Severance pay and compensation upon dismissal. How can the director of an LLC resign of his own free will? Severance pay to the general director
ON THE. Matsepuro, lawyer
How can the director of an LLC resign of his own free will?
A manager is an employee with a special status. So, in an LLC he is appointed to a position and dismissed from it by a general meeting of participants (sometimes by the board of directors, but we will not talk about such a situation) subp. 4 p. 2 tbsp. 33, paragraph 1, art. 40 of the Law of 02/08/98 No. 14-FZ (hereinafter referred to as Law No. 14-FZ). Because of this, the procedure for dismissing a manager raises a lot of questions for many. Especially in the case when he wants to quit, and the participants in response remain silent and inactive. So let’s find out what is the procedure for the early dismissal of the director of an LLC at his own request, including in the case when the participants do not appoint a replacement for him.
Notification of participants about dismissal and convening of a general meeting
The manager has the right to resign by notifying the employer in writing no later than 1 month in advance Art. 280 Labor Code of the Russian Federation. Moreover, such a notice period is valid upon termination of both fixed-term employment contracts (regardless of their duration) and open-ended ones. Art. 280 Labor Code of the Russian Federation; Letter of Rostrud dated 03/06/2013 No. PG/1063-6-1. Rostrud thinks the same.
FROM AUTHENTIC SOURCES
Deputy Head of the Federal Service for Labor and Employment
“Article 280 of the Labor Code of the Russian Federation provides for the procedure for terminating an employment contract at the initiative of the head of the organization, regardless of the type of employment contract - fixed-term or indefinite.”
The employer for all employees, including the manager, is the LLC. Let us recall that it acts through its governing bodies. Therefore, the manager must notify the highest management body of the LLC about his dismissal. Articles 20, , 280 of the Labor Code of the Russian Federation; clause 1 art. 53 Civil Code of the Russian Federation; clause 4 art. 32 of Law No. 14-FZ:
- <или>general meeting of participants;
- <или>the only participant.
In general, participants do not need to make a decision to fire a manager if he wants to resign himself. But they are obliged to elect a new candidate for the sole executive body of the LLC. And the resigning director must convene their extraordinary general meeting to resolve this issue. pp. 1, 2 tbsp. 35 of Law No. 14-FZ.
Participants must be notified of the general meeting no later than 30 days before the date of the meeting clause 1 art. 36 of Law No. 14-FZ. Please note that each participant must have already received notice by this time. Therefore, if it is sent by mail, then the date of the meeting should be set taking into account the “mileage” of the letter.
Since the notice of convening a general meeting must indicate the issues on the agenda, this document will also serve as a notice of dismissal.
You can format it like this.
Member of Techservice LLC
I.N. Agafonov
Notification of an extraordinary general meeting of participants of Techservice LLC
Dear Ilya Nikolaevich!
Based on the powers granted to me by clause 5.6 of the Charter of Techservice LLC, clause 2 of Art. 35 and paragraphs. 1, 2 tbsp. 36 of the Federal Law of 02/08/98 No. 14-FZ “On Limited Liability Companies”, I inform you about the convening of an extraordinary general meeting of participants of Techservice LLC with the agenda of electing a new general director in connection with the early dismissal of the current general director at his own request. Statement by A.S. Petrov's notice of dismissal is attached (entry No. 227 dated July 21, 2014).
The meeting will take place on September 1, 2014 at 10:00 am at the location of the company: 111401, Moscow, st. 1st Vladimirskaya, 31, building 2, office 106.
When an LLC consists of one participant, then from the day he receives the specified notice, he is considered notified of both the dismissal of the manager and the need to make a decision on the appointment of a new candidate to this position. Resolution 17 AAS dated July 24, 2014 No. 17AP-6075/2014-GK.
Since it is the general meeting that needs to be formally notified of this, and not the participants, then it will be considered notified on the day on which its meeting is scheduled (regardless of whether the meeting is held by the participants or not). Therefore, before resigning, the manager must work after the date of the general meeting for 1 month (in the absence of other agreements with the general meeting). That is, in total, at least 2 months from the date the participants received notice of the convening of an extraordinary general meeting.
The courts are liberal in this matter. In their opinion, the LLC is considered notified of dismissal from the date of receipt of the corresponding notification by the last participant in Appeal ruling of the Belgorod Regional Court dated June 26, 2012 No. 33-1744.
Let us remind you that the notification can be given to participants personally against signature. Or you can send by telegram or registered mail with acknowledgment of delivery:
- participant organizations - at their location address indicated in the Unified State Register of Legal Entities;
- for citizen participants - at the address of their place of residence, which the LLC has.
The LLC must have information about the addresses of citizen participants, because it is obliged to maintain a list of participants in pp. 1-3 tbsp. 31.1 of Law No. 14-FZ. Moreover, if the address is already out of date, and the participant has not informed the LLC about this, then notifying him at the existing address will be considered appropriate. Since all the risks associated with the participant’s failure to communicate current information about himself to the public are borne by the participant pp. 1, 3 tbsp. 31.1 of Law No. 14-FZ; Appeal ruling of the Omsk Regional Court dated November 21, 2012 No. 33-7337/2012.
If for some reason the list of participants was not kept, then you can look for their addresses in other LLC documentation. Such data can be found, for example, in 2-NDFL certificates (if any were submitted to the Federal Tax Service), in the constituent agreement, and sometimes in the charter.
It will not be possible to obtain this information from the Federal Tax Service, since the addresses of individual participants are protected personal data and tax secrets. pp. 1, 2 tbsp. 102 Tax Code of the Russian Federation; clause "d" part 1 art. 5, part 1 art. 6 of the Law of 08.08.2001 No. 129-FZ (hereinafter referred to as Law No. 129-FZ). The extract from the Unified State Register of Legal Entities provides only f. And. O. participants. And the only thing you can get from the Federal Tax Service is a response about the compliance of the data you provided about the addresses of participants with the data contained in the Unified State Register of Legal Entities Part 2 Art. 6 of Law No. 129-FZ; clause 11 of the Procedure, approved. By Order of the Ministry of Finance dated November 23, 2011 No. 158n.
Date of dismissal of the manager
At the general meeting, the participants must decide to elect a new sole executive body and determine on what day he should begin to exercise his powers, taking into account the date of dismissal of the current manager.
Accordingly, the day of dismissal of the manager, and therefore the last day of his work, may be:
- <или> the date indicated by the manager in the resignation letter, with which the participants agreed;
- <или> date on which 1 month expires, allocated to the manager to warn the employer about his dismissal and Articles 14, 280 of the Labor Code of the Russian Federation. This date will be considered the day of dismissal, in particular if the manager did not indicate the date of termination of the employment contract in the notice of dismissal. The month period is counted from the day following the day of notification of the employer about dismissal and Articles 20, , 280 of the Labor Code of the Russian Federation;. And if the monthly period expires on a day off, then the last day of work of the manager will be considered the first working day after this day off Art. 14 Labor Code of the Russian Federation.
Please remember that in some cases shortened notice periods for dismissal apply. For example, upon dismissal due to the inability to continue working due to enrollment in an educational institution, retirement, or due to other similar circumstances, the employment contract with the employee is terminated on the day specified by him Art. 80 Labor Code of the Russian Federation. The fact that these provisions also apply to managers was confirmed to us by Rostrud.
FROM AUTHENTIC SOURCES
“According to Article 280 of the Labor Code of the Russian Federation, the head of an organization has the right to terminate an employment contract early by notifying the employer (the owner of the organization’s property, his representative) in writing no later than 1 month in advance. At the same time, according to Art. 80 of the Labor Code of the Russian Federation, in cases where an employee’s application for resignation at his own request is due to the impossibility of continuing his work, the employer is obliged to terminate the employment contract within the period specified in the employee’s application. Since Ch. 43 of the Labor Code of the Russian Federation does not provide for specifics regarding the specification of the terms for the dismissal of managers due to the impossibility of continuing work, it seems that the provisions of Art. 80 of the Labor Code of the Russian Federation in this part also applies to heads of organizations.”
Rostrud
- <или> another date according to the agreement reached between the manager and the participants (it should be drawn up in writing, and it will be signed by the participant authorized for this meeting on the part of the general meeting) Articles 80, 84.1 of the Labor Code of the Russian Federation.
If the participants at the general meeting decide to dismiss the manager without his consent earlier than indicated in his application, despite the fact that there were no guilty actions on his part, then the basis for dismissal will no longer be the manager’s own desire, but the decision of the general meeting. clause 2 art. 278 Labor Code of the Russian Federation; Appeal ruling of the Vladimir Regional Court dated August 13, 2013 No. 33-2553/2013; Determination of the Leningrad Regional Court dated October 12, 2011 No. 33-5012/2011. And in this case, let us remind you that the manager is entitled to compensation upon dismissal and Art. 279 Labor Code of the Russian Federation.
Pre-dismissal efforts
The manager bears full financial responsibility for direct actual damage caused to the company by himself, and for losses caused to the company by his actions, in cases provided for by law. Art. 277 Labor Code of the Russian Federation; clause 2 art. 44 of Law No. 14-FZ.
Therefore, the resigning manager should, in particular:
- report on accountable amounts, if any, are registered with him, keep copies of all advance reports and documents attached to them and hand over all surpluses to the cashier;
- notify the certification center and the bank of his dismissal in order to prevent cases of misuse of his electronic signature verification key certificate on documents for counterparties and on payments in the Bank-Client system after he leaves the company;
- on the last day of work, hand over to the new manager the keys, seals and documentation of the LLC according to the acceptance certificate.
Self-dismissal procedure
The procedure for dismissing a manager is no different from the procedure for dismissing any other employee. Articles 16, 84.1, Ch. 43 Labor Code of the Russian Federation. The only peculiarity is that the manager himself can sign all the documents related to his dismissal - an order, as well as a work book, if the LLC does not have another employee responsible for maintaining work records. pp. 35, 45 of the Rules, approved. Government Decree No. 225 dated April 16, 2003.
In this case, the wording of the dismissal entry in column 3 of the “Information about work” section of the work book will be the same as for the dismissal of other employees at their own request: “Dismissed at their own request, paragraph 3 of part 1 of Article 77 of the Labor Code of the Russian Federation and” pp. 13-15 of the Rules, approved. Government Decree No. 225 dated April 16, 2003; pp. 5.1, 5.2 Instructions, approved. Resolution of the Ministry of Labor dated October 10, 2003 No. 69. That is, refer to Art. 280 of the Labor Code of the Russian Federation (“Early termination of an employment contract on the initiative of the head of the organization”) instead of Art. 77 of the Labor Code of the Russian Federation, as sometimes happens in practice Appeal ruling of the Kemerovo Regional Court dated March 14, 2012 No. 33-2803, no need. This was confirmed to us by Rostrud.
FROM AUTHENTIC SOURCES
“ According to the Rules for maintaining work records, upon termination of an employment contract on the grounds provided for in Art. 77 of the Labor Code of the Russian Federation (except for cases of termination of an employment contract at the initiative of the employer and due to circumstances beyond the control of the parties), a record of dismissal is made in the work book with reference to the corresponding paragraph of part one of this article. Therefore, when the head of the organization submits a resignation letter to the employer at his own request, the dismissal order and work book should indicate clause 3, part 1, art. 77 Labor Code of the Russian Federation.”
Rostrud
Making changes to the Unified State Register of Legal Entities
The new manager, within 3 working days from the date of appointment to the position, must submit to the Federal Tax Service an application for amendments to the Unified State Register of Legal Entities in connection with the change of the person who has the right to act on behalf of the legal entity without a power of attorney clause 1 art. 40 Law No. 14-FZ; item “l” part 1, part 4, 5 art. 5 of Law No. 129-FZ. The Federal Tax Service Inspectorate, within 5 working days from the date of receipt of this application, will register changes and exclude information about the former manager from the Unified State Register of Legal Entities Part 1 Art. 8 of Law No. 129-FZ.
The former manager himself cannot submit such an application to the Federal Tax Service. Therefore, he should check whether information about him has been excluded from the Unified State Register of Legal Entities. After all, while he is listed in the register as the head of an LLC, he may encounter difficulties, for example:; Resolution 5 of the AAS dated 10/09/2013 No. 05AP-7814/2013.
Features of dismissal due to inaction of participants
If the participants, notified of the convening of the general meeting and its agenda, did not hold the meeting and did not appoint a new leader, then the current leader may still resign. Since there are no other conditions for his dismissal, other than notification of this to the employer represented by the general meeting of participants within the prescribed period, the legislation does not provide for Art. 280 Labor Code of the Russian Federation. In this case, the dismissal procedure will be the same as described above.
The reasons why participants did not appear at the called meeting may vary. For example, leaving or being in a hospital for treatment. If this is so, then it is only a matter of time before they appoint a new leader.
ATTENTION
Notice of dismissal and convening of the general meeting, postal receipts for its sending to participants and delivery notices returned to the manager should be retained to confirm the fact and legality of dismissal.
In this case, if there is a deputy on staff (another employee whose responsibilities include replacing the absent manager), the manager needs to:
- issue an order to transfer the relevant powers to the deputy Articles 60.1, 60.2 of the Labor Code of the Russian Federation. And to represent the interests of the company in relations with third parties, you need to issue him a power of attorney clause 1 art. 185 Civil Code of the Russian Federation. In this case, we are talking about the transfer of only certain powers. Since making a decision to transfer to someone all the functions of the sole executive body is already the prerogative of the general meeting of participants;
- issue temporary bank cards with sample signatures of the deputy pp. 7.5, 7.13 Central Bank Instructions dated May 30, 2014 No. 153-I;
- hand over seals, keys, and company documentation to the deputy according to the acceptance certificate.
It also happens that participants simply leave their company. In such LLCs, the manager is usually the only employee.
In this situation, after following the entire dismissal procedure, the manager will definitely have to go to court with a demand from the participants to exclude information about him from the Unified State Register of Legal Entities.
And the departing manager can dispose of the documentation of the LLC (at the expense of the funds remaining with the LLC), in particular, as follows:
- <или>send a parcel with an inventory to one of the participants (for example, to the one who has the largest share) Appeal ruling of the Kirov Regional Court dated June 13, 2012 No. 33-1718;
- <или>transfer for safekeeping to a notary or an organization or entrepreneur specializing in the provision of such services, sending a notification about this to the participant clause 12, part 1, art. 22.1, clause 16, art. 35 Fundamentals of the legislation of the Russian Federation on notaries, approved. Sun 11.02.93 No. 4462-1.
In a similar manner, the employment contract is terminated early by the head of the joint-stock company. In this case, shareholders must be notified of the convening of an extraordinary general meeting at least 70 days before the date of its holding. And if the issue of appointing a sole executive body falls within the competence of the board of directors, then a notice of termination of the employment contract must be sent to the board of directors in Art. 273 Labor Code of the Russian Federation; subp. 8 clause 1 art. 48, paragraph 1, art. 52,
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
The procedure for dismissal and payment of compensation to the manager is ambiguously determined by labor legislation. The director is included in the list of groups of specialists who cannot be fired in the standard way. This material will discuss all the features of terminating an employment contract with a manager under Article 78 of the Labor Code of the Russian Federation. In particular, the possible reasons and procedure for dismissing a manager by agreement of the parties will be considered, as well as the responsibility of both parties upon termination of the employment relationship.
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Definition of the term “company manager”
A manager (manager, director) is an individual who is responsible for conducting the activities of an enterprise. The concepts of employer and manager should not be confused, since the latter cannot always act as an employer and does not have absolute control over what happens in the company. Usually they talk about dismissing a manager when it comes to an LLC, where such a decision is made by the board of directors. All labor relations with the manager and other management persons of the company are regulated by Article No. 43 of the Labor Code of the Russian Federation.
Articles of the Labor Code of the Russian Federation, on the basis of which a manager is dismissed
This material discusses the procedure for dismissing a director by agreement of the parties with further payment of compensation, however, there are also other ways to dismiss a director of a company. Each of them is discussed below.
- Article 280 of the Labor Code of the Russian Federation (own desire).
- Article 79 of the Labor Code of the Russian Federation (termination of the work contract).
- Article 78 of the Labor Code of the Russian Federation (by mutual agreement of the parties), when the manager is offered a certain amount of compensation in order to vacate the position as quickly as possible.
- Article 81 of the Labor Code of the Russian Federation (the dismissal process is initiated by other LLC participants).
- Article 75 of the Labor Code of the Russian Federation (the enterprise acquires another owner).
- Article 69 of Federal Law No. 127 (in case of reorganization or bankruptcy of a company).
- Other reasons specified in the Labor Code of the Russian Federation.
Dismissal of a manager by agreement of the parties
The employer’s desire to cancel the work contract of the company manager by agreement of the parties indicates that he does not want to allow any important data about the company’s activities to reach third parties. It is no wonder that the general director has the opportunity to leave for a competing company, so the disclosure of “production secrets” will harm the activities of the enterprise.
Any party to the labor relationship can initiate the dismissal process under Article 78 of the Labor Code of the Russian Federation. If the initiator is the manager, then he must send the employee a statement, which may optionally indicate the reason for dismissal. Next, the employer must consider the application and decide whether he agrees to part with the general manager in this way.
"Golden Parachute"
Upon dismissal, by agreement of the parties, the director is paid significant material compensation, which is commonly called the “golden parachute”. The amount of this compensation is not limited by law, and therefore depends solely on the “generosity of the employer.” According to Article 255 of the Tax Code of the Russian Federation, compensation is considered as an expense for remunerating an employee. If the amount of compensation exceeds three average employee salaries, then it is subject to personal income tax. The need to pay compensation is indicated either in the employment contract, which the director and his employer signed directly upon employment, or in an additional agreement, which acts as an addition to the contract.
Upon dismissal by agreement of the parties, payment of compensation to the director is optional, but there are two cases when the dismissal director receives compensation is a prerequisite:
- change of company ownership;
- cancellation of a contract by decision of the LLC board members (except for situations where dismissal was a disciplinary measure).
If the employment contract is terminated at the manager’s own request, then no compensation is paid to him, since the person being dismissed was the person interested, and there is simply no point in the employer paying compensation. And in situations where the termination of employment relations takes place under Article 81 of the Labor Code of the Russian Federation, the dismissed person may additionally be charged a fine for damage caused to the company (of course, the other party has the right to appeal such a decision of the commission in court).
For managers who worked in government agencies, restrictions on the amount of compensation were established. This rule also applies to enterprises that are partly state-owned.
Procedure for canceling the contract
Many HR specialists are wondering how to fire a director by agreement of the parties. The algorithm for dismissing a manager by agreement of the parties is as follows:
- If the dismissal was initiated by members of the board of directors, then first it is necessary to draw up minutes of the meeting, which must indicate the reason for termination of the contract. By the way, the director’s resignation may serve as a reason if the initiative came from his side.
- The next stage is the issuance of an order to terminate the employment relationship in the T-8 form (this local legal act must be registered in the journal).
- The dismissed director is given a work book, in which an entry about the termination of the employment contract should have been made in advance.
- The bank and the tax office are notified that the person no longer exercises his powers as a director in the company.
Negotiations and letter writing
To dismiss at his own request, the employee is not required to make a written application if the initiator of termination of the contract is the employer. If, as a result of negotiations, the founders of the LLC came to the conclusion that the director should be dismissed, and we are not talking about disciplinary violations (Article 81 of the Labor Code of the Russian Federation), then the current director is sent a notice in writing, which must necessarily contain the following data:
- legislative basis for termination of labor relations (in this case, this is Article 77 of the Labor Code of the Russian Federation);
- day of contract cancellation;
- the period allotted for receiving a written response to the notification;
- the signature of the initiator of the dismissal process, without which the application will not have legal force.
Russian legislation does not require that the notice indicate the basis for the dismissal of an employee. If an employee is dismissed without reason and not by agreement of the parties, then he must be entitled to compensation.
In many companies there can only be one founder. If there are several of them, then the decision of the founders of the LLC or joint stock company is certified by the protocol.
Drawing up an additional agreement on termination of the employment contract
The Labor Code does not regulate the procedure for drawing up, as well as the form of an additional agreement on the cancellation of a work contract with a manager. Of course, this document must be drawn up exclusively in written form, and two duplicates must be made - one of them is kept by the employer, and the other is given to the manager. The agreement may contain a large number of requirements, but in general it should include the following information:
- date of drawing up the additional agreement;
- information about the employee and employer;
- information about the work contract;
- the reason for canceling the contract;
- the actual date of dismissal, which also coincides with the date of cancellation of the director’s contract;
- financial obligations of the parties (optional).
Important! Once the additional agreement is signed, its terms cannot be changed. Any adjustments can only be made with the consent of both parties, so the manager cannot return to his place within two weeks after issuing the order to dismiss and receive compensation. It is noteworthy that dismissal by agreement of the parties may provide for this possibility.
Since 2014, data on the payment of compensation to the manager cannot be included in the additional agreement, and this concerns not only the payment of a specific amount of money, but also the receipt by the dismissed person of certain company property (for example, a block of shares).
Order of dismissal
Before the last day of work of the dismissed person, the employer must issue a decree dismissing the director by agreement of the parties (sample order 2017). The decree must be signed by the director himself, having previously familiarized himself with its contents. In some cases, another authorized person of the company (for example, the chief personnel officer) may sign the order. The order (form T-8) reflects the following aspects:
- information about the dismissed manager;
- legislative basis for termination of labor relations (a specific article of the code is indicated);
- date of dismissal;
- signature of the director or authorized person.
Documentation of the dismissal procedure by mutual agreement of the parties must be approached with all due responsibility, since any inaccuracies (for example, incorrect date indication) are fraught with legal proceedings. In the event of termination of the employment relationship with the director, his deputy begins to perform duties.
Mark in the work book
An entry in the work book is made in accordance with the Instructions, which every HR specialist must be familiar with in advance. The entry looks something like this: “Dismissed in accordance with Article 78 of the Labor Code of the Russian Federation.” The main requirement is to indicate a specific article of the Labor Code, which acts as a regulatory framework for terminating an employment contract. The instructions are an official legal act, so the provisions contained in them cannot be ignored.
Issuance of documents and payment
According to Article 84 of the Labor Code of the Russian Federation, the employer undertakes:
- transfer to the director all necessary payments (compensation, compensation for unused vacation days, remaining wages, etc.);
- issue a work book to the former top manager;
- hand over all other documentation that was directly related to the employee’s work activities.
To avoid troubles, the employer is recommended to send all documents by registered mail using the Russian Post service. If, for example, a manager’s book is lost, the latter can file a lawsuit (the same applies to any other documents).
Sometimes it is impossible to pay a former manager on his last day of work due to some objective reasons (problem with a bank transfer, the employer cannot come to the place of work, etc.). In such a situation, the employer (or his authorized representative) must transfer all payments to the employee’s account no later than one day after receiving the application for the accrual of due funds.
Taxation of executive severance pay
Income tax
It is important for a company’s in-house accountant to know whether compensation is subject to taxation, because in most situations we are talking about fairly substantial amounts of funds. Due to the fact that material compensation is paid on the last working day, Article 255 of the Tax Code of the Russian Federation considers this type of payment as labor costs, so the tax base will remain the same. The employer can agree with the director on partial payment of benefits after the actual date of dismissal (this and other similar conditions can be specified in the additional agreement), which will slightly reduce the total amount of income tax.
Personal income tax and unified social tax
There is no need to collect both personal income tax and unified social tax from the compensation amount; in situations where the amounts involved are too large, it may be necessary to pay income tax from part of the compensation.
Responsibility of the General Director
It goes without saying that the job of a top manager is a serious and highly paid position, which at the same time implies a high level of responsibility. Liability can be financial or criminal (if the organization suffered serious losses as a result of the activities of the dismissed person as a manager). The degree of criminal liability is already determined by the Criminal Code of the Russian Federation. This information primarily relates to dismissal under Article 81 of the Labor Code of the Russian Federation, while the dismissal of a manager by agreement of the parties usually implies a “peaceful” scenario of termination of employment relations.
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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).
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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
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 amount of compensation is established by the employment contract, but not less than three times the average monthly salary of the director. When concluding an employment contract with a director, the contract should establish the amount of compensation in the event of an innocent dismissal. If this does not happen, its size can be determined and fixed later in an additional agreement.
Compensation to the director upon dismissal in the absence of such a condition in the employment contract.
Sometimes the compensation clause is not included in the employment contract with the manager, either at the time of hiring or later. According to some employers, when dismissal of the director on the basis of clause 2 of Art. 278 of the Labor Code, the organization does not have to pay compensation.
However, the RF Armed Forces do not agree with this. The Supreme Court believes 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 organization from the obligation to pay compensation (Determination of the Supreme Court of the Russian Federation dated January 25, 2008 No. 5-B07-170).
The obligation to pay compensation arises from the owner of the organization in cases where the agreement was concluded before the entry into force of the Labor Code of the Russian Federation, and the necessary changes were not made to it. Dismissal of a manager 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 the dismissed person at work.
Amount of compensation to the director upon dismissal
The amount of compensation to the director in the event of his innocent dismissal is determined by the employment contract concluded with him.
If there is no provision for compensation in the contract, it must still be paid. But the question arises: to what extent?
If the compensation clause is not included in the employment contract, the parties to the contract may enter into an additional agreement to it immediately before formalizing the dismissal. In it they will record the amount and procedure for paying compensation.
If no agreement is reached. 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.
The amount of compensation can be determined based on the time actually worked, the time remaining until the end of the employment contract, as well as the amount of earnings that the manager could receive if he continued to work, and the additional expenses that he would be forced to incur as a result of early termination agreement.
Compensation upon dismissal of a director is not subject to personal income tax. This is the approach that tax and financial authorities follow in practice. This approach also finds support in the courts.
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