The directors of an LLC may resign own will, as well as at the initiative of the owners of the company.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and IS FREE!

Perhaps this is even without arguing the reason after the meeting of shareholders at the general meeting and after drawing up the order for dismissal. But how to correctly and correctly draw up the dismissal procedure?

Foundations

Statement

The application must be submitted at least 2 weeks before the person leaves the management position. It is drawn up in the name of the general director or other person responsible for this action. The application is approved and signed by him.

Who signs the order?

The order is signed by both the resigning person and the general director, the founders, if necessary, if this is indicated in the company's charter.

It is also necessary to coordinate the action with the owner of the company to minimize the conflict situation.

Entry in the work book

In the work book, the date of dismissal is noted, the position and division are affixed. The final date, the signature of the employer and the employee from the personnel service is also affixed here.

After reviewing the record, the resigning person also affixes his signature. Then he can get the calculation.

Work Transmission

The director must transfer his powers before the moment of dismissal. The order is not regulated in any way. This applies not only to directors, but also to ordinary citizens.

This point is important, so each company tries to describe the algorithm of actions:

to return valuables and property received to help fulfill obligations;
reporting on the expenditure of the amount issued by the accounting department for needs.

If this is the CEO, then he must transfer the constituent documents to the new management.

Payments and compensation

The director receives all the same payments and compensation as an ordinary employee. In particular:

salary for the period of work;
compensation for unused vacation;
payment for 2 months in case of liquidation of the organization.

Responsibility after dismissal

Upon dismissal of the general director, an extraordinary meeting of the company's participants is convened with a summons to terminate the employment contract. However, this issue can be raised among others at the scheduled regular or extraordinary meeting of the company's participants. You also need to issue an order to terminate the employment contract and familiarize the general director with it. Remaining technical stages in the process of dismissal of the director, the following are standard: making an entry in the work book and personal card, calculations, issuing work book on your hands.

There are several situations in which it is impossible to terminate the employment contract with the CEO:

if the head is a pregnant woman, the exception is the liquidation of the company ();
if the head belongs to the category of persons named in;
during the period of temporary disability or the director's stay on vacation, the exception is the liquidation of the organization ().

Dismissal of the director at the initiative of the owner

It must be remembered that the CEO is an employee of the company, so his relationship with the owners is regulated by labor laws. When dismissing a director, it is important for owners to coordinate their actions with labor legislation. In addition, the CEO is a person with whom relations are regulated by corporate law. And this should also be taken into account.

The employment contract with the general director at the initiative of the owner may be terminated due to several circumstances:

If there is a change in the owner of the company (). The norm does not apply to cases where the composition of participants simply changes, as well as to reorganization in the form of affiliation.
If there has been a transformation of society, that is, the organizational and legal form has changed (separation and separation). In this case, the owners may decide that the relationship with the CEO should be terminated without specifying the reasons for the dismissal.
If by his actions the director caused damage to the interests of the company ().
If the director once grossly violated labor duties ().

1) Dismissal of the director in connection with the change of the owner of the property of the company

The new owner of the property has the right not later than three months from the date of the emergence of his ownership right to terminate the employment contract with executives.

Having decided to terminate the employment contract with the general director, the owner must pay him compensation in the amount of at least three times the average monthly salary ().

2) Dismissal due to damage from the actions of an official

How can the owner find out that the general director has committed a violation regarding the safety of the property? Initially, one of the employees can inform him about this. But often the owners learn about it from the reports of consultants.

3) Dismissal of the director due to a single gross violation of labor duties

The CEO falls under the provision. According to the owners, any violation of duties, which is named in the employment contract, can be a gross violation. For example, the director must agree on the candidacy of the acting director during his absence. If he forgot to do this, then he grossly violated the provisions of the employment contract. A gross violation may be considered a failure to provide the necessary reports on time or failure to meet the indicators that are named in the employment contract as duties. It is worth noting that paragraph 10 of part 1 of Art. 81 of the Labor Code of the Russian Federation applies only to heads and deputy heads.

Since dismissal on the grounds named in Art. 81 of the Labor Code of the Russian Federation is a disciplinary sanction, then in order to write this sanction in the work book as a basis for terminating the employment contract, the employer will have to prove the fact of a disciplinary violation. This requires an internal investigation.

Algorithm for conducting an official investigation

An internal investigation can be initiated on the basis of a memorandum, inventory results, etc.
An order must be issued to create a commission to conduct an investigation (it indicates the full name of the commission members, their positions, purpose, date of creation, validity period, powers).
All members of the commission must familiarize themselves with the order.
Acts and other documents are drawn up in the course of the investigation, and a final act is prepared based on the results of the internal investigation.
The head must familiarize himself with the acts.
A written explanation is taken from the head.
An order is issued on the application of a disciplinary sanction, which the head must familiarize with.

It is important to remember that it is impossible to apply two disciplinary sanctions for gross violations of an employment contract. Will have to decide which disciplinary action apply.

Dismissal of the head on the basis of Art. 278 of the Labor Code of the Russian Federation

Situation 1: A company enters bankruptcy proceedings ( )

The decision to remove the head from office in this case is taken by the arbitration court. The following persons have the right to apply for removal from office of the head of the debtor organization: an interim manager, a meeting of creditors, an administrative manager or persons who have provided security.

Key points for this situation:

Grounds for issuing an order - definition arbitration court removal from office of the head of the organization.
The last day of work is the day when the owner of the property of the organization became aware of the entry into force of the court ruling.
The director is not paid severance pay (an exception is cases where such payment is provided for by an employment contract or other local regulatory act of the organization).

Situation 2: Notified body legal entity decided to terminate the contract ).

An employment contract with a director may be terminated by the general meeting of shareholders or the board of directors. Dismissal of the head of the organization on the grounds established in paragraph 2 of part 1 of Art. 278 of the Labor Code of the Russian Federation, can occur at any time and without indicating motives.

Dismissal at the initiative of the CEO

The head has the right to terminate the employment contract ahead of schedule, but he must notify all owners of his intention to resign, and in writing and not later than one month (). Letters are sent to all founders, owners, shareholders according to the register, with notification of delivery. In the letters, the director asks for the convening of an extraordinary meeting with an agenda to terminate the employment contract. The procedure for the transfer of cases and property is determined in advance so that the owner does not initiate arbitration processes.

In case of dismissal of the head of the organization at his own request, he is not paid monetary compensation in the amount of not less than three times the average monthly salary.

Dismissal of the director due to the expiration of the employment contract

Since the executive body is appointed for three or five years, the powers of the director may be terminated due to the expiration of the contract. Ekaterina Kuznetsova, partner of PBU LLC, member of the Chamber of Tax Consultants and host of the webinar "", tells what points you should pay attention to in this case:

What guarantees can a director expect upon dismissal?

First of all, compensation is provided in the form of a three-month average monthly earnings (). However, as noted above, there are cases when this compensation is not paid - dismissal as a result of bankruptcy of a legal entity, upon expiration of the contract and at the request of an employee.

Compensation must be paid if the owner of the property of the organization changes (). At the same time, a simple change of participants in a company is not a change of property owners.

The head of the organization is an important person. Traditionally, all issues related to the registration of his powers stand apart and are resolved taking into account special rules. This approach is, of course, justified. The "first person" has such serious rights and obligations that sometimes it is not even perceived as an employee of the organization and a member of the labor collective.

The dismissal of a manager is a responsible event that requires taking into account the norms of labor and civil legislation. Our article will help you understand this complex procedure, take into account all the nuances of termination labor relations with the head and correctly complete the necessary documents.

Termination of labor relations with an employee - the head of the organization, on the one hand, should be carried out according to the general rules established by the Labor Code of the Russian Federation. On the other hand, since the head is also the sole executive body of the legal entity, this procedure should take into account the provisions of civil law, as well as the requirements of the organization's constituent documents on the powers of the head and the activities of the bodies that have the right to terminate the employment contract with him.

WHO MAKES THE DECISION TO DISMISS THE MANAGER?

In all cases, the decision to terminate the powers of the head of the organization is taken by the authorized body or person who has the right to appoint or elect him to the appropriate position ( tab. one).

HOW IS THE DECISION MADE ON THE DISMISSAL OF THE MANAGER?

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 labor relations with the head of a joint-stock company is made by the general meeting of shareholders, if the company's charter does not refer these issues to the competence of the board of directors (supervisory board) of the company. The procedure for holding an extraordinary general meeting shareholders established Art. 55 of the JSC Law.

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 the employment contract with the head of the organization (for example, the issue of dismissal of the head under clause 2 of article 278 of the Labor Code of the Russian Federation will be decided), 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) society according to its own initiative, at the request of a member of the board of directors (supervisory board), the audit commission (auditor) of the company or the company's auditor, as well as other persons specified by the company's charter.

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 the results of voting, the written opinion of a member of the board of directors (supervisory board) of the company who is absent from the meeting on agenda items, as well as the possibility of making decisions by absentee voting.

The quorum for holding a meeting is determined by the charter of the company, but should not be less than half of the number of elected members of the board of directors (supervisory board). By general rule decisions at the 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 case of equality of votes, the charter of the company when making decisions may provide for the right of the casting vote of the chairman of the board of directors (supervisory board).

...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 participants in the company is defined in Art. 36 of the LLC Law.

If we talk about convening an extraordinary general meeting of participants in an LLC, 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 the participants in the company who in aggregate have at least one tenth from total number votes of the members of the society.

The head of an LLC is obliged, within five days from the date of receipt of the request to hold an extraordinary general meeting of participants in the company, 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 to hold it.

If within due date no decision has been made to hold an extraordinary general meeting of the company's participants or a decision has been made to refuse to hold it, the meeting may be convened by bodies or persons requiring it to be held. AT this case the director is obliged to submit to the said bodies or persons a list of the company's participants with their addresses.

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

charter. 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 the early termination of an employment contract with the head of an LLC?

By virtue of paragraph 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 more votes for such a decision.

In addition, the decision on the early termination of the employment contract with the head of the organization can be made without holding a meeting by absentee voting (by poll). Such voting may be carried out by exchanging documents by means of postal, telegraphic, teletype, telephone, electronic or other communication, which ensures the authenticity of transmitted and received messages and their documentary confirmation.

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

HOW IS THE DECISION ON THE DISMISSAL OF THE MANAGER IS MADE?

In the event that the meeting of the board of directors (supervisory board) or the general meeting of participants (shareholders) took place, a decision is made to terminate the employment contract, which is drawn up in a protocol ( Attachment 1).

For example, this document refers to Art. 37 of the LLC Law, art. 63 and 68 of the JSC Law.

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

For example, the minutes of a board meeting state:

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

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

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

The minutes of the general meeting of shareholders indicate:

the place and time of the general meeting of shareholders;
the total number of votes owned by shareholders - owners of voting shares of the company;
the number of votes held by the 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 results of voting on them, 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 director himself organizes the minutes of the general meeting of the company's participants.

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

If the shareholder (participant) is the only one, 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 JSC Law, according to which in a company, all voting shares of which belong to one shareholder, decisions on issues related to the competence of the general meeting of shareholders are taken by this shareholder solely and are drawn up in writing. At the same time, the provisions of the law that determine 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.

FEATURES OF THE PROCEDURE IN CERTAIN SITUATIONS

Due to the peculiarities of the status, the head of the organization is subject to both general grounds for terminating the employment contract (for example, agreement of the parties, expiration of the employment contract), and special grounds (for example, changing the owner of the organization’s property, disqualification, making an unreasonable decision that entailed a violation of the safety of property , its misuse or other damage to the property of the organization). In addition, additional grounds for the dismissal of the head of the organization may be provided for in the employment contract itself ( tab. 2).

It is important to bear in mind that the general rules of labor legislation apply to the dismissal of the head of the organization.

For example, if the term of the employment contract concluded with the head of the organization comes to an end, then in accordance with Art. 79 of the Labor Code of the Russian Federation, he must be warned of dismissal in writing at least three calendar days before dismissal.

table 2

Additional grounds for the dismissal of managers with examples of dismissal entries in the work book

The term of the employment contract concluded with the director expires. Who must send him a written warning about the termination of the employment contract?

The General Meeting of Shareholders (Participants) does not have such a right, since its competence is limited to resolving issues specified in the JSC Law and the LLC Law. The question of who should warn the manager about the expiration of his employment contract should be directly regulated in the charter or local regulations organizations. In practice, this authority is often vested in the board of directors (supervisory board).

It is good if such a notification is sent to the head after it becomes clear whether his candidacy has been nominated for the next election by the sole executive body of the legal entity or not. If this issue is resolved positively, then the director in the notification can be simultaneously notified of the meeting of the board of directors (supervisory board), the general meeting of shareholders (participants), where the issue of electing the sole executive body of the company will be decided.

Another example. When dismissing the head of an organization for committing a disciplinary offense, it is necessary to follow the procedure for bringing to disciplinary responsibility, provided for in Art. 192 and 193 of the Labor Code of the Russian Federation.

Often, employers are sure that they can fire the director at any time, even if he is on sick leave, but this is not the case. The head of the organization is covered by the guarantee provided for in Part 6 of Art. 81 of the Labor Code of the Russian Federation: it is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary incapacity for work and during his stay on vacation.

In paragraph 50 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts Russian Federation Labor Code Russian Federation" states: taking into account that Art. 3 of the Labor Code of the Russian Federation prohibits restricting someone in labor rights and freedoms depending on the official position, and also taking into account that the dismissal of the head of the organization in connection with the adoption by the authorized body of the legal entity or the owner of the property of the organization, or the authorized owner of the person (body) of the decision on the early termination of the employment contract is essentially a dismissal at the initiative of the employer, and Ch. 43 of the Labor Code of the Russian Federation, which regulates the peculiarities of the work of the head of the organization, does not contain norms that deprive these persons of the guarantee established by Part 6 of Art. 81 of the Labor Code of the Russian Federation, in the form of a general ban on the dismissal of an employee at the initiative of the employer during a period of temporary disability and while on vacation (except in the case of liquidation of an organization or termination of activity by an individual entrepreneur), an employment contract with the head of an organization cannot be terminated under paragraph 2 of Art. . 278 of the Labor Code of the Russian Federation during the period of his temporary disability or stay on vacation.

Dismissal at the initiative of the head

Such a general basis for dismissal, as termination of an employment contract of one's own free will, has one peculiarity in relation to the head of the organization - the head must notify the employer (the owner of the property, his representative) at least one month before the dismissal (Article 280 of the Labor Code of the Russian Federation).

The letter of resignation must be in writing. It is the presence of such a statement that serves as proof of the legality and validity of the dismissal. The following example from judicial practice is indicative.

AT regional court On 10/18/2011, the case was considered on the cassation complaint of LLC “L” against the decision district court from 24.08.2011. The district court reinstated S. in the position of director of LLC “L” from 06/30/2011, found paragraphs 10, 11 and 12 of the decision of the extraordinary meeting of participants in LLC “L” illegal.

At the court session, it was established that on 29.06.2011 an extraordinary meeting of the company's participants decided to remove the director's powers from S. At the same time, the plaintiff argued that he did not file an application for dismissal of his own free will or for early resignation of the director's powers.

The regional court agreed with the decision of the district court, indicating that, on the basis of the minutes of the extraordinary general meeting of the participants of OOO “L”, by order No. ... dated 06/29/2011, S. was dismissed from his position. As stated in the order, the basis for the dismissal of S. was his statement. It follows from the materials of the case that there is no written statement by S. on the termination of his powers as the director of LLC “L”, confirming his will to terminate the employment contract concluded with him, the plaintiff himself, when considering the case, denied writing such a statement. The absence of his will to dismiss is also confirmed by the fact that during the extraordinary general meeting of participants dated June 29, 2011, S. did not vote on this issue (while he is one of the founders), which was confirmed at the court session by the newly elected director of the company M .

The case file contains two copies of photocopies made from the inventory of documents of the company, transferred on 07/01/2011 to the newly elected director M., one of which contains an indication of the presence of S.'s statement, the other does not contain such an indication. Under such circumstances, the court lawfully did not take into account the original of this inventory dated 07/01/2011, presented as evidence, which indicates the presence of S.'s statement on termination of powers. Taking into account the circumstances established above, the court reasonably concluded that there was no voluntary expression of the will of the plaintiff S., expressed in the manner prescribed by law, to terminate the powers of the director of the company and the illegality of his subsequent dismissal.

To whom should the head of the organization address the letter of resignation?

Naturally, writing such a statement “to oneself” does not make sense. In this case, the employer means an authorized body or authorized persons who have the right to terminate the powers of the head of the organization (we already mentioned them above).

Our director wrote a letter of termination and left it in the personnel department with the words "send to the address and make sure that the founders receive everything." To whom should the manager give his statements? Can he leave them like this in the personnel department or with the secretary?

We believe that the manager himself should follow the sending of his application. If the authority to terminate the employment contract with the director belongs to the board of directors (supervisory board), then the application should be submitted to the chairman of the board of directors (supervisory board), since it is he who organizes his work, and also convenes meetings of the board of directors (supervisory board) of the company. If the decision on the early termination of the employment contract is within the competence of the general meeting of shareholders (participants), then the manager must notify all shareholders or participants of his decision in writing. In state or municipal unitary enterprises, the head submits the application to the person heading the body state power Russian Federation, body of state power of the subject of the Russian Federation, body local government who perform the functions of the owner of the property of a unitary enterprise.

In this case, a letter of resignation may be sent by registered mail with acknowledgment of receipt. If in the future it is not possible to hold a meeting of the board of directors (supervisory board) or a meeting of the general meeting of shareholders (participants), the director will be able to confirm the fact of sending the application.

AT joint-stock companies the head does not have the right to convene a general meeting of shareholders, unless he himself is a shareholder owning at least 10 percent of the voting shares of the company. Therefore, if the head wants to quit, it is not enough for him to warn the shareholders about this, he still needs to achieve a general meeting of shareholders to decide on the termination of his powers. With a corresponding request, he can apply, for example, to the board of directors (supervisory board) of the company.

The head of a limited liability company is obliged, at least one month before the termination of work, to send to the participants of the company an application for termination of the employment contract, and also notify them of the convening of a general meeting of participants (clauses 1 and 2 of article 35, clause 1.2 of article 36 of the Law on LLC ).

The director sent to the participants of the company a letter of resignation of his own free will and a notice of convening an extraordinary general meeting to decide on the termination of his powers. But the participants ignored this information and did not come to the meeting. Thus, by the time of the expiration of the term of the dismissal notice, no decision had been made regarding the director. Despite this, the director issued a resignation order and stopped work. Was he right to do so?

Article 2 of the Labor Code of the Russian Federation establishes the principle of freedom of labor and the principle of the prohibition of forced labor. This means that the employer does not have the right to refuse the employee to terminate the employment contract. Therefore, if the head of the organization duly notified the authorized body of the desire to terminate the employment contract, did everything in his power to hold a meeting of the board of directors (supervisory board) or a general meeting, then the employment contract is terminated upon expiration month term warnings. Therefore, after the expiration of the termination notice, the director, like any other employee, has the right to stop working (part 5 of article 80 of the Labor Code of the Russian Federation).

Let's see what court decision was made in a similar situation.

The application for the termination of the powers of the General Director of the LLC, the decision to hold an extraordinary general meeting and the notice of holding an extraordinary general meeting were handed over to the company's participants personally or sent by a valuable letter with notification. According to the court, such a letter can be considered as a proper notice to the employer about the dismissal of one's own free will.

At the same time, the refusal of the participants from the general meeting actually deprived the general director of the right to terminate the employment contract.

Freedom of labor is enshrined in Art. 37 of the Constitution of the Russian Federation and art. 2 of the Labor Code of the Russian Federation. In accordance with Art. 2 of the Labor Code of the Russian Federation, forced labor is prohibited, that is, members of the society cannot refuse the head of the organization the right to quit at their own request. The general meeting is necessary only to accept his application. Given the right of the director to terminate the employment contract at any time, the inaction of the participants is nothing more than an abuse of the right (clause 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

After a month after notifying the employer of the termination of the employment contract, the director, on the basis of Art. 280 of the Labor Code of the Russian Federation had the right to stop work by issuing an appropriate order.

Dismissal by the decision of the employer

The authorized body of the legal entity must decide on the early termination of the employment contract with the head of the organization. If we are talking about business companies, then such a decision is made either at a meeting of the board of directors, or at an extraordinary general meeting of shareholders (participants).

In a limited liability company, this problem may arise. According to Art. 35 of the Law on LLC, an extraordinary general meeting of the company's participants is held in cases specified by the company's Charter, as well as in any other cases if such a general meeting is required by the interests of the company and its participants. At the same time, the decision to convene a general meeting of the company's participants, including at the request of the board of directors (supervisory board), is made by the head of the organization.

Recall that within five days from the date of receipt of the relevant request to hold an extraordinary general meeting of the company's participants, he is obliged to decide on holding such a meeting or on refusing to hold it.

But on the part of the head of the company, an abuse of the right is possible when, knowing about the agenda of the extraordinary meeting of shareholders, he will deliberately delay its holding. This is especially true when resolving the issue of early termination of the powers of the head, including for guilty actions.

The Supreme Court of the Russian Federation outlined its position on this matter.

The decision of an extraordinary general meeting of LLC participants to terminate the employment contract with the head is lawful even in the event of a formal violation of the requirements for the procedure for convening a meeting established by the Law on LLC.

In accordance with paragraph 2 of Art. 35 of the Law on LLC, an extraordinary general meeting of the company's participants is convened by the company's executive body on its initiative, at the request of the company's board of directors (supervisory board), the audit commission (auditor) of the company, the auditor, as well as the company's participants who in aggregate have at least one tenth of the total number of votes of the company's members.

The Supreme Court of the Russian Federation does not agree with the point of view that holding an extraordinary general meeting of company participants regarding the termination of the powers of the head without notifying him is a direct violation of this rule, since the establishment in the law of the obligation of the executive body to convene an extraordinary general meeting of company participants does not mean establishing a ban to hold such a meeting without his participation.

Thus, if in accordance with founding documents issues of formation of the executive body and early termination his powers are within the competence of the general meeting of participants, the decision of this issue at the general meeting of participants without the participation of the relevant official is legal.

At the next general meeting of the company's participants, a decision was made to early terminate the employment contract with the director under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation in the absence of his guilty actions. The director was not present at the meeting, the motives for dismissal are unknown to him. Is it necessary to somehow officially inform him in writing of the reasons for dismissal, and can he challenge such a dismissal?

Decision authorized body a legal entity or the owner of the property of an organization, or a person (body) authorized by the owner, an employment contract with the head of the organization can be terminated unilaterally under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation. The decision to terminate the employment contract with the head of the unitary enterprise is made by the body authorized by the owner of the unitary enterprise in the manner established by the Government of the Russian Federation, after prior approval by the certification commission.

At the same time, the law does not provide an approximate list of reasons and circumstances that may serve as a reason for the dismissal of the head of the organization on the grounds under consideration. Thus, formally, the decision to terminate the employment contract with the head of the organization under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation does not require any justification from the competent person (body) who made such a decision.

This opinion is also shared by the Constitutional Court of the Russian Federation in its resolution of March 15, 2005 No. 3-P - when dismissing the head of an organization on an appropriate basis, it is not required to indicate certain specific circumstances confirming the need to terminate the employment contract with him.

When formalizing the termination of an employment contract with the head of the organization, it is advisable to issue two orders: for the main activity - on the termination of the powers of the head and for personnel - on dismissal

But one cannot ignore one of the most important principles of labor law - the prohibition of discrimination in the sphere of labor, when no one can be limited in labor rights and freedoms or receive any advantages depending on gender, race, skin color, nationality, language, official position and other circumstances not related to business qualities (Article 3 of the Labor Code of the Russian Federation). Thus, a manager who suspects that he was fired for discriminatory reasons has the right to challenge his dismissal in court. And if the fact of discrimination is proved, the court will surely recognize the dismissal as illegal. Therefore, we recommend that you nevertheless inform the head of the organization in writing of the reasons for his early dismissal, so that there is no reason to accuse the employer of discrimination.

HOW IS THE DISCHARGEMENT?

According to Art. 841 of the Labor Code of the Russian Federation, the dismissal of an employee is formalized by order of the employer, regardless of the reason for the dismissal and the position held by the employee. Even if by position he was the CEO of the organization. In any case, there are no exceptions in this regard.

Do I need to issue an order for the dismissal of the head?

Advice When drawing up the termination of an employment contract with the head of the organization, it is advisable to issue two orders: for the main activity - on the termination of the powers of the head and for personnel - on dismissal

The letter of Rostrud dated March 11, 2009 No. 1143-TZ states that “in the process of labor relations, the manager issues (including in relation to himself) orders (for example, on leaving on a business trip, vacation)”. But business trips and vacations are one thing, hiring and dismissal is another. Therefore, often in practice, an order on personnel to dismiss a leader is not issued. Instead, the head of the organization issues and signs an order for the main activity on the termination of the powers of the head ( application 2).

But in the provisions of the Labor Code of the Russian Federation on formalizing the dismissal, it is precisely about the order on personnel, and not about the minutes of the general meeting or the written decision of the owner of the property of the organization to terminate the employment contract with the head of the organization and not about the order for the main activity. We believe that, in addition to the above documents, it is necessary to issue an order on personnel to dismiss the head.

Who must sign the order on personnel to dismiss the head?

Shareholders and members of the company are not authorized to issue administrative documents. It is the head of the organization that issues orders and instructions, including on personnel, on behalf of the employer.

Until January 1, 2013 in connection with the use of unified forms, approved. By the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1, the legality of formalizing the dismissal of the head of the organization by order of termination (resignation) of powers was questioned, since such an order did not comply with the unified form No. T-8. However, from January 1, 2013, after the entry into force of the Federal Law of December 6, 2011 No. 402-FZ "On Accounting", according to which employers (with the exception of organizations public sector) apply their own forms of primary accounting documents for accounting for labor and its payment, the unified form No. T-8 has become optional. Employers can currently approve such a form of dismissal order, which would also be suitable for processing the termination of employment with the head of the organization.

Issuance of a work book

On the last day of work, the manager, like any other employee, must be issued a work book with a record of dismissal ( appendix 3). Who will make such an entry is determined by the internal rules of the organization.

According to clause 35 of the Rules for the maintenance and storage of work books, the production of work book forms and the provision of employers with them, approved. By Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”, responsibility for maintaining, storing, recording and issuing work books is borne by a specially authorized person appointed by order of the employer. It can be, for example, the head of the personnel department. The employee responsible for maintaining work books, upon dismissal of the head, certifies with his signature all the entries made in the work book during his work in the organization, stamps the employer and invites the head, for his part, to certify the entries made in his work book.

How to dismiss the director of an LLC if he is the founder (nuances)?

How to dismiss the director of an LLC - if he is the founder? In this article, we will consider the procedure and nuances of terminating labor relations of this kind, as well as examine the features of the dismissal of a leader who is the only member of the company.

Features of the procedure for termination of employment

Termination of relations with the director is carried out on the basis of the provisions of the Labor Code of the Russian Federation (hereinafter — Labor Code of the Russian Federation) and the Law “On Limited Liability Companies” dated February 8, 1998 No. 14-FZ (hereinafter — LLC law). General order carrying out this procedure (drawing up personnel orders, filling out a work book, etc.) for all employees, including directors, Art. 84.1 of the Labor Code of the Russian Federation. In addition, a separate chapter is devoted to the regulation of the work of managers. 43 of the Labor Code of the Russian Federation.

IMPORTANT! The employer in relation to the director will be the company. Who will sign the contract on behalf of the company is determined depending on the distribution of powers between the bodies of the LLC to appoint a director: the chairman or a specially authorized member of the board of directors, or the chairman of the general meeting of participants, or one of them (Article 40 of the Law on LLC).

The nuances of the procedure for dismissing a director:

The basis for termination of employment will be the decision of the participants.
According to Art. 33 of the Law on LLC, the general meeting resolves issues of election executive bodies and early termination of their activities. Notice of the meeting shall be sent at least 30 days in advance. At the same time, if the director expressed a desire to quit on his own initiative, the participants in the meeting cannot refuse him, because forced labor is prohibited by art. 37 of the Constitution of the Russian Federation.
The fact of removal of authority from the head must be notified to:
- tax authorities(within 3 days);
- banks where the LLC has accounts;
- counterparties (taking into account contractual relations).

Features of the general grounds for the dismissal of a director

Consider the features of the most popular general (for any employees, Article 77 of the Labor Code of the Russian Federation) grounds for terminating relations with the director:

When you leave of your own accord.
In this case, the employee must notify the employer of his intention in writing at least 1 month in advance (Article 280 of the Labor Code of the Russian Federation). The fact of termination of relations does not depend on the decision taken by the meeting of participants on the issue of dismissal (decision of the 12th Arbitration Court of Appeal dated November 12, 2014 in case No. A12-31975 / 2013).
Upon dismissal after the expiration of the employment contract.
If the employer does not want to renew the contract concluded for a certain period, then 3 days before its expiration, he must notify the 2nd party about this (Article 79 of the Labor Code of the Russian Federation). Otherwise, subject to the continuation of the performance of duties by the director, the contract automatically becomes unlimited.
When leaving due to a change in ownership of the property.
It should be borne in mind that a change in the composition of participants is not a change in ownership. Thus, by the ruling of the Moscow City Court dated November 14, 2013 in case No. 11-35322/13, it was recognized illegal dismissal director of the company, which occurred after his withdrawal from the membership.

Features of special grounds for the dismissal of a director

Required to take into account the following features special (only for managers, article 278 of the Labor Code of the Russian Federation) grounds for dismissal:

Upon dismissal by decision of the authorized body of the company, the owner.
Termination of relations can be initiated by the employer under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, and even without justifying the reasons. However, abuse of the right or discrimination is not allowed, otherwise the dismissal may be declared illegal (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02.06.2015 No. 21).
The director must be paid the monetary compensation provided for by the contract not less than the average monthly salary in a triple amount (Article 279 of the Labor Code of the Russian Federation).
Upon dismissal due to removal from office under bankruptcy law.
According to Art. 69 of the Law "On Insolvency (Bankruptcy)" dated October 26, 2002 No. 127-FZ, the interim manager may petition the court to remove the director from office if the latter violates the norms of this act. The duties of a director are transferred to another person (for example, an employee of the debtor).

Features of the dismissal of the founding director without his consent

In the event of termination of the employment contract with the manager by his consent, by mutual agreement or by coincidence, i.e. when such a decision is made reasonably by the general meeting of participants unanimously, including the resigning person, there are no problems and the process of termination of labor relations occurs in the above described order.

If the director, who is also the founder, has a negative attitude towards his dismissal on a special basis (according to clause 2 of article 278 of the Labor Code of the Russian Federation), his dismissal may lead to litigation — not only labor, but also corporate. Moreover, it is easier to challenge the dismissal of the founding director than to the director - an employee, since the latter has the right to challenge only the fact of dismissal, and the former also has the very decision made by the general meeting regarding his dismissal (Article 43 of the law on LLC).

Challenging the decision in this case gives the director more chances of success, since the decision of the general meeting will be the fundamental document, and the execution of the dismissal will be its consequence (for example, the appeal ruling of the Moscow City Court dated March 22, 2012 in case No. 11-380).

Features of the dismissal of the director - the only participant

If the director is the only participant, then his dismissal from his position depends only on his will, except for cases of disqualification by a court decision (failure to fulfill the obligation to remove the powers of the director and exercise such powers is an administrative offense under Article 14.23 of the Code of Administrative Offenses of the RFRFR) . Most often, in such a situation, the basis for dismissal is one's own desire.

IMPORTANT! It should be borne in mind that the head - the sole participant of the society of the provisions of Ch. 43 of the Labor Code of the Russian Federation will not be distributed. Relationships with such an employee are regulated general rules labor legislation.

There is no unequivocal opinion on the issue of whether the execution of an employment contract with the director is legal — LLC member.

There is a position on the illegality of concluding such an agreement. It is supported by Rostrud in a letter of March 6, 2013 No. 177-6-1, the Ministry of Health and Social Development of Russia in a letter of August 18, 2009 No. 22-2-3199, the Ministry of Finance of Russia in a letter of March 15, 2016 No. 03-11-11 / 14234.

There is also an opposite point of view, stated in the letter of the FSS of Russia dated December 21, 2009 No. 02-09 / 07-2598P and judicial practice, for example, the appeal ruling of the Krasnoyarsk Regional Court dated August 20, 2014 in case No. 33-8058 / 2014, the decision of the 9th AAC dated May 26, 2010 in case No. A40-13990 / 10-154-41. The Supreme Court of the Russian Federation, in ruling No. 41-KG13-37 dated February 28, 2014, indicated that the rules of labor legislation apply to the head - the only participant, if an employment contract is drawn up with him.

Consequently, the dismissal of the director - the only participant is also carried out in accordance with general order termination of labor relations. At the same time, the special grounds established by Art. 278 of the Labor Code of the Russian Federation cannot be applied, because they are included in Ch. 43 of the Labor Code of the Russian Federation.

Learn more about the procedure for dismissing a director from sole founder can be found in the article "Change of director in an LLC with a single founder". A feature will be the coincidence of the director and participant in one person, but they are different subjects of legal relations.

If the director is the only member of the company, then he dismisses himself by his own decision. It is necessary to notify the tax authorities, counterparties, banks about his dismissal. The nuances of termination of labor relations with the director depend on the grounds for his dismissal, which may be general, as for all employees, or may be special, only for managers. All features should be taken into account and no violations should be allowed. statutory order. Otherwise, the dismissal may be declared illegal by the court.