The dismissal of any employee of any organization should be carried out in accordance with the standards of the Labor Code of the Russian Federation. The general director is not an exception to the rule. Upon the dismissal of the Director General by decision of the founder, a special procedure is provided for the execution of documents.
Reasons for the dismissal of the head
He can be fired on the same grounds as other employees of the company. At the same time, the CEO can be forcibly dismissed only by the founder.
Consider why the CEO is fired by decision of the founder. In the following cases:
- As a result of committing unlawful actions of the organization, damage was caused. Damage caused is confirmed by relevant documentation, including accounting. The trial ends with an act.
- Drinking alcohol in the workplace. This misconduct must be recorded by at least two witnesses and a medical examination must be carried out. As in the case of violation of traffic rules, the inspected may refuse the latter, about which a corresponding note is made in the act.
- In case of disclosure of trade secrets. The fact of disclosure should be recorded, written explanations taken from the CEO. In this case, the guilty person may also refuse to give explanations, then an act is drawn up with the invitation of two eyewitnesses to this disclosure.
- In case of cancellation of the fixed-term contract due to reaching the final date indicated in it, and the founder does not want to extend it.
- This agreement may be terminated without explanation. In this case, the dismissed person must be informed of unpleasant consequences for him 30 days before the moment of dismissal.
- Due to the liquidation of the business entity, which was headed by the dismissed CEO. He shall be notified at least two months before liquidation. After the selection of a liquidator or a liquidation commission, the powers of the Director General shall immediately cease.
- In bankruptcy. An application is submitted to the arbitration to remove the head from his post. If the court passes a positive decision, the powers of the Director General are transferred to the interim manager.
- When changing the founder. A package of documents on the change of founders is being prepared. Three months after the company moves from one founder to another, the CEO is notified of removal from office.
- Dismissal of the CEO at his own request.
- His resignation by agreement of the parties.
- As well as in other cases stipulated in the Labor Code of the Russian Federation and prescribed in the employment contract.
Employment contract with a manager
The Charter of the organization may determine how the appointment of the head of the business entity occurs. It is carried out, as a rule, by one of the founders of a legal entity, or another individual authorized by the founders.
If the general director is appointed under an agreement with another legal entity or individual entrepreneur, or the sole founder is the head, then the rules of Sec. 43 of the previously mentioned code do not apply.
The employment contract specifies the issues of his rights and obligations, as well as the obligations of the employer. This contract may be urgent and unlimited.
Sample employment contract
There is no legislatively approved standard form of this agreement with the head of an economic entity. Consider a sample employment contract with the CEO of the LLC for chapters.
The preamble to the contract provides data on the persons concluding it, including the legal and physical persons acting on their behalf. Passport details are indicated here.
The first chapter stipulates the subject of the contract: working conditions, the exact name of the position, address of the main place of work.
The second chapter lists the rights and obligations of the parties. As a rule, they are transferred from the Charter of the LLC, to which he is appointed as the head. It also stipulates the rights and obligations of the founder, who is the employer, which should not contradict the requirements of the Labor Code of the Russian Federation, since otherwise the former will be declared null and void. The employer must provide for the creation for the Director-General of an appropriate workplace in which his work will be safe, regular payment of salaries to him, certain types of incentives for the director may be provided for when he successfully fulfills his duties.
The third chapter provides for the responsibility of the appointed leader. Cases of dismissal of the Director General by the decision of the founder may be provided for, cases of compensation for damage resulting from his actions or inaction may be stipulated.
The fourth chapter establishes the duration of the contract, which may be unlimited.
The fifth chapter provides for the termination of this contract with the head of the business entity. It indicates those cases that have been described above, and can also be given other, not contradicting the legislation in the field of labor.
The sixth chapter spells out the issues of remuneration and social services of the general director. It indicates the size of the salary, the regularity of bonuses, the duration of the working week and the schedule of the working day, the duration of the vacation, and guarantees in accordance with the legislation of the country.
The seventh chapter contains the final provisions. It stipulates the procedure for resolving disputes, the possibility of applying additional agreements to the contract.
At the end of the contract are the signatures of the founder and the appointed general director. The signature of the first shall be certified by a seal, if any.
This sample employment contract with the general director of the LLC is not legally defined as mandatory. Chapters, in addition to the preamble, the subject of the contract and the final clauses, may go in a different order. They may have other names, rights and obligations of the parties may be divided into different chapters.
As already noted, the employment contract with the CEO can be urgent and unlimited. In the first case, upon the expiration of its termination, a new document is signed in the absence of reasons for the dismissal of the head of the legal entity.
The dismissal of the CEO for various reasons, except on their own, is carried out in several stages.
First, a meeting of commissioners is convened, which may have different names in accordance with the Charter of the organization. It makes its final verdict on the dismissal of the head of the business entity, information about which is recorded in the minutes of the meeting of this meeting. Based on the last document, an order is being prepared to dismiss the CEO. It indicates the detailed reasons for the dismissal of the head from his post.
Like all employees, the former manager gets acquainted with the order, signs and receives compensation payments, which are due to him by law and contract. Within three days from the date of ex-manager’s dismissal, it is necessary to submit information to the Federal Tax Service for amending the Unified State Register of Legal Entities. The new director of the organization does not have the right to sign until the transfer of information about him to the Unified State Register of Legal Entities.
A few days before the dismissal, the transfer of cases by the old leader begins, and their reception by a new one.
In case of violation of labor law upon dismissal, the ex-leader can go to court and restore his rights.
In addition to the order, there must be a decision by the owner of the business entity.
The dismissal of the Director General by decision of the founder by order cannot take place if the first is on sick leave or on vacation.
If the parties reach an agreement, the dismissal is carried out in the following mandatory steps:
- The head of the organization submits an application in the name of the founder or other authorized person with a request for dismissal in these circumstances.
- An authorized meeting is held to discuss the issue of dismissal and the issue of the agreement itself. As a result of this discussion, an agreement appears with which they mark the dismissed person on signature.
- A letter of resignation is signed. The record of dismissal is entered in the workbook of the ex-leader.
- Within three days, the UFSN is notified.
- A work book is issued in the hands of the dismissed and material compensation is provided.
The dismissal of the CEO at his own request compared to the dismissal discussed above is characterized by the absence of an agreement. Instead, a protocol is written at the meeting of commissioners indicating the decisions adopted by the founders.
Dismissal of the head of a legal entity by the sole founder
How to dismiss the CEO if an economic entity has a sole founder? In most cases, the head of the business entity is in his role. At the same time, the dismissal procedure is greatly simplified. The above Code states that the sole founder can relieve himself of his position at any time. If he is not the general director, but dismisses the latter, then instead of holding a meeting of commissioners and drawing up a protocol, he prepares a decision of the sole founder, and the rest, the dismissal procedure of the head of the business entity coincides with that described above.
It follows that the dismissal of the CEO by decision of the sole founder is a more simplified procedure compared to the situation when there are several founders.
Payments to the dismissed
Payments upon dismissal of the Director General by decision of the founder are determined in the contract and at the legislative level.
In case of unlawful actions that caused damage to the organization headed by the person at the time he was in a leadership position, payments to the ex-director are not made.
The Labor Code contains the minimum level of payments upon dismissal of the head of an economic entity by decision of the founder, which cannot be less than three times the average monthly earnings. This amount may be paid, unless otherwise specified in the text of the employment contract. Ex-heads of state, unitary and treasury enterprises, corporations and foundations should not claim for more.
Compensation payments depend on the size of the salary, length of service as a manager, as well as on how close the dismissal is to the end date of the contract with the manager.
Incentive payments are taken into account when calculating compensation, and maternity leave, maternity leave, and childbirth are not taken into account. Compensation is calculated based on the average daily earnings, on the basis of which the average monthly earnings are calculated by finding the product of the average daily salary and the number of working days for the last year and multiplying it by 3.
Compensation must be paid on the day the manager is fired. If he is absent for a good reason, he can submit an application and payment will be made on the next business day. If the ex-manager was not on vacation, compensation for non-vacation leave is added to the total payment.
In the absence of claims on his part and contesting the dismissal in court, the procedure for dismissing the Director General by decision of the founder ends. If it is violated by the founders, the latter may be held liable.
Is there a responsibility of the former leader?
Dismissal of the head of an economic entity from his post does not relieve him of liability in the event of damage to his organization headed by him in due time. He, depending on the committed misconduct and crimes, can be brought to both criminal and administrative responsibility.
The responsibility of the former leader must be proved in court. If the latter decides on the guilt of the former CEO, he will be given the appropriate punishment.
Judicial challenge of dismissal
In most cases, the founder is not eager to pay the dismissed hired general director the compensation that is due to him under the laws of the Russian Federation. Therefore, the dismissal in most cases occurs due to an unlawful decision of the head that caused damage to the organization, or due to the fact that the ex-leader had been grossly violated his job duties, while what is included in the concept of "gross violation" is not explained.
Therefore, the ex-leader retains the right to judicial protection. To do this, it is better to contact labor lawyers.
The dismissal of the CEO by the decision of the founder is to some extent the same as any other employee of the organization. It should be borne in mind that the head is the sole executive body of an economic entity, in connection with which the dismissal procedure is complicated in comparison with that in relation to any other employee. The head acts on behalf of the business entity, but all his actions are accountable to the founders. Therefore, in the case of existing grounds, the founder has the right to dismiss the head of the legal entity.