How to transfer a general director to a commercial position?

Transfer of an employee to the position of director of an LLC: legal gaps

Transferring a person who is a current employee of the company to the position of director is a procedure implemented in the jurisdiction of 2 different branches of legislation - labor and civil.
When considering the legal norms enshrined in them, one can observe the presence of a number of obvious gaps in the legal norms - regarding the regulation of the transfer of an existing employee of the company to the position of general director in an LLC. Namely:

1. The term of office of the director of an LLC: if its establishment is not within the competence of the board of directors of the business company, then it cannot exceed the period specified in the organization’s charter.

At the same time, the charter cannot reflect an indefinite period (Clause 1, Article 40 of the Law “On LLC” dated 02/08/1998 No. 14-FZ, Article 190 of the Civil Code of the Russian Federation).

Thus, on the one hand, concluding an open-ended employment contract with the director of an LLC is not prohibited by labor legislation (Article 59 of the Labor Code of the Russian Federation), on the other hand, if his term of office is limited, concluding such an agreement is inappropriate (since, without authority, the director will not be able to fulfill his duties). duties, his signatures will be illegal).

2. Initially, an employee of an enterprise can work on a permanent employment contract. Transfer from it to an urgent one, to which there is no alternative when hiring an LLC director in the general case, the courts tend to consider as an illegal procedure (appeal ruling of the Irkutsk Regional Court dated August 16, 2013 in case No. 33-6746/13).

Taking into account this peculiarity of the relationship between legislative norms, as well as the position of the courts, we will consider possible legal scenarios for the transfer of an existing employee of an enterprise to the position of director.

Legal features of the procedure

At the very beginning, emphasis should be placed on the differences in the official powers of the key management figures in the enterprise: the director and the general director. In the classical understanding of the job functionality of a director in most areas of activity of commercial enterprises, the range of responsibilities is:

• coordination of the main activities of the enterprise;
• control over the operational part of the company’s work;
• selection of personnel and organization of effective work of hired specialists in the company;
• direct management of the workforce;
• implementation of reporting and other documentary aspects.

The role of the CEO of the company, as the dominant figure in the company, comes down to the following tasks:

• representation of the company and the results of its activities at all official levels;
• communication with key partners and implementation of transactions;
• approval of internal documentation standards at the enterprise;
• organization of the work of the board of directors (meetings of shareholders);
• control of key vectors of the company’s activities in accordance with its approved missions, etc.

Based on the results of the enterprise’s activities, as well as based on a number of other circumstances in the company, the director may be offered to head the company as its general manager - in this case we are talking about transfer to another position. Despite the fact that there are no separate provisions in labor legislation regulating the transfer of an employee to the position of general director within one company, these actions cannot be called a formality.

The transfer procedure is regulated by the general provisions on the transfer of employees (Article 72 of the Labor Code of the Russian Federation), the norms of civil legislation (Article 50 of the Civil Code of the Russian Federation), as well as directly by the company’s statutory documentation.

Since the position of the general director itself relates to elected positions, the appointment of a candidate for this role provides for a slightly different procedure - the person is selected by decision of the board of shareholders, board of directors or other body that controls the main processes of the company.

Based on this, if a company director assumes the position of general director, the board of founders must vote for his candidacy in its majority, and a corresponding protocol will be drawn up.

Legal transfer to de facto LLC: additional agreement on combination

If for some reason the trust scenario described above cannot be implemented, then the following option is possible: appointing a current employee of the LLC to the position of director of the company. He assumes that the personnel department in the scenario under consideration will ask the employee who wants to be made a director to sign:

• additional agreement - on combining the current position (for example, financial director) with the position of the head of the company for a certain period;
• additional agreement - on changing the terms of the current employment contract (for example, in terms of minimizing the powers of the financial director and changing salaries).

De jure, the employee will combine 2 positions, but de facto, he will work only in 1 of them (general director) with an indefinite employment contract.

The scenario under consideration is rather beneficial to the employer because:

1. If a person signs a second additional agreement (on minimizing powers in the main position), he will have to make every effort to be a good leader, since if the corresponding agreement is canceled (on the grounds provided by law), he will become a financial director with the same powers and he will no longer be able to earn a salary without the consent of the employer.

2. If a person does not sign the second agreement, then the employer will have reason to ask the employee for results for 2 positions at once - it is unlikely that they will be satisfactory given the seriousness of both positions. As a result, there will be grounds to terminate both agreements or even the employment contract as a whole.

Changing the powers of a working employee

If an employee performs the functions of a manager in parallel with his main responsibilities (part-time), and the position of the boss needs to be made the main and only one, then the question arises of how to transfer the gene. director from part-time to the main place of work. There is an opinion that in such a situation it is correct to fire a person, terminating the existing employment contract, and then rehire him, signing a new agreement. But such a technique will not be entirely correct in relation to the performer and will even violate some legal norms. The disadvantages of this design are as follows:

1. The employee will be required to submit a statement asking him to dismiss him at his own request or by agreement of the parties and, accordingly, to terminate the employment contract with him. But he has no intention of ceasing to perform his function in this organization; he wants the position of general director to become the main place of work.
2. To elect a leader, a decision of a collegial body is required; this is stated in the Charter. But it turns out that this candidacy has already been approved, and an employment contract has already been signed with the selected person, only on a part-time basis. That is, the meeting does not provide for approval of the identity of the new manager, which means there is no reason to convene the participants of the LLC (JSC), because they cannot sign an agreement regulating labor relations in a new way according to the constituent documents.
3. In the event of dismissal from an employee, all payments must be made, including for part of the unused vacation. If a person is hired, a new countdown begins until his required rest. This means that the right to maintain health and restore vitality, to improve the quality and standard of living is violated. According to International Labor Convention No. 132, the signing of agreements to waive leave or provide monetary compensation for non-use of leave is considered invalid and is generally prohibited, except in cases caused by the dismissal of an employee. But the employee has no intention of leaving this organization.
4. When appointing a person to the position of General Director, the bank will need to provide new supporting documents, and while the institution checks them, the resolution of all financial issues of the employer will be suspended.

Therefore, the best and correct option would be to formalize the transfer of the general director from a part-time job to his main place of work based on the latter’s application. This document will serve as the basis for issuing a transfer order and an additional agreement to the main employment contract. It is signed by the chairman of the meeting at which the candidacy of the head was approved. According to Article 72 of the Labor Code of the Russian Federation, this is a change in the labor function of an employee with the same employer, and more specifically, the working conditions change. All changes in this regard must be made in writing.

Combining positions: nuances

Russian legislation in most scenarios of intra-corporate legal relations does not imply any prohibitions on combining positions as a director. However, there are exceptions here, and one of those that you should pay attention to first of all concerns combining the positions of director and chief accountant (or other competent employee of the organization responsible for accounting).

The fact is that the director cannot simultaneously perform the function of the chief accountant (as well as vice versa - the chief accountant cannot be appointed director as part of a combination) at enterprises that have economic indicators exceeding those defined for companies:

• having the right to conduct simplified accounting (taking into account the criteria defined in paragraph 5 of Article 6 of the Law “On Accounting” dated December 6, 2011 No. 402-FZ);
• having the status of medium-sized businesses (taking into account the criteria defined in subclause 1.1, clause 1, article 4 of the Law “On the Development of Entrepreneurship” dated July 24, 2007 No. 209-FZ and the Russian Government Decree dated April 4, 2016 No. 265).

Thus, in a large company, the appointment of a chief accountant to the position of general director is possible only within the framework of mechanisms that do not involve combination.

You can learn more about the peculiarities of concluding employment contracts for combinations in the article “Registration of combining positions in one organization.”

Assignment of new functions

One of the employees who is often asked to assume authority is the chief accountant of the enterprise, especially if the number of employees of the LLC (JSC) is small. This allows you to optimize the company’s work and control the entire production process. These changes can be formalized by transferring the chief accountant to the position of general director according to the above procedure, but it would be more correct to dismiss him (by agreement of the parties or at his own request), and then rehire him, because a fixed-term contract must be signed with the head of this level. This point must be taken into account when formalizing labor relations.

Legal transfer to a de jure LLC: the role of the board of directors

The most, perhaps, labor-intensive, but the only one that allows for the transfer of an employee from an open-ended employment contract to the position of de jure general director (that is, in accordance with Article 72.1 of the Labor Code of the Russian Federation) is the vesting of the competence to determine the terms of office of the director of the company to the board of directors. .

First of all, a board of directors must be established in the organization: the decision to create it is enshrined in the company’s charter. The list of competencies of the board of directors is, as a rule, fixed in a separate regulation adopted by the founders. In this provision, in particular, there must be wording that the formation of the executive management bodies of the LLC is within the competence of its board of directors.

The board of directors has the right to adopt a regulation on the general director of the enterprise, which will reflect that the terms of office of the general director are determined by the employment contract, which can be fixed-term or indefinite.

Actually, for a transfer to the position of general director under a permanent employment contract, an additional agreement is again drawn up - this time on the transfer. This agreement is generally signed by the employer on the part of the chairman of the board of directors.

Application for dismissal by transfer: sample

Transfer through dismissal at the request of an employee is made on the basis of his application (Article 72.1 of the Labor Code of the Russian Federation).
The employee can attach to the application a document from a potential employer confirming that employer’s desire to invite this employee to work.

https://www.youtube.com/watch?v=ytdevru

It is worth noting that in case of dismissal by transfer, the employee does not need to work the required two weeks. After all, such work is provided for by the Labor Code of the Russian Federation if the employee resigns of his own free will.

When dismissing an employee, it is necessary to draw up a calculation note, which will reflect all dismissal payments due to the employee.

You can read more about drawing up a calculation note in a separate material.

Transfer to the position of director of a joint stock company: nuances

How to formalize a transfer to the position of General Director, in turn, in a joint stock company?

Taking into account the specifics of the legislation regulating corporate and labor relations in joint-stock companies, it is legitimate to say that such enterprises do not have the difficulties that characterize the corresponding transfer to an LLC. The current rules of law regulating the establishment and activities of a joint-stock company do not in any way regulate how the term of office of a director should be determined. Thus, the founders of a joint-stock company can fix it not only in the charter, but also in any local regulatory act - for example, a decision on the appointment of a director.

It is worth noting that the board of directors of a joint-stock company, unlike the similar structure of an LLC, by default does not have those competencies that imply the establishment of the term of office of the director of the organization - these competencies are not listed in subparagraph. 9 clause 1 art. 65 of the Law “On JSC” dated December 26, 1995 No. 208-FZ.

***

Thus, in a JSC it is possible to establish the powers of the general director indefinitely. In this case, there are no obstacles to the transfer of an employee with an open-ended employment contract to the position of General Director of the JSC on the basis of Art. 72.1 Labor Code of the Russian Federation.

You can learn more about the specifics of legislative regulation of the activities of companies with JSC status in the article “All JSCs are now subject to mandatory audit.”

Features of the position

The CEO is the highest management body in a commercial or government structure. He performs the management function and is the sole executive body, leads the economic and production parts of the enterprise, and bears financial responsibility for the company’s resources. This manager represents the interests of the LLC (JSC) without a power of attorney in other organizations, conducts transactions on his behalf, makes changes to the staffing table and approves it, issues orders that must be followed by employees. The decisions of this boss should always be balanced, because he is responsible for the results of the company’s activities and the safety of its material base.

Today this position is quite in demand and highly paid. But at the same time, the level of responsibility of this manager is appropriate.

Transfer of the CEO to another job

Labor Code of the Russian Federation). Also, when making a transfer, it is necessary to pay attention to the term of the concluded contract and the nature of the future relationship, since in some cases the assigned transfer may be associated with a change in the term of the employment contract. So, for example, if the current relationship is of a fixed-term nature, but for the new position it is indefinite, then it may be necessary not only to transfer the employee to a new position, but also to formalize a change in the type of employment contract. Such a need may also arise in a situation, for example, when the current relationship is concluded for an indefinite period, but the new position requires a fixed-term employment contract (for example, in the case of a transfer to the position of general director, whose term of office may be limited by the organization’s charter).

In joint stock companies, this is, as a rule, a general meeting of shareholders or a board of directors (supervisory board) (clause 3 of article 69 of Law No. 208-FZ). In limited liability companies - a general meeting of participants (subclause 4, clause 2, article 33 of Law No. 14-FZ). Document the decision to terminate the employment contract with the general director in a protocol. If there is only one shareholder (participant) in the company, then the dismissal of the general director is formalized by the decision of the sole shareholder (participant). Based on the decision, issue an order to dismiss the general director using the unified form No. T-8, approved by Resolution of the State Statistics Committee of Russia No. 1, or using an independently developed form.

Dismissal by transfer to another organization: filling out a work book

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It is important to note that from November 27, 2016, a dismissal entry in the work book is certified by a seal only if it is present (Order of the Ministry of Labor dated October 31, 2016 No. 589n, Order of the Ministry of Labor dated October 31, 2016 No. 588n).

General Director transfer to another position

Federal Law No. 14-FZ dated 02/08/1998 “On Limited Liability Companies”, the sole executive body of the company issues orders on the appointment of company employees to positions, on their transfer and dismissal. Considering that the general director, as the head of the organization, is both the sole executive body and an employee, he does not have the right to issue an order for his transfer. According to paragraphs. 4 paragraphs 2 art. 33 of Federal Law No. 14-FZ, the competence of the general meeting of company participants includes, among other things, the formation of the executive bodies of the company and the early termination of their powers, 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.

ImportantPopular questions Regardless of who initiates the transfer, the basis for issuing an order for transfer in form No. T-5 (No. T-5a), approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1, or in an independently developed form, are changes to the employment contract. Document changes to the employment contract in the form of an additional agreement. This procedure follows the instructions approved by the State Statistics Committee of Russia of January 5, 2004 No. 1, and the provisions of Articles 57, 72 and 72.1 of the Labor Code of the Russian Federation. Please note that when transferring an employee within the same organization, the employer cannot set him a probationary period (Article 70 of the Labor Code of the Russian Federation). Also, when making a transfer, it is necessary to pay attention to the term of the concluded contract and the nature of the future relationship, since in some cases the assigned transfer may be associated with a change in the term of the employment contract. Option 1: dismissal-hiring The head of the company can be dismissed on the same grounds as other employees. However, the procedure for dismissing a manager has some peculiarities. If at your own request, then the notice period for dismissal in this case is at least one month (Article 280 of the Labor Code of the Russian Federation). The director's application for resignation at his own request is addressed to the general meeting of participants (shareholders) of the company, the board of directors (supervisory board). The decision to terminate an employment contract, regardless of who initiated the dismissal, in an LLC is made by the general meeting of company participants, and in a JSC - by the general meeting of shareholders or the board of directors (supervisory board). The decision is formalized in a protocol. In the same protocol it is permissible to record decisions on the termination of an employment contract with the current director and on the election of a new one.

Manager's translation

The legislation is silent about the transfer of a manager.

At the same time, it is obvious that the general director, as an employee under an employment contract, has the right to change its terms. On the other hand, the transition from a management position is not easy, since it must comply with the requirements of local regulations on the necessary procedures.

Therefore, it is advisable to provide in them the possibility of such a translation and prescribe the procedure there.

In practice, the most popular way out of the situation when the general director wants to transfer to another position in the same organization is through dismissal, namely, terminating the employment contract with him to work as a manager and concluding a new one. Of course, deadlines and procedural issues must be observed here. This option seems to be the only correct one if the general director works on the basis of a fixed-term employment contract.

But, since the transfer of a manager is not expressly prohibited by law, it would also be legal to issue an order for the transfer on the basis of the written consent of the employee and an additional agreement to his employment contract.

In this case, you should pay attention to important points:

• to whom to address the general director’s application for his transfer (look for the answer in local regulations);
• in what time to submit an application for transfer from the position of general director (Article 280 of the Labor Code provides for a month’s period for submitting an application for early termination of an employment contract - so that there are no interruptions in the activities of the decapitated organization. It is possible that it would be advisable to establish in local acts regarding transfer same period);
• term of the employment contract. When transferring to another position, the legality of concluding a fixed-term employment contract is not always preserved.

How to transfer a deputy director to the position of director of an LLC?

Option 1. You can transfer an employee within the same organization.

This option can be used if the employee maintains an open-ended employment relationship. Regardless of who initiates the transfer, the basis for issuing the order is amendments to the employment contract (additional agreement). Write down a number of features in the additional agreement to the employment contract, namely: a condition on responsibility for ensuring the protection of confidentiality of information; may contain additional grounds for its termination.

Question: What is the procedure for transferring the general director of an LLC to another position? Should he be fired and, after the information that the general director has been replaced is entered into the Unified State Register of Legal Entities, should he be rehired?

The procedure for transferring a general manager to another position is not defined by labor legislation.

There are two ways to transfer the general director to another position: by transfer or through dismissal and hiring. Rationale: Features of labor regulation of the head of the organization are established by Chapter. 43 of the Labor Code of the Russian Federation. The legal status of the head of the organization differs from the status of other employees, since it is determined by the specifics of his work activity.

Then the corresponding order (instruction) is issued.

Explanations for filling out Form N T-5 do not make it possible to draw an unambiguous conclusion about how to fill out the “Bases” line of the unified Form N T-5. In practice, there are two options for filling out this line. First option. The details of the employment contract are entered in the “Bases” line of the transfer order, i.e.

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Support Document Rules

Moving employees within a company is common. And you always need to sign an additional agreement when it comes to changes in job functions, even if the job title changes. This document indicates an agreement between the parties. According to Art. 72 of the Labor Code of the Russian Federation, the manager can change the position of any employee at his discretion. The only thing is that he must notify the employee about this 2 months in advance and obtain his consent (this can be a statement from the latter, a signature on the order, but it must be in writing). If the transfer of a director to the position of general director is planned for less than a month, then there is no need to withstand the above period (clause 2 of article 72 of the Labor Code). The message about innovations in the employment contract must indicate the reason for future movements in free wording, for example, “changes are being made due to the reduction of a department (closing a branch, reorganizing a company, etc.).” Particular attention must be paid to dates. The date of taking up the position in the document must be later than the consent taken from the employee.

When transferring to the position of General Director, an additional agreement governs the relationship between the parties, taking into account all changes. It contains information about the title of the document, the employer, and the date of assignment of authority. The part that contains all the innovations associated with changing the position is very important. In the employment agreement, the clauses that will be changed and the text reflecting the new working conditions are written verbatim. This may include the job title, work schedule, pay and conditions for performing duties. The employee’s loyalty to the employer and the likelihood of conflict situations will depend on how carefully the adjustments are made.

If the order for transfer to the position of General Director stipulates a long period (more than one month), then the HR department employee (or other authorized person of the company), just as in the first case, must make the necessary changes to the employee’s personal card in the T-form. 2 and in his work book.