Sample application to the founder for dismissal from the director

Basic rules for dismissing a director

Upon dismissal of the general director, an extraordinary meeting of company participants is convened with a summons to terminate the employment contract.
However, this issue can be raised among others at the scheduled regular or extraordinary meeting. You also need to issue an order to terminate the employment contract and familiarize the general director with it. The remaining technical stages in the process of dismissing a director are standard: making an entry in the work book and personal card, calculations, handing out the work book. There are several situations in which it is impossible to terminate an employment contract with the general director:

• if the manager is a pregnant woman, the exception is liquidation of the company (Part 1 of Article 261 of the Labor Code of the Russian Federation);
• if the manager belongs to the category of persons named in Part 4 of Art. 261 Labor Code of the Russian Federation;
• during a period of temporary disability or the director is on vacation, with the exception of liquidation of the organization (Part 6 of Article 81 of the Labor Code of the Russian Federation).

The procedure for agreeing upon dismissal with the founders of the organization

At the meeting, the founders discuss and decide the issue of the upcoming departure of the head of the company. Since Art. 37 of the country’s basic law prohibits forced labor; LLC participants do not have the right to refuse the head of the organization early release from office.

Refusal to participate in a meeting and evasion of serving a notice are not valid reasons for the general director to continue working against his wishes. In case of such behavior of the employer, the head of the organization may go to court. The statement of claim served on the employer is sufficient confirmation of the director’s desire to leave his position. As a practical example, we can cite the appeal ruling of the Perm Regional Court dated August 5, 2013 No. 33-7154.

During the extraordinary meeting, the founders agree on the date of the upcoming dismissal of the general director at their own request, and can also agree with him on a longer period of service necessary to find a new candidate for the position of the head. If an agreement is not reached between the employer and the employee, the latter has the right to resign without the consent of the founders. The main thing is to follow the procedure as required by law.

Dismissal of a director at the initiative of the owner

Since the general director is an employee of the company, his relations with the owners are regulated by labor law. Accordingly, when dismissing a director, it is important for owners to coordinate their actions with labor legislation.

In addition, the general director is a person with whom relations are regulated by corporate law. And this should also be taken into account.

An employment contract with the general director at the initiative of the owner can be terminated due to several circumstances:

• If there is a change in the owner of the company (clause 6 of article 77 of the Labor Code of the Russian Federation). The norm does not apply to cases where the composition of participants simply changes, as well as to reorganization in the form of affiliation.
• If a transformation of society has occurred, that is, the organizational and legal form has changed (division and separation). In this case, the owners may decide that it is necessary to terminate relations with the general director without indicating the reasons for dismissal.
• If by his actions the director caused damage to the interests of society (clause 9 of article 81 of the Labor Code of the Russian Federation).

• If the director grossly violated his job duties one time (Clause 10, Article 81 of the Labor Code of the Russian Federation).

Dismissal of a director due to a change in property ownership

The new owner of the property has the right, no later than three months from the date the right of ownership arises, to terminate the employment contract with management persons.

Having decided to terminate the employment contract with the general director, the owner must pay him compensation in the amount of no less than three times the average monthly salary (Article 75 of the Labor Code of the Russian Federation).

Dismissal due to damage caused by the actions of an official

In paragraph 9 of Art. 81 of the Labor Code of the Russian Federation defines a closed list of actions that can cause damage. According to the totality of labor law norms, in this case any actions that may be grounds for termination of an employment contract with an official are recognized. But such a procedure is quite complicated, since the fact will have to be proven. In particular, it will be necessary to conduct an internal investigation, demand explanations, etc.

Auditors, external consultants who conducted an analysis of economic and financial activities, as well as employees of the company can testify to the infliction of property damage by some decision of the general director. In this situation, it will be sufficient if the employee sees in the actions of the official a violation of the interests of society and informs the employer about this in writing. Based on the message, a decision is made to order an internal audit, an order is issued to create a commission, the issues that this commission will consider, as well as the facts and circumstances that it must establish, are determined.

Upon dismissal under Art. 81 of the Labor Code of the Russian Federation, it is necessary to remember that all decisions that entail a violation of the safety of property or its unlawful use are methods of disciplinary action. Dismiss the director under clause 9, part 1, art. 81 of the Labor Code of the Russian Federation is possible if two conditions are simultaneously met:

1. If the decision was made by the director unreasonably or beyond his competence, without a proper analysis of the situation, based on incomplete data, on an emotional level.
2. If the decision should entail negative consequences in the form of violation of the safety of property, its unlawful use or other damage to the organization’s property (clause 48 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

How can the owner find out that the general director has committed a violation regarding the safety of property? One of the employees can tell him. But often owners learn about this from consultants’ reports.

Dismissal of a director due to a single gross violation of labor duties

It happens that the general director falls under the provisions of clause 10 of Art. 81 Labor Code of the Russian Federation. According to the owners, a gross violation can be any violation of duties that are named in the employment contract. For example, the director must agree on the candidacy of an acting director during his absence. If he forgot to do this, it means he grossly violated the provisions of the employment contract.

A serious violation may be considered failure to submit required reports on time or failure to meet indicators that are named in the employment contract as responsibilities. It is worth noting that clause 10, part 1, art. 81 of the Labor Code of the Russian Federation applies only to managers and deputy managers.

Since dismissal on the grounds specified in Art. 81 of the Labor Code of the Russian Federation is a disciplinary sanction, then in order to register this sanction in the work book as a basis for terminating an employment contract, the employer will have to prove the fact of a disciplinary violation. To do this, it is necessary to conduct an internal investigation.

Algorithm for conducting an internal investigation

• An official investigation can be initiated on the basis of a report, inventory results, etc.
• An order must be issued to create a commission to conduct an investigation (it indicates the names of the commission members, their positions, purpose, date of creation, validity period, powers).
• All members of the commission must familiarize themselves with the order.
• Acts and other documents are drawn up during the investigation, and a final act is prepared based on the results of the internal investigation.
• The manager must familiarize himself with the acts.
• A written explanation is taken from the manager.
• An order is issued to apply a disciplinary sanction, which the manager must familiarize himself with.

It is important to remember that two disciplinary sanctions cannot be applied for gross violations of an employment contract. You will have to decide what disciplinary action to take.

The transfer of cases

If the general director of an LLC is dismissed at his own request, the registration of such an act, as for the head of a company of a different organizational and legal form, is a complex procedure.
The transfer of affairs from the previous director to a new one is one of the stages of such a procedure, although this stage is not provided for by law for an LLC. Nevertheless, it is still better to formalize the transfer of affairs. Documentary evidence of such a transfer can be provided by a transfer and acceptance certificate in any form, which will reflect all the necessary nuances. The procedure for dismissing a general director at his own request stipulates that, first of all, the resigning director must record in the act the transfer of documents for the safety of which he is responsible, including:

• constituent documents (originals);
• agreements with banks;
• certificates of ownership of the company's real estate and land plots;
• originals of SRO membership certificates, licenses;
• company seal, keys to safes, safe deposit boxes;
• valuable items, etc.

When dismissing the general director of an LLC at his own request, you should not neglect such an important procedure as taking an inventory of the company’s property. The need to carry it out when changing materially responsible persons (MRP) is provided for by the Methodological Instructions for accounting for inventories (approved by Order of the Ministry of Finance of Russia dated December 28, 2001 No. 119n).

Subscribe to our accounting channel Yandex.Zen SubscribeImportant! The director of the company is the MOL (Article 277 of the Labor Code of the Russian Federation) and bears full financial responsibility for direct actual damage caused to the company.

Dismissal of a manager on the basis of Art. 278 Labor Code of the Russian Federation

1. Situation No. 1: The company is introducing bankruptcy proceedings (clause 1 of Article 278 of the Labor Code of the Russian Federation)

The decision to remove the manager from office in this case is made by the arbitration court. The following may apply for the removal of the head of a debtor organization from office: a temporary manager, a meeting of creditors, an administrative manager, or persons who provided security.

Key points for this situation:

• The basis for issuing the order is the ruling of the arbitration court on the removal of the head of the organization from office.
• The last day of work is the day when the owner of the organization’s property became aware of the entry into force of the court’s ruling.
• The director is not paid severance pay (with the exception of cases where such payment is provided for in an employment contract or other local regulatory act of the organization).

2. Situation No. 2: The authorized body of the legal entity decided to terminate the contract (clause 2 of Article 278 of the Labor Code of the Russian Federation)

An employment contract with a director may be terminated by a general meeting of shareholders or the board of directors. Dismissal of the head of the organization on the basis established in clause 2, part 1, art. 278 of the Labor Code of the Russian Federation, can happen at any time and without specifying motives.

Features of changing the CEO

The general director has rather broad powers regarding work with official documentation, which means that the procedure for changing the head of an LLC must be approached thoughtfully and seriously, based on the current legislation of the Russian Federation.

When changing the general director, it is necessary to remember such important points as drawing up acts of acceptance and transfer of seals and material assets, as well as constituent documents. This will avoid troubles and problems in the future.

As a rule, a change of general director is caused by the desire of the director himself or the founders of the LLC. According to the current legislation, the founders must notify the general director of their decision in advance - at least a month before the date of his intended dismissal. The manager, in turn, must notify the founders of his planned departure within a similar time frame.

The founders have the right to either agree with the CEO’s decision to resign from his position or reject it.

If there is agreement, a general meeting of the founders is held, during which a protocol is drawn up and a decision is made to change the general director of the limited liability company. The manager must submit data to the Federal Tax Service within three days to make changes.

If participants do not agree with the departure of the leader, then he must send a letter to the organization by mail with notification. After this, the general director can sign an order for his dismissal. Registration of a change of manager is carried out on the basis of a notification.

Dismissal at the initiative of the General Director

The manager has the right to terminate the employment contract early, but he must notify all owners of his intention to resign, in writing and no later than one month in advance (Article 280 of the Labor Code of the Russian Federation). Letters are sent to all founders, owners, shareholders according to the register, with notification of delivery. In the letters, the director asks to convene an extraordinary meeting with a summons to terminate the employment contract. The procedure for transferring affairs and property is determined in advance so that the owner does not initiate arbitration processes.

If a manager resigns at his own request, he is not paid monetary compensation in an amount not less than three times his average monthly salary.

How to write?

In essence, it is no different from what any other employee submits. The document is drawn up on a standard A4 sheet of paper and contains:

1. addressee (Board of Directors);
2. from whom;
3. document title – statement;
4. petition for dismissal from office at one's own request;
5. date, signature.

The application is attached to the notification letter about the planned extraordinary meeting.

What does the director write? Here is a sample letter to the founder of what such a statement might look like:

To the Board of Directors of Nautilus-M LLC

from Ivanov Ivan Petrovich

statement

I ask you to relieve me from the position of General Director from May 1, 2022 by agreement of the parties (Article 77 of the Labor Code).

Ivanov Ivan Petrovich (signature)

March 31, 2022.

Dismissal of the director due to the expiration of the employment contract

Since the executive body is appointed for three or five years, the powers of the director may be terminated due to the expiration of the contract. In this situation, dismissal is carried out in the general manner - the same as in the case of ordinary employees. However, the director must be warned by the employer (company owner) no later than three days before the expiration of the employment contract.

The employer sends the employee a corresponding notice, which is signed by him or an authorized person (for example, the head of the human resources department).

Next, a dismissal order is issued, a corresponding entry is made in the work book (Part 4 of Article 66 of the Labor Code of the Russian Federation) and a calculation is made.

Final settlement

Upon dismissal, the first person of the company is required to pay:

salary for hours worked;

compensation for unused vacation;

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other payments provided for in the employment contract.

Also, the former general director transfers affairs to the new head of the enterprise. The procedure for the transfer by the manager of papers related to the activities of the company upon his departure from the organization is not established by law. If a successor has not yet been found, the cases may be transferred to the archives or notary for storage.

Making final payments to the General Director and issuing the necessary documents

Full settlement with the resigning general director, as with any other employee of the company, must be made on the day of his dismissal, which is also considered the last working day.

This is also important to know:
How much compensation is paid for unused vacation upon dismissal?

Payments to the resigning CEO must be made on the last working day

To do this, he must receive:

• Salary for the last period actually worked up to and including the day of dismissal. In this case, salary is supposed to mean not only salary, but also its other components: allowances, bonuses, bonuses, etc.
• Compensation for unused vacation.
• All debts owed to him for wages and other payments due, if any.
• Additional payments, if provided for by his employment contract or internal rules of the organization.

If the general director is owed any amounts in favor of the company, for example, compensation for the cost of property lost or damaged due to his fault, they can be withheld during settlement.

On the day of dismissal, the director, in addition to the full payment, must receive the following documents:

• Work book with a record of dismissal.
• Certificate 2-NDFL for the months actually worked since the beginning of the year, and, if desired, for earlier months.
• Certificate of average earnings for the last three months.
• A certificate of the amount of earnings for the last two calendar years before dismissal.
• Personalized accounting information for contributions to the Pension Fund and Social Insurance Fund: Extract from section 3 of the calculation of insurance contributions (DAM).
• Extract from the SZV-STAZH form.
• Information in the form SZV-M.

If desired, he may additionally request:

• Copies of orders for hiring, dismissal, transfers, salary changes and extracts from any documents that mention his personal data.
• Salary certificates.
• Certificates about periods of work with this employer.
• Any acts related to his work activity and affecting his rights.

What guarantees can a director count on upon dismissal?

First of all, compensation is provided in the form of three times the average monthly earnings (Article 279 of the Labor Code of the Russian Federation). However, as noted above, there are cases when this compensation is not paid - upon dismissal as a result of bankruptcy of a legal entity, upon expiration of the contract and at the request of the employee.

Compensation must be paid if the owner of the organization’s property changes (Article 181 of the Labor Code of the Russian Federation). At the same time, simply a change of company participants does not constitute a change of property owners.

Leaving ahead of schedule

In a statement addressed to the founders, the manager must indicate exactly when he wants to resign. But depending on the situation, the date of termination of the employment agreement may be changed. If the director agrees to leave before the deadline specified by him, then the procedure for dismissal does not change.

There are cases when company members decide to terminate an employment agreement before the date specified in the application. If the manager’s consent to this is not obtained, then he is considered to be dismissed by decision of the meeting. In this case, he will be entitled to compensation upon dismissal.