Who should pay the director of the MUP upon his dismissal. Compensation upon dismissal of the director by decision of the founder Dismissal of the director and calculation of his severance pay

The employer can dismiss the head of the organization without giving reasons. When dismissing, the type of employment contract does not matter (fixed-term or indefinite). However, it is always necessary to pay compensation upon dismissal. We will figure out how and in what amount you need to pay compensation to a dismissed employee. We will help you understand how it differs from severance pay.

Who is entitled to compensation upon dismissal by decision of the owner

If the dismissal occurs by decision of the owner, then compensation is due only to the head of the organization (director, to CEO). The head of a branch or representative office is paid only when he performs the functions of the sole executive body.

Compensation is not paid to employees who manage only certain areas of the company's activities, as well as to individual entrepreneurs.

When is compensation paid, and when is severance pay upon dismissal of the director

Compensation is always paid upon dismissal of the director by decision of the authorized body, namely the owner of the property, the board of directors, etc.

The decision to terminate the employment contract with the director should be within the competence of the authorized body in accordance with the law or the charter of the enterprise. And the employer is not required to state the reason for the dismissal.

If the director is transferred to another position, then in this case the contract with him is not terminated and compensation is not paid, but simply an additional agreement is concluded indicating new functions.

Compensation is paid upon dismissal to the director by decision of the authorized body or change of ownership.

Severance pay is not severance pay.

severance pay is paid to any employee if the employment contract with him is terminated by certain grounds.

List of grounds for the payment of severance pay:
liquidation of the enterprise;
Reducing the number or staff of employees in the enterprise;
Refusal to transfer to another job, which is necessary for medical reasons;
An employee is called up for military service;
Reinstatement of an employee who previously held this position;
Refusal to transfer to another locality together with the employer;
Refusal to continue work due to a change in the terms of the employment contract.

What is the amount of compensation due upon dismissal of the director

To director's resignation compensation paid on the condition that he did not commit guilty actions (inaction) (Article 279 of the Labor Code of the Russian Federation).

The legislation does not determine the amount of compensation for the dismissal of a director. The amount of compensation must be written in employment contract, but not less than three times the average monthly salary of a director.

If the termination of the employment contract with the director occurs due to guilty actions, then compensation is not provided.

If the amount of compensation payment in the employment contract is not defined, then it can be indicated in the protocol general meeting. In case of non-payment of compensation former director may apply to the court, which will determine the amount of payment itself.

When determining the amount of payment, the following circumstances will be taken into account:

duration of work of the dismissed director in this position;
the time until the expiration of the fixed-term employment contract;
the size wages, which the dismissed person could receive if he continued to work in the company;
additional expenses that an employee may incur as a result of dismissal.

The maximum amount is not provided by law, but should be reasonable. If the court concludes that the amount of the payment violates the interests of the organization or other employees, then it can reduce it

The procedure for the dismissal of a director

When dismissing a director at an enterprise, it is necessary to take the actions that are presented in the table:

Preparation of a protocol on termination of an employment contract	This document must indicate the reason for the dismissal. As a basis, there may be a statement of the director about his dismissal due to own will, agreement of the parties, decision of the participants, memorandum on the commission by the director of actions under article 81 of the Labor Code of the Russian Federation.
Issuing an order	The order is issued in the T-8 form and registered in the journal
Work Transmission	The director transfers the affairs and property of the enterprise to the employer under the act
Settlement with an employee	Salary and compensation paid unused vacation
Filling out a personal card	A record of dismissal is made in the personal card in the form T-2. With the record you need to familiarize yourself with the signature.
Entry in the workbook	The notice of dismissal is entered in work book and handed over to the director
Notify bank	It is necessary to notify the bank where the company's current account is opened about the dismissal of the director
Notification to the IFTS	Within three days, it is necessary to notify the Federal Tax Service Inspectorate of the dismissal of the director and the transfer of powers to another manager in the form 14001

Responsibility of the employer for non-payment of compensation upon dismissal of the director

On the last day of the director's work, the employer must make a full settlement with him, namely, pay wages for the time worked, compensation for unused vacation and due compensation upon dismissal.

The employer will violate the procedure for terminating the employment contract if he does not pay the due compensation to the dismissed manager and, at the same time, incur heavy losses. In this case, the employee can go to court and recover not only the amount of compensation, but also interest for each overdue child, as well as compensation for non-pecuniary damage. In addition, for non-payment or violation of the terms for payment of compensation, the employer bears administrative and criminal liability.

Typical mistakes when dismissing a director

Error: The employer hired a director with whom an employment contract was concluded. Only it was not spelled out about the payment of compensation upon dismissal. When the director was dismissed by decision of the authorized body, compensation was not paid.

178 Labor Code Russian Federation(hereinafter - the Labor Code of the Russian Federation) upon termination of the employment contract in connection with the liquidation of the organization (clause 1 of part

1 st. 81 of the Labor Code of the Russian Federation) or by reducing the number or staff of the organization's employees (p. 2 hours

1 st. 81 of the Labor Code of the Russian Federation), the dismissed employee is paid a severance pay in the amount of the average monthly earnings, and he also retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (with offsetting the severance pay).

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the public employment service agency, provided that the employee applied to this agency within two weeks after dismissal and was not employed by him. Severance pay paid to an employee in the amount established by Art.

The exceptions are payments in the form of severance pay, average monthly earnings for the period of employment, compensation to the following categories of persons (para.

8 p. 3 art. 217 of the Tax Code of the Russian Federation): the head of the organization; deputy head; chief accountant.

So, if the transferred payments in total exceed three times (six times - for employees of the Far North and equivalent areas) the average monthly salary, then the excess amount is subject to personal income tax. According to the norms of the Labor Code of the Russian Federation, compensation is due to the head of the organization only on the condition that the basis for dismissal is the acceptance by the authorized body legal entity or by the owner of the property of the organization of a decision to terminate the employment contract with him (in the absence of guilty actions (inaction) on the part of the head) (Art.

Compensation upon dismissal of the chief accountant

dated 07/03/2018) (as amended.

and additional intro.

effective from 01.10.2018) the amount of payments in the form of severance pay, average monthly earnings for the period of employment, compensation to the head, deputy heads and chief accountant of the organization in the part exceeding in general three times the average monthly salary or six times the average monthly salary for employees, dismissed from organizations located in the regions of the Far North and equivalent areas; Articles, comments, answers to questions.

Compensation upon dismissal of the CEO

dated 07/03/2018) "On insurance premiums to the Pension Fund of the Russian Federation, Fund social insurance Russian Federation, federal fund compulsory medical insurance” compensation to the head, deputy heads and chief accountant of the organization in the part exceeding three times the average monthly salary; Articles, comments, answers to questions.

Compensation upon dismissal of the CEO A guide to corporate disputes.

Compensation upon dismissal of the head

2 tbsp. 246 of the Labor Code of the Russian Federation.

the provisions of this chapter apply to the heads of organizations, regardless of their organizational and legal form and form of ownership. The exceptions are cases when the head is the sole participant (founder), member of the organization, owner of its property, as well as cases when the management of the organization is transferred managing organization or an entrepreneur.

The head of the organization means a person authorized to manage it, as well as to take actions on behalf of the organization to implement its rights and obligations.

Payment of golden parachutes: explanations of the RF Armed Forces

No. 56-FZ). The listed subjects can receive upon dismissal only their triple monthly earnings, no more.

This was done to exclude the possibility of paying top managers of companies with state participation unmotivated multimillion-dollar benefits (see, for example, Determination of the Supreme Court of the Russian Federation No. 307-ES14-8853 of March 30, 2015).

Now, however, it is allowed to limit in court the amount of these payments to the heads of all other organizations - on the basis of the Decree of the Plenum of the RF Armed Forces dated June 2, 2015 No.

Calculation of the average monthly earnings for payment to the head of the organization of compensation in connection with the dismissal

139 of the Labor Code of the Russian Federation. According to Ch.

3 art. 139 of the Labor Code of the Russian Federation, in any mode of operation, the calculation of the average salary of an employee is based on the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains the average salary.

This sample employment contract with the general director of an LLC is not legally defined as mandatory. Chapters other than the preamble, the subject matter of the treaty and final clauses may go in a different order. They may have other names, the rights and obligations of the parties may be placed in different chapters.

Incentive payments are taken into account when calculating compensation, but maternity leave, maternity care are not taken into account. Compensation is calculated based on the average daily earnings, on the basis of which the average monthly earnings are calculated by finding the product of the average daily wage and the number of working days for the last year and multiplying the result by 3.

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

The dismissal of a director by decision of the founder means termination of the employment contract with the sole executive body of an LLC or JSC (director, general director, president, etc.) based on the decision of the competent management body of the LLC or JSC (the sole participant of the LLC, the general meeting of participants in the LLC, the general meeting of shareholders of the JSC, and sometimes the board of directors LLC or JSC).

If all participants (founders) of the LLC agree, you can hold the meeting early, not observing the convening procedure established in the company (with the condition that all participants in the company will participate in it). But confirmation of the decision must also be carried out by a notary or in another manner, enshrined in the charter.

Compensation upon dismissal of the director by decision of the founder

The legislator does not specify what size should be compensation upon dismissal of the CEO(Such conditions are part of labor 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 claim 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, 2020 in case No. 11-12345/2020).

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. In addition, it is impossible to end an employment relationship during a vacation or a period of disability for an employee (paragraph 50 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

The procedure for the dismissal of the General Director according to the decision of the founder

If as a result of his actions property or financial damage was caused to the company.
For disclosing information about a company that is a trade secret.
When transferring to another company on a part-time basis.
If he grossly violated his labor duties.
In case of bankruptcy of the company.
If the owners of the enterprise change.

A lot of documentation is issued for the CEO to exercise special powers. For example, powers of attorney for the implementation of certain functions, an EDS for banking operations, etc. Upon dismissal, he must transfer all entrusted values to a new management or other competent person.

Compensation to the director upon dismissal in 2020

Despite the importance of the employment contract, first of all, it is necessary to take care of the implementation of the provisions of federal regulations, since they always take precedence over any local acts companies. Therefore, even if the employment contract does not contain a clause on the payment of compensation to the dismissed director, it must be paid, since he loses his job against his will.

On the last day of work, the director must familiarize himself with the order of his dismissal, after which the documents are transferred to the accountant and the personnel department employee. On the same day, the manager will receive a work book with a record of the reasons for dismissal and the balance of the money he has earned. He will be paid a salary for the last month, compensation for the vacation to which he was entitled, did not have time to use it, severance pay in case of dismissal not of his own free will and not for disciplinary acts or violation of the law.

How to fire the director of an LLC

9. Dismissal of the director upon liquidation of the organization. The director must be notified in writing of the liquidation of the company no later than two months in advance. The powers of the director are terminated after the appointment of a liquidator, while the duties of the liquidator can be performed by the former director himself, but already within the framework of a civil law contract.

The owners of the organization should keep in mind that the leader dismissed under Article 81 of the Labor Code of the Russian Federation has the right to demand in court that such dismissal be recognized as illegal. In this case, the defendant must reasonably prove that the harm to the health of employees or damage to the property of the organization was caused precisely by unjustified actions or inaction of the director.

Compensation to the director upon dismissal in connection with the adoption of the relevant decision by the authorized body

1. Upon dismissal under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation to the head, in accordance with Art. 279 of the Labor Code of the Russian Federation, compensation must be paid in the amount determined by the employment contract, but not less than three times the average monthly salary. Since in the case under consideration, the amount of compensation for this situation is not defined in the employment contract with the General Director, upon dismissal, the General Director should be paid an amount in the amount of three times the average monthly salary.

Taking into account the requirements of clause 5.5 of the Instructions, the wording of the entry in the work book (and, consequently, in the dismissal order) should be as follows: “Dismissed in connection with the decision by the authorized body of the legal entity to terminate the employment contract, clause 2 of Article 278 of the Labor Code of the Russian Federation ".

Dismissal of the CEO by decision of the founder

Upon dismissal of a director on the grounds given in paragraph 1, no compensation is expected to be paid in his favor. If the director is dismissed under clause 2, compensation is due, and its amount should not be less than 3 monthly salaries (unless a larger payment is provided for by the employment contract).

Form P14001 is generally submitted to the tax service by the founders themselves (since the new director at that time - before the changes in the Unified State Register of Legal Entities - from the point of view of administrative law, does not have the authority to submit any documents to the Federal Tax Service). But in some cases, the FTS agrees to accept this document and from the former director (since, despite the termination of work in the company under the Labor Code of the Russian Federation, from the point of view of the Federal Tax Service, he still remains the head of the organization).

Change of owner of the organization. Preparation of documentation for the transfer of the company from one owner to another. Within 3 months thereafter, the incumbent director must be notified of his removal from office.

The nuances of the dismissal of a director by decision of the founder: the procedure for the procedure, as well as a sample notification

causing damage to the organization through the illegality of the actions taken. In this case, a decision is made to deprive the post without compensation. Documentation is being prepared (orders and financial statements) to confirm the damage caused to the company, in accordance with Art. 81 h. 1 p. 9.

In the absence of evidence, it is unlikely that litigation will be avoided, and a dismissed employee may seek reinstatement to the position of director through the courts. Upon completion of the proceedings, an act is drawn up containing all the information about this proceedings.

Getting fired for drinking alcohol working time. An act is drawn up, with the participation of at least 2 witnesses, and a medical examination is carried out. In case of refusal to conduct an inspection, an appropriate mark is put in the act.

disclosure trade secret. It is required to fix this fact and demand explanations in writing. If the perpetrator refuses, 2 eyewitnesses should be invited and the act should be drawn up in their presence.

Termination of the employment contract without explanation of the reason. The current director must be notified of this 30 days in advance.

End of the contract. The founder or the board of founders must decide whether to replace the manager or extend his employment contract.

Liquidation of company. At least 2 months in advance, the manager must be given notice of the termination of the organization. The powers of the director terminate immediately after the election of the liquidator.

Bankruptcy. Formation liquidation commission, filing in court of Arbitration motions to remove an incumbent director. With a positive court decision, the current director is removed from the management of the company, his powers are transferred to the temporary manager (Article 69, paragraph 1 federal law RF).

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 labor relations on this basis, it 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 the employment relationship. We will talk about providing compensation of this kind in our article.

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

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 when:

the sole founder is the sole executive body of the 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.
Records are made in the work book and personal card.
Salaries and compensations are paid.

Thus, the procedure for terminating the contract, generally 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. In addition, it is impossible to end an employment relationship during a vacation or a period of disability for an employee (paragraph 50 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 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 (definition 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 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:

The amount of compensation upon dismissal of the CEO \u003d Total salary for 12 months / Number of days actually worked for the period × 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 claim 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 established in minimum size 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.

From this article you will learn:

when the director is entitled to compensation, and when - severance pay;
what compensation is paid to the head upon dismissal;
What is the responsibility of the employer for non-payment of compensation.

Who is entitled to compensation upon dismissal by decision of the owner

Compensation upon dismissal by decision of the owner or authorized body is due only to the head of the organization (director, general director and other executive bodies of enterprises). The head of a branch or representative office is entitled to payment only in cases where the functions of the sole executive body of the organization are assigned.

Compensation is not paid to employees who manage only certain areas of the company's activities (for example, a supervisor who forms the subject scientific research or artistic director of the theater responsible for creative activity). In addition, compensation is not paid to an individual entrepreneur.

When the manager is entitled to compensation upon dismissal, and when - severance pay

Compensation upon dismissal of the head is always paid upon dismissal by decision of the authorized body (the owner of the property, the board of directors, the supervisory board, the general meeting of participants or shareholders, the body empowered to decide on the dismissal of the head).

The issue of making decisions on terminating the employment contract of the head should be within the competence of the authorized body by law or charter. The employer is not obliged to justify the decision to dismiss the head of the company.

If the director is transferred to another position within the organization, there is no need to pay compensation, since the employment contract is not terminated, but changed labor function ().

Severance pay is not severance pay. Severance pay is paid to any employee if his employment contract is terminated for certain reasons. Compensation is paid upon dismissal of the head in connection with the decision of the authorized body or the change of ownership.

How much compensation is paid

The law does not establish a specific amount of compensation. The amount of the payment is prescribed in the employment contract or additional agreement. However, there is a minimum limit - compensation cannot be lower than three times the average monthly salary (art., Labor Code of the Russian Federation).

If the employment contract with the director is terminated on guilty grounds (for example, for violation or non-fulfillment job duties, making an unreasonable decision), then it is impossible to fix in the employment contract a condition on the payment of compensation to him upon dismissal.

If the amount of payment is not defined in the employment contract, then it can be indicated in the minutes of the general meeting of participants. If compensation is not paid, then the former employee can go to court and he will determine the amount of the payment himself. In doing so, the following circumstances will be taken into account:

duration of work of the dismissed director in this position;
the time until the expiration of the fixed-term employment contract;
the amount of wages that the dismissed person could receive if he continued to work in the company;
additional expenses that an employee may incur as a result of dismissal.

The maximum limit of compensation is not set by law, but should be reasonable. If the court concludes that the amount of the payment violates the interests of the organization or other employees, then it can reduce it ().

heads, deputy heads, chief accountants, as well as members of collegiate executive bodies state companies and corporations and business companies, in the authorized capital of which more than 50 percent of the shares are in the state or municipal property;
heads, their deputies, chief accountants of state off-budget funds Russia, state or municipal institutions, state or municipal unitary enterprises.

The employer will violate the procedure for terminating the employment contract if it does not pay the due compensation to the dismissed manager. In this case, the company may suffer losses. After all, if an employee goes to court, he will be able to recover not only the amount of compensation, but also interest for each day of delay, as well as compensation for non-pecuniary damage. In addition, for non-payment or violation of the terms for payment of compensation, the employer bears administrative and criminal liability.

Important Findings

1. If the manager is fired not for guilty actions, but by decision of the owner or authorized body, he is entitled to compensation.
2. The amount of compensation is set in the employment contract, and it cannot be less than three average monthly earnings. If it is not prescribed, then the amount of compensation will be determined by the court.
3. If the employer fails to issue or does not issue compensation on time, the employee may demand compensation for moral damage, the amount of compensation and interest for each day of delay in payment.