Dismissal of the General Director by agreement of both parties

General provisions on the dismissal of a manager by agreement of the parties

Termination of an employment contract by mutual consent is most often beneficial to both the head of the enterprise and its owner, since the first will receive monetary compensation, and the second will avoid paperwork, filling out a large number of documents, etc. First of all, you need to familiarize yourself with the regulations of the Labor Code of the Russian Federation for correct dismissal:

Familiarization with the above regulations gives a general understanding of the legal nuances of the procedure.

The process itself goes as follows:

1. The initiator of termination of the contract (director or owner of the enterprise) must contact the other party in writing. The letter must indicate the reason for your decision;
2. After this, negotiations are held between the employee and the owner of the organization. If the company has several founders, they must also be present;
3. If both parties have reached an oral agreement, after negotiations a written agreement is drawn up to terminate the employment relationship by mutual desire.

Important
A person holding a leadership position is required to inform about his intention to leave his post at least one month before the expected date of his last working day.

We are parting with the general director (Shabaikina O.)

It must be remembered that the dismissal procedure is carried out in accordance with the procedure established by law and the conditions set out in the agreement cannot be worse than those approved in the labor code and other regulations.

The agreements reached and decisions made by the parties must be recorded in the agreement on the basis of which the dismissal of the managerial employee will be carried out. The Labor Code of the Russian Federation does not establish a specific form or format for this document, so it can be drawn up in free form. However, you must follow the rules applicable to the preparation of official papers.

The document must have a serial number and date of conclusion. The text of the agreement should indicate the points on which the parties agreed.

Any items that do not violate current legislation can be indicated here.

Negotiations about dismissal

After one party to the employment contract has expressed a desire to terminate the business relationship, it is necessary to organize negotiations to discuss all the nuances of dismissal.

• If the company has one owner, negotiations are conducted with the participation of two people. If there are several owners, the decision is made only in the presence of all founders;
• In a limited liability company, all shareholders are invited to the meeting;
• Non-profit organizations usually have their own bylaws, which govern the negotiation process in the event of a director's dismissal. Usually the owner of the organization's assets presides over the meeting, but all founders must also be present.

A chairman is appointed from among those present, who is obliged to ensure that all regulations are drawn up correctly.

During negotiations, the following nuances need to be discussed:

• Reasons for dismissal of the director;
• Is it possible to conclude a contract of agreement;
• A new director is appointed (the resigning person must bring him up to date during work);
• A person responsible for transferring affairs and responsibilities to the new manager is selected.

The final decision on dismissal is made only after the consent of all shareholders or founders of the organization.

Important

Termination of employment relations with a person holding a managerial position is possible only by an authorized person or body that entered into a contract. As a rule, this is the official owner of the enterprise.

The decision-making procedure for the owners of the organization

After writing a statement about the desire to leave the post, a meeting is held. During negotiations, the founders decide whether they are ready to terminate the employment contract at the request of both parties, or whether dismissing the manager on his own initiative will be more profitable. If there are several founders or shareholders, each of them must vote, and only when a general agreement is reached is a certain decision made.

As a rule, the owners of the organization do not refuse to resolve the issue peacefully and agree to draw up a written agreement to terminate the business relationship. Otherwise, according to Article 80 of the Labor Code of the Russian Federation, the employee has the right to leave the post at his own request.

During the negotiations, the owners of the enterprise must also make the following decisions:

• Who will replace the retiring manager;
• Who will control the correctness of the transfer of affairs and responsibilities to the new official.

Dismissal due to retirement

When the general director resigns of his own free will due to retirement, the employer is obliged to terminate the employment contract within the period specified in his application (Article 80 of the Labor Code of the Russian Federation). At the same time, labor legislation does not provide for such grounds for dismissal as reaching retirement age.

On the contrary, in accordance with Art. 3 of the Labor Code of the Russian Federation, no one can be limited in labor rights and freedoms or receive any advantages depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, relationship to religion, beliefs, membership or non-membership in public associations or any social groups, as well as other circumstances not related to the employee’s business qualities.

Termination of powers of the General Director due to his death

This, of course, is not exactly dismissal, but sometimes in practice you have to deal with such cases. The procedure may be complicated by the fact that the general director may be the owner of the company. In any case, the procedure should be as follows:

• an order is issued to terminate the employment relationship on the basis of a certificate dated by the date of death in accordance with paragraph 6 of Art. 83 Labor Code of the Russian Federation;
• a corresponding entry is made in the work book;
• the personal card is closed;
• all due payments are transferred or issued to the legal heirs.

At the same time, the organization needs to change keys, digital signature, etc., as well as appoint a new person acting as general director and make a corresponding entry in the Unified State Register of Legal Entities.

Signing an agreement to terminate an employment contract (sample)

The legislation does not provide for a uniform form of agreement on termination of an employment contract by mutual consent. But, as practice shows, such a document must indicate the following information:

1. Title of the document;
2. Date of its compilation;
3. Venue for negotiations;
4. Participants of the meeting (full name, position in the company);
5. Reasons for termination of cooperation;
6. Date of termination of cooperation;
7. Additional conditions, if they are provided for in the employment contract (for example, in some cases, when hiring a person for a leadership position, the organization guarantees him a certain amount of additional monetary compensation upon his dismissal);
8. Signatures of all meeting participants.

This document can be drawn up immediately during negotiations, if both parties do not have any claims against each other.

Important

Each party should receive a copy of the agreement, as it may be needed in the future to complete the procedure. If there are several founders of the company, each of them is provided with a separate copy of the document.

Do I need to pay compensation to the director for dismissal by agreement?

If the contract is terminated by mutual consent, the owner of the company is obliged to pay the resigning director a number of compensations and payments:

• Salary for the last month worked;
• Cash for unused vacation days.

In addition, the employer must pay the employee severance pay if it is specified in the employment contract with him or the collective agreement (Article 178 of the Labor Code of the Russian Federation), as well as in the agreement.

Important

According to Article 349.3 of the Labor Code of the Russian Federation, the director (if the enterprise is state-owned) is prohibited from assigning other payments in the agreement in the event of a break in labor relations under Article 78 of the Labor Code of the Russian Federation.

If one of the specified documents does not contain such a condition, then the dismissal procedure by agreement of the parties is carried out without payment of additional compensation.

Important

Payments must be accrued by the owner of the enterprise in accordance with Article 140 of the Labor Code of the Russian Federation. If he evades fulfilling the terms of the employment contract, the resigning person has the right to apply to the labor inspectorate or court to recover funds.

Documenting

The dismissal of a manager requires compliance with the established procedure and the preparation of certain documents:

1. Preparation of a protocol reflecting the results of the vote of the founders or the decision of the sole owner of the company to terminate cooperation with the manager who was once hired.
2. Issuance of an order.
3. Conducting inventory and accepting cases.
4. Providing a final payment consisting of earnings for the last month, compensation for unused vacation, severance pay and other material payments, Art. 140 Labor Code of the Russian Federation.
5. Making a record of dismissal in a personal card (form T-2). The director must sign here as a sign of acquaintance.
6. Adding a corresponding entry to the main document about the length of service - the work book.

The bank and tax office must be notified of a change of official.

Issuance of a dismissal order

This document is drawn up after the signing of the contract termination agreement between the two parties. The issuance of a dismissal order is carried out by specialists from the organization’s personnel service. The document must contain the following information:

• The name of the company where the departing employee works;
• Information about the manager: full name, personnel number, position held;
• Order number and date of its preparation;
• The date of termination of the business relationship is indicated at the top of the sheet;
• Reasons for employee dismissal;
• Article of the Labor Code of the Russian Federation, according to which the procedure is carried out;
• Signature of the company owner;
• Signature of the person leaving.

Important

The date of drawing up the order does not have to coincide with the date of termination of the business relationship, therefore issuance of the document is allowed in advance.

At the same time, the legislation of the Russian Federation does not allow drawing up an order retroactively: a fine is provided for such a violation.

How to create an order

To terminate the employment relationship between the enterprise and the director, it is necessary to draw up a special order.

It should contain the following main sections:

• full name of the enterprise, as well as its most important details:
• date of preparation, individual serial number of the document;
• name of the order;
• dates: termination of the employment contract;
• layoffs;

But it is important to remember that in addition to the order itself, there must be a special notice about the drawing up of the agreement.

You should not omit even the smallest formalities, since if any controversial or conflicting issues arise, the court may perceive this as a violation of the dismissal procedure. Which may lead to the fact of dismissal being declared illegal.

Filling out a work book

On the last working day, the employee is given a completed work book. Personnel department employees must indicate in it, according to which article of the Labor Code of the Russian Federation the contract termination procedure took place.

In our case, Article 77, Part 1 of the Labor Code of the Russian Federation “Dismissal by agreement of the parties” is indicated. The entry must be signed by the responsible persons, namely:

1. The person who appointed the person to a management position;
2. An authorized HR employee;
3. Chairman of the meeting at which the agreement was negotiated;
4. Retiring employee.

Before signing the work book, the director must check that all fields are filled out correctly, and only after that put his signature.

Agreement of the parties: beneficial parties

Article 77 of the Labor Code of the Russian Federation states that dismissal by agreement of the parties is the most rational, convenient and profitable type of dismissal procedure for both the manager and the employer.

The initiator of dismissal can be either direct management or the manager himself.

Regardless of the duration of the employment contract, according to Article 78 of the Labor Code, the contract can be terminated at any time.

There are many advantages to dismissal by agreement. First of all, the moral and ethical aspects of the issue should be noted. Unfortunately, recently, more and more often, senior management refuses to sign resignation letters to managers for various (motivational) reasons:

• management cannot “let go” of the manager until quarterly reporting is completed;
• the management is not ready to fire the manager while there are problems at the enterprise (with production, suppliers, clients, managers, etc.);
• during the liquidation of a company or during the restructuring of branches of an enterprise (during the reorganization of production), the management does not want to allow serious personnel changes.

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That is why dismissal by agreement of the parties is a convenient and reasonable way out of conflicts, allowing you to act in accordance with the law.

Also, it should be noted that the procedure for dismissal by agreement of the parties allows you to dismiss a manager without serious grounds; prevent such an entry in the labor record in which a citizen may have problems when applying for the next job.

Performance of duties by the employer on the day of dismissal

After agreeing on the procedure for terminating the employment contract, the person must work for another month. This period of time is given by law so that the company owner has time to find a suitable employee for the vacant position. In some situations, this period is not enough: then the owner of the organization has the right to contact the resigning director with a request to extend the service period. If agreed, the response is recorded in writing.

It is envisaged that during the training, the leaving employee will introduce the newcomer to the situation, explain and show in practice how to perform job duties. It is worth noting that this is not the responsibility of the person, but often the owners of the organization make such demands on him in order to quickly dismiss him.

On the last working day, an act of acceptance and transfer of cases is drawn up, which indicates the material assets for which the former director was responsible. These things may include:

• Company seals;
• Valuable documents;
• Reporting;
• Other.

The correctness of the procedure is monitored by an authorized person who is appointed by the negotiating parties at the time of signing the agreement. He must check the correctness of the act, the presence of all seals and documents important for the company. After verification, the former manager is given a work book.

Gross violation of established order

Dismissal for such a violation can be considered in more detail in Article 81 of the Labor Code of the Russian Federation, part six.

Gross violations in work activities include:

• absenteeism without justification. It must last throughout the entire working day, regardless of its duration, or the employee must not be at work without a good reason for more than four hours;
• the appearance of an employee at an enterprise where, according to the employment contract, the employee must perform his work activities while intoxicated (this can also include narcotic and toxic drugs);
• dissemination of information protected by law (it can be commercial, government or official). Such information must be obtained by the employee during work. This category also includes disclosure of personal information of another employee;
• committing theft of someone else's property, embezzlement, or intentional damage and breakage of the company's belongings at the place of work. The damage caused must be confirmed by a decision of a judge, body or official who can consider administrative types of offenses on a legislative basis;
• determination by the labor protection commission of an employee’s violation of basic safety and labor protection rules in the event that such a violation led to serious consequences (an accident at the enterprise, a possible accident) or knowingly posed a danger and led to disastrous consequences.

Results

Terminating a contract with a manager is a procedure that requires knowledge of the law. In conclusion, we present the main nuances of the process:

• The manager is obliged to notify of his desire to leave his post at least one month before the desired date of dismissal;
• All agreements between the two parties must be recorded in writing;
• To make a decision, it is necessary to negotiate in the presence of all owners or founders of the company;
• With the consent of all participants in the process, an agreement is drawn up after negotiations;
• The employer is obliged to pay the person a number of compensations: wages, payment for unused vacation days and severance pay.

Dismissal by agreement of the parties is a convenient way to terminate a business relationship, as it helps to avoid significant financial losses and paperwork.

Right to payments and compensation

Labor legislation regulates the only possible situation in which a director can count on mandatory payment: if the decision to liquidate mutual obligations is made by the owner of an LLC or an enterprise with a different organizational form and there are no guilty actions on the part of the employee. In such a case, the dismissed manager receives three monthly salaries or more. The deputy director and chief accountant can also count on a similar payment. Just like any employee, the general director has the right to receive compensation for unused vacation and unpaid wages for each day worked. If there are no such grounds, the head of the company is dismissed without compensation.