Dismissal of the CEO by decision of the founder: procedure, payment and calculation of compensation

What are the grounds for early termination of an employment contract with a director?

The owners of a business company can, on their own initiative, dismiss the head of the company on the basis of:

1. Provisions of Art. 81 Labor Code of the Russian Federation.

Namely, as a result of the director making decisions that caused harm to the health of the organization’s employees or damage to the company’s property. In addition, dismissal under Art. 81 is possible if the director fails to fulfill his duties properly.

2. Provisions of Art. 278 of the Labor Code of the Russian Federation (taking into account the position of the Armed Forces of the Russian Federation).

Namely, based on the decision of the owners, regardless of the reasons that influenced its adoption (clause 9 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated June 2, 2015 No. 21).

If a director is dismissed on the grounds given in clause 1, no compensation is expected to be paid in his favor. If the director resigns under clause 2, compensation is due, and its amount should not be less than 3 monthly salaries (unless a larger payment is provided for in the employment contract).

Another possible mechanism for dismissing a director is liquidation of the company. Let's consider its specifics in more detail.

On our forum you can get an answer to the question that arose in your mind during the preparation of various types of documents. For example, here you can exchange experience on the procedure for terminating an employment contract with the head of the organization.

Grounds for dismissal of a director prescribed by law

Reasons for dismissing a director.

The head of any enterprise is responsible for the implementation of its activities and development, which directly depend on the personal qualities of the employee. Labor legislation specifies specialized grounds that should be considered in more detail.

Article 81 of the Labor Code prescribes the following grounds:

The first and most common reason is a change in the owner of the property of the entire company. Using the same principle stated in paragraph 4, you can replace the chief accountant;
In case of a one-time gross violation of the performance of one’s duties (clause 10), the nature of the violation is subjective and dismissing the employee in this case is a right, not an obligation;
Unreasonable decision-making by the director of the company, which led to a violation of the integrity or safety of property or to its illegal use (clause 9) - for example, making a transaction that violates the requirements of the law. First, the employer must prove the harm caused, and then, in accordance with the Labor Code, formalize the dismissal - creating a commission, drawing up reports, investigating the circumstances of the case, etc.

Also, the legal basis for changing the director of a company is prescribed in Article 278 of the Labor Code of the Russian Federation:

removal of the debtor in connection with the recognition of the company as unprofitable - bankruptcy law (clause 1), namely Article 69 states that the manager is forcibly removed from office because he violated the requirements of bankruptcy legislation.

How to fire a director during liquidation of a company

The procedure for dismissing the general director by decision of the founder during the liquidation of the organization (that is, in the context of the voluntary liquidation of the company) is not fundamentally different from the procedure for dismissing any other hired employee in this situation.

The director must be notified that such dismissal is pending 2 months before the termination of the employment relationship. But the employer may offer him to terminate the employment contract before the expiration of this period.

Upon dismissal due to the liquidation of the company, the director receives all types of severance pay and compensation that are provided for by the Labor Code of the Russian Federation for employees dismissed during liquidation: severance pay, compensation for unused vacation, etc. In addition, the agreement with the director may provide for additional payments in case of various types of layoffs.

When a company is liquidated, it is possible to terminate the employment relationship with the director, even if he is on vacation, sick leave or maternity leave.

The dismissal of a director is a procedure that is implemented in the jurisdiction of not only labor legislation, but also civil law - in the part regulating corporate legal relations.

Regardless of the grounds for dismissal of a director, there are procedures regulated by labor and civil law that must be carried out. Let's look at them.

Dismissal of the general director without the appointment of a new director

A situation where it is necessary to dismiss an old director without appointing a new one may be necessary in the event of an unplanned dismissal of the general director and in a case where it will take time to find a new director.

According to Art. 40 Federal Law “On Companies...” the director of the company is appointed by decision of the founders. He may be part of the owners or be a person who does not own a share in the authorized capital.

This law also specifies the exclusive powers of the general director and the importance of his status for the normal functioning of the business. Information about the director is also contained in the Unified State Register of Legal Entities, which is needed to confirm his powers.

The standard procedure for dismissing an employee consists of issuing the appropriate personnel documentation, in particular, an order to terminate the employment contract. But if the general director is dismissed, this stage is not final, since the founders are required to report changes in management to the Unified State Register of Legal Entities. At the same time, it is unacceptable to simply exclude information about the old director without indicating the new one. Moreover, the new manager must sign the notice by law.

If the company’s management decided not to appoint a new CEO, then they should take into account all the negative consequences from him. In particular, the company will not have a person who has the right to sign documents without a power of attorney, which will cause a management crisis.

Also, untimely notification of a change in company management threatens the owners with administrative liability under the norms of 14.25 of the Administrative Code. The fine under this article reaches 5-10 thousand rubles.

In order to avoid a situation where the company is left without a general director, you can resort to the services of a professional manager and conclude a fixed-term employment contract with him while searching for a new leader. Or you can appoint one of the company’s founders as an interim director.

The procedure for terminating the powers of a director of an LLC or JSC

The dismissal of a director on the initiative of the owners of the company (unless we are talking about liquidation, which is characterized by complex procedures, in many cases with the participation of the court) involves them taking the following actions:

1. Publication of the minutes of the meeting of founders on the termination of the powers of the head of the company. This document must contain references to the provisions of the Labor Code of the Russian Federation, on the basis of which the founders dismiss the director.

If the company has 1 owner, then a decision of the sole founder is prepared.

Often, along with the protocol on the dismissal of the director, a document is drawn up on the appointment of a new person - indicating his full name and the date of assuming the position of director (or the clause on the appointment of a new director is included in the protocol).

2. Initiation of the issuance of a dismissal order (possible using the unified form No. T-8).

3. Entering information about dismissal into the manager’s personal card, familiarizing yourself with this record of the director against signature.

4. Entering information about dismissal into the director’s work book.

5. Making a decision to appoint a new head of the organization (if this decision is not made simultaneously with the preparation of the protocol on dismissal).

6. Within 3 days after the appointment of a new director, inform the Federal Tax Service about this using form P14001.

At the same time, it is necessary to inform the bank servicing the current account about the change of the person who has the right to use the digital signature, and also ask the bank to block the digital signature of the dismissed director.

7. Reception from the director of documents and property of the organization used by him (for example, keys, bank cards, digital signature carriers).

8. Carrying out settlements with the director, issuing documents to him.

Each of these procedures is characterized by a number of nuances. Let's study them.

The procedure for dismissing a director at his own request

The procedure for dismissing the founding director of a limited liability company occurs in 4 stages:

At an extraordinary meeting of the company's participants, a decision is made to dismiss the manager. This document is the only basis for termination of his powers (according to Article 33 of the Federal Law No. 14 and Letter of Rostrud No. 1143-TZ dated March 11, 2009). It reflects the date of the director’s last day of work, the timing and procedure for transferring affairs to the new director.
Issuance of a dismissal order and notification of its contents. These documents are signed by the person being dismissed or by an employee who has such authority.
A record of termination of the employment contract is made in the work book. The basis is a decision made at a meeting of LLC participants.
Issuance of a work book and payment of compensation on the last day of work.

This is the procedure if the dismissal of a director occurs voluntarily. Otherwise, the procedure looks completely different.

How to draw up a notice of dismissal (download sample)

The protocol on dismissal (or the decision of the sole founder) may contain the following information blocks:

1. Block indicating the name of the document, business entity, date and place of preparation.

2. Indicating the founders and invitees present (among whom may be, for example, the dismissed general director).

3. Indicating the issue that is on the agenda - the dismissal of the general director of the company from his position.

As we noted above, the issue of appointing a new head of the organization may also be on the agenda.

4. Indicating the persons who spoke at the meeting. For example, the owner who initiated the dismissal of the director and his partner who proposes a candidate to replace the dismissed director.

5. Block, which reflects the decision of the meeting of founders. In this case, it will consist in the dismissal of the director from his position - on the basis of such and such an article of the Labor Code of the Russian Federation, as well as in the appointment of the proposed candidate as a new director.

6. Indicating information about those who voted. If the decision is made, the majority of votes or the fact that the decision was made unanimously should be reflected here.

7. Block signed by the chairman of the meeting of founders.

It can also be supplemented by the signature of the secretary.

You can find the owners' decision to dismiss the director on our website using the link below.

HOW IS THE DECISION TO DISMISS A MANAGER MADE?

The decision to terminate the employment relationship with the head of the organization is made by authorized bodies and persons in accordance with a certain procedure, depending on who exactly makes the decision.

Table 1

Making a decision to terminate the powers of the head of the organization

...In joint stock companies

The decision to terminate the employment relationship with a manager in a joint-stock company is made by the general meeting of shareholders, if the company’s charter does not include the resolution of these issues within the competence of the board of directors (supervisory board) of the company. The procedure for holding an extraordinary general meeting of shareholders is established by Art. 55 of the Law on JSC.

How is a meeting of the board of directors (supervisory board) of a joint stock company held?

If we are talking about other grounds for terminating an employment contract with the head of an organization (for example, the issue of dismissing a manager will be decided under clause 2 of Article 278 of the Labor Code of the Russian Federation), then a meeting of the board of directors (supervisory board) of the joint-stock company is convened by the chairman of the board of directors (supervisory board) of the company on his own initiative, at the request of a member of the board of directors (supervisory board), the audit commission (auditor) of the company or the auditor of the company, as well as other persons determined by the charter of the company.

The procedure for convening and holding meetings of the board of directors (supervisory board) of the company is determined by the charter or internal document of the company. These documents may provide for the possibility of taking into account, when determining the presence of a quorum and voting results, the written opinion of a member of the board of directors (supervisory board) of the company who is absent at the meeting on issues on the agenda, as well as the possibility of making decisions by absentee voting.

The quorum for holding a meeting is determined by the company's charter, but should not be less than half of the number of elected members of the board of directors (supervisory board). As a general rule, decisions at a meeting are made by a majority vote of the members of the board of directors (supervisory board) participating in the meeting. When deciding issues, everyone has one vote. In the event of a tie of votes, the company's charter may provide for the right of the chairman of the board of directors (supervisory board) to have a casting vote when making decisions.

...In a limited liability company

In a limited liability company, the procedure for the activities of the board of directors (supervisory board) of the company is determined by the charter of the company.

The procedure for convening a general meeting of company participants is defined in Art. 36 of the LLC Law.

If we talk about convening an extraordinary general meeting of LLC participants, then the right to convene it, in addition to the head of the company, has the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor, as well as participants of the company who collectively have at least one tenth of the total number of votes of the company's participants.

The head of the LLC is obliged, within five days from the receipt of the request to hold an extraordinary general meeting of the company's participants, to consider this requirement and make a decision to hold an extraordinary general meeting of the company's participants or to refuse to hold it.

If a decision is made to hold an extraordinary general meeting of the company's participants, it must be held no later than forty-five days from the date of receipt of the request for its holding.

If within the established period a decision is not made to hold an extraordinary general meeting of the company's participants or a decision is made to refuse to hold it, the meeting may be convened by bodies or persons demanding its holding. In this case, the director is obliged to submit to the specified bodies or persons a list of company participants with their addresses.

The initiator of an extraordinary general meeting of participants must notify each participant of the company about this no later than thirty days before it is held by registered mail to the address indicated in the list of participants of the company, or in another way provided for

bylaws. The notice must indicate the time and place of the general meeting of the company's participants, as well as the proposed agenda.

How is a decision made on early termination of an employment contract with the head of an LLC?

By virtue of clause 8 of Art. 37 of the LLC Law, such a decision is made by a majority vote of the total number of votes of the company’s participants, however, the Charter may provide for the need for a larger number of votes to make such a decision.

In addition, a decision on the issue of early termination of an employment contract with the head of an organization can be made without holding a meeting by absentee voting (by poll). Such voting can be carried out by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communications that ensure the authenticity of transmitted and received messages and their documentary evidence.

Let us note that the possibility of conducting absentee voting and its procedure are determined by the internal document of the company, which must provide for the obligation to inform all participants of the company of the proposed agenda, the possibility of familiarizing all participants of the company with all the necessary information and materials before voting, the opportunity to make proposals for inclusion in the agenda additional issues, the obligation to inform all members of the company before the start of voting of the amended agenda, as well as the deadline for the end of the voting procedure (Article 38 of the LLC Law).

How to fire a CEO: order of dismissal

Above, when considering the procedure for releasing a director of a company from a position, we reflected the need for the dismissed director to initiate the issuance of an order to actually relieve himself of his position. This is due to the requirements of Art. 84.1 Labor Code of the Russian Federation.

At the same time, an expanded interpretation of these requirements is acceptable: the specified article of the Labor Code of the Russian Federation states that the order (or instruction) must be drawn up by the employer, and this is not necessarily the head of the company. At the same time, functionally this order or instruction (and with an expanded interpretation of the term “order” - also legally) may correspond to the decision or protocol of the founders on the release of the director. Thus, it is permissible to refuse to draw up the order in question, especially if the director himself suddenly refuses to sign it.

Whether the order in question is applied or not determines the specifics of filling out the work book of the dismissed director.

Dismissal of the general director if he is the founder

Often a person from among the founders is appointed to the position of general director. The dismissal procedure in this case will have some features. Thus, when a director resigns at his own request, he must not forget about the need to notify other company participants in advance at least a month before the date of dismissal. The letter from Rostrud states that in this case it is necessary to warn the founder who signed the employment contract with the director.

The question of dismissing a person before the expiration of a month under Art. 80 of the Labor Code of the Russian Federation can only be decided by a general meeting of founders. There are no exceptions to the general rule.

If the founding general director is dismissed during the liquidation of the company, he must also be given a written notice at least two months before that specified in Art. 180 Labor Code of the Russian Federation events. Upon dismissal upon termination of the activities of the LLC under Art. 178 of the Labor Code, the director must be paid severance pay.

If the founding CEO is removed from office during bankruptcy proceedings, he is not required to be notified of this in advance. After the relevant court ruling is issued, the director should be given three days to transfer documentation and material assets.

When dismissing the general director who is the sole founder, labor legislation does not apply. According to the position of Rostrud, the norms of the Labor Code apply only if there are two parties: the employer and the employee. Concluding an employment contract with a single founder is impossible, since one of the parties is absent.

If the sole founder decides to leave his post as general director, then he should not be guided by the norms of the Labor Code. He needs to make this decision only on the basis of Art. 39 Federal Law-14. For this purpose, an official protocol is issued, which indicates the desire to leave the post of general director.

Dismissal of a director: entry in the work book and personal card

If the director’s order to dismiss himself has not been issued, then in his work book in the column “Name of the document on the basis of which the entry is made” you must provide a link to the minutes adopted at the meeting of the founders.

In the column “Information about hiring” you need to provide wording that corresponds to the reason for dismissal, which is reflected in the protocol (that is, there must be a link to the applicable article of the Labor Code of the Russian Federation).

An entry in the work book of a dismissed director can be made and certified by a HR specialist or another competent person of the company (it can be determined by the same minutes of the meeting of founders).

Otherwise, the work book is filled out and certified in the same way as when dismissing an ordinary employee.

You can learn more about the features of filling out work books when dismissing employees in the article “Filling out a work book when dismissing - sample 2019”.

Again, based on the protocol or order (if any), an entry is made in the personal card (which can be drawn up according to the unified form No. T-2). The dismissed director must also sign it.

HOW IS THE DECISION TO TERMINATE A MANAGER'S DISMISSAL?

If a meeting of the board of directors (supervisory board) or the general meeting of participants (shareholders) has taken place, a decision is made to terminate the employment contract, which is documented in minutes (Appendix 1).

For example, this document is indicated by Art. 37 of the LLC Law, Art. 63 and 68 of the Law on JSC.

Requirements for the content of protocols can also be found in the relevant laws.

For example, the minutes of a meeting of the board of directors indicate:

place and time of its holding;
persons present at the meeting;
meeting agenda;
issues put to vote and voting results on them;
decisions made.

The minutes of the meeting of the board of directors (supervisory board) of the company are signed by the chairman of the meeting, who is responsible for the correctness of the minutes.

What are the requirements for the content and procedure for drawing up minutes of the general meeting of shareholders?

The minutes of the general meeting of shareholders indicate:

place and time of the general meeting of shareholders;
the total number of votes possessed by shareholders - owners of voting shares of the company;
the number of votes held by shareholders participating in the meeting;
chairman (presidium) and secretary of the meeting, agenda of the meeting.

The minutes of the general meeting of shareholders of the company must contain the main provisions of the speeches, the issues put to vote and the voting results on them, and the decisions adopted by the meeting.

The minutes are drawn up in two copies no later than three working days after the closing of the general meeting. Both copies are signed by the chairman of the general meeting of shareholders and the secretary of the general meeting of shareholders.

In a limited liability company, the management of the general meeting of the company's participants organizes the keeping of minutes.

How is the decision of the sole shareholder (participant) and the company formalized?

If there is only one shareholder (participant), then the termination of the powers of the head of the organization is formalized by the decision of the sole shareholder (participant). This is indicated by Art. 47 of the Law on JSC, according to which in a company in which all voting shares belong to one shareholder, decisions on issues within the competence of the general meeting of shareholders are made by this shareholder individually and are documented in writing. In this case, the provisions of the law defining the procedure and terms for preparing, convening and holding a general meeting of shareholders do not apply. Similar provisions are contained in Art. 39 of the LLC Law.

Informing the Federal Tax Service and banks

As soon as internal corporate documents are drawn up, it’s time to inform third-party subjects of legal relations with the organization from which the director is leaving. Namely:

1. Federal Tax Service.

Tax authorities must be informed about this within 3 days from the moment the new director takes up his position using form P14001. Based on this document, the Federal Tax Service will make changes to the Unified State Register of Legal Entities - about the new head of the organization.

Form P14001 is generally submitted to the tax service by the founders themselves (since the new director at that time - before changes to the Unified State Register of Legal Entities - from the point of view of administrative legislation, does not have the authority to submit any documents to the Federal Tax Service). But in some cases, the Federal Tax Service agrees to accept this document from the former director (since, despite the termination of work in the company under the Labor Code of the Russian Federation, from the point of view of the Federal Tax Service, he still remains the head of the organization).

If the tax authorities are not notified in a timely manner about the change of director, the company may be fined 5,000 rubles (Clause 3, Article 14.25 of the Code of Administrative Offenses of the Russian Federation).

2. Servicing financial institution.

The bank in which the company's current account is opened must also know that the director has changed and, therefore, the person who likely has the authority to carry out payment transactions in this bank (in particular, using an electronic digital signature). In addition, when the new director starts work, he will need to prepare the documents necessary to gain access to the bank, for example, a certificate and digital signature media. You will also need to submit to the bank a card with a sample signature of the new director, new powers of attorney issued by him to persons who have access to the bank for one reason or another.

Procedure

The procedure for dismissing a director, including the general director, has a step-by-step option.

Dismissal on the initiative of the founder:

the authorized body initiates decision-making;
the decision itself, including its execution;
settlement with the dismissed person and issuance of all necessary documentation;
the director transfers the affairs, as well as all documentation for signature and property for inventory;
changes must be made to the Unified State Register of Legal Entities in connection with the new director. Changes are made with the established form No. P14001.

This procedure is mandatory. It is worth considering that the transfer of affairs and all property to the new director must be carried out in accordance with all standards. Confirmation of a full transfer can only be expressed in written documents with the signatures of all parties.

Important! Changes must be made to the Unified State Register of Legal Entities from the moment the new director takes office, that is, if the transfer of affairs is still in progress, then no changes are made.

It must be taken into account that the calculation also occurs according to legislative regulations, that is, if the basis of Article 278 is used, then the dismissed person is entitled to compensation in addition to the standard type of payments. The regulations regarding compensation are established by Article 279. The total compensation depends on daily earnings and is paid based on the entire unworked period, but not less than 3 months.

All payments, as in the standard case, must be made on the last working day, but it is worth considering that for such a financial type procedure it is necessary to have no penalties or violations.

If there are disagreements regarding the payment of compensation, then all controversial issues are resolved in court, but the court’s decision will be based on all aspects of Article 279.

In a number of dismissal options, for example, layoffs due to liquidation, the procedure, as well as the calculation, follow the regulations established by labor legislation for these processes. In fact, the established compensation should be used only when the management apparatus decides on early dismissal from office.

Reception of documents and property

The current director is usually entrusted with a large number of different documents on the basis of which he exercises his powers (the same powers of attorney and digital signature for transactions with a bank account). Upon completion of work in the company, he is obliged to hand over them to the new manager or other competent persons of the organization (decision of the Arbitration Court of the Sverdlovsk Region dated January 21, 2014 No. A60-34604/2013).

In relation to the property transferred by the director (the same applies to documents), it is necessary to carry out an inventory (clause 22 of the Methodological Instructions by order of the Ministry of Finance of Russia dated December 28, 2001 No. 119n).

The transfer of documents by the resigning director may be reflected in a special act.

You can learn more about drawing up the relevant act in the article “Act of acceptance and transfer of documents upon change of director.”

Issuance of documents and payment of compensation

On the last day of work of the director, he must be issued a work book, as well as pay the due compensation. For these purposes, it may be necessary to prepare other documents, for example, calculation of payments using the unified form No. T-61.

If the director cannot receive the documents in person, he must be sent a notification by registered mail about the need to appear at the company to receive them. Postal documents certifying the sending of this notice will simultaneously confirm the company’s fulfillment of this obligation during the inspection of the labor inspectorate, if by that time the documents are not in the possession of the resigned director.

It is advisable for the director to fill out a bypass sheet, but even if he does not do this, then all the documents must be given to him one way or another.

You can learn more about using a bypass sheet when dismissing an employee in the article “Bypass sheet when dismissing an employee - sample and form” .

Results

The founders can dismiss a director for various reasons. If the dismissal of the director from his position is carried out under Art. 278 of the Labor Code of the Russian Federation (in this case, the founders have the right not to explain to him the reasons for dismissal), then the director is entitled to additional compensation. The procedure for dismissing the head of an organization is under the jurisdiction of labor, civil, and in a number of legal relations - administrative legislation.

You can learn more about the specifics of how employers use certain mechanisms for dismissing managers in the following articles:

“Dismissal of the General Director at his own request”;
"St. 81 Labor Code of the Russian Federation: questions and answers" .

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Video: powers of the general director after the decision of the general meeting of founders to dismiss him

The dismissal of a CEO is a complex and, in many respects, legally confusing procedure. It requires a careful and serious approach, as well as fundamental knowledge in the field of legislation and jurisprudence.

Author: ozakone
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