employment contract of a full-time deputy (sample 5).
Sample 5
Employment contract (fragment)
There is no full-time deputy
In small organizations there may not be a full-time deputy. In this case, responsibilities can be assigned to one of the heads of structural divisions.
Before issuing an order, it is necessary to conclude an additional agreement to the employment contract (sample 6). This document should establish the period during which the employee will perform the duties of a manager, as well as determine the amount of additional payment for additional work.
Sample 6
Additional agreement to the employment contract (fragment)
The law does not establish specific qualification requirements for an interim director. But in any case, the deputy’s qualifications must be high enough for him to competently manage the enterprise, even if only temporarily.
Note. Who is responsible during the director's vacation? The director bears full financial responsibility for direct actual damage caused to the organization (Article 277 of the Labor Code of the Russian Federation). In addition, for losses caused to the company by his guilty actions or inaction, the director bears civil liability (Clause 2, Article 71 of Law No. 208-FZ and Clause 2, Article 44 of Law No. 14-FZ). Read more about this in the article “Financial responsibility of a manager, 2012, No. 7).
If the director did not leave a deputy, then for all incidents that occurred during his absence, he himself will bear financial, administrative and criminal liability.
He must know tax, labor, civil legislation, industry standards, advertising laws, antitrust, and licensing rules. If there is no such employee in the organization, you can invite an outside employee to the position of director and accept him under a fixed-term employment contract.
When the director left no one in his place
If, when going on vacation, the director did not transfer his powers to another person, we can say that the work of the organization is suspended.
Non-cash payments and cash payments.
To carry out any monetary transaction, the signature of the first person on the payment document is required. If there is no director and no one has the right of first signature, it becomes impossible to make money transfers, receive cash for paying salaries, etc.
It seems unnecessary to warn about the inadmissibility of forging the director’s signature, about affixing a signature in advance on blank forms of payment orders, checks (white sheets).
Personnel actions.
Since there is no one to sign orders for admission, dismissal, vacation, business trip, etc., personnel work is paralyzed. Your employee won't even be able to retire!
Contractual work with partners.
Concluding deals and signing contracts will be impossible. The production process and the financial well-being of the company may be at risk.
O.N. Rusakova Labor Law Specialist
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Question:
Can a company employee who is authorized to sign certain documents put his signature on company documents while on vacation?
ANSWER:
The current legislation does not provide for a ban on an employee performing his official duties while he is on vacation (Appeal ruling of the judicial panel for civil cases of the Supreme Court of the Republic of Sakha (Yakutia) dated January 14, 2015 in case No. 33-4778/2014).
However, the organization may face some risks when signing documents by employees on vacation
Experts explain the following {Question: ...Is it legal for an employee to sign work-related documents while on vacation? (Expert Consultation, 2017) {ConsultantPlus}}
Articles 124, 125 of the Labor Code of the Russian Federation provide for the possibility of an employer to recall an employee from vacation with his consent. However, since in this case the employee went to work during his vacation on his own initiative, the mentioned provisions of the Labor Code of the Russian Federation are not applicable.
In our opinion, the actions of the deputy manager in signing documents related to the performance of his official duties while on vacation are not a violation of the law.
The courts, confirming the legitimacy of this position, explain that the current legislation does not provide for a ban on an employee performing his official duties while he is on vacation (Appeal ruling of the judicial panel for civil cases of the Supreme Court of the Republic of Sakha (Yakutia) dated January 14, 2015 in case No. 33 -4778/2014).
Therefore, within the meaning of Art.
Issuing an order
The order for the transfer of powers is issued in advance, and the employee taking over the post must first indicate in writing that he agrees to replace the director while he is on vacation.
The order is necessary as a document regulating legal relations within the company.
If duties are performed without an appropriate order, then the authority of the acting official may be called into question, and any order or action of the director or management as a whole can be challenged in the labor inspectorate or court. Therefore, the order must be prepared carefully and all formalities must be observed.
Such an order does not have a standard form, and each company can use its own sample, differing in certain details. One of the possible design options is attached to the article; it should be supplemented with a list of basic information that should be contained in the document:
- order number;
- the company to which it belongs;
- publication date;
- the basis for which it was required;
- descriptive part.
Let's tell you more about the latter. It should indicate:
- The full name and position of the employee appointed as acting director, the very fact that he is assigned responsibilities, and the period for which they are assigned. It also clarifies whether the employee will retain the duties performed by him in his main position.
- Sometimes all duties associated with a position may be listed.
- The rights granted to the employee are indicated (the right to sign, represent the interests of the company, and so on).
- The procedure for compensation for performing additional duties.
- Sometimes other documents may be attached to the order, in which case they should be indicated directly in its text.
- The order must have the director’s signature - without it it will not be valid. The use of facsimile signatures is unacceptable, but it is possible to replace it with the signature of his representative acting on the basis of a power of attorney - then a reference to this document must be made in the order.
The legislation does not require that an order be certified with a seal; this will only be necessary if such a requirement is in the internal regulations of the company itself.
Only one copy is needed; if necessary, copies can be made. During the validity period of the order, it is kept filed in a folder with administrative documentation, and after the expiration of this period it is handed over to the archives.
The nuances of signing documents by a director who is on vacation
106 of the Labor Code of the Russian Federation, the presence of a deputy manager on vacation does not deprive him of the right to sign documents related to the performance of his official duties, that is, it is recognized as lawful.
Article: Flew away, but promised to return (“Practical Accounting”, 2017, N
{ConsultantPlus}
The signing of documents always, as a rule, involves the execution and actual implementation of any transactions with counterparties, be it, for example, the shipment of goods. And it turns out in your case that no one is at work, everyone is on vacation, and transactions are carried out by themselves , goods themselves end up in the warehouse and are sold on their own.
When checking, tax officials may well insist that such transactions are fictitious . From the point of view of purchases, you may lose expenses and VAT (if you pay it); from the point of view of sales, your counterparties may lose expenses and VAT.
When checking the labor inspectorate, there may also be claims from the inspectors: the implementation of activities (transactions) of the organization in the absence of all employees can be considered as the performance of job duties during vacation, therefore, a violation of the right of employees to proper rest.
To avoid such troubles, it is better to let employees go on vacation one by one. The general director can entrust accounting maintenance to himself (Law N 402-FZ on accounting establishes), just as the general director can entrust an accountant with the powers of an executive body or simply issue a power of attorney for the right to sign for him in documents during vacation (carrying out certain powers).
Also, the Law does not prohibit during the absence (vacation) of an employee (this applies more to an accountant in your case, since it is more difficult with the general director) to assign the performance of his duties to another specialist hired by the organization on the terms of a fixed-term contract.
The review was prepared by specialists of the Consulting Line of the Earth-SERVICE Group of Companies
Angle three
Finally! It's high time to rest. And then everything advises, and advises. I’ve had my own plan for a long time, but he stuck with me: do it according to what has been worked out. I say that it’s irrational, it’s faster, it’s his own, but it’s more reliable.
From the very first day my soul blossomed. I made the programs I wanted, calculated from them everything that was needed and not needed, and gave it to the customer. He is pleased, he still asks, but quickly. Feels like the scam will end when my boss returns. I resolved all the minor issues in my own way without him. Grace! Let him bask in the sun, tan. But no, he called from there and asked how I managed to calculate the parting line. I say: ok and sent him. Near. Swim in the sea. He breathed thoughtfully into the phone and, feeling that, indeed, everything was fine, he went in the indicated direction.
In advance, however, I contacted the person who is replacing me, but he is not a hindrance to me. Whatever he says, I’ll do it anyway, as I think. He won't be able to recognize it. So, dear colleagues, it’s good when the boss is not there, and bad when I’m not there. He will definitely entrust my work to someone else to maintain speed, and he will also take part, and then spend three months figuring out what they have sculpted.
Assignment of director's duties during vacation
Return to Director's Responsibilities
In accordance with Art. 60 of the Labor Code of the Russian Federation, it is prohibited to require an employee to perform work not stipulated by an employment contract, except for cases provided for by this Code and other federal laws.
We also note that in accordance with Art. 60.2 of the Labor Code of the Russian Federation, an employee may be assigned to perform additional work in a different or the same profession (position) only with the written consent of the employee and for additional payment.
Accordingly, regardless of the fact that the employee’s job description provides for the obligation to perform the duties of a director during his absence, you in any case must follow the legally established procedure for assigning additional work to the employee.
The legitimacy of this approach is confirmed, in particular, by the Supreme Court of the Russian Federation in its Determination No. KAS03-25: according to Part 1 of Art. 151 of the Labor Code of the Russian Federation, the performance of the duties of an absent employee must be paid additionally, even if we are talking about an employee whose employment contract or job description provides for the obligation to replace the absent employee.
Consequently, during the absence of the director, you can easily entrust his replacement to any employee, including the deputy.
Thus, you may well entrust the replacement of the director during his vacation to the deputy.
To do this you need to fill out:
– Additional agreement to the employment contract – Additional agreement to the employment contract. Temporary performance of duties of an absent employee (temporary replacement).
– an order on the temporary assignment of the duties of the head of the organization to this employee - An order on the temporary performance of the duties of an absent employee (temporary replacement). The order must specify the specific responsibilities of the employee replacing the manager (for example, signing HR orders, invoices, etc.).
- power of attorney. It is designed to regulate the organization’s external relations (in particular, relations with counterparties). In the power of attorney, indicate the powers delegated to the authorized person.
As for the official seal, you can easily draw up an act of acceptance and transfer from the head of the organization to the deputy for the period of vacation.
As such, the acceptance and transfer of cases in the case of temporary substitution is, as a rule, not provided for.
If there is no full-time deputy
Often, in small organizations and individual entrepreneurs there is no full-time deputy. In this case, powers can be transferred to one of the heads of departments to combine positions. Before issuing an order, you need to sign an agreement that will be an addition to the employment contract. It specifies the duration of the duties of the director and the amount of additional payment due.
The boss in the order to combine positions must indicate:
- the specific powers of the deputy (i.e. what work he will have to do and to what extent);
- deadlines for the deputy to fulfill his powers;
- specific amount of surcharge;
- whether the deputy has the right to sign financial documents.
The law does not impose specific requirements on the person acting as chief. However, his qualifications must be high so that he can competently manage the business.
Another option is an employee who does not combine his position with the responsibilities of a manager, but is temporarily transferred to such a position. The translation procedure is prescribed in Art. 72.2 Labor Code of the Russian Federation. Such a transfer can be for a period of up to one year. But if the period has expired and the replacement employee was not given the previous job, then the transfer automatically turns into a permanent job.
Do not forget that when an employee is transferred to a replacement position, the area of work he performs is freed up. So, you will have to look for another person to take his place. Therefore, transferring an employee is not very convenient and requires a lot of effort.
Can the CEO sign documents while on vacation?
Temporary performance of the duties of the head of an institution is required in cases where he is absent for some reason (sick, on a business trip, vacation, etc.).
As a rule, the temporary performance of duties of the head of an institution is assigned to his deputy. If the head of the institution does not have a deputy whose job responsibilities would include temporarily performing the functions of a manager, then assign these responsibilities to another employee. In this case, the head of the institution (chief manager, founder) must issue an order to temporarily assign the duties of the head of the institution to this employee (clause 1 of the Procedure approved by clarification of the USSR State Committee for Labor No. 30 and the Secretariat of the All-Union Central Council of Trade Unions No. 39).
The order must specify the specific responsibilities of the employee replacing the manager. For example, sign HR orders, invoices, etc. (instructions approved by Resolution of the State Statistics Committee of Russia No. 1, clause 6 of Article 169 of the Tax Code of the Russian Federation).
The procedure for replacing the head of an institution in the event of his temporary absence can be prescribed.
This follows from paragraphs 1, 3 of Article 14 of Law No. 7-FZ.
In particular, the constituent documents may provide for the procedure for electing (appointing) a new head of an institution during the absence of the old one (for example, in the event of his arrest).
Power of attorney to exercise the powers of the general director
If the charter (regulations) of the institution does not provide for the possibility of transferring powers during the absence of the head, then it is necessary to issue a power of attorney. It is designed to regulate the external relations of the institution, i.e. relations with counterparties. In the power of attorney, indicate the powers delegated to the authorized person (to enter into civil contracts.
The power of attorney on behalf of the organization must be signed by its director (or another person authorized to do so in accordance with the law and constituent documents) (Clause 4 of Article 185.1 of the Civil Code of the Russian Federation). Moreover, a power of attorney issued on behalf of an organization does not need to be stamped (including when issuing a power of attorney to an employee temporarily replacing the general director).
A power of attorney can be issued for any period. If the period is not specified in the power of attorney, then it will be valid only for one year from the date of its issue. Such rules are established in paragraph 1 of Article 186 of the Civil Code of the Russian Federation.
The principal may revoke the power of attorney at any time. And the employee to whom it was issued has the right to refuse it at any time. An exception is the case when an irrevocable power of attorney is issued (clause 2 of Article 188 of the Civil Code of the Russian Federation). Such a power of attorney can be canceled only in those cases that are directly indicated in the document itself (Article 188.1 of the Civil Code of the Russian Federation). A complete list of cases when a power of attorney ceases to be valid is given in Article 188 of the Civil Code of the Russian Federation.
Additional payment for temporary replacement of the general director
For performing the duties of a temporarily absent manager, establish an additional payment for the employee (Article 151 of the Labor Code of the Russian Federation). However, it is mandatory only if the performance of the duties of the absent manager is not provided for in the employee’s job description (employment contract with him).
