Dismissal by decision of the founders of the general director without his consent: procedure, compensation, sample order, and how to dismiss if it is one founder of the LLC?

Author of the article: Lina Smirnova Last modified: January 2020 1476

The labor activity of any company that is a legal entity largely depends on who its founder is. But an important role belongs to the director hired by the founder, who represents his interests. If he fails to fulfill his functions, he may be fired. The dismissal of a director by decision of the founder is legal provided that the rules established by law are observed.

Let's consider what grounds for dismissal of a director are established in legislation, what are the features of dismissal of a director by founders of different forms of ownership, and how dismissal occurs if he himself is the founder of a company.

After the decision is approved, an order must be issued

When the decision to terminate the powers of the former manager is approved by the owner, you need to proceed to issuing an order to dismiss the director. In practice, most organizations use the unified form No. T-8, approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1. However, it is not forbidden to use a form of dismissal order developed independently. The main thing is that it contains all the necessary details.

Based on the order, a notice of dismissal must be made in the work book of the former director.

How to correctly record an entry in a work book?

The document must be filled out in black or blue ink and in legible handwriting. The seal must be legible. The book is filled out on the basis of an order, the number of which must also be indicated.

Signatures required:

the person who signed the appointment paper;
an employee of the personnel department or an employee who conducts personal affairs and fills out books. In small companies, this person is often an accountant;
the head of the meeting of the company’s founders - if the decision was made by them.

In a situation where the head of the company fires himself, then in the absence of a staff of responsible persons (for hiring, dismissing employees), he has the right to sign himself. The choice of the appropriate option from those listed depends on the procedure established at the enterprise (organization) (in accordance with the charter).

General procedure for entering information into the TC:

the initial line must contain the record number in order;
second - the date of completion is indicated. Dates and months are written in two digits. “0” is placed at the beginning of the number, if necessary: “01.11”;
the third should contain the main note about the dismissal of the manager. Clear and concise language is required;
the fourth line provides information about the name of the paper that became the basis for the procedure. Examples: “order”, “decision of the meeting of founders”. In some cases, it is possible to indicate both documents and their data: the number and date of the decision;
last line: signature of the responsible person, be sure to indicate the last name and position;
company seal.

If an entry in the work book is made with errors, it will be considered invalid. The representative of the organization in charge of registration of employees can make corrections. If he refuses, the director will have to appeal to the courts.

Dismissal of the CEO by decision of the founder

The director may resign from the organization at his own request or due to the expiration of his employment contract. And the director can be fired. One of the grounds for this is the decision of the founder (participants of the company) to terminate the employment contract with the director (clause 2 of Article 278 of the Labor Code of the Russian Federation).

On this basis, both a fixed-term and an open-ended employment contract can be terminated. At the same time, the participants of the company are not obliged to provide reasons why such a decision was made (clause 9 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 2, 2015 N 21).

However, in some cases, it is impossible to dismiss a director in accordance with the general rules of the Labor Code of the Russian Federation, which also apply to persons holding management positions. For example, if the director is a pregnant woman (Article 261 of the Labor Code of the Russian Federation, clause 26 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 28, 2014 N 1), or if the director is on sick leave or on vacation (Article 81 of the Labor Code of the Russian Federation, clause 50 Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2). In both cases, termination of the employment contract is possible only upon liquidation of the company.

Grounds for dismissal of a director prescribed by law

Reasons for dismissing a director.

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

Article 81 of the Labor Code prescribes the following grounds:

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

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

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

Personnel registration of dismissal

After a decision is made to terminate the employment contract with the director, an order is issued: either according to the approved form No. T-8, or according to the form developed by the organization (Article 84.1 of the Labor Code of the Russian Federation). Then it turns out that both the line “Head of the organization” and the line “The employee is familiar with the order (instruction)” will contain the signatures of the same person.

The date of dismissal is usually indicated in the decision of the founder (participants of the company). Otherwise, the date of dismissal is considered to be the date the decision is made.

An entry on the termination of the employment contract will need to be made in the director’s work book (Article 66 of the Labor Code of the Russian Federation, clause 4 of the Rules for maintaining and storing work books, approved by Government Resolution No. 225 of April 16, 2003, hereinafter referred to as the Rules). The reason for dismissal must be indicated as formulated in Art. 278 of the Labor Code of the Russian Federation, and as a document - the grounds for dismissal, an order to terminate the contract is indicated.

At the same time, some experts believe that in the event of the dismissal of a director by decision of the founder (participants of the company), it is not necessary to draw up an order to terminate the employment contract. And in the work book, when making a record of dismissal, in the last column it is necessary to indicate not the order, but the decision of the sole founder or the minutes of the general meeting of the company’s participants (Letter of Rostrud dated March 11, 2009 N 1143-TZ).

Also, a record of dismissal will need to be added to the director’s personal card, in which he will have to sign (clause 12, 41 of the Rules).

document

Save this document in a convenient format. It's free. DECISION N ___ of the sole participant of the Limited Liability Company "____________________", ____________ "___"_________ ____ The sole participant of the Limited Liability Company - ______________________________________________________________________ - (for an individual, indicate: Full name, passport details, registration address ; for legal entities: date and registration number, registration authority, location, as well as full name of the manager or other person acting on behalf of the founder) DECIDED: 1. To dismiss _____________________________________________________ (name of the manager’s position) LLC "_____________" ___________________________ in accordance with the application for resignation from the position at his own request dated "__"_________ _____ - from "___"____________ _____ 2. Appoint to the position _____________________________________________ (name of the manager's position) LLC "___________" ________________________________, passport: series _______, N _______, issued by ________________________________, department code: ____, registered at the address: _____________________________________________ - from “___”___________ ____ Sole participant of LLC “_______________” _________________________________ _____________________ (for an individual - F.I. ABOUT.; (signature) for legal entities person - name, (M.P.) position and full name. manager or other authorized representative) Save this document now. It will come in handy. You found what you were looking for? * By clicking on one of these buttons, you help form a rating of the usefulness of documents. Thank you! Related documents

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Features of dismissal of the first person of LLC

Dismissal is a legal procedure in which the labor rights and obligations of a citizen who was previously hired are terminated. In this sense, the dismissal of a general director is no different from the termination of an employment relationship with an ordinary employee.

But the legal scheme for dismissal for these two categories of workers differs. And if an “ordinary” employee is required to inform about his resignation 2 weeks in advance, for the general director this period is significantly longer: according to Art. 280 of the Labor Code of the Russian Federation, he is obliged to notify the LLC participants that he intends to leave the leadership position no less than a month before the date of the planned dismissal.

This is done in two ways:

At an extraordinary meeting of LLC participants (clause 8, article 37 of the law of 02/08/1998 No. 14-FZ “On LLC”), the decision is made by a majority vote. At the same time, the company’s charter may indicate the need for a larger number of votes to make this decision.
By absentee voting (Article 38 of the Law “On LLC”) by polling using postal, electronic, telegraphic or other communication for the exchange of documents. The procedure for conducting absentee voting is determined by internal corporate regulations.

If the general director and the only participant in the company are the same person, of course, there is no need to write a statement to yourself. How to comply with the 30-day deadline.

You will find more information about the procedure for dismissing a manager in the article “Dismissal of a CEO at his own request.”

IMPORTANT! The Labor Code of the Russian Federation does not oblige the general director to submit a letter of resignation; the law only mentions the need to warn the owners. However, such a warning must be in writing. Otherwise, disputes between the company and its former general director cannot be ruled out in the future, in which the court will take the latter’s position.

How to fire the head of an LLC without his consent?

The head of the company may be called a director, general director, or president of the company. However, this does not change the status of the employee - he acts as the executive body of the enterprise and represents its interests.

The candidate for the position of director is selected from among the founders or outside citizens. According to Art. 33 Federal Law No. 14 of 02/08/98, the director as an executive body is accepted by the decision of the company's participants and can be dismissed early by the same decision.

The procedure for terminating an employment relationship with a director depends on the basis and circumstances of the procedure.
The decision to dismiss a manager is approved at a general meeting of company participants. Attention! The general director, acting as the owner and sole founder of the organization, resigns at his own request.
To terminate the working relationship in this case, he will have to sign the dismissal order twice - on behalf of the manager and on behalf of the founder of the LLC. In all other situations, it is possible to dismiss a director, including the general director, without his approval, if the decision is approved by the general meeting of founders. If an employment contract has been concluded with the head of the LLC, there will be no difficulties in terminating it. The procedure is carried out as standard; after the removal of powers, the former manager remains among the founders.

Reasons

The powers of a director can be removed from a citizen on the general grounds outlined in Art. 77 Labor Code of the Russian Federation. However, there are also special rules relating directly to the dismissal of a manager. The grounds for dismissal of a director may include:

own desire (Article 280 of the Labor Code of the Russian Federation) - the manager must declare his decision one month before leaving (how should he write a statement?);
consent of the parties - the owners of the company and the manager terminate the relationship under certain conditions specified in the agreement (for example, the amount of “compensation” is stipulated);
lack of qualifications, inadequacy for the position held;
incompetence, causing harm to the economic situation of the organization or the health of employees as a result of the actions or inaction of the manager;
committing a disciplinary offense (absenteeism, drunkenness at work, theft of property, drawing up false documentation, and so on);
liquidation of an enterprise - the manager is notified of the closure of the organization at least two months in advance;
change of owner of enterprise property;
carrying out bankruptcy proceedings, appointing a temporary manager to replace the director;
completion of the period of the employment contract - the director’s term of office is also indicated in the organization’s charter; the director is notified of its completion at least three days in advance;
deterioration of a citizen’s health (medical indications), his refusal to transfer to another position with easier working conditions;
decision of the founders in accordance with clause 2 of Art. 278 of the Labor Code, which may not be motivated by anything.

Attention! The founders have the right to terminate the employment contract with the director without explaining the reasons for their own decision (clause 9 of the resolution of the Plenum of the Armed Forces of the Russian Federation No. 21 of 06/02/15). It does not take into account whether the contract was concluded: fixed-term or permanent.

Based on the provisions of Art. 81 of the Labor Code of the Russian Federation, it is unacceptable to dismiss an employee during vacation or while on sick leave. It is also impossible to terminate the contract if the manager is a pregnant woman (Article 261 of the Labor Code of the Russian Federation). In these cases, only dismissal as a result of liquidation of the organization is allowed.

Procedure

Termination of labor relations with the director by decision of the founders is carried out in several stages:

Initiation of a meeting of the board of LLC owners - convening is carried out 20-30 days before the meeting. If all participants approve of the dismissal, a meeting may be held early.
Making a decision to remove authority from the manager.
Preparation of minutes of the general meeting of founders or the verdict of the sole participant on termination of the contract. The document indicates the grounds for dismissal (disciplinary offense, desire of the manager, decision of the owners of the company, liquidation of the organization, and so on). Confirmation of the decision made is carried out by a notary or in another way indicated in the charter.
Issuance of an order for the dismissal of the director indicating the grounds for termination of the employment relationship and a reference to the legislative act. The document is handed over to the dismissed director for review (against signature).
Transfer and acceptance of affairs, property of the organization according to the act.
Making records of dismissal in the personal card and work book of the director (how to make an entry in the work record when dismissing the general director?).
On the final working day, payments are made to the manager based on the calculation note. Working documentation is also issued (work book, income certificate, paper on insurance contributions for compulsory pension insurance, upon request, a copy of the order, and so on).
Informing the bank in which the organization has an account about the removal of powers from the director and the invalidity of his signature from a certain date.
Notification of the Federal Tax Service, making changes to the Unified State Register of Legal Entities in form R14001 within three days after the new director takes office (clause 5 of article 5 of Federal Law No. 129 of 08.08.01).

Attention! If the decision is made by the sole founder of the LLC, it is permissible to approve it at any time. To do this, it is enough for the owner of the company to notify the director of the upcoming dismissal.

The transfer of affairs from the former manager is recorded in the act and includes an inventory of property, as well as sending to the new manager or the person performing his duties:

constituent;
accounting;
banking;
personnel documentation;
papers for transport, real estate and other property;
agreements with counterparties;
stamps;
stamps;
keys to safes and so on.

If the sole founder and general director are the same person, the dismissal is carried out by him himself: as the founder, he makes the decision and draws up the corresponding order, and endorses it himself. The work book is also filled out and certified independently. It is advisable to use your own desire as the basis for dismissal.

If the contract with the director is terminated for medical reasons, due to his incompetence, disciplinary offenses, or guilty actions, confirmation of these facts is required.

They can be:

witness statements;
acts;
recording violations;
medical report;
certification commission;
video and audio materials;
correspondence and so on.

In the absence of a sufficient evidence base, the dismissal can be challenged in court and declared illegal, which threatens the citizen’s reinstatement, payment of compensation for forced absence, and the imposition of penalties on the enterprise.

Sample resignation letter for CEO

It is not difficult to submit a resignation letter. There may be several wording options. The main thing is that the document contains the necessary information and is submitted within the deadline that we described above.

Let's look at some important nuances:

Send the statement of intent to resign in such a way that the filing date can be recorded (receive a receipt stamp, send a notification letter, etc.).
The owners of the company do not have the right to refuse to accept the application and voluntary resignation of the manager (Article 37 of the Constitution of the Russian Federation, Article 2 of the Labor Code of the Russian Federation).
The procedure for documenting the dismissal of the general director should end with the issuance of an order (Article 84.1 of the Labor Code of the Russian Federation). The law does not provide exceptions for any categories of positions.

Read about who signs the order in this article.

Features of dismissal of the first person of LLC

This is done in two ways:

At an extraordinary meeting of LLC participants (clause 8, article 37 of the law of 02/08/1998 No. 14-FZ “On LLC”), the decision is made by a majority vote. At the same time, the company’s charter may indicate the need for a larger number of votes to make this decision.
By absentee voting (Article 38 of the Law “On LLC”) by polling using postal, electronic, telegraphic or other communication for the exchange of documents. The procedure for conducting absentee voting is determined by internal corporate regulations.

If the general director and the only participant in the company are the same person, of course, there is no need to write a statement to yourself. How to comply with the 30-day deadline.

You will find more information about the procedure for dismissing a manager in the article “Dismissal of a CEO at his own request.”

The procedure for dismissing a director at his own request

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

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

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

Dismissal procedure

The dismissal procedure involves formalizing the termination of an employee’s labor duties.

To dismiss a full-time employee, it is enough to notify the employer in writing of your desire to terminate the employment contract two weeks before the event, after which:

the employee receives the funds earned;
the employer's representative makes an appropriate entry in the work book;
the employee acquires the status of dismissed, unemployed and no longer related to the company’s production activities.

Registration of the dismissal of the director of an LLC at his own request is carried out according to a different scenario, which involves the implementation of mandatory measures related to the termination of powers and registration actions with the authorized bodies.