Payments upon dismissal of the general director by decision of the founder. The procedure for dismissal of the head of the company by agreement of the parties and compensation paid Compensation to the director upon dismissal in connection with the early dismissal of the director

), by agreement of the parties to the employment contract (Article 78 of the Labor Code of the Russian Federation), at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation), etc.

In addition to general grounds, it is allowed to dismiss a director on special additional grounds (Article 278 of the Labor Code of the Russian Federation):

removal from office of the head of the debtor company in accordance with bankruptcy legislation (clause 1 of Article 278 of the Labor Code of the Russian Federation);
the authorized person decided to terminate the employment contract with the director (clause 2 of article 278 of the Labor Code of the Russian Federation);
other grounds provided for by the employment contract (clause 3 of article 278 of the Labor Code of the Russian Federation). At the same time, the Labor Code does not limit the list of additional grounds for dismissal of a company director.

The main thing is that they are specified in the employment contract (additional agreement to it) and comply with current legislation.

Who can terminate an employment contract with a director

The decision to terminate the powers of the head of the company (general director) can be made (clause 2 of article 278 of the Labor Code of the Russian Federation):

authorized body of the company, for example, the board of directors (subclause 2, clause 2.1, article 32, subclause 4, clause 2, article 33, article 40 of the Federal Law of 02/08/98 No. 14-FZ, subclause 8, clause 1, art. 48, subparagraph 9, paragraph 1, article 65 and paragraph 3, article 69
the sole owner of the company's property (clause 2 of article 7 of the Federal Law dated 02/08/98 No. 14-FZ, clause 2 of article 3 and clause 3 of article 47 of the Federal Law of December 26, 1995 No. 208-FZ);
person (body) authorized by the owner.

The decision is not required to indicate specific circumstances confirming the need to terminate the employment contract.

Compensation to the director upon dismissal due to the early dismissal of the director

If a decision is made to terminate the employment relationship with the director in the absence of guilty actions (inaction) of the director, he is paid compensation (Article 279 of the Labor Code of the Russian Federation).

The amount of compensation to the director upon dismissal is established by the employment contract. But the amount of compensation cannot be lower than three times the employee’s average monthly earnings. The parties to the employment contract should establish its size when concluding the employment contract. If this does not happen, its size can be determined and fixed later in an additional agreement.

Sometimes the provision for compensation upon dismissal is not included in the employment contract with the director, either at the time of hiring or later. According to some employers, in this case, when dismissing a director on the basis of paragraph 2 of Article 278 of the Labor Code, the company should not pay compensation: if there is no entry in the contract, there is no obligation to pay.

However, the judges of the Supreme Court of the Russian Federation do not agree with this. They believe that the absence of a provision in the employment contract with the director regarding the payment of compensation and its amount does not relieve the owner of the property from the obligation to pay it (Determination of the Supreme Court of the Russian Federation of January 25, 2008 No. 5-B07-170).

The owner also has an obligation to pay compensation in cases where the contract was concluded before the Labor Code came into force, and the necessary changes were not made to it. Dismissal of a director without payment of compensation, if he has not committed guilty actions giving grounds for his dismissal, is a violation of the dismissal procedure. The court may decide to reinstate a dismissed person at work (clause 4.3 of the resolution of the Constitutional Court of the Russian Federation dated March 15, 2005 No. 3-P).

Amount of compensation not specified in the employment contract

It turns out that if there is no provision for compensation to the director upon dismissal in the employment contract, it still needs to be paid. In what size?

The parties to the employment contract may enter into an additional agreement to the employment contract immediately before formalizing the dismissal. In it they will record the amount and procedure for paying compensation.

In the event of a dispute between the owners of the company and the dismissed director, a decision on the amount of compensation and the procedure for its payment can be made by the court, taking into account the actual circumstances.

This payment is compensation for the adverse consequences caused by job loss. Its size can be determined taking into account the time remaining until the expiration of the employment contract, as well as the amounts that the manager could receive while continuing to work in his previous position, and additional expenses that he may be forced to incur as a result of early termination of the contract (clause 4.2 of the resolution of the Constitutional Court of the Russian Federation dated March 15, 2005 No. 3-P).

Example
Employment contract with the General Director of Olympstroybak LLC R.L. Khitretsov was imprisoned for a period until January 31, 2015. However, the owner of the company decided to dismiss the employee on December 20, 2014 for no apparent reason. The amount of compensation was not specified in the employment contract at the time of dismissal, but the owner is ready to pay it taking into account the time remaining until the expiration of the employment contract.

The employee's salary is 100,000 rubles. The company also pays an annual bonus in the amount of salary if during the year the employee has not had disciplinary sanctions or absences from work, with the exception of 28 calendar days of annual paid leave. According to the bonus regulations, if an employee had unworked days for other reasons, including due to dismissal before the end of the year, the bonus amount is calculated in proportion to the number of working days actually worked during the year. In this case, 28 calendar days of vacation are equivalent to 20 unworked working days.

R.L. During 2014, Khitretsov was absent from work for 28 calendar days during the annual leave period and did not work 7 working days in December due to dismissal. The average monthly salary at the time of dismissal is 92,424.24 rubles.

The amount of earnings not received in December 2014 will be 31,818.18 rubles. (RUB 100,000: 22 working days × 7 working days). For January he will not receive a full salary of 100,000 rubles. The amount of the annual bonus will be calculated in proportion to the time actually worked and will amount to RUB 89,068.83. . If the employee had not been fired, his annual bonus would have been equal to his salary. As a result, he will receive less than 10,931.17 rubles. (RUB 100,000 – RUB 89,068.83). The total amount of lost earnings will be 142,749.35 rubles. (RUB 31,818.18 + RUB 100,000 + RUB 10,931.17).

The amount of three times the average monthly earnings is 277,272.73 rubles. (RUB 92,424.24 × 3 months). The amount of earnings lost due to dismissal is less than this amount (RUB 142,749.35).

I. Grigoriev,
labor law expert

The procedure for dismissal and payment of compensation to the manager is ambiguously determined by labor legislation. The director is included in the list of groups of specialists who cannot be fired in the standard way. This material will discuss all the features of terminating an employment contract with a manager under Article 78 of the Labor Code of the Russian Federation. In particular, the possible reasons and procedure for dismissing a manager by agreement of the parties will be considered, as well as the responsibility of both parties upon termination of the employment relationship.

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Definition of the term “company manager”

A manager (manager, director) is an individual who is responsible for conducting the activities of an enterprise. The concepts of employer and manager should not be confused, since the latter cannot always act as an employer and does not have absolute control over what happens in the company. Usually they talk about dismissing a manager when it comes to an LLC, where such a decision is made by the board of directors. All labor relations with the manager and other management persons of the company are regulated by Article No. 43 of the Labor Code of the Russian Federation.

Articles of the Labor Code of the Russian Federation, on the basis of which a manager is dismissed

This material discusses the procedure for dismissing a director by agreement of the parties with further payment of compensation, however, there are also other ways to dismiss a director of a company. Each of them is discussed below.

Article 280 of the Labor Code of the Russian Federation (own desire).
Article 79 of the Labor Code of the Russian Federation (termination of the work contract).
Article 78 of the Labor Code of the Russian Federation (by mutual agreement of the parties), when the manager is offered a certain amount of compensation in order to vacate the position as quickly as possible.
Article 81 of the Labor Code of the Russian Federation (the dismissal process is initiated by other LLC participants).
Article 75 of the Labor Code of the Russian Federation (the enterprise acquires another owner).
Article 69 of Federal Law No. 127 (in case of reorganization or bankruptcy of a company).
Other reasons specified in the Labor Code of the Russian Federation.

Dismissal of a manager by agreement of the parties

The employer’s desire to cancel the work contract of the company manager by agreement of the parties indicates that he does not want to allow any important data about the company’s activities to reach third parties. It is no wonder that the general director has the opportunity to leave for a competing company, so the disclosure of “production secrets” will harm the activities of the enterprise.

Any party to the labor relationship can initiate the dismissal process under Article 78 of the Labor Code of the Russian Federation. If the initiator is the manager, then he must send the employee a statement, which may optionally indicate the reason for dismissal. Next, the employer must consider the application and decide whether he agrees to part with the general manager in this way.

"Golden Parachute"

Upon dismissal, by agreement of the parties, the director is paid significant material compensation, which is commonly called the “golden parachute”. The amount of this compensation is not limited by law, and therefore depends solely on the “generosity of the employer.” According to Article 255 of the Tax Code of the Russian Federation, compensation is considered as an expense for remunerating an employee. If the amount of compensation exceeds three average employee salaries, then it is subject to personal income tax. The need to pay compensation is indicated either in the employment contract, which the director and his employer signed directly upon employment, or in an additional agreement, which acts as an addition to the contract.

Upon dismissal by agreement of the parties, payment of compensation to the director is optional, but there are two cases when the dismissal director receives compensation is a prerequisite:

change of company ownership;
cancellation of a contract by decision of the LLC board members (except for situations where dismissal was a disciplinary measure).

If the employment contract is terminated at the manager’s own request, then no compensation is paid to him, since the person being dismissed was the person interested, and there is simply no point in the employer paying compensation. And in situations where the termination of employment relations takes place under Article 81 of the Labor Code of the Russian Federation, the dismissed person may additionally be charged a fine for damage caused to the company (of course, the other party has the right to appeal such a decision of the commission in court).

For managers who worked in government agencies, restrictions on the amount of compensation were established. This rule also applies to enterprises that are partly state-owned.

Procedure for canceling the contract

Many HR specialists are wondering how to fire a director by agreement of the parties. The algorithm for dismissing a manager by agreement of the parties is as follows:

If the dismissal was initiated by members of the board of directors, then first it is necessary to draw up minutes of the meeting, which must indicate the reason for termination of the contract. By the way, the director’s resignation may serve as a reason if the initiative came from his side.
The next stage is the issuance of an order to terminate the employment relationship in the T-8 form (this local legal act must be registered in the journal).
The dismissed director is given a work book, in which an entry about the termination of the employment contract should have been made in advance.
The bank and the tax office are notified that the person no longer exercises his powers as a director in the company.

Negotiations and letter writing

To dismiss at his own request, the employee is not required to make a written application if the initiator of termination of the contract is the employer. If, as a result of negotiations, the founders of the LLC came to the conclusion that the director should be dismissed, and we are not talking about disciplinary violations (Article 81 of the Labor Code of the Russian Federation), then the current director is sent a notice in writing, which must necessarily contain the following data:

legislative basis for termination of labor relations (in this case, this is Article 77 of the Labor Code of the Russian Federation);
day of contract cancellation;
the period allotted for receiving a written response to the notification;
the signature of the initiator of the dismissal process, without which the application will not have legal force.

Russian legislation does not require that the notice indicate the basis for the dismissal of an employee. If an employee is dismissed without reason and not by agreement of the parties, then he must be entitled to compensation.

In many companies there can only be one founder. If there are several of them, then the decision of the founders of the LLC or joint stock company is certified by the protocol.

Drawing up an additional agreement on termination of the employment contract
The Labor Code does not regulate the procedure for drawing up, as well as the form of an additional agreement on the cancellation of a work contract with a manager. Of course, this document must be drawn up exclusively in written form, and two duplicates must be made - one of them is kept by the employer, and the other is given to the manager. The agreement may contain a large number of requirements, but in general it should include the following information:

date of drawing up the additional agreement;
information about the employee and employer;
information about the work contract;
the reason for canceling the contract;
the actual date of dismissal, which also coincides with the date of cancellation of the director’s contract;
financial obligations of the parties (optional).

Important! Once the additional agreement is signed, its terms cannot be changed. Any adjustments can only be made with the consent of both parties, so the manager cannot return to his place within two weeks after issuing the order to dismiss and receive compensation. It is noteworthy that dismissal by agreement of the parties may provide for this possibility.

Since 2014, data on the payment of compensation to the manager cannot be included in the additional agreement, and this concerns not only the payment of a specific amount of money, but also the receipt by the dismissed person of certain company property (for example, a block of shares).

Order of dismissal

Before the last day of work of the dismissed person, the employer must issue a decree dismissing the director by agreement of the parties (sample order 2017). The decree must be signed by the director himself, having previously familiarized himself with its contents. In some cases, another authorized person of the company (for example, the chief personnel officer) may sign the order. The order (form T-8) reflects the following aspects:

information about the dismissed manager;
legislative basis for termination of labor relations (a specific article of the code is indicated);
date of dismissal;
signature of the director or authorized person.

Documentation of the dismissal procedure by mutual agreement of the parties must be approached with all due responsibility, since any inaccuracies (for example, incorrect date indication) are fraught with litigation. In the event of termination of the employment relationship with the director, his deputy begins to perform duties.

Mark in the work book

An entry in the work book is made in accordance with the Instructions, which every HR specialist must be familiar with in advance. The entry looks something like this: “Dismissed in accordance with Article 78 of the Labor Code of the Russian Federation.” The main requirement is to indicate a specific article of the Labor Code, which acts as a regulatory framework for terminating an employment contract. The instructions are an official legal act, so the provisions contained in them cannot be ignored.

Issuance of documents and payment

According to Article 84 of the Labor Code of the Russian Federation, the employer undertakes:

transfer to the director all necessary payments (compensation, compensation for unused vacation days, remaining wages, etc.);
issue a work book to the former top manager;
hand over all other documentation that was directly related to the employee’s work activity.

To avoid troubles, the employer is recommended to send all documents by registered mail using the Russian Post service. If, for example, a manager’s book is lost, the latter can file a lawsuit (the same applies to any other documents).

Sometimes it is impossible to pay a former manager on his last day of work due to some objective reasons (problem with a bank transfer, the employer cannot come to the place of work, etc.). In such a situation, the employer (or his authorized representative) must transfer all payments to the employee’s account no later than one day after receiving the application for the accrual of due funds.

Taxation of executive severance pay

Income tax

It is important for a company’s in-house accountant to know whether compensation is subject to taxation, because in most situations we are talking about fairly substantial amounts of funds. Due to the fact that material compensation is paid on the last working day, Article 255 of the Tax Code of the Russian Federation considers this type of payment as labor costs, so the tax base will remain the same. The employer can agree with the director on partial payment of benefits after the actual date of dismissal (this and other similar conditions can be specified in the additional agreement), which will slightly reduce the total amount of income tax.

Personal income tax and unified social tax

There is no need to collect both personal income tax and unified social tax from the compensation amount; in situations where the amounts involved are too large, it may be necessary to pay income tax from part of the compensation.

Responsibility of the General Director

It goes without saying that the job of a top manager is a serious and highly paid position, which at the same time implies a high level of responsibility. Liability can be financial or criminal (if the organization suffered serious losses as a result of the activities of the dismissed person as a manager). The degree of criminal liability is already determined by the Criminal Code of the Russian Federation. This information primarily relates to dismissal under Article 81 of the Labor Code of the Russian Federation, while the dismissal of a manager by agreement of the parties usually implies a “peaceful” scenario of termination of employment relations.

Similar materials

The decision to dismiss the director of an LLC is made by a body determined by the company’s charter. As a rule, such a decision is made by the general meeting of participants. In order for the dismissal procedure to take place in accordance with the law, it is necessary to take into account the reason and grounds for dismissal.

Quit yourself or get fired

The general director of an LLC has the right to resign at his own request. However, dismissal may be initiated by members of the company, or it will occur due to circumstances beyond the control of the parties.

The manager, like other employees, can be dismissed on the general grounds listed in Article 77 of the Labor Code of the Russian Federation, for example, by agreement of the parties. Additional grounds are named in Article 278 of the Labor Code of the Russian Federation:

removal from office of the head of the debtor organization in accordance with insolvency (bankruptcy) legislation;
the owner makes a decision to terminate the employment contract.

The director can resign on his own initiative at any time. But it happens that company owners do not want to let him go. They avoid making an unpleasant decision in various ways: they refuse to hold a general meeting, they find various reasons not to hold it. In such a situation, the inaction of society participants is regarded as an abuse of right. This behavior of the owners can be qualified as forcing the director to work, which is categorically prohibited by labor legislation (Article 2 of the Labor Code of the Russian Federation).

Many questions arise when a director is dismissed on the initiative of the company's owners. I immediately remember the common saying: “initiative is punishable.” But if you adhere to the rules dictated by law, the dismissal will take place without complications.

Difficulties in terminating an employment contract

When terminating an employment contract with the general director on their own initiative, company participants must remember the existing restrictions.

It happens that the general director understands that his dismissal is being prepared. Then he goes on sick leave. It is unlawful to dismiss a director during a period of temporary incapacity (Part 6, Article 81 of the Labor Code of the Russian Federation). The same rule applies if the CEO is on vacation. Violation of these requirements will entail a fine under Article 5.27 of the Code of Administrative Offenses of the Russian Federation. True, they may not be observed during the period of liquidation of the company.

Important
A difficult case when the manager is a woman expecting a child. Dismissal at the initiative of the company's owners will be considered illegal (part of Article 261 of the Labor Code of the Russian Federation). For the unjustified dismissal of a pregnant woman manager, not only administrative liability is provided under Article 5.27 of the Code of Administrative Offenses of the Russian Federation, but also criminal liability - under Art. 145 of the Criminal Code of the Russian Federation (fine up to 200 thousand rubles and other sanctions).

It is no easier to fire a manager who has family obligations. For example, company owners do not have the right to voluntarily fire women with children under 3 years of age or single mothers with children under 14 years of age. A complete list of persons with family obligations who are prohibited from dismissal at the initiative of company members is given in Part 4 of Article 261 of the Labor Code of the Russian Federation.

If dismissal does follow, then the organization must prepare to bear both administrative and criminal liability when this is provided for by law.

Although there are strict restrictions on the dismissal of directors with family obligations, there are exceptions. In particular, you can dismiss a director if there is evidence of gross violation of his official duties. Whether the violation was gross will be determined by the court, taking into account the specific circumstances of the case. The responsibility to prove that the violation actually took place and was of a gross nature lies with the employer (Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

Should I pay compensation to the dismissed director?

Payment of compensation upon dismissal of a director is not always justified. Law enforcement practice shows that the solution of this issue by employers often entails various risks and complications for both the company and its managers.

The law obliges the employer to pay compensation only in two cases:

if the employment contract is terminated due to a change in the owner of the organization’s property (Article 181 of the Labor Code of the Russian Federation);
if the owner decides to terminate the employment contract (Part 2 of Article 278 of the Labor Code of the Russian Federation).

When the CEO is fired for other reasons, payment of compensation is not the employer's responsibility. For example, the director refused to continue working after changing the terms of the employment contract. The company is not obliged to pay him compensation (Appeal ruling of the Penza Regional Court dated March 29, 2016 in case No. 33-980/2016).

The culprit will remain without compensation

Labor legislation differentiates the grounds for dismissal into:

related to the employee’s guilty actions;
not related to criminal actions.

If there are no guilty actions (inaction) on the part of the manager, he is paid compensation. The amount of payment is determined by the employment contract, but cannot be lower than three times the average monthly salary (there are exceptions to this rule). Such a norm for dismissal at the initiative of the owner is provided for in Article 279 of the Labor Code of the Russian Federation.

Interpreting the norm literally, the owners fire the manager, accuse him of guilty actions and do not pay compensation. In such a situation, there is a high probability of a legal dispute, in which judges may well take the side of the ex-director.

The law does not define what actions are considered culpable. Guilty actions are often identified with disciplinary offenses. It is difficult to consider this position correct, because formally the dismissal of an employee by decision of the owner does not apply to disciplinary sanctions (Part 3 of Article 192 of the Labor Code of the Russian Federation). Judicial practice is not clear. For example, there is a position of the Constitutional Court of the Russian Federation, which believes that the list of grounds for dismissing an employee, enshrined in Part 3 of Art. 192 of the Labor Code of the Russian Federation is not exhaustive. This means that dismissal can also be regarded as a disciplinary measure for an employee who improperly fulfilled his job duties (Definition of the Constitutional Court of the Russian Federation dated June 24, 2008 No. 335-О-О).

So, the employer will have to determine the director’s guilt independently, relying on established judicial practice. Guilty actions of the manager can be considered:

disclosure of information constituting a trade secret;
causing harm to the health of workers;
causing property damage to the organization. For example, deliberately entering into a deal that is unfavorable for the company.

Important
1. Payment of compensation is mandatory if the owner of the organization’s property changes.
2. Payment of compensation is mandatory if the director is dismissed at the initiative of the owner (based on Part 2 of Article 278 of the Labor Code of the Russian Federation). If guilty actions of the manager are observed and proven, then compensation is not paid to him.
3. In all other cases (for example, the director’s own desire, disciplinary offense), payment of compensation is a right, not an obligation of the company.

Miser pays twice

Some employers include in the employment contract a provision regarding non-payment of compensation to the director under any circumstances, even in the absence of wrongdoing. This approach is wrong. Judges in this case note that fair compensation must be paid in the amount determined by the employment contract or the court if a dispute arises (Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 2, 2015 No. 21).

Important
Most likely, the judges will side with the ex-director if he, deprived of compensation, goes to court. And it is possible that in addition to compensation, the employer will have to pay not only interest for violating the deadline, but also compensate the employee for moral damages.

When determining the amount of compensation, the court takes into account the specific circumstances of the case. For example, the length of work of the dismissed general director in the organization, the time remaining until the expiration of the employment contract, the amounts that the dismissed person could receive while continuing to work as the head of the organization, additional expenses that may arise due to the termination of the employment contract (Resolution of the Plenum of the Armed Forces of the Russian Federation dated 06/02/2015 No. 21).

Unfortunately, the employer and the director do not always part ways peacefully, without having claims against each other. Experience shows that it is better to reach an agreement. Legal proceedings with the ex-director are lengthy. Accompanied by financial, temporary and moral losses on both sides. It is possible to dismiss a director without problems only on the grounds provided for in the Labor Code of the Russian Federation. And even if the company includes other grounds for dismissing a manager in its charter documents, the law will be on the latter’s side.

Yulia Busygina, expert, training center of SKB Kontur company

Question. What payments are possible upon dismissal of the director of a state unitary enterprise. What additional payments are possible to the deputy director of a state unitary enterprise upon dismissal? Question. Under what article should the head of a state unitary enterprise resign in order to receive benefits and payments upon dismissal?

Answer

All employees (including directors and deputies) are paid severance pay in the amount of two weeks' average earnings paid to the employee upon termination of the employment contract due to:

the employee’s refusal to transfer to another job, required for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work (Labor Code of the Russian Federation);

calling up an employee for military service or sending him to an alternative civilian service that replaces it (Labor Code of the Russian Federation);

reinstatement of the employee who previously performed this work (Labor Code of the Russian Federation);

the employee’s refusal to be transferred to work in another location together with the employer (Labor Code of the Russian Federation);

recognition of the employee as completely incapable of working in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation (Labor Code of the Russian Federation);

the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (Labor Code of the Russian Federation).

The director is paid compensation upon dismissal in connection with a change of owner and in connection with the adoption of a decision by the founder.

Other payments may be provided for by local acts of the organization and (or) the employment contract.

For more details on this, see the materials in the justification.

The rationale for this position is given below in the materials of the “Personnel System” .

1. Situation: What payments are due to employees in the event of downsizing or liquidation of an organization?

“In case of dismissal due to liquidation of the organization or reduction of staff, pay employees*:

severance pay in the amount of average monthly earnings;
average earnings for the period of employment not exceeding two months from the date of dismissal, including severance pay. For northern employees, a special procedure is in place to maintain average earnings.

Severance pay in the amount of average monthly earnings must be given to the employee on the day of dismissal. If the employee did not work on the day of dismissal, then it must be paid the next day after the employee applies for payment. Such rules are established by the Labor Code of the Russian Federation.

The average salary is paid in a special manner depending on how long it takes for the employee to get a new job ().”

« On what grounds can an organization fire its CEO?

The employment contract with the general director may be terminated:

on general grounds (Article , and Labor Code of the Russian Federation);
on special grounds (clauses and part 1 of Article 81 of the Labor Code of the Russian Federation);
on additional grounds ().

What special grounds are provided for the dismissal of the general director?

Special grounds for dismissal of the general director include the following cases.

1. Change of owner of the organization’s property (, Labor Code of the Russian Federation). The new owner may, no later than three months from the date on which he acquired the right of ownership of the organization’s property, terminate the employment contract with the general director. When dismissing a manager, the new owner is obliged to pay him monetary compensation. Such payment cannot be less than three average monthly earnings (). The exception is made by the heads of organizations in whose authorized capital the participation (shares) of Russia is more than 50 percent. Their compensation is strictly equal to three times their average monthly earnings - no more and no less*. Such rules are established by the Labor Code of the Russian Federation.

2. The adoption by the head of the organization of an unfounded decision, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (). In order to dismiss the general director on this basis, it is necessary to prove that the adverse consequences arose precisely as a result of such a decision. At the same time, the employee had other options to get out of the difficult situation, which he did not use.

3. One-time gross violation by the head of the organization of his labor duties (). A single gross violation means, in particular, failure to fulfill the duties assigned to the general director by an employment contract, which could result in harm to the health of employees or property damage to the organization ().

Attention: dismissal of the head of an organization for making an unreasonable decision and for a one-time gross violation of labor duties is a disciplinary measure. The procedure for imposing a disciplinary sanction must be carried out according to the rules of the Labor Code of the Russian Federation.

If this procedure is not followed, the court may declare the dismissal of the general director illegal and reinstate him. In this case, the organization will have to pay the manager for the entire time of forced absence. This is stated in the Labor Code of the Russian Federation.

Additional grounds for dismissal

What additional grounds are provided for the dismissal of the general director?

An employment contract with the general director can be terminated for additional reasons:

in connection with removal from office in accordance with insolvency (bankruptcy) legislation. If bankruptcy proceedings have been initiated against an organization, the arbitration court may remove the head of the debtor organization from office at the request of the temporary property manager of the organization ();
in connection with the adoption by the authorized body of the organization (board of directors, general meeting of participants, general meeting of shareholders, manager) or the owner of the property (person authorized by the owner) of the organization of a decision on early termination of the employment contract (clause and article 32 of the Law of February 8, 1998 No. 14-FZ, ). A similar decision can be made by the owner of the property of a unitary enterprise in accordance with established ();
on the grounds provided for in the employment contract with the head of the organization (Labor Code of the Russian Federation). For example, for failure to comply with the decision of the general meeting of participants (shareholders), causing losses to the organization or damage to its property.

Additional grounds for dismissal of the general director are provided for in the Labor Code of the Russian Federation.

It should be noted that when terminating an employment contract with the general director by decision of the authorized body of a legal entity, it is not required to indicate the specific circumstances of the termination of the employment contract (). In addition, there is no need to notify the manager in advance of dismissal on this basis. As a general rule, in such a situation, the general director is entitled to payment of compensation* (Article , Labor Code of the Russian Federation). The legitimacy of this position is also confirmed by lower courts, see, for example, the appeal rulings of the Moscow City Court.

Question from practice: what is the amount of compensation due to the manager upon dismissal by decision of the owner

Upon dismissal by decision of the owner, the general director is entitled to compensation. Pay compensation if the dismissal is not related to the guilty actions or inaction of the manager. The intended purpose of this payment is to compensate the dismissed employee to the maximum extent for the adverse consequences caused by the loss of work. The minimum amount of such compensation is three times the average monthly salary of the dismissed manager. The maximum amount of compensation is not limited by law, therefore compensation in a larger amount can be established in a local act, charter or employment contract with the manager.

If compensation is not established in an employment contract, local act or charter, then this is not a basis for non-payment at all. If an agreement on the amount of payment is not reached, then the amount of compensation is determined by the court taking into account the factual circumstances of the particular case, the purpose and purpose of this payment.

Such conclusions follow from the totality of the provisions of articles of the Labor Code of the Russian Federation.

Attention: a manager dismissed by decision of the owner without payment of compensation can go to court and demand not only payment of compensation with interest, but also compensation for moral damage. The legitimacy of this position is confirmed by judicial practice (see, for example,).

The amount of compensation for moral damage is determined by the court and indicated in its decision. In this case, judges must take into account the nature of the harm caused to the employee and the degree of guilt of the organization ().”

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Currently, it is a time of new technologies, new solutions and changes, in Russia, like “mushrooms after rain”, small and large companies are opening. When we put a CEO at the head of a company, we not only do not think about the consequences of such an appointment, we actually expect that for this person the company’s business will become a part of his life. What if this didn't happen? What to do if you don’t have “paper” reasons for the general director - but the desire to change the manager has real, for you, grounds?

The status of the head of an organization differs from the status of an ordinary employee.
Labor legislation applies to relations between the Company and the General Director only to the extent that does not contradict the provisions:

Law on Joint Stock Companies. And the general meeting of shareholders has the right at any time to decide on the early termination of the powers of the management organization or manager (clause 4 of Article 69 of the Law “On Joint Stock Companies” of December 26, 1995 N 208-FZ).
Law on Limited Liability Companies. The general meeting of participants of a limited liability company has the right to terminate the powers of the general director at any time, even before the expiration of his powers specified in the charter of the company and the employment contract with the director (clause 2 of article 33 of the Law of February 8, 1998 N 14- Federal Law "On Limited Liability Companies").

Labor legislation confirms the above norms, without denying the grounds for termination of an employment contract with a manager without cause (clause 2 of Article 278 of the Labor Code of the Russian Federation).
The courts, in turn, also side with the owner, arguing that they are only competent to evaluate compliance with the procedure for terminating an employment contract.

Guarantees and compensation upon dismissal of a manager.

But is everything so optimistic for some and completely infringes on the rights of others? Very often, the reasons for the dismissal of managers really deserve attention.
Labor legislation protects the rights of the manager, providing the latter with many guarantees upon dismissal. In addition to standard payments upon dismissal of an employee, in the event of termination of an employment contract with a manager, in the absence of guilty actions (inaction), he is paid “director’s” compensation (Article 279 of the Labor Code of the Russian Federation).

In this case, the instruction on the payment of compensation must be reflected in the decision to dismiss the general director.

The minimum amount of compensation is determined as follows:

Requirements for the amount of compensation:

determined by the employment contract;
cannot be below the minimum size

For example, there are companies that determine the amount of compensation in the amount of the annual salary, calculated by multiplying the average monthly earnings by twelve months, which does not contradict the requirements of the law.

What to do if the employment contract with the manager does not contain provisions regarding the payment of compensation and its amount?

Interpretation of Part 2 of Art. 424 of the Labor Code of the Russian Federation is as follows: if legal relations arose before the entry into force of this provision of this Code, then it applies to those rights and obligations that arise after its entry into force. Therefore, even in this case, the owner is not relieved of the obligation to pay this compensation.

Will the manager's presentation save me from dismissal??

The prohibition on dismissal while on sick leave or vacation does apply to the dismissal of any employees, including directors, for any reason. But in paragraph 14 of Article 81 of the Labor Code of the Russian Federation there is a reference to other federal laws. And since, in the above-mentioned Federal Laws N 208-FZ “On Joint-Stock Companies” and N 14-FZ “On Limited Liability Companies”, there is no mention of the prohibition of terminating the powers of a manager who has sick leave (certificate of incapacity for work) or is on vacation.
Many companies are guided by precisely this interpretation of the law: managers can be fired at any time.
However, in our opinion, this is a hasty decision. The dismissal procedure is such that it is the order that releases the employee from his position. And it is on the basis of the order that entries are made in the work book of the dismissed employee. Therefore, the appropriate body (person) can make a decision on early dismissal in relation to the manager at any time. But it is impossible to fire a manager during a period of temporary incapacity or vacation.