Sometimes employers are required to pay an employee upon dismissal not only wages for time worked in the month of dismissal and compensation for unused vacation, but also other amounts.
It is with their calculation and payment procedure that difficulties often arise, since the Labor Code of the Russian Federation does not determine the exact procedure for either their calculation or their payment.
And if you do something wrong, there may be claims from the employee and the labor inspectorate if he complains there. Claims from inspectors cannot be avoided if incorrect calculation of these payments leads to an underestimation of the taxable base for income tax, personal income tax and contributions.
What payments are due to the employee and when?
Upon dismissal for certain reasons, the obligation to make payments and their amount depend on who is the employer - an organization or an entrepreneur.
WE TELL THE EMPLOYEE
The employment authority will issue solution for receiving third month's earnings from your former employer employment, if within 2 weeks after dismissal the employee contacts this body and is not given employment Art. 178 Labor Code of the Russian Federation.
If an entrepreneur dismisses employees due to termination of business clause 1 part 1 art. 81 Labor Code of the Russian Federation or reduction in staff or numbers clause 2, part 1, art. 81 Labor Code of the Russian Federation, then severance pay and earnings for the period of employment to dismissed employees are paid in the amount provided for in the employment contract Art. 307 Labor Code of the Russian Federation. If nothing is stipulated in the contract with the employee, then nothing is paid at all. Cassation ruling of the Kirov Regional Court dated 09/06/2011 No. 33-3185; Cassation ruling of the Khabarovsk Regional Court dated 07/09/2010 No. 33-4591; Determination of the Moscow Regional Court dated May 27, 2010 No. 33-8604.
Payments to employees upon dismissal for other reasons are the same for both organizations and entrepreneurs.
Severance pay
The Labor Code obliges payment of severance pay only upon dismissal for the following reasons.
| Grounds for dismissal | Amount of severance pay |
| Liquidation of the organization clause 1 part 1 art. 81 Labor Code of the Russian Federation | Average monthly earnings for all workers, excluding m Art. 178 Labor Code of the Russian Federation:
|
| Reduction in the number or staff of an organization's employees clause 2, part 1, art. 81 Labor Code of the Russian Federation | |
| Refusal of an employee to transfer to another job for medical reasons clause 8, part 1, art. 77 Labor Code of the Russian Federation | Two-week average earnings Art. 178 Labor Code of the Russian Federation |
| Conscription for military service (recruitment for alternative service) clause 1 part 1 art. 83 Labor Code of the Russian Federation | |
| Reinstatement at work by decision of the court or labor inspectorate of an employee who previously performed this work for clause 2, part 1, art. 83 Labor Code of the Russian Federation | |
| Refusal of an employee to be transferred to work in another location together with the employer clause 9, part 1, art. 77 Labor Code of the Russian Federation | |
| Recognition of an employee as completely incapable of work in accordance with a medical report clause 5, part 1, art. 83 Labor Code of the Russian Federation | |
| An employee’s refusal to continue working due to a change in the terms of the employment contract for reasons related to changes in organizational or technological working conditions clause 7, part 1, art. 77 Labor Code of the Russian Federation | |
| Violation through no fault of the employee of the rules established by law for concluding an employment contract, if this excludes the possibility of him continuing to work and there is no possibility of transferring him to another job clause 11, part 1, art. 77 Labor Code of the Russian Federation* | Average monthly earnings Art. 84 Labor Code of the Russian Federation |
* Such violations include cases of concluding an employment contract with persons and Art. 84 Labor Code of the Russian Federation:
- who are deprived by a court verdict of the right to occupy certain positions or engage in certain activities;
- for whom specific work is contraindicated for medical reasons;
- who do not have a document on education, and according to the law, performing work requires special knowledge;
- who are disqualified, deprived of special rights or expelled from the Russian Federation;
- who have been dismissed from state or municipal service if restrictions on their involvement in work are established by law;
- who are prohibited by law from engaging in certain types of labor activity (for example, minors cannot be hired for hazardous work Art. 265 Labor Code of the Russian Federation).
Severance pay is payment for the very fact of dismissal. Therefore, it must be paid to the employee on the day of dismissal. Part 4 Art. 84.1, Art. 140 Labor Code of the Russian Federation. The basis for its payment is an order that indicates the appropriate grounds for dismissal. There is no need to issue a separate order for payment of benefits.
Earnings for the period of employment
This payment is due only to employees dismissed from organizations on two bases m Art. 178 Labor Code of the Russian Federation:
- in case of liquidation of the organization;
- in case of reduction in the number or staff of employees.
| Category of workers | For what period is the average monthly salary paid? |
| Seasonal workers | Not paid |
| Employees hired for a period of up to 2 months | Not paid |
| Part-timers | Not paid |
| Persons working in the Far North and equivalent areas | Until employment, but no more than 6 months after dismissal Art. 318 Labor Code of the Russian Federation |
| Other employees | Before employment, but no more than 3 months after dismissal Art. 178 Labor Code of the Russian Federation |
After the first month after dismissal, the former employee nothing is paid since on the day of dismissal the severance pay has already been paid Articles 178, 318 of the Labor Code of the Russian Federation.
Earnings for the period of employment should provide dismissed employees with financial support after dismissal, provided that they do not immediately find another job. Therefore, it is paid only after the employee confirms that he has not yet found a new job.
Sometimes an employee (especially during the liquidation of an organization) is paid wages for the period of employment immediately on the day of dismissal, without waiting for confirmation that the employee has not found a job. Such a payment is economically unjustified, since the employer does not have evidence confirming its validity Art. 252 Tax Code of the Russian Federation.
What documents must be required from a former employee to pay wages for the period of employment depends on for which month after dismissal it is paid.
| Period | The amount of payment and the documents on the basis of which it is paid Articles 178, 318 of the Labor Code of the Russian Federation |
| After the second month after dismissal for ordinary employees | Average monthly earnings
|
| After the second and third months after dismissal for persons working in the Far North and equivalent areas | |
| After the third month after dismissal for ordinary employees | Average monthly earnings* if the former employee presents:
|
| After the fourth, fifth and sixth months after dismissal for persons working in the Far North and equivalent areas |
* If a former employee gets a job before the end of the second or subsequent months after dismissal, then the average monthly salary must be paid to him in proportion to the “unemployment” period on the basis of a written application and a copy of the work book certified for the new place of work Articles 178, 318 of the Labor Code of the Russian Federation.
** It must be copied, certified and stored.
An employee can apply for this payment at any time, even a year after dismissal.
Compensation for early dismissal
WE TELL THE EMPLOYEE
If organization located in the process of liquidation, but also not excluded from the Unified State Register of Legal Entities, To obtain earnings saved for the period of employment, the employee must apply to the liquidation commission as soon as possible. After all, after the organization is excluded from the Unified State Register of Legal Entities, it will no longer be possible to receive this payment.
When liquidating an organization or reducing its number or staff, the employer is obliged to warn employees in writing about the upcoming dismissal at least 2 months in advance. Part 2 Art. 180 Labor Code of the Russian Federation. At the same time, with the consent of the employee, the employment contract with him can be terminated before the expiration of the notice period for dismissal with the payment of additional compensation, in addition to the severance pay and the average earnings retained by the employee for the period of employment.
The amount of additional compensation is determined based on the employee’s average monthly earnings, in proportion to the time remaining before the expiration of the notice period Part 3 Art. 180 Labor Code of the Russian Federation. For an organization, paying such additional compensation is not entirely profitable, because the employee will receive it not for work, but for agreeing to early dismissal.
Compensation for top managers
The Labor Code provides for special compensation upon dismissal and Art. 181, paragraph 2 of Art. 278, Art. 279 Labor Code of the Russian Federation:
- in connection with a change in the owner of the organization’s property - for its head, his deputies and the chief accountant.
Change of owner of the organization's property - this is, in particular:
- privatization of state or municipal property Art. 1 of the Law of December 21, 2001 No. 178-FZ;
- transfer into state ownership of property owned by the organization and clause 2 art. 235 Civil Code of the Russian Federation;
- sale of the enterprise as a property complex Articles 559-566 of the Civil Code of the Russian Federation.
There is no change in the ownership of the organization's property when the composition of participants in an LLC or JSC changes clause 1 art. 66, paragraph 3 of Art. 213 Civil Code of the Russian Federation; clause 32 of the Resolution of the Plenum of the Supreme Court of March 17, 2004 No. 2;
- without explanation - for the head of the organization in the absence of guilty actions on his part.
Compensation to top managers must be paid on the day of dismissal in the amount of at least three monthly salaries Art. 181, paragraph 2 of Art. 278, Art. 279 Labor Code of the Russian Federation. Severance pay and average monthly earnings for the period of employment in these cases are not paid to top managers.
Other payments upon dismissal
An employment or collective agreement may provide for payments to a dismissed employee on other grounds, as well as increased payments upon dismissal in cases established by the Labor Code of the Russian Federation Articles 178, 279 of the Labor Code of the Russian Federation.
Calculation of payments upon dismissal
The calculation period for all these payments, including for the average earnings retained for the second and subsequent months of the employment period, is the same. This is 12 calendar months before dismissal. Moreover, if you dismiss an employee on the last day of the month (that is, this is the employee’s last day of work), then this month is included in the billing period. If the dismissal is made on any other day of the month, then the billing period is 12 calendar months before the month in which the employee was dismissed Art. 139 Labor Code of the Russian Federation; clause 4 of the Regulations, approved. Government Decree No. 922 dated December 24, 2007 (hereinafter referred to as the Regulations).
The calculation of payments upon dismissal is not affected in any way by the remuneration system used in the organization: salary, piecework, based on hourly, daily or monthly tariff rates.
With the usual accounting of working time, payment is due for working days for the months after dismissal on a five-day or six-day working week, depending on the operating mode of the organization, falling within the paid period, that is, for a specific month after dismissal clause 9 of the Regulations. In this case, severance pay paid on the day of dismissal must be calculated for working days falling in the first month after the day of dismissal.
To calculate severance pay (earnings for the period of employment), the average monthly earnings in this case can be calculated using the formula e
An employer can dismiss the head of an organization without giving reasons. When dismissing, the type of employment contract (fixed-term or unlimited-term) does not matter. However, it is always necessary to pay compensation upon dismissal. Let’s figure out how and in what amount compensation should be paid to a dismissed employee. Let us help you understand how it differs from severance pay.
Who is entitled to compensation upon dismissal by decision of the owner?
If the dismissal occurs by decision of the owner, then compensation is due only to the head of the organization (director, general director). The head of a branch or representative office is paid only when he performs the functions of the sole executive body.
Compensation is not paid to employees who manage only certain areas of the company’s activities, as well as to individual entrepreneurs.
When is compensation paid and when is severance pay upon dismissal of a director?
Compensation is always paid upon the dismissal of a director by decision of an authorized body, namely the owner of the property, the board of directors, etc.
The decision to terminate an employment contract with a director must be within the competence of the authorized body in accordance with the law or the charter of the enterprise. And the employer is not obliged to voice the reason for dismissal.
If the director is transferred to another position, then in this case the contract with him is not terminated and compensation is not paid, but an additional agreement is simply concluded indicating new functions.
Compensation is paid upon dismissal to the director by decision of the authorized body or change of owner.
Compensation upon dismissal is not severance pay.
Severance pay is paid to any employee if his employment contract is terminated for certain reasons.
- List of grounds for payment of severance pay:
liquidation of the enterprise; - Reduction in the number or staff of employees at the enterprise;
- Refusal to transfer to another job that is necessary for medical reasons;
- The employee is called up for military service;
- Reinstatement of an employee who previously performed this position;
- Refusal to transfer to another location together with the employer;
- Refusal to continue working due to changes in the terms of the employment contract.
What amount of compensation is due upon dismissal of a director?
TO compensation to the director upon dismissal is paid provided that they have not committed any guilty actions (inactions) (Article 279 of the Labor Code of the Russian Federation).
The legislation does not determine the amount of compensation upon dismissal of a director. The amount of compensation must be specified in the employment contract, but not less than three times the average monthly salary of the director.
If the termination of the employment contract with the director occurs due to guilty actions, then compensation is not provided.
If the amount of compensation is not specified in the employment contract, then it can be indicated in the minutes of the general meeting. If compensation is not paid, the former director may go to court, which will determine the amount of payment itself.
When determining the amount of payment, the following circumstances will be taken into account:
- the duration of work of the dismissed director in this position;
- time until the expiration of a fixed-term employment contract;
- the amount of wages that the dismissed person could receive if he continued to work in the company;
- additional expenses that an employee may incur as a result of dismissal.
The maximum amount is not provided for by law, but must be reasonable. If the court concludes that the amount of payment violates the interests of the organization or other employees, then it may reduce it
Procedure for dismissing a director
When dismissing a director at an enterprise, it is necessary to take the actions presented in the table:
| Preparation of a protocol on termination of an employment contract | This document must indicate the reason for dismissal. The basis may be the director’s statement of resignation at his own request, an agreement of the parties, a decision of the participants, a memorandum on the director’s actions under Article 81 of the Labor Code of the Russian Federation. |
| Issuance of an order | The order is issued in form T-8 and recorded in the journal |
| The transfer of cases | The director transfers the affairs and property of the enterprise to the employer under the act |
| Payment to the employee | Wages and compensation for unused vacation are paid |
| Filling out a personal card | A record of dismissal is made on the personal card in the T-2 form. The entry must be reviewed against signature. |
| Entry in the work book | The notice of dismissal is entered into the work book and handed over to the director. |
| Notify the bank | The bank in which the company's current account is opened must be notified of the director's dismissal. |
| Notification to the Federal Tax Service | Within three days it is necessary to notify the Federal Tax Service of the dismissal of the director and the transfer of powers to another director in form 14001 |
Employer's liability for non-payment of compensation upon dismissal of a director
On the director’s last day of work, the employer must make a full settlement with him, namely, pay wages for time worked, compensation for unused vacation and due compensation upon dismissal.
The employer will violate the procedure for terminating an employment contract if he does not pay the dismissed manager the required compensation and at the same time incur large losses. In this case, the employee can go to court and recover not only the amount of compensation, but also interest for each overdue payment, as well as compensation for moral damage. In addition, for non-payment or violation of payment deadlines, the employer bears administrative and criminal liability.
Typical mistakes when dismissing a director
Error: The employer hired a director with whom an employment contract was concluded. Only it did not stipulate the payment of compensation upon dismissal. When the director was dismissed by decision of the authorized body, compensation was not paid.
A commission is appointed by the founders of the company or the relevant body, which has the authority to make decisions regarding the closure of the company.
- When dismissing all employees, both ordinary workers and managers, an extended notice period is provided - at least two months before the enterprise is liquidated. This clause does not apply to seasonal workers, as well as those with whom a 2-month employment contract has been concluded.
- The warning must be sent in the form of a written notice. In addition to the copy given to the employee, there must be a second copy that remains with the employer.
Compensation upon dismissal to the director
Further, since the minimum amount of compensation is equal to 3 times the average monthly salary, to determine the amount of compensation it is necessary to multiply the result by 3. Thus, in general, the calculation formula looks like this: Amount of compensation upon dismissal of the general director = Total salary for 12 months / Actual number days worked for the period × Number of working days in a month according to the production calendar × 3 Amount of compensation upon dismissal of the general director The legislator does not specify what amount of compensation should be upon dismissal of the general director (such conditions are part of the employment agreement), however Art. 279, the minimum compensation limit is set at three times the average monthly earnings. If the compensation is less, the employee has the right to recover the difference.
What is the procedure for dismissing a director of a municipal corporation in connection with liquidation?
The legal status of the head of an organization is unique from a legal point of view, since the head of a company is not just an employee, but also a body of a legal entity. Thus, issues of dismissal of a manager are regulated, firstly, by labor legislation, and secondly, by the relevant corporate legislation. Therefore, the procedure for dismissing the head of an organization is more complicated compared to dismissing another employee.
What are the main differences between this procedure? 1. In accordance with the Labor Code of the Russian Federation, in addition to the general grounds for dismissal, there are special grounds for the dismissal of a manager. 2. The dismissal of a manager, in addition to the order, is based on the decision of the owner of the organization or an authorized body. 3.
Dismissal of the head of a municipal unitary enterprise under clause 2. Article 278 of the Labor Code of the Russian Federation
Rules for calculating compensation upon dismissal of a general director There are several rules for calculating compensation for a dismissed general director:
- The payment is calculated based on the size of the average salary per day (clause 9 of the regulation on calculating the average salary, approved by the government decree “On the specifics of the calculation procedure...” dated December 24, 2007 No. 922). According to the provisions of Part 3 of Art. 139 of the Labor Code of the Russian Federation, the average daily income is equal to dividing the annual income by the number of days that the employee actually worked.
- When calculating compensation, incentive payments are taken into account (clause
How to formalize the dismissal of a director during liquidation
In particular, when making a decision during the meeting, the director has the opportunity to submit an application to the founder stating that he is leaving his position of his own free will. The founder is given a thirty-day period by law to make a definite decision on this matter. As a rule, everything ends with consent and recording of all required entries in the work book.
It is the day on which this was carried out that is considered the limit of loss of the director’s powers. In the event of the formation of a liquidation commission, its chairman assumes all rights allowing him to exercise management functions at the enterprise. In this case, the relevant order of the commission may serve as grounds for dismissal of the director.
Attention
Also, with employees who are members of the liquidation commission, with their consent, employment contracts can be terminated (at their own request or by agreement of the parties) and civil contracts can be concluded. However, such termination may be regarded as evasion of payment of compensation due upon dismissal in connection with the liquidation of the organization (Part 1 of Article 178 of the Labor Code of the Russian Federation). If outside citizens are included in the liquidation commission, then a civil law contract is often concluded.
At the same time, a fixed-term employment contract can be concluded with them. This conclusion follows from articles 20, 57, 72, 77 of the Labor Code of the Russian Federation, chapters 37, 39 of the Civil Code of the Russian Federation. The remuneration of the members of the liquidation commission (liquidator) is carried out by the liquidated organization itself (Art.
57, 129 Labor Code of the Russian Federation, Art. 709, 781 Civil Code of the Russian Federation).
Who should pay the veg director upon his dismissal?
Important
Among other things, these include the transfer of compensation upon termination of employment. The absence of any mention of compensation payments in the contract does not relieve the enterprise of the obligation to transfer them. Ultimately, the implementation of this payment can be equated to the mandatory conditions for early termination of the employment contract at the initiative of the employer.
Termination of employment relations at the initiative of an employee also applies to management employees. In accordance with Article 280 of the Labor Code of the Russian Federation, they must notify in advance about the date of the proposed dismissal, at least a month in advance. A longer period of “working out” is associated with the difficulty of selecting applicants for a leadership position.
In addition, during this time, the dismissed director will have to transfer all affairs and documents to his successor, deputy or employee who will temporarily perform his duties.
Who should pay the director of a municipal enterprise upon his dismissal?
For example, disclosure of certain information, even if it is not a trade secret; failure to achieve certain indicators; identification of personal family ties with one of the employees; part-time work in another organization, etc. In turn, the head of the organization has the right to terminate the contract concluded with him at any time. However, if a manager resigns at his own request, he is obliged to notify the employer at least a month in advance, whereas for an ordinary employee this period is two weeks. Features of the dismissal of a manager depending on the organizational and legal form of the enterprise As a general rule, the same body is responsible for the appointment and dismissal of the head of an organization. Procedurally, issues of dismissal are resolved in the same way as issues of concluding an employment contract.
At the same time, violation of the procedure for convening and holding such a meeting may lead to the dismissal of the manager being declared illegal through the court. Real life example (labor conflict) In a certain Limited Liability Company, the founders of which were several legal entities and individuals, the post of General Director was occupied by the founder - an individual, whose share in the authorized capital of the Company was slightly more than 20%. As a result of a personal conflict between the General Director and one of the managers of the Founder, a legal entity (with a share in the authorized capital of the Company equal to 60%), a decision was made to remove the manager, that is, to terminate the employment relationship with him.
The founder who initiated the dismissal immediately held an “extraordinary general meeting”, at which he decided to dismiss the General Director from his position.
Info
Such conclusions follow from the totality of the provisions of Articles 72, 278, 279 of the Labor Code of the Russian Federation, a review of the judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2012. 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 legality of this position is confirmed by judicial practice (see, for example, the appeal ruling of the Moscow Regional Court dated July 29, 2013.
No. 33-16024/2013). 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 (clause 63 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).
The current legislation does not provide for a special procedure for the dismissal of a manager during the liquidation of an enterprise. Thus, it is necessary to apply the general procedure, including the employer (Administration) must notify the director against signature of dismissal due to liquidation at least two months before dismissal (Article 180 of the Labor Code of the Russian Federation). Payments will also be made in accordance with Art. 178 Labor Code of the Russian Federation. That is, severance pay will be paid in the amount of average monthly earnings, and the director will retain the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).
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.
The head of the company can be dismissed at his own request (Article 80 of the Labor Code of the Russian Federation), 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 on special additional grounds (Article 278 of the Labor Code of the Russian Federation):
- removal from office of the debtor company in accordance with the legislation on (clause 1 of article 278 of the Labor Code of the Russian Federation);
- the person made a decision 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 of the Federal Law of December 26, 1995 No. 208-FZ);
- 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 in connection with the early dismissal of a 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 determine its size even when concluding the employment contract. If this does not happen, its size can be determined and fixed later in an additional agreement.
Sometimes the clause o 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: no entry in the contract - 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 upon dismissal in the employment contract, it still needs to be paid to the director. 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).< 277 272,73 руб.). Это значит, что компенсация должна быть выплачена в размере трехкратного среднего месячного заработка, то есть в сумме 277 272,73 руб.
I. Grigoriev,
labor law expert