Compensation upon dismissal of the director: is it always obligatory. Is there compensation for the director upon his dismissal by the new owners Payments to the head upon dismissal

Question. What payments are possible upon dismissal of the director of the state unitary enterprise. What kind additional payments possible to the deputy director of the state unitary enterprise upon dismissal. Question. Under what article should the head of a state unitary enterprise resign in order to receive benefits and payments upon dismissal?

Answer

All employees (including directors and deputy) are paid severance pay in the amount of two weeks average earnings is paid to the employee upon termination of the employment contract in connection with:

refusal of the employee to transfer to another job, necessary for him in accordance with medical opinion issued in the manner prescribed by federal laws and other regulatory legal acts Russian Federation, or the lack of an appropriate job for the employer (Labor Code of the Russian Federation);

an employee's call for military service or directing it to a replacement alternative civil service(Labor Code of the Russian Federation);

reinstatement at work of an employee who previously performed this work (Labor Code of the Russian Federation);

refusal of the employee to transfer to work in another area together with the employer (Labor Code of the Russian Federation);

recognition of an employee as completely incapable of labor activity in accordance with a medical report issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation (Labor Code of the Russian Federation);

refusal of the employee to continue work due to a change certain parties terms of the employment contract (Labor Code of the Russian Federation).

The director is paid compensation upon dismissal due to a change of ownership and in connection with the decision of the founder.

Other payments may be provided for by local acts of the organization and (or) an employment contract.

For details on this, see the materials in the rationale.

The rationale for this position is given below in the materials of the "Personnel System" .

1. Situation: What payments are due to employees in case of reduction or liquidation of the organization

“When leaving due to the liquidation of an organization or a reduction in staff, pay employees *:

severance pay in the amount of average monthly earnings;
average earnings for the period of employment not more than two months from the date of dismissal with offset of severance pay. With regard to northern employees, there is a special procedure for maintaining average earnings.

Severance pay in the amount of the average monthly earnings must be issued to the employee on the day of dismissal. If the employee did not work on the day of dismissal, then it must be paid the next day after the employee applied for the calculation. Such rules are set Labor Code RF.

The average salary is paid in a special order, depending on how long the employee will get a job. new job ()».

« On what grounds can an organization fire a CEO?

employment contract with CEO may be terminated:

on general grounds (Art., and the Labor Code of the Russian Federation);
on special grounds (clause , and part 1 of article 81 of the Labor Code of the Russian Federation);
for additional grounds ().

What special grounds are provided for the dismissal of the CEO

The special grounds for dismissal of the CEO include the following cases.

1. Change of the owner of the property of the organization (, Labor Code of the Russian Federation). The new owner may, no later than three months from the date when he acquires the right of ownership to the property of the organization, terminate the employment contract with the General Director. Dismissing the head, the new owner is obliged to pay him monetary compensation. Such a payment cannot be less than three average monthly earnings (). The exception is the heads of organizations in the authorized capital of which the share of participation (shares) of Russia is more than 50 percent. Their compensation is strictly equal to three times the average monthly earnings - no more and no less*. Such rules are established by the Labor Code of the Russian Federation.

2. The adoption by the head of the organization of an unreasonable decision, which entailed a violation of the safety of property, its misuse or other damage to the property of the organization (). To dismiss the CEO on this basis, it is necessary to prove that the adverse consequences arose as a result of such a decision. At the same time, the employee had other options for getting out of a difficult situation, which he did not use.

3. Single gross violation head of the organization job duties(). A single gross violation is understood, in particular, as a failure to fulfill the duties assigned to the CEO by an employment contract, which could result in harm to the health of employees or property damage to the organization ().

Attention: dismissal of the head of the organization for making an unreasonable decision and for a single gross violation of labor duties is a measure of disciplinary action. The procedure for imposing a disciplinary sanction must be carried out in accordance with the rules of the Labor Code of the Russian Federation.

If this procedure is not followed, the court may recognize the dismissal of the CEO as illegal and reinstate him at work. In this case, the organization will have to pay the head for all the time of forced absenteeism. This is stated in the Labor Code of the Russian Federation.

Additional grounds for dismissal

What additional grounds are provided for the dismissal of the CEO

The employment contract with the General Director can be terminated for additional reasons:

in connection with the removal from office in accordance with the legislation on insolvency (bankruptcy). If a bankruptcy proceeding has been initiated against an organization, then court of Arbitration may dismiss the head of the debtor organization at the request of the temporary administrator of the organization's property ();
in connection with the adoption by the authorized body of the organization (board of directors, general meeting participants, the general meeting of shareholders, the manager) or the owner of the property (the person authorized by the owner) organizing a decision on the early termination of the employment contract (clause and article 32, Law of February 8, 1998 No. 14-FZ,). A similar decision can be made by the owner of the property of a unitary enterprise in accordance with established ();
on the grounds provided for by the employment contract with the head of the organization (, Labor Code of the Russian Federation). For example, for failure to comply with the decision of the general meeting of participants (shareholders), causing losses to the organization or damage to its property.

Additional grounds for the dismissal of the General Director are provided for in the Labor Code of the Russian Federation.

It should be noted that upon termination of the employment contract with the General Director by decision of the authorized body legal entity it is not required to indicate the specific circumstances of the termination of the employment contract (). In addition, it is not necessary to notify the head of the dismissal on this basis in advance. By general rule in such a situation, the general director is entitled to payment of compensation * (Art. , Labor Code of the Russian Federation). The legitimacy of this position is also confirmed by the lower courts, see, for example, the appeal rulings of the Moscow City Court,.

Question from practice: how much compensation is due to the head upon dismissal by decision of the owner

Upon dismissal by decision of the owner, the general director is entitled to compensation. Pay compensation if the dismissal is not related to the guilty actions or inaction of the head. The purpose of this payment is to compensate the dismissed employee to the maximum extent for the adverse consequences caused by the loss of work. The minimum amount of such compensation is three times the average monthly salary of the dismissed manager. The maximum amount of compensation is not limited by law, therefore, compensation in a larger amount can be established in local act, charter or employment contract with the leader.

If compensation is not established in an employment contract, local act or charter, then this is not a basis for non-payment at all. If an agreement on the amount of payment is not reached, then the amount of compensation is determined by the court, taking into account the actual circumstances of a particular case, the purpose and purpose of this payment.

Such conclusions follow from the totality of the provisions of the articles, the Labor Code of the Russian Federation,.

Attention: the head, dismissed by the decision of the owner without payment of compensation, may go to court and demand not only payment of compensation with interest, but also compensation for moral damage. The legitimacy of this position is supported by arbitrage practice(see, for example,).

The amount of compensation for non-pecuniary damage is determined by the court and indicates it in its decision. At the same time, judges must take into account the nature of the harm caused to the employee and the degree of guilt of the organization ().

Professional help system for lawyers, where you will find the answer to any, even the most complex question.

is a special guarantee provided to the employee in the event of termination of the contract under paragraph 2 of part 1 of Art. 278 of the Labor Code of the Russian Federation. Termination of labor relations on this basis can be initiated by the founder at any time, regardless of the period for which the agreement was concluded and what is the reason for the termination of labor relations. We will talk about providing compensation of this kind in our article.

Who is entitled to compensation upon dismissal by decision of the founder?

The payment upon termination of the contract by the will of the founder is due to the head of the organization - the director, general director or the sole executive body of the unitary / state-owned enterprise (clause 2 of article 278, article 349.3 of the Labor Code of the Russian Federation, paragraph 2 of clause 1 of the resolution of the Supreme Court of the Russian Federation No. 21 of 02.06. 2015). Only these employees can be dismissed by decision of the founder of the organization - this ground for termination of employment does not apply to other employees. The leader, according to the definition given in Art. 273 of the Labor Code of the Russian Federation, is an individual who, under the terms of regulatory acts of the federal, regional, municipal and local levels, solely performs the functions of the executive body of a legal entity.

An exception to the application of the rules of art. 278 of the Labor Code of the Russian Federation (dismissal of the head by decision of the founder) and Art. 279 of the Labor Code of the Russian Federation (guarantees for dismissal on such grounds) are cases where:

the sole founder is the sole executive body legal entity;
the functions of the head are entrusted to the management company.

The procedure for the dismissal of the CEO by decision of the founder

Completion of labor relations with the director at the initiative of the founder occurs in the following order:

The competent entities agree on the decision on the forthcoming dismissal of the director.
A dismissal order is issued.
Documents are being prepared in the Unified State Register of Legal Entities on changes.
Recordings are made in work book and personal card.
Salaries and compensations are paid.

Thus, the procedure for terminating the contract must be observed, in general view enshrined in Art. 84.1 of the Labor Code of the Russian Federation. Violation of the above rules will allow the employee to be reinstated in his position. Also, you can't complete labor Relations during a vacation or a period of incapacity for work of an employee (paragraph 50 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

Termination of an employment agreement with a director without complying with the payment condition is a violation of the rules for terminating an employment relationship with an employee, which gives him the full right to recover both the compensation itself and compensation for non-pecuniary damage (determination of the Supreme Court of the Russian Federation of December 14, 2012 No. . However, this violation is not always sufficient for reinstatement (paragraph 1, clause 10 of the resolution of the Supreme Court of the Russian Federation of 06/02/2015 No. 21).

Don't know your rights?

Rules for calculating compensation upon dismissal of the CEO

There are several rules for calculating compensation for a dismissed CEO:

The payment is calculated based on the amount average salary per day (clause 9 of the regulation on the calculation of the average salary, approved by the government decree "On the features of the procedure for calculating ..." dated December 24, 2007 No. 922). According to the provisions of h. 3 Article. 139 of the Labor Code of the Russian Federation, the average daily income is equal to the division of annual income by the number of days that the employee actually worked.
When calculating compensation, incentive payments are taken into account (clause 15 of the above Regulation).
The calculation excludes periods in which the employee retained the right to the average salary ( maternity leave, maternity leave, etc.).

To calculate the average daily income, one should:

Calculate all wages received for the billing period (the last 12 calendar months).
Using the production calendar, taking into account periods of illness, etc., determine the number of days actually worked by the employee for the billing period.
Divide the total salary for 12 months by the number of days actually worked.

Then you should calculate the average monthly earnings by multiplying the average salary per day by the number of working days in a month according to the production calendar. Further, since minimum size compensation is equal to 3 times the average monthly earnings, to determine the amount of compensation, it is necessary to multiply the result by 3.

Thus, in general, the calculation formula looks like this:

Amount of compensation upon dismissal of the CEO = Total amount wages for 12 months / The number of days actually worked for the period × The number of working days in a month according to the production calendar × 3

The amount of compensation upon dismissal of the CEO

The legislator does not specify what size should be compensation upon dismissal of the CEO(such conditions are part of the employment agreement), but Art. 279 set the minimum compensation limit - three times the average monthly earnings. If the compensation is less, the employee has the right to recover the difference. So, the Chelyabinsk Regional Court, satisfying the requirement for recalculation of compensation in favor of the plaintiff, indicated that the payment upon termination of the contract in a smaller amount would not meet the requirements of Art. 279 of the Labor Code of the Russian Federation (determination of August 25, 2016 in case No. 11-12345/2016).

Practice shows that in the absence of conditions on the amount of compensation in the employment contract, the payment is most often set at the minimum amount established by law (decision of the Sovetsky District Court of Nizhny Novgorod dated October 24, 2016 in case No. 2-6691 / 2016). At the same time, the Supreme Court of the Russian Federation determined that the maximum amount of compensation should be reasonable and cannot affect the interests of other employees (paragraph 2, clause 11 of Resolution No. 21). Also, the terms of the employment contract on payment cannot contradict local regulations(appeal ruling of Omsk regional court dated November 2, 2016 in case No. 33-10736/2016).

Nevertheless, for some categories of employees, compensation is determined exactly at a 3-fold amount. By virtue of h. 1, 2 Article. 349.3 of the Labor Code of the Russian Federation, these include persons holding senior positions in state-owned companies, corporations, state-owned enterprises, funds of the Russian Federation, unitary enterprises.

The amount can also be established by the court, taking into account the circumstances specified in clause 12 of Resolution of the Supreme Court of the Russian Federation No. 21:

duration of work in the position held;
the size of the salary;
the moment of termination of the employment agreement (more precisely, its distance from the date of expiration of the termination of the employment relationship).

Thus, when determining the amount of compensation, the court takes into account many indicators: the duration of work, the amount of wages, etc.

The procedure for dismissal and payment of compensation to the head are ambiguously determined labor law. The director is included in the list of groups of specialists who cannot be fired in the standard way. This material will consider all the features of terminating an employment contract with a manager under article 78 of the Labor Code of the Russian Federation. In particular, they will consider possible reasons and the procedure for dismissal of the head by agreement of the parties, as well as the responsibility of both parties upon termination of the employment relationship.

Dear readers! The articles contain solutions to common problems.
Is free our lawyers will help you find the answer to your personal question. To solve your problem, call: You can also get a free online consultation.

Definition of the concept of "head of companies"

The head (manager, director) is individual who is responsible for running the business. Do not confuse such concepts as an employer and a leader, 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 the dismissal of the head when it comes to LLC, where such a decision is made by the board of directors. All labor relations with the head and other managers 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 the head is dismissed

Within the framework of this material, the procedure for dismissing a director by agreement of the parties with further payment of compensation is considered, however, there are also other ways to dismiss the 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 working contract).
Article 78 of the Labor Code of the Russian Federation (by mutual agreement of the parties), when a certain amount of compensation is offered to the head 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 participants in the LLC).
Article 75 of the Labor Code of the Russian Federation (the enterprise has another owner).
Article 69 federal law No. 127 (in case of reorganization or bankruptcy of the company).
Other reasons specified in the Labor Code of the Russian Federation.

Dismissal of the head by agreement of the parties

The desire of the employer to cancel the work contract of the company's manager by agreement of the parties indicates that he does not want to allow any important data on the company's activities to reach third parties. It is not surprising that the CEO has the opportunity to go to a competitor company, so the disclosure of a “production secret” will harm the enterprise.

Any of the parties to labor relations can initiate a dismissal process under Article 78 of the Labor Code of the Russian Federation. If the manager is the initiator, then he must send the employee a statement, where the reason for dismissal can optionally be indicated. 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 substantial material compensation, which is commonly called the "golden parachute". The amount of this compensation is not limited at the legislative level, therefore it 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 employee's salary costs. If the amount of compensation exceeds three times the average salary of an employee, 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 during employment, or in an additional agreement, which acts as an addition to the contract.

Upon dismissal by agreement of the parties, the payment of compensation to the director is optional, but there are two cases when the receipt of compensation by the dismissed leader is a prerequisite:

change in the owner of the company;
cancellation of the contract by decision of the members of the board of the LLC (except for situations where dismissal was a disciplinary measure).

If the employment contract is terminated by own will manager, no compensation is paid to him, since stakeholder was the dismissed person himself, and it simply makes no sense for the employer to pay compensation. And in those situations where the termination of labor relations takes place under Article 81 of the Labor Code of the Russian Federation, the dismissed person may additionally be fined for the 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 have worked in public institutions, there are limits on the amount of compensation. This rule also applies to enterprises that are partially state-owned.

Cancellation procedure

Many HR specialists are wondering how to dismiss a director by agreement of the parties. The algorithm for dismissal of a leading person 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 a minutes of the meeting, which must indicate the reason for terminating the contract. By the way, the director's statement of dismissal can serve as a reason, if the initiative came from him.
The next step is the issuance of an order to terminate the employment relationship form T-8 (this local regulatory legal act must be registered in the journal).
The dismissed director is given a work book in his hands, in which an entry on the termination of the employment contract should have been previously made.
The fact that the person no longer fulfills his powers as a director in the company is notified to the bank and the tax office.

Negotiations and drafting a letter

For dismissal of his own free will, the employee is not required to draw up an application in writing if the initiator of the 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 fired, and we are not talking about disciplinary violations(Article 81 of the Labor Code of the Russian Federation), then a notification is sent to the current manager in writing, which, in without fail must contain the following data:

the legislative framework for the termination of labor relations (in this case, this is Article 77 of the Labor Code of the Russian Federation);
date of cancellation of the contract;
the time limit 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 law does not require that the notice indicate the grounds for dismissal of the employee. If an employee quits for no reason, not by agreement of the parties, then he must be entitled to compensation.

In many companies, there can be only one founder. If there are several of them, then the decision of the founders of the LLC or joint-stock company verified by 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 annulment of a work contract with a manager. It goes without saying that this document must be drawn up exclusively in writing, and two duplicates must be made - one of them is kept by the employer, and the other is handed over 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 supplementary agreement;
information about the employee and employer;
information about the work contract;
the reason for the cancellation of 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! After the signing of the additional agreement, its terms are not subject to change. Any adjustments can only be made with the consent of both parties, so the manager cannot return to his place within two weeks after the issuance of the order to dismiss and receive compensation. It is noteworthy that dismissal by agreement of the parties may provide for such a possibility.

Since 2014 in supplementary agreement it is impossible to enter data on the payment of compensation to the manager, while we are talking not only about the payment of a specific amount of money, but also about the receipt by the dismissed person of certain property of the company (for example, a block of shares).

Dismissal order

Before the last day of work of the dismissed, 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) can sign the order. The order (form T-8) reflects the following aspects:

information about the dismissed leader;
legislative framework for termination of labor relations (a specific article of the code is indicated);
date of dismissal;
signature of the director or authorized person.

To documentation dismissal procedures by mutual agreement of the parties must be approached with all due responsibility, since any inaccuracies (for example, incorrect date indication) are fraught with litigation. In case of termination of labor relations with the director, his deputy takes over the duties.

Mark in the workbook

An entry in the work book is made in accordance with the Instruction, with which each HR specialist must be familiarized in advance. The entry looks something like this: "Fired in accordance with Article 78 of the Labor Code of the Russian Federation." The main requirement is an indication of a specific article of the Labor Code, which acts as regulatory framework to terminate the employment contract. The instructions are an official legal act, therefore, the provisions prescribed in it cannot be ignored.

Issuance of documents and settlement

According to article 84 of the Labor Code of the Russian Federation, the employer undertakes:

transfer to the director all the necessary payments (compensation, compensation for unused vacation days, the balance of wages, etc.);
issue a work book to a former top manager;
hand over all other documentation that was directly related to the work activity of the employee.

To avoid trouble, the employer is advised to send all documents by registered mail using the Russian Post service. If, for example, the manager's book is lost, then the latter can file a lawsuit (the same applies to any other documents).

Sometimes pay off former leader on the last day of his work is impossible due to some objective reasons (problem with Bank transaction, the employer cannot come to the place of work, etc.). In such a situation, the employer (or his authorized representative) must necessarily transfer all payments to the employee's account no later than one day from the date of receipt of the application for the accrual of the due funds.

Taxation of executive severance pay

income tax

It is important for a company's staff 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 the partial payment of benefits after the actual date of dismissal (this and other similar conditions can be specified in the supplementary agreement), which will slightly reduce the total amount of income tax.

personal income tax and unified social tax

It is not necessary to collect both personal income tax and unified social tax from the amount of compensation; in those situations when it comes to too large amounts, it may be necessary to pay income tax from part of the compensation.

Responsibility of the CEO

It goes without saying that the work of a top manager is a serious and highly paid position, which at the same time implies a high level of responsibility. Responsibility can be material or criminal (if the organization has suffered serious losses as a result of the activities of the dismissed person as head). The degree of responsibility of criminal liability is already determined by the Criminal Code of the Russian Federation. This information primarily refers to the dismissal under Article 81 of the Labor Code of the Russian Federation, while the dismissal of the head by agreement of the parties usually implies a “peaceful” scenario for the termination of employment.

Director's retirement compensation

Further, since the minimum amount of compensation is equal to 3 times the average monthly earnings, to determine the amount of compensation, it is necessary to multiply the result by 3. Thus, in general, the calculation formula looks like this: Amount of compensation upon dismissal of the CEO = Total salary for 12 months / Number of actual days worked for the period × Number of working days in a month according to the production calendar × 3 Amount of compensation upon dismissal of the general director The legislator does not specify how much compensation should be upon dismissal of the general director (such conditions are part of the labor agreement), however, art. 279 set the minimum compensation limit - three times the average monthly earnings. If the compensation is less, the employee has the right to recover the difference.

What is the procedure for the dismissal of the director of the municipal unitary enterprise in connection with the liquidation?

The legal status of the head of the organization is unique from the point of view of law, since the head of the company is not just an employee, but also a body of a legal entity. Thus, the issues of dismissal of the head are regulated, firstly, by labor legislation, and secondly, by the relevant corporate legislation. Therefore, the procedure for dismissal of the head of the organization is complicated compared to the dismissal of another employee.
What are the main differences between this procedure? 1. In accordance with the Labor Code of the Russian Federation, in addition to the general grounds for dismissal, there are special grounds for the dismissal of a manager. 2. The dismissal of the head, in addition to the order, is based on the decision of the owner of the organization or the authorized body. 3.

Dismissal of the head of the municipal unitary enterprise under item 2. Article 278 of the Labor Code of the Russian Federation

Rules for calculating compensation upon dismissal of the CEO There are several rules for calculating compensation for a dismissed CEO:

The calculation of the payment takes place with a reference to the size of the average salary per day (clause 9 of the regulation on the calculation of the average salary, approved by the government decree "On the features of the procedure for calculating ..." dated December 24, 2007 No. 922). According to the provisions of h. 3 Article. 139 of the Labor Code of the Russian Federation, the average daily income is equal to the division of annual income by the number of days that the employee actually worked.
When calculating compensation, incentive payments are taken into account (p.

How to file a director's dismissal in liquidation

In particular, when making a decision during the meeting, the director has the opportunity to file an application addressed to the founder that he leaves his position of his own free will. The founder, however, is given a thirty-day period by law to make a definite decision on this matter. As a rule, everything ends with consent and entering all the required entries in the work book.
It is the day on which this was carried out that is considered the boundary of the loss of the director's powers. In case of formation liquidation commission its chairman assumes all rights allowing to carry out managerial functions at the enterprise. In this case, the corresponding order of the commission may serve as a basis for the dismissal of the director.

Attention

Also, with the employees who are part of the liquidation commission, with their consent, employment contracts can be terminated (at their own request or by agreement of the parties) and concluded civil law contracts. However, such termination can be regarded as an evasion of the payment of compensation due upon dismissal in connection with the liquidation of the organization (part 1 of article 178 of the Labor Code of the Russian Federation). If the composition of the liquidation commission includes citizens from the outside, then more often a civil law contract is concluded.

At the same time, a fixed-term employment contract can also be concluded with them. This conclusion follows from articles 20, 57, 72, 77 of the Labor Code of the Russian Federation, chapters 37, 39 of the Civil Code of the Russian Federation. The remuneration of the members of the liquidation commission (liquidator) is carried out by the liquidated organization itself (art.

57, 129 of the Labor Code of the Russian Federation, Art. 709, 781 of the Civil Code of the Russian Federation).

Who should pay the director of veg upon his dismissal

Important

These include, among other things, the transfer of compensation upon termination of employment. Lack of mention in the contract compensation payments does not remove from the enterprise the obligation to transfer them. Ultimately, the implementation of this payment can be equated to mandatory conditions early termination the validity of the employment contract at the initiative of the employer.

Termination of an employment relationship at the initiative of an employee is also applicable to executives. In accordance with Article 280 of the Labor Code of the Russian Federation, they must notify in advance of the date of the proposed dismissal, at least a month in advance. A longer period of "working off" is associated with the difficulty of selecting applicants for a managerial position.
In addition, during this time, the dismissed director will have to transfer all files and documents to his successor, deputy or employee who will temporarily perform his duties.

Who should pay the director of the MUP upon his dismissal

For example, the disclosure of certain information, even if it is not related to trade secret; failure to achieve certain indicators; identification of personal family ties with one of the employees; part-time work in another organization, etc. In turn, the head of the organization has the right to terminate the contract concluded with him at any time. However, in the event of dismissal of the head of his own free will, he is obliged to notify the employer of this at least a month in advance, while for an ordinary employee this period is two weeks. Features of the dismissal of the head, depending on the legal form of the enterprise As a general rule, the same body is in charge of the appointment and dismissal of the head of the organization. Procedurally, the issues of dismissal are resolved in the same way as the issues of concluding an employment contract.

At the same time, violation of the procedure for convening and holding such a meeting may lead to the recognition of the dismissal of the head as illegal through the court. An example from life (labor conflict) In a certain Society with limited liability, whose founders were several legal entities and individuals, the post of General Director was held by the founder - an individual, whose share in the authorized capital of the Company was slightly more than 20%. As a result of a personal conflict between the General Director and one of the leaders of the Founder - a legal entity (with a share in the authorized capital of the Company equal to 60%), it was decided to remove the head, that is, to terminate employment relations with him.

The founder-initiator of the dismissal immediately held an "extraordinary general meeting", at which he decided to dismiss the General Director from his post.

Info

Such conclusions follow from the totality of the provisions of articles 72, 278, 279 of the Labor Code of the Russian Federation, a review of the judicial practice of the Supreme Court of the Russian Federation for the II quarter of 2012. Attention: the head, dismissed by the decision of the owner without payment of compensation, can go to court and demand not only payment of compensation with interest, but also compensation for moral damage. The legitimacy of such a position is confirmed by judicial practice (see, for example, the appeal ruling of the Moscow Regional Court dated July 29, 2013 No.

No. 33-16024/2013). The amount of compensation for non-pecuniary damage is determined by the court and indicates it in its decision. At the same time, judges must take into account the nature of the harm caused to the employee and the degree of guilt of the organization (paragraph 63 of the decision of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
The current legislation does not provide for a special procedure for the dismissal of the head during the liquidation of the enterprise. Thus, it is necessary to apply the general procedure, including the employer (Administration) must notify the director against signature of dismissal due to liquidation at least two months before dismissal (Article 180 of the Labor Code of the Russian Federation). Payments will also be made in general order according to Art. 178 of the Labor Code of the Russian Federation. That is, a severance pay will be paid in the amount of the average monthly salary, and the director will retain the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including the severance pay).

), 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 a director on special additional grounds (Article 278 of the Labor Code of the Russian Federation):

removal from office of the head of the debtor company in accordance with bankruptcy law (clause 1 of article 278 of the Labor Code of the Russian Federation);
the authorized person made a decision to terminate the employment contract with the director (clause 2, 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 the dismissal of a director of a company.

The main thing is that they are indicated in the employment contract (additional agreement to it) and comply with current legislation.

Who can terminate the employment contract with the 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, clause 4, clause 2, article 33, article 40 of Federal Law No. 14-FZ dated 08.02.98, subclause 8, clause 1, art. 48, subparagraph 9, paragraph 1, article 65 and paragraph 3, article 69
the sole owner of the company's property (clause 2, article 7 of the Federal Law of February 8, 1998 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 does not need to indicate specific circumstances confirming the need to terminate the employment contract.

Compensation to the director upon dismissal in connection with the early dismissal of the director

If a decision is made to terminate the employment relationship with the director in the absence of guilty actions (inaction) of the head, compensation is paid to him (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 less than three times the average monthly salary of the employee. The parties to the employment contract should establish its size even at the conclusion of the employment contract. If this does not happen, its size can be determined and fixed later in an additional agreement.

Sometimes the condition of compensation upon dismissal 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 the director is dismissed on the basis of paragraph 2 of Article 278 of the Labor Code, the company should not pay compensation: there is no entry in the contract - there is no obligation to pay.

However, judges of the Supreme Court of the Russian Federation do not agree with this. They believe that the absence in the employment contract with the director of the clause on the payment of compensation and on 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 dated January 25, 2008 No. 5-B07-170).

The obligation to pay compensation also arises from the owner in cases where the contract was concluded before the entry into force of the Labor Code, and the necessary changes were not made to it. The dismissal of a director without payment of compensation, if he did not commit guilty acts that give rise to his dismissal, is a violation of the procedure for dismissal. The court may decide to reinstate the dismissed person (clause 4.3 of the decision of the Constitutional Court of the Russian Federation of March 15, 2005 No. 3-P).

The amount of compensation not established by the employment contract

It turns out that in the absence of a condition on compensation to the director upon dismissal in the employment contract, it still needs to be paid. In what size?

The parties to the employment contract may conclude an additional agreement to the employment contract immediately before the dismissal. In it, they will fix the amount and procedure for paying compensation.

In the event of a dispute between the owners of the company and the dismissed director, the decision on the amount of compensation and the procedure for its payment may be taken by the court, taking into account the actual circumstances.

This payment is a compensation for the adverse consequences caused by the loss of a job. 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 by continuing to work in his previous position, and the additional costs that he may have to incur as a result of the early termination of the contract (clause 4.2 of the Resolution of the Constitutional Court of the Russian Federation of March 15, 2005 No. 3-P).

Example
Employment contract with the General Director of Olimpstroybak LLC R.L. Khitretsov was concluded for a period until January 31, 2015. However, the owner of the company decided to dismiss the employee from December 20, 2014 for no apparent reason. The amount of compensation in the employment contract at the time of dismissal was not indicated, 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 annual bonus in the amount of the salary, if during the year the employee did not have disciplinary action and absenteeism, except for 28 calendar days annual paid vacation. According to the provision on bonuses, if an employee had unworked days for other reasons, including in connection with dismissal before the end of the year, the amount of the bonus is calculated in proportion to the number of working days actually worked during the year. At the same time, 28 calendar days of vacation are equated to 20 unworked working days.

R.L. Khitretsov was absent from work for 28 calendar days during 2014 annual leave and did not work 7 working days in December due to dismissal. The amount of the average monthly earnings 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. (100,000 rubles: 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 89,068.83 rubles. . 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. (100,000 rubles - 89,068.83 rubles). The total amount of lost earnings will be 142,749.35 rubles. (31,818.18 rubles + 100,000 rubles + 10,931.17 rubles).

The amount of three times the average monthly earnings is 277,272.73 rubles. (92,424.24 rubles × 3 months). The amount of earnings lost due to dismissal is less than this amount (142,749.35 rubles.

I. Grigoriev,
labor law expert