How to properly register an appointment to the position of General Director? Question: what is the procedure for transferring the general director of an LLC to another position? whether he needs to be fired, and after entering information into the Unified State Register that the general director has been replaced, it is clear.

Question

What documents must be completed when transferring the general director to the position of commercial director? Is it necessary to apply for dismissal from the position of General Director in this case?

Answer

Termination of powers of the manager and his transfer to another position is formalized protocol(by decision of the sole founder), an additional agreement to the employment contract and a transfer order. In this case, it is necessary to obtain from the general director not only an application for dismissal from the position of general director, but also his consent to the transfer to the position of commercial director. As an alternative way to formalize this procedure, one can note the termination of employment relations with the general director with his appointment to the position of commercial director by the new general director of the company on the basis of a new employment contract and order.

Rationale

According to labor legislation, when the parties reach an agreement on a transfer, additional agreement and the corresponding order(form N T-5).

Meanwhile, taking into account that the director is not only an employee of the organization, but also the sole executive body, then in order to determine the issue of documenting the procedure for transferring this person to another position, one should be guided, inter alia, by the special norms of the Labor Code of the Russian Federation and the Federal Law of 08.02 .1998 No. 14-FZ “On Limited Liability Companies”.

Additionally, I would like to note that since the ultimate goal of the general director is appointment to another position, you can also be guided by those norms of the Labor Code of the Russian Federation, which clearly stipulate the procedure for dismissing the general director and hiring him as an employee (Article 77 “General grounds for termination of employment”) agreement" or Article 278 "Additional grounds for termination of an employment contract with the head of an organization", Chapter 11 "Conclusion of an employment contract" of the Labor Code of the Russian Federation).

The issue of terminating the employment contract with the general director as an employee of the organization (his transfer) falls exclusively within the competence of the general meeting of the company's participants or the board of directors (supervisory board). This right is directly provided for in paragraph 2 of Art. 33 and art. 40 of Federal Law No. 14-FZ.

Having terminated the powers of the General Director, the general meeting of participants has the right to elect a new General Director.

The new general director acquires powers from the moment the general meeting of participants makes a decision on his appointment to the relevant position. In this regard, the new CEO takes office from the date specified in the decision/minutes of the general meeting of company participants. In this case, the new manager can hire the former manager for another position. any day from the date of appointment.

From the above it follows that labor legislation does not prohibit the transfer of the general director to another position; accordingly, when changing his job function, you can adhere to any of the two methods described above (transfer or dismissal-hiring).

A situation where a current company employee needs to be transferred to the position of General Director can arise in any organization. For example, it was decided to promote the financial director to general manager. The legislation does not directly prohibit processing such a transfer. However, a lot of questions may arise. Who signs the amendment to the employment contract of the new general director? Who signs the order for transfer to the position of general director? What document serves as the basis for transfer to the position of director? What is the procedure for this? In this article we will look at how to process a transfer to the position of General Director.

How to process a transfer to the position of General Director

The transfer of a company employee to the position of general director is regulated by labor and civil law. There are no clear instructions for transferring a working employee to the position of general director. The procedure for electing a director is determined by the company's Charter. Moreover, the Charter may provide that the director works only under a fixed-term contract, or works under the terms of an open-ended contract.

In practice, you can find two ways to transfer a working employee to the position of general director:

1. Translation within one company. You can use this method if the employee has an open-ended employment contract. Moreover, regardless of who the initiator of such a transfer is, the basis for the transfer order is the additional agreement. This agreement should specify the conditions for the protection of confidential information, as well as the conditions for termination. After this, based on the agreement, a transfer order is issued and an entry is made in the work book.
2. If the employment relationship with the general director is concluded for a period of no more than 5 years, then the appointment to this position can be formalized by “dismissal - hiring”. That is, the employee is fired from his position, after which he is rehired to the position of general director.

Transfer to the position of General Director within one company

Important! The transfer of an employee represents a temporary or permanent change in his job function as an employee and/or the structural unit for which he works. At the same time, the employee continues to work for one employer.

The transfer of an employee is possible only after the written consent of the employee is received. The exception is translations in accordance with Article 72.2 of the Labor Code of the Russian Federation. One of the possible transfer options is one in which the current employee of the company has an open-ended employment contract for his position. Then there should be no obstacles from the legislation when appointing him to the position of director through transfer. This order is as follows:

1. The founders of the company decide to appoint a new director, which is reflected in the minutes of the meeting. If there is only one founder in an LLC, then he makes the decision alone.
2. An additional agreement is concluded with the employee regarding transfer to the position of General Director.

Transfer to the position of director through “dismissal - hiring”

The transfer of an employee to the position of General Director is not entirely correct from the point of view of the law, since there are legal norms that indirectly contradict this transfer. However, there is also no direct ban on this method. But in order to avoid unpleasant consequences, it would be best to formalize the transfer of an employee to the position of general director through “dismissal - hiring”. If the company decides to use this method as a direct transfer to a managerial position of an employee, then it should be remembered that it can be implemented and there are no direct prohibitions on its use. In addition, this method is often used in practice. The sequence of actions in this case will be as follows:

1. The employee is invited to terminate the employment contract by agreement of the parties.
2. The founders at the general meeting of participants decide to appoint this employee to the position of General Director. The decision of the meeting is confirmed by the minutes of the general meeting.
3. A fixed-term employment contract for the position of director is concluded with the employee.

This procedure is the most common and typical when transferring a working employee to the position of director. The disadvantages of this method include the fact that there are risks that the employer, after terminating the employment contract, will refuse to sign a new one. For example, he will offer another position instead of the position of General Director. The employer also risks losing an employee if, upon termination of the contract, he finds better working conditions for himself.

Important! Thus, this method is based solely on the mutual trust of two parties: the employee and the employer.

Combination of positions

Another option for resolving this issue may also be the following: combining two positions with one employee. The procedure will be as follows:

1. An additional agreement is signed with the employee on combining his current position and the position of the General Director (for example, the financial director will combine the position of General Director for a certain period).
2. A second agreement is signed with the employee, according to which his powers in his main position are reduced to a minimum (for example, his powers in the position of financial director are reduced to a minimum).

This method will be the most profitable for the employer. This is due to the fact that when signing the second additional agreement on minimizing the powers of the main job, the employee will need to fulfill the duties of a manager in good faith, since if the agreement is terminated, he will no longer be able to occupy his previous position (only with the consent of the employer).

When transferring to the position of general director by combining positions, it is worth paying attention to some features. The legislation does not prohibit the combination of positions by the general director, with the exception of the positions of director and chief accountant. Thus, an employee cannot simultaneously perform the functions of both director and chief accountant if the economic indicators in the company exceed the indicators established for companies:

• has the right to conduct simplified accounting;
• having the status of a medium-sized business.

Important! In large companies, the chief accountant can be appointed to the position of general director, but not by signing an agreement to combine positions.

Subsequent procedure

Next, the process of hiring an employee is carried out in the general manner. Based on the decision made, the founders of the company enter into an employment contract with the general director. This agreement can be fixed-term (no more than 5 years) or indefinite. When concluding a fixed-term contract, the period of work is determined by agreement of the parties or the constituent documents of the company.

I have one more question that is close to my previous question. By decision of the participant, an employee of Elpro-Rus LLC was appointed to the position of General Director. The participant (German citizen) is the sole founder of Elpro-Rus LLC, who is the Managing Director and owner of Elpro GmbH (Elpro) in Germany (Elpro-Rus is an enterprise of the Elpro group). An Employment Agreement for the position of General Director was concluded between the Participant and the Employee from a certain date and for an indefinite period. This agreement regulates the relationship between the company and the General Director. This agreement sets out all the powers to manage and represent the Company, duties and responsibilities, etc. This agreement is written in German with a certified translation into Russian and is in no way connected with the main agreement under which the employee was hired by Elpro-Rus LLC. That is. the employee, by decision of the Participant, was appointed General Director, an Appointment Order was issued, the transfer was formalized by the Order (orders for personnel), the transfer was reflected in the work book, in the Personal Card. But there was no additional agreement to the contract under which the employee was hired at Elpro-Rus LLC. My personal card reflects the agreement under which the employee was hired at Elpro-Rus LLC to the position of group leader, then transferred additional. agreement for the head of the sector. How can I reflect the Employment Agreement for the position of General Director in the Employee’s Personal Card? And was there any additional document necessary?

Answer

Question: What is the procedure for transferring the general director of an LLC to another position? Should he be fired and, after the information that the general director has been replaced is entered into the Unified State Register of Legal Entities, should he be rehired?

Answer:

The procedure for transferring the general director to another position is not defined by labor legislation. There are two ways to transfer the general director to another position: by transfer or through dismissal and hiring.

Rationale: Features of labor regulation of the head of the organization are established by Chapter. 43 of the Labor Code of the Russian Federation.

The legal status of the head of the organization differs from the status of other employees, since it is determined by the specifics of his work activity.

The head of the enterprise is both an employee and a party to the employment contract - the employer in relation to other employees.

According to Art. 273 of the Labor Code of the Russian Federation, the head of an organization is an individual who, in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, laws, other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local government bodies, constituent documents of a legal entity (organization) ) and local regulations manages this organization, including performing the functions of its sole executive body.
The peculiarity of the situation under consideration is that there is no prohibition on transferring the general director to another position, as well as the procedure for transfer, in labor legislation.

In addition, Art. 3 of the Labor Code of the Russian Federation prohibits restricting anyone’s labor rights and freedoms depending on their official position.

According to Part 1 of Art. 72.1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to another job to another location with the employer. Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in Parts 2 and 3 of Art. 72.2 Labor Code of the Russian Federation.

Any peculiarities in the form of the impossibility of transferring to another position of the General Director of Art. 72.1 of the Labor Code of the Russian Federation does not contain. In addition, if the general director’s employer agrees to his transfer, then the grounds for terminating the employment contract under Art. Art. 77, 278 of the Labor Code of the Russian Federation with the employee will be absent.

According to paragraphs. 3 p. 3 art. 40 of the Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”, the sole executive body of the company issues orders on the appointment of company employees to positions, on their transfer and dismissal.

Considering that the general director, as the head of the organization, is both the sole executive body and an employee, he does not have the right to issue an order for his transfer.
According to paragraphs. 4 p. 2 tbsp. 33 of Federal Law No. 14-FZ, the competence of the general meeting of the company’s participants includes, among other things, the formation of the executive bodies of the company and the early termination of their powers, if the company’s charter does not include the resolution of these issues within the competence of the board of directors (supervisory board) of the company.

Since the current legislation does not contain a prohibition on the adoption of a decision by the general meeting of company participants on the termination of the powers of the sole executive body with the subsequent transfer of such an employee to another position in this organization, the decision on issues of documenting the transfer and appointment to another position will belong to the newly appointed sole executive body.

In connection with the above, documentation of changes made to the employment contract must be carried out by the newly appointed director of the company (or a person with a power of attorney issued by the former director before termination of powers) based on the decision of the general meeting of the company's participants on the termination of powers of the previous director, his transfer and the appointment of a new one General Director

Considering that the ultimate goal of the general director is appointment to another position, you can also be guided by those norms of the Labor Code of the Russian Federation, which clearly stipulate the procedure for dismissing the general director and hiring him as an employee (Article 77 “General grounds for termination of an employment contract” or Article 278 “Additional grounds for termination of an employment contract with the head of an organization”, Chapter 11 “Conclusion of an employment contract” of the Labor Code of the Russian Federation).

The issue of terminating the employment contract with the general director as an employee of the organization (his transfer) falls exclusively within the competence of the general meeting of the company's participants or the board of directors (supervisory board). This right is directly provided for in paragraph 2 of Art. 33 and art. 40 of Federal Law No. 14-FZ.

Having terminated the powers of the General Director, the general meeting of participants has the right to elect a new General Director.

The new general director acquires powers from the moment the general meeting of participants makes a decision on his appointment to the relevant position. In this regard, the new general director takes office on the date specified in the decision/minutes of the general meeting of company participants. After the election of the general director and the conclusion of an employment contract with him, the new director issues an order on his appointment to the position and, according to the law, must notify the registration authority within three days of the changes that have occurred in the company (subsection “l”, clause 1, clause 5 of Art. 5 of the Federal Law of 08.08.2001 N 129-FZ “On state registration of legal entities and individual entrepreneurs”).

Considering that the employment contract comes into force from the day it is signed by the employee and the employer or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his authorized representative (Article 61 of the Labor Code of the Russian Federation), and that in the legislation it is not stipulated that the powers of the general director come into force from the moment of their state registration with the tax authority; the new manager can hire the former manager for another position (sign an additional agreement to amend the employment contract or sign a new employment contract) on any day from the date appointments.

From the above it follows that labor legislation does not prohibit the transfer of the general director to another position; accordingly, when changing his labor function, you can adhere to any of the two methods described above (transfer or dismissal-hiring).

Prepared based on the material
IN AND. Neklyudova
State Labor Inspectorate
in the Nizhny Novgorod region.
17.01.2017

Elena Prosvetova,
Senior Legal Advisor at TLS-PRAVO LLC

The general director of a limited liability company submitted an application for transfer to another position in the same organization. Can the general meeting of the company's participants satisfy the general director's request for a transfer?

According to paragraphs. 4 p. 2 tbsp. 33 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as Law No. 14-FZ), the competence of the general meeting of participants includes, among other things, the formation of the executive bodies of the company and the early termination of their powers if the company’s charter decides These issues are not within the competence of the board of directors (supervisory board) of the company.
In accordance with paragraph 1 of Art. 40 of Law No. 14-FZ, the sole executive body of the company (general director, president and others) is elected by the general meeting of the company’s participants for a period determined by the company’s charter, if the company’s charter does not include the resolution of these issues within the competence of the board of directors (supervisory board) of the company. An agreement between the company and the person performing the functions of the sole executive body of the company is signed on behalf of the company by the person who chaired the general meeting of the company’s participants, at which the person performing the functions of the sole executive body of the company was elected, or by a participant in the company authorized by the decision of the general meeting of the company’s participants, or , if the resolution of these issues falls within the competence of the board of directors (supervisory board) of the company, the chairman of the board of directors (supervisory board) of the company or a person authorized by a decision of the board of directors (supervisory board) of the company.
The legislation on limited liability companies does not regulate the procedure for terminating the powers of the sole executive body with its subsequent transfer to another position in this organization.
As stated in the Explanations of the Supreme Court of the Russian Federation, approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation dated September 15, 2010, the relationship between the general director (sole executive body), on the one hand, and the company, on the other, is based on employment contracts and is an employment legal relationship. The specifics of regulating the labor of these workers are established by Ch. 43 Labor Code of the Russian Federation.
According to Art. 274 of the Labor Code of the Russian Federation, the rights and obligations of the head of an organization in the field of labor relations are determined by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local governments, constituent documents of the organization, local regulatory acts, employment contracts.
In accordance with Art. 72.1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to another job to another location with the employer.
Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in Parts 2 and 3 of Art. 72.2 Labor Code of the Russian Federation.
The rule does not provide for exceptions in the form of a ban on transfer to another position at the request of the head of the organization. In addition, if the employer agrees to the transfer requested by the employee, then there are no grounds for terminating the employment relationship with such an employee (Articles 77, 278 of the Labor Code of the Russian Federation).
Thus, neither corporate nor labor legislation contains a prohibition on the adoption of a decision by the general meeting of company participants on the termination of the powers of the sole executive body with the subsequent transfer of such an employee to another position in this organization.
However, it must be taken into account that, according to paragraphs. 3 p. 3 art. 40 of Law No. 14-FZ, the powers to appoint employees of the company to positions, transfer them and dismiss them, as a general rule, belong to the sole executive body.
In this regard, documenting changes to the employment contract must be carried out by the newly appointed head of the company (or the person replacing him) based on the decision of the general meeting of participants to terminate the powers of the previous head and the employee’s application for transfer to another position in this organization.