A situation where a current company employee needs to be transferred to the position of General Director can arise in any organization. For example, it was decided to promote the financial director to general manager. The legislation does not directly prohibit processing such a transfer. However, a lot of questions may arise. Who signs the amendment to the employment contract of the new general director? Who signs the order for transfer to the position of general director? What document serves as the basis for transfer to the position of director? What is the procedure for this? In this article we will look at how to process a transfer to the position of General Director.
Transfer of an employee to the position of director of an LLC: legal gaps
The transfer to the position of director of a person who is an existing employee of the company is a procedure implemented in the jurisdiction of two different branches of legislation - labor and civil.
When considering the legal norms enshrined in them, one can observe the presence of a number of obvious gaps in the legal norms - regarding the regulation of the transfer of an existing employee of the company to the position of general director in an LLC. Namely:
1. The term of office of the director of an LLC: if its establishment is not within the competence of the board of directors of the business company, then it cannot exceed the period specified in the organization’s charter.
At the same time, the charter cannot reflect an indefinite period (Clause 1, Article 40 of the Law “On LLC” dated 02/08/1998 No. 14-FZ, Article 190 of the Civil Code of the Russian Federation).
Thus, on the one hand, concluding an open-ended employment contract with the director of an LLC is not prohibited by labor legislation (Article 59 of the Labor Code of the Russian Federation), on the other hand, if his term of office is limited, concluding such an agreement is inappropriate (since, without authority, the director will not be able to fulfill his duties). duties, his signatures will be illegal).
2. Initially, an employee of an enterprise can work on a permanent employment contract. Transfer from it to an urgent one, to which there is no alternative when hiring an LLC director in the general case, the courts tend to consider as an illegal procedure (appeal ruling of the Irkutsk Regional Court dated August 16, 2013 in case No. 33-6746/13).
Taking into account this peculiarity of the relationship between legislative norms, as well as the position of the courts, we will consider possible legal scenarios for the transfer of an existing employee of an enterprise to the position of director.
Filling out the work book of the head of the organization (director)
The procedure for filling out the columns in the director’s work book differs depending on his position in the organization. In a situation where the manager is an ordinary hired employee, simply of a very high rank, filling out his work book is carried out according to standard rules, indicating the date of hiring, the name of the organization and position, and the basis for hiring.
A different situation is distinguished by the appointment of a general director who is also the founder of the organization. Moreover, the options for filling out a work book differ depending on the number of founders of the organization. They are reflected in column 4 of the work book.
In the case when the general director is elected at a general meeting , the personnel officer should enter in column 4 the number of the minutes of the meeting of the board of founders, supervisory board, board of directors or other structure that performs the corresponding function in a particular organization.
During its meeting, this structure must necessarily decide on the appointment of a general director, of which a corresponding entry must be presented in the minutes.
Further, when filling out the work book of the general director, Articles 16, 17, 19, 275 of the Labor Code of our country , which decipher the possibility of concluding an employment contract with a person charged with the functionality of the sole executive body, on the basis of his appointment (election) to this position for a period , taken into account in the organization's charter.
How to make an entry in the work book about the appointment of a general director - sample.
This makes it possible to indicate in paragraph 5 of the work book (name, date and number of the document on the basis of which the entry was made) the number of the accepted protocol.
Additionally, this column may indicate the number of the order issued by the newly appointed managers to this position. The minutes of the constituent meeting are also used as the basis for issuing such an order.
An alternative option is to refuse the additional signing of the Order by the new general directors. In modern practice, personnel services indicate only references to the minutes of the meeting as the basis for hiring. There are currently no exact requirements in the current labor legislation.
Transfer to the position of director of an LLC de jure: general scenario
Of course, a scenario is possible, it can be conditionally called general, in which a current employee of the LLC will have a fixed-term employment contract for his position. In this sense, there will be no obstacles from the point of view of labor law to the appointment of this employee as General Director in the transfer procedure, which is regulated by the provisions of Art. 72.1 Labor Code of the Russian Federation.
This procedure involves:
1. The founders make a decision to appoint a new general director and reflect this decision in the minutes. If there is 1 owner of the company, then only a resolution issued by him will be required.
2. The conclusion by the company’s personnel service of an additional agreement with the employee regarding the transfer to the position of director (later in the article we will consider the nuances of concluding this agreement with the employee).
See a sample additional agreement to the employment contract on the transfer of an employee to the position of General Director of an LLC for a certain period in ConsultantPlus. Trial access to the legal system is free.
How to transfer a director to another position: procedure, documents
Transfer of a director to another position
Despite the fact that the transfer of a director to another position in an organization is carried out in the general manner, the procedure for transferring a director has its own characteristics compared to the job transfer of an ordinary employee. In particular, the employer must document the removal of powers from the director, who is planned to be transferred to another position, as well as the approval of a new candidacy for the director.
Detailed instructions that will help you understand the specifics of documenting the procedure for transferring a director to another position are below.
Step 1. Drawing up an application for release from authority by the director
At the first stage, the director draws up an application for release from authority. In the text of the application, the director indicates the desired date for termination of the functions of the director. At the same time, only an appropriate decision of the company’s board can officially release the manager from his powers. Thus, the date of termination of powers indicated in the application is rather advisory in nature.
Legal transfer to de facto LLC: additional agreement on combination
If for some reason the trust scenario described above cannot be implemented, then the following option is possible: appointing a current employee of the LLC to the position of director of the company. He assumes that the personnel department in the scenario under consideration will ask the employee who wants to be made a director to sign:
- additional agreement - on combining the current position (for example, financial director) with the position of the head of the company for a certain period;
- additional agreement - on changing the terms of the current employment contract (for example, in terms of minimizing the powers of the financial director and changing salaries).
De jure, the employee will combine 2 positions, but de facto, he will work only in 1 of them (general director) with an indefinite employment contract.
The scenario under consideration is rather beneficial to the employer because:
1. If a person signs a second additional agreement (on minimizing powers in the main position), he will have to make every effort to be a good leader, since if the corresponding agreement is canceled (on the grounds provided by law), he will become a financial director with the same powers and he will no longer be able to earn a salary without the consent of the employer.
2. If a person does not sign the second agreement, then the employer will have reason to ask the employee for results for 2 positions at once - it is unlikely that they will be satisfactory given the seriousness of both positions. As a result, there will be grounds to terminate both agreements or even the employment contract as a whole.
Combining positions: nuances
Russian legislation in most scenarios of intra-corporate legal relations does not imply any prohibitions on combining positions as a director. However, there are exceptions here, and one of those that you should pay attention to first of all concerns combining the positions of director and chief accountant (or other competent employee of the organization responsible for accounting).
The fact is that the director cannot simultaneously perform the function of the chief accountant (as well as vice versa - the chief accountant cannot be appointed director as part of a combination) at enterprises that have economic indicators exceeding those defined for companies:
- having the right to conduct simplified accounting (taking into account the criteria defined in paragraph 5 of Article 6 of the Law “On Accounting” dated December 6, 2011 No. 402-FZ);
- having the status of medium-sized businesses (taking into account the criteria defined in subclause 1.1, clause 1, article 4 of the Law “On the Development of Entrepreneurship” dated July 24, 2007 No. 209-FZ and the Russian Government Decree dated April 4, 2016 No. 265).
Thus, in a large company, the appointment of a chief accountant to the position of general director is possible only within the framework of mechanisms that do not involve combination.
You can learn more about the features of concluding employment contracts for combinations in the article “Registration of combining positions in one organization .
Legal transfer to a de jure LLC: the role of the board of directors
The most, perhaps, labor-intensive, but the only one that allows for the transfer of an employee from an open-ended employment contract to the position of de jure general director (that is, in accordance with Article 72.1 of the Labor Code of the Russian Federation) is the vesting of the competence to determine the terms of office of the director of the company to the board of directors. .
First of all, a board of directors must be established in the organization: the decision to create it is enshrined in the company’s charter. The list of competencies of the board of directors is, as a rule, fixed in a separate regulation adopted by the founders. In this provision, in particular, there must be wording that the formation of the executive management bodies of the LLC is within the competence of its board of directors.
The board of directors has the right to adopt a regulation on the general director of the enterprise, which will reflect that the terms of office of the general director are determined by the employment contract, which can be fixed-term or indefinite.
Actually, for a transfer to the position of general director under a permanent employment contract, an additional agreement is again drawn up - this time on the transfer. This agreement is generally signed by the employer on the part of the chairman of the board of directors.
Dismissal of the boss
When the functions of a manager cease, a person either looks for another job or is offered to stay and perform other duties. For example, it is quite common to transfer the general director to the position of deputy director, because the manager’s experience is often very valuable for the organization. If the company is not interested in the employee, then he is fired. Let's consider both options.
To dismiss a representative of the executive body, a decision by the participants of an LLC (JSC) is not always necessary. So, for example, there is no need for an additional meeting of the organization’s participants if a person wants to leave the post of his own free will, or his contract expires. If the agreed period ends and shareholders cannot meet for some reason, there are 2 options:
1. Re-read the Charter of the enterprise. Often it contains a clause stating that the actions of the general director are valid until the election of a new leader by shareholders.
2. The manager has the right to transfer powers (all or some) to another employee of the company on the basis of a power of attorney. The scope of functions and the period for which they are assigned are indicated in the document.
To dismiss, the general director must write a statement of his own free will. Then the new director, by his order, appoints him to another position (for example, the option of transferring the general director to the position of deputy director is being considered). But you can do it simpler: fire the manager, while paying him monetary compensation for unused vacation. This must be done on the day of dismissal or no later than the next day when the employee asked for payment. It is also possible to provide leave with subsequent dismissal. In this case, financial compensation for the planned vacation is not provided.
But if there is a need to remove a given manager from his position earlier than expected, then this can be done under the following circumstances:
Transfer to the position of director of a joint stock company: nuances
How to formalize a transfer to the position of General Director, in turn, in a joint stock company?
Taking into account the specifics of the legislation regulating corporate and labor relations in joint-stock companies, it is legitimate to say that such enterprises do not have the difficulties that characterize the corresponding transfer to an LLC. The current rules of law regulating the establishment and activities of a joint-stock company do not in any way regulate how the term of office of a director should be determined. Thus, the founders of a joint-stock company can fix it not only in the charter, but also in any local regulatory act - for example, a decision on the appointment of a director.
It is worth noting that the board of directors of a joint-stock company, unlike the similar structure of an LLC, by default does not have those competencies that imply the establishment of the term of office of the director of the organization - these competencies are not listed in subparagraph. 9 clause 1 art. 65 of the Law “On JSC” dated December 26, 1995 No. 208-FZ.
Thus, in a JSC it is possible to establish the powers of the general director indefinitely. In this case, there are no obstacles to the transfer of an employee with an open-ended employment contract to the position of General Director of the JSC on the basis of Art. 72.1 Labor Code of the Russian Federation.
Features of the position
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The CEO is the highest management body in a commercial or government structure. He performs the management function and is the sole executive body, leads the economic and production parts of the enterprise, and bears financial responsibility for the company’s resources. This manager represents the interests of the LLC (JSC) without a power of attorney in other organizations, conducts transactions on his behalf, makes changes to the staffing table and approves it, issues orders that must be followed by employees. The decisions of this boss should always be balanced, because he is responsible for the results of the company’s activities and the safety of its material base.
Today this position is quite in demand and highly paid. But at the same time, the level of responsibility of this manager is appropriate.
Results
Transfer of an existing LLC employee to the position of director in accordance with Art. 72.1 of the Labor Code of the Russian Federation (that is, as a de jure transfer) is possible only if the employee is working on a fixed-term employment contract. If the original contract is indefinite, then the employee can be appointed director of the LLC when re-signing the employment contract, in a combination manner, or under Art. 72.1 of the Labor Code of the Russian Federation - if the board of directors of the company receives the competence to determine the term of office of the director. In JSC, the corresponding transfer can be carried out under Art. 72.1 of the Labor Code of the Russian Federation without any restrictions.
You can learn more about the nuances of processing a transfer within an organization in the following articles:
- “Order to transfer an employee to another position - sample”;
- “Sample order for transfer to remote work”.
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Subsequent procedure
Next, the process of hiring an employee is carried out in the general manner. Based on the decision made, the founders of the company enter into an employment contract with the general director. This agreement can be fixed-term (no more than 5 years) or indefinite. When concluding a fixed-term contract, the period of work is determined by agreement of the parties or the constituent documents of the company.
An order to hire a director is issued in form T-1. After this, the manager issues his first order to take office. The wording in this order may be as follows: “In pursuance of the decision of the participants, I begin my duties on _____ (specify date)” (
