How to resign as a director if the founder is “silent.” How does the dismissal of a director proceed by decision of the founders, without their consent and by agreement of the parties? Who signs the order?

Is the consent of the founders of an LLC necessary for the dismissal of a director?

Dismissal of the director: we notify the owners

Notice of dismissal of a director: nuances

Actions before dismissal: transfer of documents

How to resign a CEO through court: claim against the employer

The claim against the employer has been considered: actions of the director

How to resign as a director: appeal to the Federal Tax Service and a possible lawsuit

Actions of the director before dismissal: appointment of an interim acting director

Results

Is the consent of the founders of an LLC necessary for the dismissal of a director?

The release of the director of an organization from his position is a procedure that is under the jurisdiction of two main areas of legislation: labor law and civil law (in fact, its corporate sub-branch).

From the point of view of labor legislation, the dismissal of a director on his initiative is carried out generally according to the same standards as the dismissal of any other employee of the enterprise. That is, the head of the company has the right, having written a statement of his own free will and having worked for the required period (30 days according to Article 280 of the Labor Code of the Russian Federation, and this is one of the aspects of the difference in the norms of the Labor Code of the Russian Federation governing legal relations with the participation of managers and ordinary employees of the organization), has the right to stop fulfilling his duties job responsibilities. The consent of the company's founders is not required here.

The procedure for registering the dismissal of a director at his own request by the HR department is described in detail in ConsultantPlus:

To learn more, get trial access to K+ and go to the Ready Solution.

From the point of view of civil law, a director is an official who is appointed to his position and dismissed from it by the decision of the founders of the organization. And if they do not agree to let him go, they can simply refuse to appoint a new leader. And even if the director, from the point of view of the Labor Code of the Russian Federation, is dismissed, he will nevertheless have to fulfill the duties assigned to him within the framework of civil law.

At the same time, in practice, a number of legal mechanisms can be identified that allow the director to resign without the consent of the owners of the company and, moreover, in full compliance with the specified categories of legal norms. Let's look at how a director can resign without the consent of the founders using these mechanisms.

Dismissal of the director: we notify the owners

So, according to labor law, there are no particular difficulties with registering the dismissal of a director. Another thing is the exercise of the director’s right to dismissal, taking into account the norms of corporate law.

30 days in an LLC and 50 days in a JSC (we will look further at the rules of law that establish these terms) before terminating work as an employee, the director is obliged to notify the owners of the company of his desire to resign. During this period, their task is to issue local regulations on the dismissal of the previous director from his position, on the appointment of a new head of the company, and also initiate the necessary changes to the Unified State Register of Legal Entities.

The fact that the resigning director notified the owners of the company must be proven. For these purposes, he can send a registered letter to the founders of the company with notification and an inventory (which will reflect the presence of a resignation letter in the letter). This letter can be compiled in several copies and sent to:

at the legal address of the company;
at its actual address;
at the home addresses of the founders.

https://youtu.be/l-qXYfwAofk

Features of dismissal of a deputy and oneself

The dismissal of a deputy director at the initiative of the employer has some peculiarities, but they are few. The deputy is an employee like everyone else. His hiring, transfer, dismissal and other actions are regulated by the Labor Code of the Russian Federation.

Since the deputy is not a manager, he is fired, like all employees.

Special and additional grounds are not applicable to him, as to a director. On the day of dismissal, the deputy is given his work book, a calculation is made, and his employment relationship with the company is terminated.

How to fire the director of an LLC if he is the founder ? Such a strange, at first glance, dismissal is quite possible.

It occurs when the sole founder of a company and its CEO are the same person (how to fire a CEO?).

First, he, as the founder, makes a decision and issues a special order to dismiss himself, only as a director, in the T-8 form.

Who signs the order to dismiss the director of an LLC? In this case, he signs the order himself.

Sample order form T-8

In this case, the work book can be filled out and certified by him alone. He independently makes records of his assumption of office and termination of work.

Before this, the director himself issues an order for his dismissal..

Its text should indicate the removal of duties as the head of the company and dismissal from the position held on a certain date. It is logical to indicate your own desire as the basis for dismissing yourself.

Order for dismissal of LLC director sample

Founder's decision to dismiss a director sample

Notice of dismissal of a director: nuances

It is necessary to separately consider the specifics of the form of notice of dismissal of a director. The fact is that an extraordinary meeting of owners, at which the founders must elect a new head of the company, is generally convened on the initiative of the current director (if this competence is not assigned to the board of directors).

The director must notify the owners of the company about the meeting 30 days in advance - if he works in an LLC (Clause 1, Article 36 of the Law “On LLC” dated 02/08/1998 No. 14-FZ) or 50 days in advance - if he works in a JSC (Clause 1 Article 52 of the Law “On JSC” dated December 26, 1995 No. 208-FZ). These norms partially correspond to the provisions of Art. 280 of the Labor Code of the Russian Federation - about the need for the resigning manager to warn the owners about the desire to terminate the contract one month in advance. However, the rule on a period of 50 days, prescribed in Law No. 208-FZ, appeared later than the rule in Art. 280 of the Labor Code of the Russian Federation, and if the legal force of Law No. 208-FZ and the Labor Code of the Russian Federation is equal, the newer one is implemented first.

Thus, in the general case, the form of notification to owners about the dismissal of a director will correspond to the form of notice of convening an extraordinary meeting (if it reflects that the subject of the meeting is the appointment of a new director). However, a copy of the resignation letter can also be attached to the notice.

The document must reflect the date, time and place of the meeting. The owners are considered notified of the director’s dismissal upon receipt by each of them of a notice with a statement (appeal ruling of the Belgorod Regional Court dated June 26, 2012 No. 33-1744).

For what reasons can a director be fired?

The reasons for dismissing a director can be very different, among them the following main ones are worth mentioning:

at his own request - a manager, like any other employee, may want to resign for personal reasons. This may be due to a transition to a new job, unwillingness to be responsible for the company’s debts, due to a change in activity, moving to another city or country, etc.;
for failure to fulfill assigned obligations - when a director is appointed, he is charged with certain functions and tasks. If the manager fails to cope within the specified time, this may be grounds for his dismissal;
due to the redistribution of power in the LLC - if a conflict arises between the co-founders, some of them may want to remove the director from his position if he is not loyal enough to them. At the same time, the second group of founders will resist this development of events in every possible way, and the director becomes a hostage to the situation;
for violations of the law, labor regulations, corporate ethics of the company - like ordinary employees, various sanctions and penalties may be applied to the director for violations committed. The apogee of such penalties may be the decision to dismiss the director of the LLC from his position;
during bankruptcy proceedings - if a temporary administration is introduced in a company, this almost always means for the director that he will be fired. True, formally he can remain in the status of an acting official, but not always. The decision is made by the temporary manager of the LLC.

Actions before dismissal: transfer of documents

As soon as notifications of delivery of letters are received by the resigning director or are considered received upon delivery (Clause 1 of Article 165.1 of the Civil Code of the Russian Federation), the director can count the term of service.

Since the head of the company is a financially responsible person, before dismissal he should transfer documents and other corporate property to other competent persons. The list of such documents and types of property may include, for example:

Reporting on entrusted amounts.
Contracts.
Powers of attorney.
Keys, cards, digital signature.
Seals and stamps, pre-sealed and stamped with the date of packaging. It is advisable to ask for witness signatures. This approach will help in the future to avoid accusations from the founders of illegal use of the seal.

In order to certify the fact of transfer of corporate property, it is necessary to draw up a special act.

For a sample of filling out the acceptance certificate when changing the director, see here.

If it is impossible to transfer these documents and property to the founders, they can be temporarily left with the notary (if he takes such things for safekeeping). Or leave it in your custody, issuing an appropriate order.

It is also useful to carry out the necessary communications with the credit and financial organization servicing the company's current account - by sending there, in particular, information that from such and such a date the director will terminate his employment relationship with the business company. As a consequence, the bank can cancel the digital signature and other instruments for the resigning director to exercise his powers (and this may additionally encourage the owners not to delay the appointment of a new head of the company - someone will need to sign financial documents).

What to do

The first thing to do if you decide to quit is to send your application for termination of the employment contract to the members of the company. The one-month notice period should be counted from the day following the day the founders received notice of dismissal. Therefore, when sending such an application by registered mail, check when it will be received (this can be done on the official website of the Russian Post using the postal item tracker). In principle, a situation where the director is replaced without the consent of the founder cannot exist, since the sole executive body is elected by the general meeting of participants. But since the sole director has the initiative to convene a general meeting, it is advisable, along with the application, to send to the participants a notice of convening such a meeting with an agenda for the dismissal of the previous director and the appointment of a new one.

If the LLC participants do not want or cannot hold a meeting, then after the expiration of the one-month warning period, the dismissal of the director without the consent of the founders can be considered valid. You can issue an order for early termination of powers and make a corresponding entry in your work book. Before this date, it is necessary to prepare all documents and material assets of the company for transfer, and also notify counterparties, including banking institutions, that from such a date the manager will terminate the employment relationship with the organization.

How to resign a CEO through court: claim against the employer

In fact, the manager withdraws his powers a month after notifying the business owners in accordance with Art. 280 Labor Code of the Russian Federation. However, in the state register the director will be listed as the sole executive body, and the department will only be able to change this entry with information about the new director.

If during the service period the founders have not appointed a new director of the company, the resigning director should initiate a judicial mechanism in order to exercise his right to be relieved of his position.

The founders of the company, who have not taken the actions necessary to appoint a new director instead of the resigning one, commit a violation that may be the subject of a claim in an arbitration court: as a result of their inaction, the rights of an employee holding the position of general director and wishing to be relieved of it are violated (subparagraph 2, paragraph 1 Article 29 of the Arbitration Procedure Code of the Russian Federation).

In a statement of claim, from the point of view of labor legislation, a director who has resigned can indicate, in particular, that the founders of the company, first of all, violate his rights to freedom of work, unreasonably force him to perform duties, which is prohibited by the provisions of Art. 4 of the Labor Code of the Russian Federation and clause 2 of Art. 37 of the Constitution of the Russian Federation.

The following must be attached to the application to the court:

a copy of the resignation letter;
postal documents confirming the sending of the application to the founders;
a fresh extract from the Unified State Register of Legal Entities, according to which the resigned director continues to hold his position;
perhaps - the results of the plaintiff’s correspondence with employers (which reflects their reluctance to fire him).

Surrender of duties

Why is the procedure for transfer of powers necessary when the general director of an LLC located in a group of companies resigns? This is important for everyone. Since it is the manager who is responsible for the actions of the company, the date of dismissal and appointment will determine who will be responsible in the event of illegal actions.

We invite you to read: Partial loan repayment: pros and cons

When all necessary actions to notify other participants have been taken, it is worth meeting to transfer responsibilities. The convening of the meeting should be carried out according to the previous procedure, collecting and retaining all receipts and notices. If after a month a worthy deputy has not been found, this is no longer the former leader’s problem.

The assembled group can nominate one of the meeting participants for a vacant post and make it official. The Russian law in 2019 does not oblige anyone to take any steps towards transfer. They remain at personal discretion, but still we present below a list of cases, which will serve as protection to a lesser extent:

An important point is that there is no cash in the company’s cash register. It would be wise to keep it in the firm's bank accounts.
It’s worth getting your documentation in order and paying off your debts. Taxes and salaries must be paid. And reports, contracts - signed or terminated.
Closing accounts is equally important. If for some reason this is not possible, bank managers must be aware of changes in management. This will require two written notices. One of which is transferred to the bank, the other - into the hands of the person resigning.
To prevent misunderstandings with the tax authorities, you need to inform them as well. You can indicate in writing that there has been a change in management and all standards have been met.

It happens that it is impossible to take all the previous steps. Then we need to act differently. It is important to take care of saving all important papers. There are three ways:

personally be responsible for their safety, keeping them in the company safe;
entrust their safety to a reliable archiving company;
or give it under the responsibility of a notary. In this case, the new manager will be able to use them without any problems after assuming these rights.

In turn, the notary must accept the papers for storage. To do this, you can use the inventory to check the integrity of the packaging material. After the final decision, he puts his personal signature and seal on the package. Now he is personally responsible for the safety of all documentation, and he is responsible for the main circulation of papers.

Evidence that the outgoing director, even after writing his resignation letter, continued to look after the interests of the company will seriously affect the success of the trial.

The most obvious action to ensure the smooth functioning of a commercial structure is the appointment of an interim director. An important point is that the applicant must express consent. In this situation, the acting officer receives all powers and immediately begins to work. In this case, the general meeting usually only confirms the decision and thereby legitimizes the departure of the old leader.

The claim against the employer has been considered: actions of the director

If the court sides with the plaintiff (it is possible that after several instances have been passed), the court’s decision to recognize the inaction of the company’s founders as illegal can be transferred to the Federal Tax Service as a basis for making changes to the Unified State Register of Legal Entities.

The main probable reasons for the court's decision in favor of the defendant include the director's failure to fulfill his duties after de jure dismissal under the Labor Code of the Russian Federation.

The fact is that as long as information is recorded in the Unified State Register of Legal Entities that the plaintiff is the current director of the company, he is obliged to perform the duties of a director. If, due to his inaction, problems arise in the business, then his refusal to work may be interpreted by the court as a sign of abuse of the right to dismiss, which in this case may be carried out by the director intentionally in order to cause harm to the company.

In addition, the founders, in turn, can initiate a counterclaim against the resigning director as an official who allowed inaction, and recover damages from him due to problems arising in the business.

Civil law

In accordance with the law, an organization cannot exist without a leader. If he decides to resign, the founders must find another director to replace him. If they refuse to do this, then the head of the company dismissed under the Labor Code of the Russian Federation will be obliged to continue to perform leadership functions.

The fact is that according to the Civil Code of the Russian Federation, only the founders can appoint and dismiss the director of an organization with their consent. It turns out that according to the Labor Code of the Russian Federation, the head of the company can resign. And according to the Civil Code of the Russian Federation, he is obliged to obtain the consent of the owners of the company. What to do in such a situation?

This is important to know: Is it possible to quit while in another city?

How to resign as a director: appeal to the Federal Tax Service and a possible lawsuit

There may be an alternative to going to arbitration with a claim against the inactive owners of an LLC - applying to the Federal Tax Service with a request to exclude from the Unified State Register of Legal Entities the entry that the director who resigned under the Labor Code continues to remain the head of the organization. For these purposes, the following documents may be submitted to the Federal Tax Service:

form P 14001;
copies of the resignation letter, notice of convening a meeting of founders, postal documents.

In this case, the signature on form P 14001 can be certified by a notary.

If the Federal Tax Service refuses to make changes to the Unified State Register of Legal Entities based on a corresponding request from the resigning director, he may initiate a lawsuit, the subject of which is the inaction of the department, expressed in the refusal to make changes to the Unified State Register of Legal Entities. Before this, it is also necessary to obtain clarification from a higher structure of the Federal Tax Service (clause 1 of Article 138 of the Labor Code of the Russian Federation), unless, of course, the department at the appropriate level does not satisfy the applicant’s request.

There is a possibility that the arbitration will side with the plaintiff - based on the fact that the information in the Unified State Register of Legal Entities that the plaintiff is the current director of the company will be unreliable, since he no longer works in the organization (decision of the Arbitration Court of the Lipetsk Region dated 09.11.2015 case No. A36-4738/2015).

However, it is worth noting that such precedents, by definition, are not very representative, since they are based on a fairly deep interpretation by the court of legal norms on state registration and, probably, will occur with the greatest frequency following the results of hearings in which the company itself will not be a third party and will not declare any claims.

How to achieve amendments to the Unified State Register of Legal Entities

There are two ways to do this:

A director who is not released by the founders (they do not hold a meeting and do not appoint a new director), after a month from the date of sending the letter of resignation, can file a lawsuit to appeal the inaction of the founders, as well as a demand for dismissal and to make appropriate changes to the Unified State Register of Legal Entities . The disadvantage of this option is that while the trial continues, you will have to continue to perform your directorial functions.
After issuing an order for his dismissal, the director sends to the registration authority a statement in the established form about the unreliability of information in the Unified State Register of Legal Entities about him as the sole executive body of the company. The disadvantage of this option is that the Federal Tax Service may refuse you, and then the decision of the registration authority will also have to be appealed in court. But you will do this as an individual.

Actions of the director before dismissal: appointment of an interim acting director

In many ways, the success of legal claims by the resigning director, if they have to be initiated, depend on his actions preceding the dismissal, as well as those carried out in the period before the filing of certain claims.

One of such actions may be the appointment by the head of the company of a person in his place (with his consent) authorized to carry out the necessary management actions in the absence of the resigning director.

This appointment will become a factor confirming the director’s desire to act in the circumstances in good faith and in the interests of the company - in arbitration, this priority of the resigning manager can be assessed very highly when making a decision on the dispute.

It should be noted that a full-time deputy director can officially become an acting director or even replace the director on a permanent basis, as is the case with any new appointment of a director, only by decision of the founders. In this case, the person appointed by the resigning director in his place can accept any amount of authority, unless otherwise specified by the organization’s charter (Resolution of the Federal Antimonopoly Service VSO dated March 22, 2012 in case No. A58-6315/10). This action does not form a regulatory basis for making changes to the Unified State Register of Legal Entities, but can be taken into account by arbitration.

Results

The consent of the founders to the dismissal of the director from his position is not required - in terms of termination of labor relations with him, regulated by the Labor Code of the Russian Federation. However, termination of the powers of the resigning director as a subject of corporate law (and, as a consequence, making the necessary changes to the Unified State Register of Legal Entities) requires the participation of the founders and their decision to dismiss the director from office. If the founders do not make such a decision, the resigning director has the right to seek amendments to the Unified State Register of Legal Entities through the Federal Tax Service or through the court.

You can learn more about the specifics of the exercise of powers by the head of an organization in the articles:

“Can the CEO work part-time?”;
“Dismissal of the General Director at his own request”.

Sources:

Labor Code of the Russian Federation
Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”
Federal Law of December 26, 1995 N 208-FZ “On Joint Stock Companies”

You can find more complete information on the topic in ConsultantPlus. Full and free access to the system for 2 days.

Procedure for terminating a TD with a director

The procedure for dismissing a manager without the consent of the participants is somewhat different from an agreed separation. For more details, see the article “Dismissal of the CEO at his own request.”

The following are attached to the statement of claim:

notice of dismissal;
notification of the convening of participants;
receipts for its dispatch;
notifications of delivery (for each address);

After the court decision comes into force, the manager must notify the bank of his dismissal, as well as transfer documents and other material assets entrusted to him to the company.

You can make a transfer in the following ways:

transfer to a notary for safekeeping;
put for safekeeping in the company's safe deposit box (if participants have access).

In conclusion, we note that the procedure for terminating a contract with a manager without the consent of the participants is a very lengthy undertaking. To legally terminate a TD (removal of the powers of the executive body), it is necessary to follow the sequence of actions for drawing up personnel and corporate documents. An important circumstance is compliance with the terms of notice of dismissal and proper notification of participants about the termination of the TD.