The head of a company is not only its first person. He has special rights, responsibilities and at the same time has the status of an ordinary employee. The procedure for early dismissal of the head of an organization has a number of features. From the material you will learn what are the grounds for dismissing a manager, how to formalize the dismissal of a director, whether the manager is entitled to compensation for dismissal, and also how the procedure for transferring cases occurs when a director is dismissed.

From this article you will learn:

• What are the grounds for dismissing a manager?
• How to formalize the dismissal of a director?
• Is the manager entitled to compensation for dismissal?
• What is the procedure for transferring cases when a director resigns?

Dismissal of a manager at his own request

The most common reason for termination employment contract with the head of the company is dismissal due to at will.

The director is obliged to notify the employer of his decision to leave the company in writing and no later than one month in advance. The employer in this situation is considered to be the owner of the organization’s property or his representative - the only participant or chairman of the board of directors or general meeting ().

The decision to terminate the powers of the current manager and appoint a new one to this position is made at a meeting by all participants of the company or the sole founder. Based on the results of the meeting, a protocol or decision of the founder must be drawn up.

How to formalize the dismissal of a manager at his own request

The procedure for dismissing a manager is directly affected by the grounds for termination of the employment contract. In any case, a record of dismissal is made in the work book either by the manager himself or by his employer who has entered into an employment contract. If, when concluding an employment contract, no decision was made on the procedure for maintaining a work book in relation to general director, upon termination of an employment contract, the procedure for making an entry in the work book should be reflected in the decision of the owners. If the owners of the property have not established a different procedure for maintaining the work book in relation to the head of the organization, the record of the dismissal of the head can be certified by his employer who entered into an employment contract with him; in column 4 the decision of the owners should be indicated and certified with the seal of the organization.

The minutes of the general meeting or the decision of the founder, however, may provide for a different procedure for dismissal ().

When dismissal is initiated by the manager, the contract is terminated in general procedure. A dismissal order is drawn up according to a unified or other approved by the organization. The document must indicate: Full name. employee, job title, date, reason for dismissal, details of the resignation letter and minutes of the general meeting. The entry in the work book looks like this: “The employment contract was terminated at the initiative of the employee, Article 77, part one, paragraph 3 Labor Code Russian Federation". In addition, details of the protocol or decision must be indicated. The record of dismissal is certified by the seal of the organization.

Dismissal of a manager by decision of the employer

There are several possible grounds for terminating an employment contract with a manager at the initiative of the employer.

If there are grounds, managers are most often fired for the following reasons:

Dismissal of a manager when the owner of the company changes

A change in the owner of the organization's property may be grounds for dismissal in relation to the head of the organization, his deputies and the chief accountant. This basis is applicable when ownership of an organization’s property passes from one person to another. An example would be the privatization of state or municipal property, the transfer of a state company to private property(). It should be noted that a change in jurisdiction or updating the composition of participants, according to current legislation, is not a change of owner and is not considered grounds for the dismissal of a manager ().

The new owner is given three months from the date of ownership to terminate the employment contract with the manager (Labor Code of the Russian Federation). The employer is not required to notify the employee in advance of the termination of the employment contract. However, in practice, the dismissed manager is usually informed about the upcoming termination of the contract in in writing.

Dismissal for making an unreasonable decision by the manager

Another common reason for dismissing a manager is the adoption of an unreasonable decision (). If the manager’s decision entailed a violation of the safety of property, its unlawful use or other damage to the organization’s property, the employer has a good reason for his dismissal. However, a manager can be fired only if it is proven that damage to the company was caused precisely as a result of his decision. If the employee had alternative options for exiting difficult situation, but he preferred a different solution, the employer has every right fire him (). If, however, the defendant does not provide evidence confirming the occurrence of the adverse consequences specified in , dismissal on this basis cannot be recognized as legal.

Dismissal for violation by the manager of his labor duties

Violation of the manager's job duties may also be considered grounds for dismissal (). A one-time violation of labor duties is grounds for termination of an employment contract in the event that we're talking about about a gross violation of the duties recorded in this agreement and related to the characteristics of the manager’s activities. For example, violation of the duties of a director may result in harm to the health of employees or property of the company (). This is possible in the event of failure to pay wages for more than three months due to the fault of the manager, an illegal transaction, or conduct of commercial activities using the organization’s property.

This basis for dismissal, according to , applies only to the head of the organization or his deputies. If the manager is a woman and is in a position, then the employer does not have the right to dismiss her for reasons own initiative except in case of liquidation of the company ().

How to formalize the dismissal of a manager by decision of the owner

If there are grounds for the dismissal of a director at the initiative of the employer, it is necessary to clarify whether disciplinary liability is provided for them.

When dismissing a manager, the employer is obliged to comply with the procedure for applying disciplinary sanctions (Art., Labor Code of the Russian Federation). The grounds for which penalties are provided include:

Dismissal of a manager Part one of Article 81:

• repeated failure by an employee to comply without good reasons work responsibilities, if he has disciplinary action
• committing guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of trust in him by the employer
• the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work
• making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization
• single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties

Dismissal by Article 336 of the Labor Code ( ):

• dismissal of an employee as a disciplinary sanction and in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee at the place of work and in connection with the performance of his job duties.

In cases where dismissal is a disciplinary measure, the employer is obliged to issue an order to terminate the employment contract in accordance with the organization’s own form. The document must indicate the basis for dismissal and details of documents confirming the commission of the offense. The manager must be familiarized with this order against signature and a report must be drawn up in case of refusal.

Early dismissal of a manager

According to the owner of the property, the board of directors, the supervisory board, the general meeting of participants or shareholders may decide to early terminate the employment contract with the manager. If making a decision on dismissal is within the competence of the authorized body by law or charter (), it has the right to make such a decision without any justification (clause 4.1 of the resolution of the Constitutional Court of the Russian Federation of March 15, 2005 No. 3-P) and prior notice leader. Authorized bodies legal entity has the right to make a decision on the early termination of the powers of the head of the organization if this falls within their competence, determined in accordance with federal law and constituent documents.

How is the early dismissal of a manager formalized?

In the event that the authorized body makes a decision on the early termination of an employment contract with a manager, it is necessary to draw up a corresponding protocol (). If there is only one participant or shareholder in a company, he must formalize a decision on early dismissal leader. It is necessary to issue an order to terminate the employment contract using a unified form or the company’s own form (see sample below).

A record of dismissal must be made in the manager’s work book with reference to the decision of the authorized body. The same entry is made in the employee’s personal card.

Payments upon dismissal of a manager

When dismissing a manager, the employer must comply with the same formalities as when dismissing any other employee of the company. It is necessary to issue a work book to the manager and make a full payment. The final payment must necessarily include compensation for unused vacations(Art., Labor Code of the Russian Federation). Compensation for the dismissal of a manager is also paid in the event of dismissal, the basis for which is a change of owner or a decision of an authorized body (Art.

Dismissal of the head of the organization under paragraph 2 of Article 278 of the Labor Code of the Russian Federation: commentary on the ruling of the Constitutional Court.

Labor Code Russian Federation following paragraph 4 of Art. 69 of the Federal Law of December 26, 1995 “On Joint-Stock Companies” (as amended on August 7, 2001) provided for the right of the authorized body of a legal entity, or the owner of the organization’s property, or a person (body) authorized by the owner to terminate an employment contract with the head of the organization without explanations of reasons. Next - the owner.

The decision to terminate the employment relationship itself acts in this case as an independent basis for dismissal. At the same time, no guarantees are provided by law, except for the compensation that is paid upon dismissal (Article 279 of the Labor Code of the Russian Federation).

This rule and the features of its application have been widely discussed in the legal literature. Main reason the debate arises is that the grounds for dismissal specified in the law are, in essence, not grounds, i.e. does not contain an indication of the reason that necessitates termination of the employment relationship. The owner’s decision to terminate an employment contract with the head of the organization is always due to some circumstance, and it is this circumstance that is the real reason dismissals.

In accordance with established doctrinal provisions, the reason for dismissal must be fair and justified. Labor legislation (the Labor Code and other federal laws) connects the possibility of dismissal at the initiative of the employer with three groups of circumstances:

• unlawful or immoral actions of an employee (or his inaction in violation of the requirements of the law, employment contract, local regulations)
• inability to perform job duties due to lack of sufficient qualifications or health status (inconsistency with the position held or work performed)
• existence of an objective need to terminate the employment contract for reasons not related to business qualities or the behavior of the employee (liquidation of the organization, reduction in the number or staff of employees, termination of access to state secrets, change of owner of the organization’s property)

The Convention also points to these same circumstances in a slightly different interpretation. International organization Labor No. 158 “On termination of labor relations at the initiative of the entrepreneur” (1982). Article 4 of this Convention provides that the grounds for termination of employment relations are associated with the abilities or behavior of the worker or are caused by the production needs of the enterprise, institution or service. Not ratified by the Russian Federation.

Clause 2 of Art. 278 of the Labor Code of the Russian Federation, contrary to the internationally recognized principle, allows for the unmotivated dismissal of the head of an organization. This rule “stands out” from the general system of legal norms on the dismissal of an employee at the initiative of the employer.

The possibility of dismissing the head of an organization without reference to any objective reasons related to his behavior, level of qualifications and business qualities, reorganization or liquidation of the organization he leads, was obviously provided in order to protect the interests of the owner, ensure his right to effectively manage his property, including the right to select and replace managers to whom he entrusts the management of the created legal entity. However, the implementation of this idea cannot be considered successful. The inclusion in the Labor Code of a rule on the dismissal of a manager in connection with the adoption by an authorized body of a legal entity, or the owner of the organization’s property, or a person (body) authorized by the owner of a decision on the early termination of an employment contract is very controversial from the point of view general principles termination of an employment contract at the initiative of one of the parties to the employment relationship. In addition, the mechanism for applying this norm contains a number of significant shortcomings. In particular, granting an employer an almost unlimited right to unilaterally terminate an employment relationship with a manager must obviously be balanced by compliance with a certain dismissal procedure. However, the Labor Code does not provide for such a procedure. If in relation to the heads of corporate organizations one can at least talk about the need to develop a collegial decision in the prescribed manner, then the dismissal of the head of a unitary enterprise or an organization financed from the budget is carried out without observing any procedural rules, as a rule, individually.

It is unlikely that such a difference can be considered justified, because the tasks and job responsibilities of heads of organizations of various organizational and legal forms are largely similar.

It should also be noted that there was no practical need to introduce such a basis for the dismissal of managers, since Art. 81, 278 of the Labor Code of the Russian Federation provide for a significant range of reasons that may cause the termination of an employment contract with the head of an organization. These include a change in the ownership of the organization’s property, the adoption of an unjustified management decision that resulted in property damage, and a one-time gross failure to fulfill one’s duties (clauses 4, 9, 10 of Article 81 of the Labor Code of the Russian Federation). In addition, current labor legislation provides for the possibility of establishing the grounds for termination of an employment contract with a manager in the employment contract itself.

The existence in labor legislation of a norm allowing unilateral unmotivated (actually unfounded) dismissal for a certain category of workers can be allowed only if there are effective defense mechanisms, which include the need to comply with the procedure for dismissal established by law (mandatory collegial decision on dismissal; warning the manager about the upcoming termination of the employment contract, etc.) and payment of compensation. Moreover, the minimum (guaranteed) amount of such compensation must be established by law.

The current labor legislation does not contain relevant provisions.

Thus, the norm of paragraph 2 of Art. 278 of the Labor Code of the Russian Federation can be characterized, to put it mildly, as very unfortunate and contradictory general provisions termination of an employment contract at the initiative of the employer. However, does this give grounds for recognizing it as contrary to the Constitution of the Russian Federation?

Clause 2 of Art. 278 of the Labor Code of the Russian Federation, indeed, in some way limits the rights of the manager compared to other employees. However, this limitation is consistent with the principles of differentiation legal regulation labor relations and is due to the special content labor activity the head of the organization and the nature of his duties. This norm is not discriminatory in nature, since differences in legal status are established on the basis of the basic feature of differentiation in labor law - the nature and content of work.

As the Constitutional Court rightly noted, unlike other employees, the manager manages the organization, including performing the functions of its sole executive body, performs on behalf of the organization legally meaningful actions(Article 273 of the Labor Code of the Russian Federation; clause 1 of Article 53 of the Civil Code of the Russian Federation). He actually exercises the owner’s powers to own, use and dispose of the organization’s property. Due to these circumstances, the profitability of the organization, the receipt of profit and its size, and sometimes the very existence of the organization depend on his actions. The position held allows the sole executive body of a legal entity, at its own discretion, to manage the organization, make law-making and law enforcement decisions that directly affect the interests of the owner. In this case, it is possible to make decisions that lead to property damage; causing damage to the business reputation of the organization (owner); carrying out activities contrary to the owner’s ideas about the proper (effective, proper) functioning of the organization.

In addition, the manager gains access to confidential information (including trade secrets), which can be used contrary to the interests of the owner.

Being a key figure in the management system of an organization, a manager has very wide opportunities to abuse his official position - to act in his own interests, neglecting the interests of the owner who has entrusted him with his property. For this reason, it is quite justified to present special requirements to him in order to protect the rights and legitimate interests of the owner of the organization’s property. First of all, this is following a unified concept of business development (carrying out statutory activities), which is shared by all management bodies of a legal entity (bodies and officials representing the owner), i.e. the presence of a commonality of views (positions) and trusting relationships between the owner of the organization’s property and its manager. A manager who does not agree (or does not agree in everything) with the directions (plans) of the organization’s activities determined by the owner (bodies representing the owner) can hardly be a reliable defender of his property interests (namely, this is the role assigned to the manager).

It should also be noted that corporate organizations are usually managed by a certain “team”, united by a unity of goals and ideas about how to achieve them. A single task (albeit less pronounced) exists when organizing the activities of a unitary enterprise, which plays a specific role in the economic mechanism of an industry, a subject of the Russian Federation, municipality; the functioning of a budget organization that solves certain social problems in conjunction with other problems of the development of a region or municipality. If this unity is violated, the connections in the control system are disrupted, it begins to malfunction, and its effectiveness sharply decreases.

To restore the functionality of the organization's management system, there is only one way out: to change the head of the organization by appointing to this position a person who is aware of the general tasks (goals) and is willing to make efforts to achieve them.

Thus, the establishment of special rules for terminating an employment contract with a manager is justified by the need to ensure effective management of the organization, maintaining a balance of interests of the employee (manager) and the employer (owner), the achievement of which is declared one of the objectives of labor legislation (Article 1 of the Labor Code of the Russian Federation).

It is important to emphasize that the Constitutional Court based its conclusions on the recognition that one of the powers of the owner (along with possession, use and disposal) is the right to manage property and independently determine the methods of management and the persons who are entrusted with its implementation. The use of this power is aimed at achieving maximum efficiency economic activity, protection of the owner’s interests in economic turnover. In relation to organizations financed from budgets of various levels, the specified power of the owner is exercised in order to ensure the effectiveness of management and achievement of goals public policy in the relevant field.

The above arguments served as the basis for the conclusion that neither the very fact of establishing an additional basis for terminating an employment contract with the head of an organization, nor the essence of this basis are discriminatory, do not violate the equality of employees before the court and the law, and do not deprive the manager of judicial protection. He can apply to the court for reinstatement if he believes that he has been discriminated against or that the procedure for making a decision on dismissal has been violated, or that the decision was made by a person (body) who does not have the appropriate authority.

The right to go to court is also guaranteed in the case where, during dismissal, the owner abused his rights (for example, compensation was not paid or its amount was not fair).

If the facts indicated by the manager are confirmed in court proceedings, the court restores the violated labor rights of the manager. This may result in reinstatement at work and payment for forced absence, for example, if the decision was made by an unauthorized body or in violation of the decision-making procedure. In case of non-payment of compensation established by law or payment in an amount not proportionate to the adverse consequences of dismissal, the court decides to pay compensation or sets its amount.

In accordance with the general rules for compensation for moral damage caused by violation of the labor rights of an employee (Article 237 of the Labor Code of the Russian Federation), the court may decide to pay the head of the organization monetary compensation for physical and moral suffering in connection with illegal dismissal under clause 2 of Art. 278 Labor Code of the Russian Federation.

The applicants also referred to a violation of the requirements of international legal acts, in particular the ILO Convention No. 156 of 1982 on termination of employment relations at the initiative of the entrepreneur, the European Social Charter, the Charter of Social Rights and Guarantees of Citizens of Independent States, approved by the Resolution of the Interparliamentary Assembly of States Parties of the Commonwealth of Independent States State

In this regard, it should be noted that assessing the compliance of Russian legislation with international acts is not the task of the Constitutional Court. In accordance with Art. 3 of the Federal Constitutional Law of July 21, 1994 N 1-FKZ “On the Constitutional Court of the Russian Federation” (with amendments and additions) The Constitutional Court of the Russian Federation resolves cases on the compliance of federal laws, other normative legal acts, as well as treaties, including international treaties of the Russian Federation that have not entered into force, the Constitution of the Russian Federation.

In addition, according to Art. 15 of the Constitution of the Russian Federation integral part The Russian legal system recognizes only ratified international treaties. The indicated international treaties (ILO Convention and the European Social Charter) have not been ratified by the Russian Federation, and compliance with the Charter of Social Rights and Guarantees of Citizens of Independent States, approved by the Resolution of the Interparliamentary Assembly of Member States of the Commonwealth of Independent States of October 29, 1994, due to its legal nature is entirely voluntary.

As for the content of these international acts, the applicants’ reference to the prohibition of discrimination has no practical significance, since the corresponding provision is contained in the Russian Constitution (Article 19). More interesting are the provisions of the European Social Charter, ILO Convention No. 158 and the Charter of Social Rights and Guarantees for Citizens of Independent States, which deal directly with the termination of an employment contract. Thus, the European Social Charter (Article 24) provides the following mechanism for protecting an employee upon dismissal at the initiative of the employer. Firstly, the dismissal of employees is recognized as justified only if there are good reasons related to their professional capabilities or behavior or to the production needs of the organization. Secondly, it proclaims the right of workers dismissed without good reason to receive adequate compensation and other benefits. Thirdly, the right of employees to appeal against unjustified dismissal is established.

As can be seen from the above, the provisions of the European Social Charter allow the dismissal of an employee without good reason, but subject to receipt of compensation. Since Art. 279 of the Labor Code of the Russian Federation provides for the payment of compensation for early termination of an employment contract with a manager; the norms of Russian legislation cannot be assessed as contradicting Art. 24 of the European Social Charter.

In connection with the assessment of Russian legislation for compliance with the European Social Charter, it is impossible to raise the question of a violation of the right of employees to appeal against unjustified dismissal.

The right of an employee (including a manager) to appeal any dismissal is provided for in Art. 391 Labor Code of the Russian Federation. The Constitutional Court, adopting the Resolution recognizing the norm of paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, which does not contradict the Constitution of the Russian Federation, emphasized that the leader’s right to judicial protection is unshakable. The court, considering the case of dismissal under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, establishes the authority of the official (body) who made the decision on dismissal, compliance with the dismissal procedure (if the decision was made collectively), considers the issue of whether the amount of compensation corresponds to the adverse consequences caused by the termination of the employment contract, and in case of non-payment of compensation, establishes its amount.

If we turn to the provisions of ILO Convention No. 158, we must admit that, along with establishing a general prohibition of unjustified dismissal, they provide for the possibility of exceptions for certain categories of workers. Among these categories, Art. 2 of the Convention refers to workers who have entered into an employment contract for a specific period, as well as workers in relation to whom special problems arise that are significant in the light of the special conditions of employment of the workers concerned.

These provisions lead to the conclusion that the ILO member state is given the right to independently determine the scope of those rules for terminating an employment contract that are established by Art. 4 of the Convention. Consequently, even if Convention No. 158 is ratified, the managers of an organization may be excluded from its scope, since they must enter into an employment contract for a certain period and perform a specific labor function, which gives rise to the establishment of “special conditions of employment”.

It is impossible to discern any contradictions between the norm of paragraph 2 of Art. 278 of the Labor Code of the Russian Federation and the provisions of Art. 7 Charter of Social Rights and Guarantees of Citizens of Independent States. This provision only prohibits the dismissal of an employee at the initiative of the employer other than in the cases and in the manner provided for national legislation. There are no requirements for the content of the legislation (with the exception of the prohibition of establishing discriminatory grounds for dismissal).

Thus, the Constitutional Court had no grounds for recognizing the norm of paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, which contradicts the Constitution of the Russian Federation. However, recognition of a norm as constitutional does not exclude the possibility of changing it in accordance with the general principles of labor law and the needs of practice. In particular, it is hardly worth using the term “early termination of an employment contract”, since in practice (contrary to the law) it is possible to conclude employment contracts with managers of an indefinite duration. Establishing for them fundamentally different conditions for terminating an employment contract at the initiative of the owner will create for them additional advantages that cannot be considered justified.

It is advisable to resolve the issue of indicating specific circumstances that may serve as grounds for dismissal of a manager in the absence of his guilty actions, for example: a change in the composition of shareholders (participants) of the organization, a change in the management strategy of the organization, etc. This would limit the owner’s ability to abuse his right to terminate the employment contract with the manager.

In order to create a mechanism for protecting a manager upon dismissal for reasons not related to his guilty behavior, inadequacy of the position held or objective circumstances, it is necessary to provide for a certain dismissal procedure: collegial decision-making on termination of the employment contract (coordination of this decision with the relevant government body, local government body ), warning from the manager, principles for determining the amount of compensation paid, the minimum amount of such compensation, etc.

Until the legislator makes the necessary changes to Art. 278, 279 Labor Code of the Russian Federation, clause 2 of Art. 278 of the Labor Code of the Russian Federation can be applied only in accordance with the identified constitutional meaning of this norm.

In accordance with the Resolution of the Constitutional Court of March 15, 2005, dismissal under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation should not be associated with the guilty behavior of the manager.

The conclusions of the Constitutional Court are based on the fact that unlawful behavior of any employee, including the head of an organization, can serve as grounds for dismissal only if a number of conditions are met, in particular:

• the misconduct committed by the manager must be provided as a basis for termination of the employment contract by the current legislation or the employment contract concluded with him
• evidence must be provided of the manager’s commission of relevant actions (his inaction)
• the director's guilt must be proven
• the dismissal procedure established by law must be followed

Dismissal without complying with the specified conditions would allow the application of sanctions without proof of guilt and providing the employee with guarantees of judicial protection, which can be qualified as gross violation general principles of legal responsibility in a rule-of-law state.

Due to the fact that upon dismissal under clause 2 of Art. 278 of the Labor Code of the Russian Federation, the owner is exempt from the obligation to motivate his decision and prove the existence of specific circumstances that served as the basis for termination of the employment relationship; he cannot refer to the manager’s violation of his labor duties. The presence of wrongdoing and guilt must be proven.

Dismissal without specifying reasons must be accompanied by payment of compensation, the amount of which is determined by agreement of the parties.

The purpose of establishing compensation is to level out the adverse consequences associated with unexpected and unmotivated dismissal. Such consequences include changes in life plans, the need to look for a job, psychological stress, etc.

Due to the fact that, unlike other grounds for termination of an employment contract upon dismissal under clause 2 of Art. 278 of the Labor Code of the Russian Federation, the employee does not enjoy a number of guarantees (he is not warned about the termination of employment relations, the dismissal procedure is not followed in relation to him, since such a procedure has not been established, he is not offered another job, severance pay is not paid), paid in accordance with Art. . 279 of the Labor Code of the Russian Federation, compensation is actually the only means of social protection. Therefore, its size must be reasonable and fair, adequate to the adverse consequences that may occur for the manager in connection with the dismissal.

Reasonableness and fairness of compensation are ensured primarily by providing the parties with the opportunity to determine its amount by agreement, i.e. taking into account the legitimate interests of the manager and the financial capabilities of the owner. It is not allowed for the owner to determine the amount of compensation unilaterally. If for some reason the payment of compensation is not provided for in the employment contract, and the manager is dismissed under clause 2 of Art. 278 of the Labor Code of the Russian Federation, the parties must determine the amount of compensation for unmotivated termination of the employment contract immediately before issuing the dismissal order.

The goal of ensuring reasonableness and fairness of compensation should also be served by its legislative establishment. minimum size. However, Art. 279 of the Labor Code of the Russian Federation does not provide for this size, which served as the basis for recognizing it as contrary to the Constitution of the Russian Federation in this part.

In practice, before the corresponding amendments are made to Art. 279 of the Labor Code of the Russian Federation, it is necessary to be guided by the direction of the Constitutional Court on the comparability of the amount of compensation with the payments provided for labor legislation for similar situations of termination of an employment contract with the head of an organization due to circumstances beyond his control. As an example, the termination of an employment contract with the head of an organization due to a change in ownership is given (clause 4 of Article 81 of the Labor Code of the Russian Federation). In this case, the manager, in accordance with Art. 181 of the Labor Code of the Russian Federation, compensation is paid in an amount not less than three average monthly earnings.

Along with receiving compensation, managers enjoy the guarantees established for all cases of dismissal of employees at the initiative of the employer. The Supreme Court of the Russian Federation noted that the dismissal of the head of an organization in connection with the adoption by an authorized body of a legal entity, or the owner of the organization’s property, or a person (body) authorized by the owner of a decision on the early termination of an employment contract is essentially dismissal at the initiative of the employer. Therefore, the head of the organization is subject to the general guarantees provided for in Part 3 of Art. 81 of the Labor Code of the Russian Federation: he cannot be fired during the period of his temporary disability or while on vacation (clause 50 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

In the case when the head of a corporate organization (joint stock company, limited liability company, production cooperative, etc.) resigns, the circle of guarantees is further expanded by complying with the decision-making procedure by the management bodies of the legal entity. For example, Federal Law No. 208-FZ of December 26, 1995 “On Joint-Stock Companies” (as amended and supplemented) provides for special rules for holding a general meeting of shareholders, which decides on the early termination of an employment contract with the manager (if the company’s charter resolves this issue is not within the competence of the board of directors), in particular, determines the content of voting ballots, the procedure for determining a quorum, the rules for counting votes, etc. Violation of these rules may serve as grounds for declaring dismissal illegal, since a decision made in violation of the established procedure can hardly be considered lawful.

Certain rules for making decisions by a body authorized by the owner may be provided for unitary enterprises and organizations financed from the budget. If such rules are established, they must be observed when deciding on the dismissal of the head of the organization on the specified grounds.

Guarantees upon dismissal of a manager under clause 2 of Art. 278 of the Labor Code of the Russian Federation can also be established by agreement of the parties to the employment contract. The Constitutional Court specifically pointed out the possibility of establishing in the employment contract the conditions for the application of clause 2 of Art. 278 Labor Code of the Russian Federation. Such conditions include the definition of additional guarantees compared to those established by law, for example: warning the manager about dismissal, maintaining (along with payment of compensation) average earnings for the period of employment, collegial decision-making on dismissal, etc. The parties may also stipulate the owner’s refusal to apply clause 2 of Art. 278 Labor Code of the Russian Federation. The practice of an employer voluntarily refusing to exercise the powers granted to him exists. For example, in some collective agreements, employers refuse to use overtime work, except in cases of extreme necessity (accident, natural disaster, etc.), or undertake an obligation not to involve employees who have worked for less than a year in the organization for overtime work. It seems quite possible to stipulate in the employment contract with the manager the obligation of the owner to justify the termination of the employment contract on the grounds provided for by labor legislation and the employment contract.

Revealing the constitutional meaning of paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, the Constitutional Court did not limit itself to establishing the conditions for the application of clause 2 of Art. 278 of the Labor Code of the Russian Federation - it determined the circle of managers who may be subject to this basis for dismissal. In accordance with the findings of the Court under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, both managers hired after February 1, 2002 (the date of entry into force of the Labor Code) and managers with whom the employment contract was concluded before the entry into force of the Labor Code can be dismissed.

This conclusion follows from the provisions of Art. 424 of the Labor Code of the Russian Federation, which establishes the procedure for applying the Code to legal relations that arose before its entry into force. Due to the fact that the employment relationship is ongoing, the emergence of the rights and obligations of the parties is not limited in time. In other words, in the event of termination of an employment contract (regardless of the time of its conclusion) after February 1, 2002, the rights and obligations regarding dismissal arise after the entry into force of the Labor Code. Accordingly, the provisions of the Code apply to them.

Clause 2 of Art. 278 of the Labor Code of the Russian Federation can also be applied to those managers who have entered into an employment contract with an indefinite duration, although a literal reading of the norm leads to the conclusion that only fixed-term employment contracts can be terminated on this basis.

The indication for early termination of an employment contract is based on the imperative norm of Part 1 of Art. 275 of the Labor Code of the Russian Federation on concluding an employment contract with the head of an organization for a certain period established by the constituent documents of the organization or by agreement of the parties. In turn, the provision of Part 1 of Art. 275 of the Labor Code of the Russian Federation is formulated in accordance with the rules for the formation of executive bodies of a legal entity, which are created for a certain period established by the constituent documents. There are no exceptions to this rule provided by law.

Thus, the legislator proceeds from the fact that only a fixed-term employment contract can be concluded with the head of an organization. Therefore, when providing for the grounds for termination of a contract, the Labor Code uses the term “early termination”. However, in practice, deviations from the established rule are allowed. In addition, a fixed-term employment contract with the head of an organization can be transformed into a contract with an indefinite duration if the contract has expired and neither party has demanded its termination (Part 4 of Article 58 of the Labor Code of the Russian Federation).

If we adhere to the literal reading of the norm of paragraph 2 of Art. 278 of the Labor Code of the Russian Federation and allow termination on this basis only of fixed-term employment contracts, it turns out that managers, depending on whether they entered into a fixed-term employment contract or an agreement without specifying a validity period, will have different legal status. And this would mean a violation of the equality of rights and opportunities of managers who, in strict accordance with the requirements of the law, entered into fixed-term employment contracts, because there are no other differences in activities and legal status managers who entered into contracts various types, does not exist. The nature of work and the content of job responsibilities of managers do not depend on the establishment of labor relations for a term or without specifying a period, and it is these criteria that form the basis for the differentiation of the legal regulation of the work of managers.

By virtue of this, the norm of paragraph 2 of Art. 278 of the Labor Code of the Russian Federation on the possibility of early termination of an employment contract should be applied as general rule, i.e. to all labor relations with the heads of organizations, including in cases where, for some reason, an open-ended employment contract was concluded with the manager or a fixed-term employment contract was transformed into an agreement with an indefinite duration.

The CEO, like any other employee of the company, is an employee. However, labor relations with him are additionally regulated by special legal norms.

Legal status of the manager

Head of the organization - individual, which manages this organization, including performing the functions of its sole executive body (Article 273 of the Labor Code of the Russian Federation).

The procedure for appointing or electing bodies of a legal entity, in accordance with paragraph 1 of Article 53 Civil Code of the Russian Federation, is determined by law and constituent documents. Thus, federal laws of February 8, 1998 No. 14-FZ and of December 26, 1995 No. 208-FZ provide that the formation of the executive body of the company and the early termination of its powers are within the competence of the general meeting of shareholders (participants), if the charter decides These issues are not within the competence of the board of directors (supervisory board). Therefore, the establishment of labor relations with the general director, as well as their termination, is preceded by the adoption of a decision by the authorized body of the legal entity. It is drawn up in the form of a protocol (or in the form of a decision, if there is only one shareholder (participant).

Grounds for termination of an employment contract

Chapter 43 of the Labor Code of the Russian Federation is devoted to the regulation of the work of the head of an organization.

As a rule, an employment contract with the general director is concluded for a certain period, that is, it is fixed-term (a standard form exists only for an employment contract with the head of a state (municipal) institution, it was approved by Decree of the Government of the Russian Federation of April 12, 2013 No. 329). Commercial organizations can also use certain provisions of the form. Moreover, there are much more grounds for terminating such a contract than for terminating an employment contract with an ordinary employee (general grounds for terminating an employment contract and cases of its termination at the initiative of the employer are established in Articles 78 and 81 of the Labor Code of the Russian Federation).

This is due to the fact that the efficiency of the company’s economic activities, rational property management, and the ability to carry out many business operations depend on the actions of the general director as an executive body. In this connection, a disciplinary sanction in the form of dismissal may be imposed on the manager, for example, for the following actions:

Making an unfounded decision that resulted in a violation of the safety of property, its unlawful use or other damage to the organization’s property (subclause 9, clause 1, article 81 of the Labor Code of the Russian Federation);
- a one-time gross violation of one’s labor duties (subclause 10, clause 1, article 81 of the Labor Code of the Russian Federation).

Additional grounds are established in Article 278 of the Labor Code of the Russian Federation (it is possible to terminate the contract under them only with the head of the company). This:

Removal from office of the head of the debtor organization in accordance with insolvency (bankruptcy) legislation;
- adoption by an authorized body of a legal entity, or the owner of the organization’s property, or a person (body) authorized by the owner of a decision to terminate the employment contract;
- other grounds provided for in the employment contract.

As you can see, the list is open.

Let us pay attention to two important nuances.

1. The grounds for terminating an employment contract with a manager, as already noted, can be specified directly in the employment contract. Moreover, commercial organizations have the right to determine them independently by decision of the authorized body, depending on the adverse consequences that occurred due to the fault of the manager. For example, such as failure to achieve approved financial indicators, the presence of losses, the application of penalties to the organization, the presence of overdue accounts payable, etc. In this situation, termination of the employment contract is carried out in accordance with paragraph 3 of Article 278 of the Labor Code of the Russian Federation.

It should be taken into account that an employment contract with a manager is not allowed to be terminated if his failure to fulfill his duties is caused by objective reasons independent of his will.

2. If the authorized body of a legal entity decides to dismiss the general director, but the employment contract does not provide for a specific reason, then the employment contract may be terminated in accordance with paragraph 2 of Article 278 of the Labor Code of the Russian Federation. In this case, it is not necessary to indicate specific circumstances confirming the need for dismissal (decision of the Supreme Court of the Russian Federation dated December 17, 2010 No. 55-B10-2).

Payment of compensation

If the employment contract with the general director is terminated due to a disciplinary offense or guilty actions specified in the employment contract as grounds for its termination, then no additional compensation is paid. If the employment contract is terminated in accordance with paragraph 2 of Article 278 of the Labor Code of the Russian Federation (that is, without specifying the reasons), there is no reason to believe that the dismissal is due to a violation of specific duties. Therefore, termination of an employment contract on this basis cannot be considered as a measure of legal liability and the general director must be paid monetary compensation. Its amount is determined by the employment contract or agreement of the parties (if the amount is not specified in the employment contract, and an agreement could not be reached, then the general director must be paid compensation in an amount not less than three times the average monthly salary (Article 279 of the Labor Code of the Russian Federation)).

Transfer of cases

The General Director is obliged to exercise his powers until the date of dismissal specified in the decision (minutes). This date is his last day of work. The procedure for transferring cases by employees, including the general director, is not regulated. Therefore, the transfer procedure can be established by the employment contract upon its conclusion. If this is not done, then the actions are normal (as for other employees). In particular, it is necessary to return property received for use during the performance of work duties and report on the expenditure of the amounts taken into account. In addition, the general director must transfer to an authorized person (for example, the new general director) the documents that he received upon taking office (original constituent documents, etc.).

Financial responsibility

The head of the company is recognized as a financially responsible person by virtue of the law (clause 1 of article 243, article 277 of the Labor Code of the Russian Federation). When changing materially responsible persons, the organization, in accordance with paragraph 27 of the Regulations on maintaining accounting... (approved by order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n), must conduct an inventory. This means that termination of the employment contract with the general director entails the need to conduct an inventory. The current manager himself must make an order about this.

An assessment of the effectiveness of the manager’s activities and his guilt in the presence of shortages, losses and other omissions can be made by a commission specially created by the authorized body of the legal entity (not to be confused with the inventory commission). She must evaluate not only the shortcomings in the safety of property identified by the inventory, but also the work of the general director as a whole, including the causal relationship between his actions and the adverse consequences for the organization.

Therefore, if, as a result of the inventory and the work of a special commission, damage caused by the fault of the general director is revealed, then claims for compensation may be presented to him. This applies to shortages of goods and materials, spending funds for personal purposes, unjustified write-off of receivables, etc. (decision of the Moscow City Court dated June 17, 2010 in case No. 33-17946).

Pay attention! The provisions of Chapter 43 “Features of regulation of the work of a manager...” of the Labor Code of the Russian Federation (on financial liability, on additional grounds for termination of an employment contract, etc.), according to Article 273 of the Labor Code of the Russian Federation, do not apply in cases where:
- the head of the organization is the only participant(founder), member of the organization, owner of its property;
- the organization is managed under an agreement with another organization (management organization) or individual entrepreneur(managers).

Compensation for damage

Amount of compensation according to general rule must cover direct actual damage, that is, determined without taking into account lost profits.

However, in cases provided for federal laws, the manager compensates the organization not only for direct damage, but also for losses, including, according to paragraph 2 of Article 15 of the Civil Code of the Russian Federation, the costs of restoring the violated right and lost profits (Article 277 of the Labor Code of the Russian Federation, paragraph 5 of Article 71 of Law No. 208 -FZ, clause 5, article 44 of law No. 14-FZ).

The employer (authorized body, owner of the organization's property) may provide for a condition on financial liability in the employment contract or conclude a separate agreement with the manager on full financial liability. However, as stated in paragraph 9 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52, the absence of an agreement on full financial liability or conditions in the employment contract does not relieve the general director from financial liability. At the same time, such liability of the manager is excluded, in particular, in the case of normal economic risk, when:

The set goal could not be achieved otherwise;
- the manager properly fulfilled the tasks assigned to him job responsibilities, showed a certain degree of care and prudence, took measures to prevent damage;
- the object of risk was material values, and not the life and health of people.

The corresponding explanations are given in paragraph 5 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 52.

A complete list of reasons why a manager is exempt from the obligation to compensate for damage is given in Article 239 of the Labor Code of the Russian Federation.

Paperwork

In all cases (regardless of whether the procedure for transferring cases is provided for in the employment contract, whether an inventory has been carried out, or whether the established commission has completed its work), the employment contract with the general director cannot be terminated later than the date specified in the decision of the authorized body.

Order

Termination of an employment contract must be formalized by order (instruction) of the employer (Article 84.1 of the Labor Code of the Russian Federation).

The document must provide the basis formulated in the decision of the founders (participants) or other authorized body. Let me explain.

If the basis for termination of an employment contract with the general director is a culpable action provided for in the employment contract, then the order must indicate this basis with reference to a specific clause of the employment contract. For example, “...the presence, through the fault of the manager, of overdue accounts payable exceeding the value of net assets, paragraph 10 of the employment contract dated March 15, 2010, paragraph 3 of Article 278 of the Labor Code of the Russian Federation.”

If the employment contract is terminated due to a decision being made by the authorized body of the legal entity (without specifying a specific reason), then the wording will be different. For example, “... the adoption by the board of directors of Zapad-Stroy LLC of a decision to terminate the employment contract dated September 1, 2011, paragraph 2 of Article 278 of the Labor Code of the Russian Federation.”

As a document that is the basis for terminating an employment contract with the general director, the order indicates the document that formalizes the corresponding decision (minutes of the general meeting, minutes of the board of directors, etc.).

Issuing an order by a manager without making such a decision is unlawful. Thus, in the resolution of the Federal Antimonopoly Service of the West Siberian District dated April 19, 2011 in case No. A45-18709/2010, it is noted that the termination of the powers of the general director on the basis of his own order is not provided for by law.

If the general director terminates the employment relationship on his own initiative, and the shareholders (participants) avoid holding a meeting and making the appropriate decision, then from the moment of expiration of the period specified in the notice of intention to terminate the employment contract, the employment relationship between the head of the organization, who is an employee in these legal relations , and the employer-organization are terminated. This is due to the fact that the Labor Code of the Russian Federation does not establish the mandatory presence of a decision of the owner (shareholder, participant) to terminate an employment contract with a manager on the latter’s initiative, but only contains a condition on the need for a month’s notice (the head of an organization has the right to terminate an employment contract early by warning this employer (owner of the organization's property, his representative) in writing no later than one month (Article 280 of the Labor Code of the Russian Federation)).

Entry in the work book

In the work book, the basis for termination of the employment contract (column 3) must correspond to the contents of the order.

For example, “The employment contract was terminated due to the fault of the manager of overdue accounts payable exceeding the value of net assets, paragraph 10 of the employment contract dated March 15, 2010, paragraph 3 of Article 278 of the Labor Code of the Russian Federation.”

Or “The employment contract was terminated due to the adoption by the board of directors of Zapad-Stroy LLC of a decision to terminate the employment contract dated September 1, 2011, paragraph 2 of Article 278 of the Labor Code of the Russian Federation.”

In column 4 of the work book, enter the name, date and number of the order (instruction) or other decision of the employer. In addition to the details of the order, it is advisable to indicate in it the details of the minutes of the general meeting or the decision of another authorized body (when making a dismissal entry in the work book of the general director, you should be guided by clause 5.1 of the Instructions for filling work records, approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69).

Entries in the manager’s work book are made by the employee responsible for maintaining work books; the general director must certify the dismissal record as an employee. This procedure is established in paragraph 35 of the Rules... approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 (hereinafter referred to as the Rules). The work book is issued on the day of dismissal. Upon receipt, in accordance with paragraph 41 of the Rules, the general director is obliged to sign the personal card and the book for recording the movement of work books and inserts in them.

Calculations

All amounts due to the General Director ( wages, compensation for unused days vacations, etc.) must be paid on the day of termination of the employment contract, that is, on the day of dismissal (Article 140 of the Labor Code of the Russian Federation).

If he did not work that day, the corresponding amounts are not paid. later in the day, following the presentation by the dismissed employee of a request for payment.

Please note that if the general director is presented with a demand for compensation for damage caused to the organization, but he does not agree to compensate it voluntarily, then the amount of damage cannot be deducted from the amounts due in connection with the dismissal. In this case, forced recovery of damages must be carried out in court.