Radchikova Natalia, chief lawyer of Instar Logistic.

In the June 2008 issue of the journal, an article was published that examined the procedure for confinement employment contract with the head of the business company<1>. Continuing the topic, the author of this article comprehensively examines the structure of the employment contract itself, referring to examples from judicial practice.

<1>Gulidov P. Employment contract with the head of the economic company // Corporate Lawyer. 2008. N 6. S. 17 - 19.

Features of labor regulation of the head of the organization, as well as members of the collegial executive body of the organization are reflected in Ch. 43 of the Labor Code of the Russian Federation and a number of articles placed in other chapters. Thus, the legislator emphasizes that the head of the organization is employee with special status.

The concept of the head of the organization is given in sufficient detail in Part 1 of Art. 273 of the Labor Code of the Russian Federation: this individual which, in accordance with the law, founding documents legal entity and local regulatory legal acts manages this legal entity, including performing the functions of its sole executive body.

Let us consider in more detail the procedure for concluding an employment contract with the head of the organization.

The procedure for concluding an employment contract

The procedure for concluding an agreement directly depends on the specific organizational and legal form of a legal entity and is regulated, in addition to the Labor Code of the Russian Federation, by regulatory legal acts containing norms labor law, or constituent documents, which may establish procedures prior to the conclusion of an employment contract (holding a competition, election or appointment to a position).

So, according to the Federal Law of December 26, 1995 "On joint-stock companies"(hereinafter referred to as the Law on Joint Stock Companies), the formation of the executive bodies of a joint stock company is carried out by decision of the general meeting of shareholders, if the charter of the company does not refer this issue to the competence of the board of directors (supervisory board). The employment contract with the head on behalf of the joint stock company is signed by the chairman of the board of directors (Supervisory Board) or a person authorized by it.

Federal Law of February 8, 1998 "On companies with limited liability"It is provided that the head of a limited liability company is elected by the general meeting of participants for a period determined by the charter of the company. At the same time, the head may not be elected from among its participants. The charter of the company may provide that the formation of executive bodies falls within the competence of the board of directors (supervisory board) The same provisions on the procedure for concluding an employment contract with the head of a limited liability company are applicable to the situation of concluding an employment contract with the head of an additional liability company.On behalf of the limited liability company, the contract is signed by the person presiding over general meeting participants, where the head is elected, or a person authorized by the decision of the general meeting of the company's participants, or in certain cases, the chairman of the board of directors (supervisory board).

Heads of state and municipal unitary enterprises are appointed by the owner of the property unitary enterprise in accordance with the Federal Law of November 14, 2002 "On State and Municipal Unitary Enterprises" (hereinafter referred to as the Law on State and Municipal Unitary Enterprises). At the same time, on behalf of the Russian Federation or a constituent entity of the Russian Federation, the rights of the owner of the property of a unitary enterprise are exercised by state authorities of the Russian Federation (subject of the Russian Federation), and on behalf of a municipal formation - local government. Appointment of heads of unitary enterprises is carried out on a competitive basis<2>. This procedure is two-stage. The first stage is carried out in the form of tests (in writing). At the second stage, proposals for the program of the enterprise's activities are considered. When concluding an employment contract with the head of a unitary enterprise, the employer is represented by the head of the relevant executive authority in charge of the unitary enterprise.

<2>Resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation of December 9, 1999 N 90/14 "On Certain Issues of the Application of the Federal Law "On Limited Liability Companies".

Considering the procedure for concluding an employment contract for the management of a legal entity, it would be useful to recommend that the person authorized to conclude the contract request information on the presence / absence of disqualification of an individual in the body maintaining the register of disqualified persons. Such bodies are the GIAC, ITs of the Ministry of Internal Affairs, the Central Internal Affairs Directorate, the Internal Affairs Directorate<3>. The deadline for providing information contained in the register is 5 days from the date of receipt by the authorized federal body of the relevant request. Such a request must be made in order to avoid bringing a legal entity to administrative responsibility under paragraph 2 of Art. 14.23 of the Code of Administrative Offenses of the Russian Federation, which provides for liability in the form of an administrative fine for concluding an agreement with a disqualified person to manage a legal entity, as well as non-application of the consequences of terminating its actions (up to 1000 minimum wages).

<3>The procedure for providing information to interested parties is approved in Appendix No. 2 to the Order of the Ministry of Internal Affairs of Russia dated November 22, 2006 No. 957 "Instruction on the procedure for providing information about disqualified persons."

Features of the content of the employment contract

Traditionally, the content of an employment contract is understood as all its conditions that determine the rights, obligations and responsibilities of its parties. Both the general norms of the Labor Code of the Russian Federation contained in Section III and the special ones - Ch. 43 of the Labor Code of the Russian Federation.

All terms of the employment contract are usually divided into mandatory and additional.

Let us dwell on the features of only some of the mandatory and additional terms of the contract.

1. Place of work.

In accordance with the latest edition of the Labor Code of the Russian Federation, specifying the place of work (indicating the structural unit) is an additional condition of the contract, but given that we are talking about the head of the organization, there is no need to indicate the structural unit, since the head heads the entire organization as a whole.

1. Job title.

When specifying the labor function and the name of the position, it is necessary to take into account the requirements of the law and constituent documents.

As you know, the range of options for the title of the position of the head of the organization, defined in the relevant laws, can be quite wide and is associated with the organizational and legal form of the organization. For example, in joint-stock companies - the general director or director, in limited liability companies - the president, general director. The list of titles of the position of the head of the organization is open, i.e. the name can be anything. At the same time, it should be noted that the name "general director" is most often introduced artificially, not being associated with the management structure of the organization as a whole, such as a holding, i.e. when the management of the general director does not have any subsidiaries or other dependent organizations that have their own directors (heads of enterprises, institutions, i.e. independent legal entities). Introduced into the staff of the organization, probably to create the appearance of the validity of the name "general director", other "artificial" directors of the organization (for example, directors of personnel) are within its structure in their role essence or deputy directors in various areas economic activity organization, or heads of its structural functional units (offices, departments, divisions, etc.). Therefore, such a name would be a violation of the relevant requirements of the Labor Code of the Russian Federation on giving positions names corresponding to qualification reference books.

In connection with this problem, attention should be paid to Part 2 of Art. 57 of the Labor Code of the Russian Federation, which states the following: "The following conditions are mandatory for inclusion in an employment contract: labor function(work according to the position in accordance with the staff list, profession, specialty, indicating qualifications); specific type of work assigned to the employee. If, in accordance with federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the name of these positions, professions or specialties and qualification requirements they must comply with the names and requirements specified in the qualification reference books approved in the manner established by the Government Russian Federation".

The basic act for law enforcement is the Labor Code of the Russian Federation, which repeatedly refers, in particular, to Art. 57, not to unified directories that determine the tariff-qualification and qualification requirements for workers and employees, but to qualification directories containing qualification characteristics for certain positions, professions and specialties.

Currently based on of the All-Russian classifier professions of workers, positions of employees and tariff categories OK-016-94 (OKPDTR), which came into effect on January 1, 1996, was created and is in effect Qualification guide positions of managers, specialists and other employees (hereinafter referred to as KSDRSS), approved by the Decree of the Ministry of Labor of Russia of August 21, 1998 N 37. Given that the KSDRSS was issued before the entry into force of the Labor Code of the Russian Federation, due to the lack of relevant industry sections in the EKSDSS, law enforcement officers need to use in necessary cases, proceeding from the general legal principle of analogy of law, the current KSRSS, especially since it has been repeatedly modernized in recent years and is currently set out in the edition of September 17, 2007.

Therefore, an introduction to staffing, and then the fixation in the employment contract of the name of any other position than indicated in the classifier (at the same time corresponding to its qualification characteristics of any position indicated in the KSDRSS), will be a direct violation of the requirements of Part 2 of Art. 57 of the Labor Code of the Russian Federation. This violation of the law may lead in practice to problems that are difficult to resolve for all interested parties and can potentially affect them in the form of penalties provided for in Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. For example, it is not uncommon for a situation where difficulties arise when dismissing, including a manager under clause 4, part 1, art. 81 of the Labor Code of the Russian Federation (termination of an employment contract with a manager ... in connection with a change in the owner of the property).

In turn, the analysis of industry-wide qualification characteristics positions of employees employed at enterprises, institutions and organizations, allows us to state: among the positions of managers in the KSSRSS there are not most of the positions that, for the sake of unreasonable imitation of foreign "Slovisms", are introduced into the staffing tables of commercial organizations. By substituting in this way legally significant job titles with their other names, the employer himself makes it difficult to bring, for example, to disciplinary responsibility of persons who perform certain tasks in violation of labor legislation. managerial functions, as well as in other cases (see art. 59 (part 2), 70 (part 5), 73 (part 4), 81 (paragraphs 9 and 10 part 1), 145, 181, 195, 243 (part 2) of the Labor Code of the Russian Federation).

1. Work start date.

The condition on the date of commencement of work is mandatory to the same extent as for any other employee, however, it should be borne in mind that when determining the date of commencement of work, it is necessary to take into account the term or date of expiration of the powers of the previous manager. Naturally, this is also necessary in order to avoid dual power, as well as to prevent misunderstandings related to the execution of power and administrative powers, especially in the financial and economic sphere. In addition, an employment contract with a manager can be concluded for a period established by the constituent documents of the organization or by agreement of the parties (part 2 of article 59 and article 275 of the Labor Code of the Russian Federation). Consequently, the contract contains a condition on the duration of its validity, indicating the grounds for concluding it on an urgent basis. So, for example, paragraph 3 of Art. 69 of the Law on Joint Stock Companies and Art. 103 of the Civil Code of the Russian Federation, consideration of issues on the formation of a sole executive body and the early termination of its powers is referred to the exclusive competence of the general meeting of shareholders of the company. The law does not link the moment of election of the sole executive body with the facts of making State Register such information and the issuance of orders for the dismissal or appointment of persons to the position of General Director. The General Director is considered elected from the moment of his election by the general meeting of shareholders, taking office is carried out by issuing an order by the new director, precisely from these moments, and not from the moment of making an entry in the Unified State Register of Legal Entities new director deemed to have taken office<4>.

<4>Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 14, 2006 N 12580/05.

1. Salary.

The terms of remuneration of the head also differ in the originality of their establishment in the employment contract. As a rule, the manager is given an official salary and all kinds of additional payments and allowances, including those of a stimulating nature, like all other employees. However, the employment contract may contain conditions for additional financial incentives for the head of the organization. For example, the contract may contain a condition on the participation of the head in the distribution of part of the profit, the establishment of remuneration based on the results of the organization's work for the year as a percentage of net profit. In case of reaching high economic indicators the agreement may provide for the right of the head to receive part of the company's shares, etc. Thus, tasks are solved as motivation for the most efficient property management, increasing labor productivity through effective organization labor and production.

The remuneration of the heads of organizations financed from the federal budget must be made in the manner and in the amount to be determined by the Government of the Russian Federation, in organizations financed from the budget of a constituent entity of the Russian Federation, by the state authorities of the corresponding constituent entity of the Russian Federation, and in organizations financed from the local budget, - local governments (part 1 of article 145 of the Labor Code of the Russian Federation).

1. Working hours.

The mode of working time and rest time of the head of the organization is also determined by the terms of his employment contract. The law prohibits contractually worsening the position of an employee in comparison with the current legislation. This prohibition is fully applied when determining the relevant section of the employment contract with the head of the organization, however, a number of comments can be made here. Since the functions of the manager include the organization of the work of other employees, this requires additional time, including those that go beyond the normal working hours established by law. Besides, work time of a manager is difficult (if at all) to strict accounting and rationing. Therefore, the employment contract of the head, as a rule, provides for the establishment of irregular working hours. It would seem that everything is clear, but Art. 101 of the Labor Code of the Russian Federation defines an irregular working day as a special regime in accordance with which an employee, by order of the employer, if necessary, episodically performs his labor functions outside the working hours established for them. Naturally, in relation to the work of the manager, one does not have to talk about any order of the employer and illusory episodic nature. Taking into account that the employment contract determines the features of the manager's working hours, it must undoubtedly contain special conditions regarding the time of rest, namely vacation. The vacation of the head consists, as usual, of the main and additional. The main annual paid leave may be established by agreement for a duration exceeding the usual 28 calendar days(extended main leave). The employer, taking into account his production and financial capabilities, may establish an annual additional paid leave for the head of the organization. Besides, additional leave may be provided for irregular working hours and other special working conditions.

Also, these contracts often contain conditions on the amount of material assistance allocated to the head for the main paid leave for rest and treatment (including sanatorium and resort).

Additional terms of the contract

Additional terms of an employment contract with a manager can be both traditional, for example, a condition on probationary period, and special, peculiar only to this type of employment contract.

1. Probation.

A test for heads of organizations may be provided for up to six months (part 5 of article 70 of the Labor Code of the Russian Federation). At the same time, a probation for employment cannot be established for persons elected to an elective position for paid work, and for persons entering a job on a competitive basis, therefore, it seems that the rules regarding a six-month probationary period for leaders of an organization practical application won't find.

1. Non-disclosure of secrets.

The condition on non-disclosure by the head of secrets protected by law (state, commercial and official) is contained in Art. 57 of the Labor Code of the Russian Federation. Such a condition seems to be quite justified, since it is the manager, by the nature of his activity, who has unlimited access to any confidential information, the disclosure of which can lead to serious property damage.

The employment contract with the head of the organization must provide for his obligations to ensure the protection of the confidentiality of information owned by the organization and its counterparties, and responsibility for ensuring the protection of its confidentiality (part 6 of article 11 of the Federal Law of July 29, 2004 "On Trade Secrets" , hereinafter referred to as the Law on Trade Secrets). Manager's responsibility for disclosure trade secret is more strict than that of other employees: the head compensates the losses caused to the organization. Taking into account the fact that part 7 of Art. 11 of the Law on Trade Secrets became invalid on January 1, 2008 (Article 34 of the Federal Law of December 18, 2006 N 231-FZ), as well as the emerging judicial practice, when determining the size of the full liability must be guided by the provisions of Art. 277 of the Labor Code of the Russian Federation or federal laws, for example, the Law on Joint Stock Companies or the Law on Limited Liability Companies. So, according to Art. 277 of the Labor Code of the Russian Federation, the head bears full liability in the amount of actual damage. According to paragraph 5 of Art. 71 of the Law on Joint Stock Companies, a shareholder (shareholders) holding in the aggregate at least 1% of the placed ordinary shares is entitled to file a claim against the sole executive body. If the claim is brought by a non-employer, i.e. by the organization itself, but by its shareholder, then the amount of full liability will be determined not according to the provisions of the Labor Code of the Russian Federation, but according to the provisions of the Federal Law of December 25, 2008 N 280-FZ, according to which the amount of liability is determined by the concept of "losses"<5>.

<5>See: Ruling of the Ninth Arbitration Court of Appeal dated February 22, 2005, February 16, 2005 N 09AP-711/05-GK.

Restrictions on the head of the organization

Such restrictions/exceptions from the general rule are sanctioned by special norms of the Labor Code, other federal laws and constituent documents of organizations and relate primarily to the establishment of the full financial responsibility of the head, certain restrictions in the sphere of further realization of the right to work and the establishment of additional grounds for terminating the employment contract with him.

A special rule on the liability of the head of the organization, established by Art. 277 of the Labor Code of the Russian Federation, differs significantly from the general one established by Art. 241 of the Labor Code of the Russian Federation, since the head bears full, and not limited to average earnings, responsibility for causing direct actual damage to the organization. It should be noted that the Federal Law of June 30, 2006 N 90-FZ eliminated the existing contradiction between the provisions of Art. 277 and part 2 of Art. 243 of the Labor Code of the Russian Federation by excluding the head of the organization from the circle of persons to which Part 2 of Art. 243 of the Labor Code of the Russian Federation. Consequently, the condition of the employment contract with the manager on his full financial responsibility should not be considered as an additional condition, but as a derivative arising from the law (clause 9 of the Decree of the Plenum of the Armed Forces of the Russian Federation N 52 of November 16, 2006).

It should be noted that another very serious exception has been made with regard to the head of an organization: in cases provided for by federal laws, he compensates the organization for losses caused by his guilty actions (Article 44 of the Law on Limited Liability Companies, Article 71 of the Law on Joint Stock Companies, clause 2, article 25 of the Law on State and Municipal Unitary Enterprises). The concept of damages is given in Art. 15 of the Civil Code of the Russian Federation. The above federal laws provide for cases where the manager will compensate not only for direct actual damage, but also for lost profits. Such liability for guilty actions (inaction) is provided for persons exercising the functions of the sole executive body of joint-stock companies, limited liability companies, unitary enterprises. Based on the context of the relevant norms, we can conclude that we are talking about actions of an administrative (managerial) nature.

The status of the head of an organization implies certain restrictions in the sphere of further realization of the right to work. Such restrictions are established by the legislator, but may also be reflected in the employment contract.

The head of the organization can work part-time for another employer only with the permission of the authorized body of the legal entity, or the owner of the property of the organization, or the person (body) authorized by the owner (part 1 of article 276 of the Labor Code of the Russian Federation). It is unlikely that, by providing for this restriction of the right to external part-time work, the legislator sought to ensure a higher professionalism of the head. Rather, it is established in order to exclude abuse on the part of the head, who, in his personal interests, may neglect the interests of the participants in the legal entity. For example, in law enforcement practice there are cases when one head of two organizations at once makes a deal that is unprofitable for one of the participants in civil turnover. It should be noted that such transactions are invalid, since, according to paragraph 3 of Art. 182 of the Civil Code of the Russian Federation, a representative cannot make transactions in relation to another person, whose representative he is at the same time, with the exception of cases of commercial representation.

In principle, such a situation is possible when a representative acts on behalf of one organization, performing the functions of the sole executive body, and on behalf of another - on the basis of a power of attorney, for example, as a department specialist contract work. Obviously, that is why the legislator has provided for the possibility of working part-time for another employer only with the consent of the owner or the authorized body.

In this sense, the rule of paragraph 3 of Art. 69 of the Law on Joint Stock Companies: "Combination by a person exercising the functions of the sole executive body of the company (director, CEO), and members of the collegial executive body of the company (board, directorate) positions in the management bodies of other organizations are allowed only with the consent of the board of directors (supervisory board) of the company. "We draw attention to the following aspects. Firstly, we are not talking about paid work in bodies of another legal entity, secondly, the restriction applies to the occupation professional activity a certain kind - the performance of a labor function in government. It seems that in the conditions of competition between the general norm of the Labor Code of the Russian Federation and the norm of the said Law, a special rule is subject to application.

Another rule that differs from that formulated in the codified act is set out in paragraph 2 of Art. 21 of the Law on State and Municipal Unitary Enterprises: "The head of a unitary enterprise is not entitled to be a founder (participant) of a legal entity, hold positions and engage in other paid activities in government bodies, local government, commercial and non-profit organizations, except for teaching, scientific and other creative activity, study entrepreneurial activity, be the sole executive body or a member of the collegial executive body commercial organization, except in cases where participation in the bodies of a commercial organization is included in official duties this leader, as well as take part in strikes". Firstly, engaging in paid activities is unacceptable for this category of workers, even with the consent of the owner. Secondly, the implementation of paid creative activities is allowed without the consent of the owner.

The law establishes for the head of an organization a restriction on work within the organization he leads: the head of an organization cannot be a member of the bodies exercising the functions of supervision and control in this organization (part 2 of article 276 of the Labor Code of the Russian Federation). Supervisory and control bodies include the Board of Directors (Supervisory Board), audit commission. Note, for example, that a member of the board of directors (supervisory board) of a joint-stock company may not be a shareholder of the company, which means that it may have the status of an employee of the organization. This means that the above norm, Part 2, Art. 276 of the Labor Code of the Russian Federation establishes a restriction on internal combination.

Termination of activity

In addition to the general grounds for terminating an employment contract of the Labor Code of the Russian Federation, federal laws and the labor contract itself may provide additional grounds for terminating an employment contract with the head of an organization.

The legislation establishes the features of termination of labor relations with the head of the organization, both of a procedural and substantive nature.

The procedure for terminating an employment contract at the initiative of an employee who is the head of an organization can be attributed to the exclusively procedural features. According to the special rule of art. 280 of the Labor Code of the Russian Federation, the head of the organization has the right to terminate the employment contract ahead of schedule by notifying the employer (the owner of the organization's property, his representative) in writing no later than one month, while the general rule formulated in Part 1 of Art. 80 of the Labor Code of the Russian Federation, provides for a shorter (two-week) period. The exception made in relation to the head of the organization has a very specific purpose - to give the authorized body of the organization (and for an institution funded by the owner, or a unitary enterprise - the owner) enough time to find a qualified specialist in the field of management, on whose work the efficiency will depend economic activity organization as a whole.

The opportunity to provide for special grounds for dismissal for the heads of the organization is itself regarded by the Constitutional Court of the Russian Federation as constitutional: " Legal status the head of the organization (rights, duties, responsibilities) differs significantly from the status of other employees, which is due to the specifics of his work activity, place and role in the organization's management mechanism: he manages the organization, including performing the functions of its sole executive body, performs on behalf of the organization legally significant actions (Article 273 of the Labor Code of the Russian Federation; Clause 1 of Article 53 of the Civil Code of the Russian Federation). By virtue of the concluded employment contract, the head of the organization in the prescribed manner implements the rights and obligations of a legal entity as a participant in civil turnover, including the powers of the owner to own, use and dispose of the property of the organization, as well as the rights and obligations of the employer in labor and other directly related to labor , relations with employees, organizes the management of the production process and joint work.

Therefore, the federal legislator has the right, based on the objectively existing features of the nature and content of the work of the head of the organization, the labor function performed by him, to provide special rules termination of the employment contract with him, which cannot be regarded as a violation of the right of everyone to freely dispose of their abilities for work, to choose the type of activity and profession (Part 1 of Article 37 of the Constitution of the Russian Federation) or as a violation of the equality of all guaranteed by Article 19 of the Constitution of the Russian Federation, equality of all before the law and the court and equality rights and freedoms of man and citizen<6>.

<6>Resolution of the Constitutional Court of the Russian Federation of March 15, 2005 N 3-P "On the case of checking the constitutionality of the provisions of paragraph 2 of Article 278 and Article 279 of the Labor Code of the Russian Federation and paragraph two of paragraph 4 of Article 69 of the Federal Law "On Joint Stock Companies" in connection with requests Volkhov City Court Leningrad region, Oktyabrsky district court the city of Stavropol and the complaints of a number of citizens".

1. Change of the owner of the property of the organization (clause 4 of article 81 of the Labor Code of the Russian Federation). The change of ownership of the property of an organization should be understood as the transfer (transfer) of ownership of the property of an organization from one person to another person or other persons, in particular during the privatization of state or municipal property, i.e. when alienating property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, in the ownership of individuals and (or) legal entities; when the property owned by the organization is converted into state property; when transferring state-owned enterprises to municipal property and vice versa; when transferring the federal state enterprise into the ownership of a constituent entity of the Russian Federation and vice versa (part 3, clause 32 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

A change in the jurisdiction (subordination) of an organization or its reorganization (merger, accession, separation, separation, transformation), as well as a change in the composition of participants (shareholders) (by virtue of clause 1 of article 66 and clause 3 of article 213 of the Civil Code of the Russian Federation) cannot be grounds for terminating employment contracts.

Dismissal on this basis is possible only within three months from the date of the change of ownership (part 1 of article 75 of the Labor Code of the Russian Federation).

The new owner of the property must pay specified employees compensation in the amount of not less than three average monthly earnings of an employee (Article 181 of the Labor Code of the Russian Federation). Upon dismissal on this basis, deduction for unworked vacation days is not made (part 2 of article 137 of the Labor Code of the Russian Federation).

1. The adoption of an unreasonable decision by the head of the organization, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9, part 1, article 81 of the Labor Code of the Russian Federation). In deciding whether the decision unreasonable, it is necessary to consider whether the said adverse consequences occurred precisely as a result of this decision and whether they could have been avoided if another decision was made. At the same time, if the defendant does not provide evidence confirming the onset of adverse consequences referred to in paragraph 9 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, dismissal on this basis cannot be recognized as legal (part 2, clause 48 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

The law does not provide for the payment of severance pay upon dismissal on this basis. Withholding for unworked vacation days is made.

1. A single gross violation by the head of the organization of his job duties(clause 10, part 1, article 81 of the Labor Code of the Russian Federation). As a gross violation of labor duties by the head of the organization (branch, representative office), his deputies, one should, in particular, regard the failure to fulfill the duties assigned to these persons by the employment contract, which could result in harm to the health of employees or causing property damage to the organization. Leaders of others structural divisions organizations and their deputies, as well as Chief Accountant organizations cannot be dismissed on this basis. However, an employment contract with such employees can be terminated for a single gross violation by them of their labor duties under paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, if the acts committed by them fall under the list of gross violations specified in paragraphs. "a" - "d" paragraph 6 of Art. 81 of the Code, or in other cases, if it is provided for by federal laws (parts 3, 4, paragraph 49 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

On this basis, it is allowed to terminate the contract with women with children under the age of three, single mothers raising a child under the age of 14 (a disabled child under 18), other persons raising these children without a mother, at the initiative of the employer (h 4 article 261 of the Labor Code of the Russian Federation). Severance pay is not provided by law. Withholding for unworked vacation days is made.

In addition to the grounds provided for by the Labor Code and other federal laws, Art. 278 of the Labor Code of the Russian Federation provides additional grounds for terminating an employment contract with the head of an organization.

In connection with the dismissal of the head of the debtor organization in accordance with the legislation on insolvency (bankruptcy) (clause 1 of article 278 of the Labor Code of the Russian Federation). In accordance with paragraph 1 of Art. 69 of the Federal Law of October 26, 2002 "On Insolvency (Bankruptcy)" arbitration court may remove the head of the debtor organization from office during the period of the supervision procedure at the request of the interim manager in case of violation by the head of the requirements of the insolvency law. There are other grounds for the removal of the head of the organization during the period of various procedures.

Severance pay is not provided by law. There is no deduction for unworked vacation days.

In connection with the adoption by the authorized body of the legal entity, or the owner of the property of the organization, or the authorized owner of the person (body) of the decision to terminate the employment contract (clause 2 of article 278 of the Labor Code of the Russian Federation). The employment contract with the head of the organization cannot be terminated on this basis during the period of his temporary disability or vacation (paragraph 50 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

An employment contract may provide for other grounds for its termination, which are also established in the Labor Code of the Russian Federation.

Employment contract with the head of the organization (sample)

It is difficult to overestimate the importance of the figure of a leader in an organization. Very often, the success of the organization as a business system depends on the personality of this person. Therefore, it is important to write down all the conditions in the employment contract with the head of the organization, a sample of which you can find in this article. The contract is concluded after certain procedures: holding a competition, appointment by the board of directors or election by the general meeting. Procedures are prescribed in the laws and constituent documents of the organization.

List of disqualified persons

It must be remembered that before appointing a leader, it is necessary to check whether this person is included in the list of disqualified persons. The conclusion of an employment contract is possible only after receiving data from the register. This happens within 5 days. If an employment contract is concluded with a person who has been disqualified, an administrative fine is provided.

The employment contract with the head of the organization is applied as general rules established for all employees by the Labor Code, as well as special rules governing the work of managers. The preamble to the contract must include:

• Full name of the employee;
• the name of the employer;
• Personal Information;
• the person who signed the contract on behalf of the employer, his powers.

In the contract, it is important to indicate the name of the position of the head in accordance with the constituent documents of the organization. Because inaccuracies in the name (“director” or “general director”) can then cause a lot of problems.

As for all other employees, it is mandatory to indicate in the employment contract with the manager:

• place of work;
• start date of work;
• term of the contract;
• working hours and rest time;
• payment procedure wages;
• terms of compulsory social insurance.

Any commercial organization is created to make a profit, and it depends to a greater extent on the leader whether entity achieve your goals. To do this, in the employment contract with the head, it can be written what indicators the organization should achieve under his leadership. In connection with the exceptional position of the head in the organization, his material remuneration for work may also differ. The employment contract may include additional conditions on material incentives, depending on the results achieved by the organization. This may be a condition on the establishment of additional remuneration in the form of a certain percentage of the net profit of the organization. In case of reaching high economic results may provide for the receipt of part of the shares or shares in the company. The inclusion of these conditions in the employment contract is a good motivation for better job performance improvement manager.

Termination of an employment contract

The termination of the employment contract with the head of the organization also has its own characteristics. If you wish to terminate the contract ahead of schedule, the manager must notify the owner in writing about this desire one month in advance. The head can be fired when the owner of the organization changes. But there are certain guarantees: firstly, this can be done only within three months after the change of ownership, and secondly, in the event of dismissal on this basis, the manager is entitled to payment of compensation not lower than three average monthly earnings.

The head can be dismissed for gross violation of his duties, even if it happened once, for accepting management decision, which was unreasonable and caused damage to the property of a legal entity, as well as in the case of the introduction of procedures provided for by the Bankruptcy Law of 26.10.2002.

When dismissing the head, it must also be remembered that information about the change of director is subject to mandatory entry into the Unified State Register of Legal Entities, for which a certain procedure is provided with the submission of registration form No. P14001 to the registering authority.

Sample employment contract with the head of the organization

The employment contract with the director is a standard personnel document, after all, even the CEO is the same employee as the others. However, the nature of labor relations with the employer is somewhat different. The work of a leader is associated with greater responsibility than the labor function of an ordinary employee. He manages the company and is responsible for his actions both legally and material side. How to make such a document without errors?

Despite the high position of the head, the terms of the labor contract with him do not differ much from the standard clauses of standard agreements. Let us examine in more detail the features of the design of such an agreement. At the end of the article you will find sample agreements. The form is not unified, there is no need to copy model form, you can act and change the conditions according to the purposes of hiring an employee for a position.

Position of the director of the organization

A director is the head of a small firm or a huge corporation. This is an individual who assumes the powers of the executive body of the organization, regardless of its size. The position of the head does not always bear the name "director". Other names may appear in the agreement: the president of the company, the head of the corporation, the general director. It is important that the name in the contract sound the same as in the founding documents of the company. The number of executives hired by the organization and responsible for various technical and production areas may consist of two or three persons. In this case, the leaders of narrower areas are subject to the orders of the higher leadership (usually the general).

Features of concluding an agreement with a director

Relationships between the employer company and its manager are built according to the rules of the Labor Code, laws of the Russian Federation and the constituent entities of the Russian Federation, regulations of local authorities, constituent documents and local acts of the company. The function of the employer can only be performed by a legal entity, not an individual. This is the main difference from agreements with ordinary employees. But there are other features as well. Let's take a closer look.

Mandatory conditions

The contract with the managing person is concluded in writing in two copies. The agreement is signed by the employee (future leader) and the owner of the company (founder) or a representative of the general meeting of shareholders.

Mandatory items that are present in all types of agreements (not only with the head):

• details of the parties: full name and passport details of the employee, the name and details of the legal entity;
• date of conclusion;
• place of detention (address);
• job title;
• description of job duties;
• payroll information;
• probationary period condition (if any);
• compensation information.

If the condition of the probationary period is not included in the agreement, then it is considered that the manager has been accepted for the position without a test.

Conditions that apply only in contracts with executives:

• if wages exceed 25% of the value of the company's assets, then the contract is approved by an advisory body (meeting of founders, board of directors);
• the minimum amount of compensation upon termination of the agreement with the head is not less than the amount of three months' earnings;
• a clause on non-disclosure of commercial secrets and a measure of liability must be included in the agreement;
• it is not necessary to include a liability clause, it comes by default.

Competition, election or appointment

The leader takes office in the following ways:

• there is a competition;
• elected at a meeting of founders or the board of directors;
• appointed by the founder personally;
• other.

It is difficult to draw an independent conclusion from the norms of the Labor Code of the Russian Federation. Officials of departments and departments - Rostrud, the Ministry of Finance, the Federal Tax Service - have already given many explanations on this matter, periodically changing their position. The Letter of the Ministry of Finance dated March 15, 2016 No. 03-11-11 / 14234 states that it is impossible to sign an employment contract in such a situation. The ministry indicates that labor Relations are drawn up with the sole founder not by agreement, but by a written decision, therefore, a sample agreement with the director, if the founder and director are the same person, is a violation.

But it is worth remembering that the clarification of the ministry is not a legal act, and therefore has no legal force. Citizens have the right to interpret the law differently. The Labor Code of the Russian Federation does not contain a direct ban on the execution of an employment contract with the founder, but there is no permissive norm either. In the list of persons who are not covered by labor law, founding general manager not included, which means a sample employment contract with the director, if he sole founder, is still quite legitimate. Therefore, as an employee, he is endowed with all the rights and obligations that are established by the Labor Code of the Russian Federation. The Federal Law on LLC also does not prohibit allowing oneself to work. Experts believe that signing an agreement with a sole founder will not create problems. On the contrary, the absence of a contract can lead to fines during inspections. Moreover, an employment contract with the director of an LLC is necessary if he is one of the founders.

Since the code contains no obstacles to concluding an agreement with itself, the only member of the Society signs twice:

• as an employee;
• and as a representative of the employer.

A sample employment contract with the general director of an LLC, who is also the founder, may contain the following wording: “LLC (OJSC) Inter”, referred to as the Employer, represented by sole member Trushkin Viktor Petrovich, acting on the basis of the Charter and decision No. 1 dated 05/02/2016, on the one hand, and Trushkin Viktor Petrovich, referred to as the "Worker", on the other hand, have concluded this employment contract on ... ". You can download a sample employment contract with the director of an LLC (who is also the founder) on our website - links to various options documents are given at the end of the article.

Employment contract with the director of a state institution

When applying for the position of the head of a state or municipal institution, in addition to the mandatory passports, work book, TIN, by article 275 of the Labor Code of the Russian Federation, the citizen provides:

• certificate of income and property;
• information on income, property (debts and obligations) of the spouse and minor children.

This information is then resubmitted every year.

The rules for providing such information are regulated by Government Decree No. 208 of 03/13/2013.

Registration for the position of the head of a state enterprise is associated with another feature. When hiring the head of a private firm, the contract can be drawn up in free form. The main thing is to take into account the requirements of the law, and by filling the content with conditions, you can give free rein to your imagination. But a contract with the head of state or municipal organization, unlike private, is not compiled arbitrarily. It is based on standard form, approved by Government Decree No. 329 dated April 12, 2013.

Additional grounds for termination of the contract

In addition to the general grounds for termination, which apply to all employees, there are additional ones that apply only to managers. According to article 278 of the Labor Code of the Russian Federation, you can terminate an agreement with a manager:

• upon removal of the head of the debtor company under the bankruptcy law (FZ 127 of 10/26/2002);
• the decision of the authorized body or the owner of the company to terminate the contract;
• on the grounds prescribed in the agreement (usually these are clauses on violation of official duties or failure to perform labor functions).

When an employer cannot fire a director

The list of additional grounds for terminating the relationship with the manager gives the impression that the employer can terminate the contract at any time at will. But it is not so. Like any other employee, the employer does not dismiss the manager if it:

• a pregnant woman (except in the event of liquidation of the company);
• a woman with a child under 3 years old;
• single mother with a child under 14 or a disabled child under 18;
• a person who is raising a child under 14 or a disabled person under 18 without a mother;
• the sole breadwinner of a child under 3 years old in a family with three or more children or a disabled person under 18 years old.

Termination of the contract with these persons is possible only on special grounds (

Employment contract with the director of _____ LLC

G.________________

Limited Liability Company "______", hereinafter referred to as the "Company", represented by the Founder of the Limited Liability Company "_____", acting on the basis of the Charter, and __________ (full name), passport ________________ issued by _______, hereinafter referred to as "Director ", hereinafter referred to as the "parties", have concluded this employment contract as follows:

1. The Subject of the Agreement

1.1. This agreement governs labor and other relations between the Company and the director in connection with the performance by the latter of the duties assigned to him to manage the current activities of the Company. The company is the director's employer.

1.2. The Director manages the day-to-day activities of the Company, including performing the functions of its sole executive body within the competence determined by the current legislation of the Russian Federation, the Charter and internal documents of the Company, as well as this agreement.

1.3. main goal The director’s activity is the implementation of the most effective management of the Company, ensuring high profitability of the Company’s activities, the competitiveness of the goods (services, works, etc.), the stability and stability of the financial and economic position of the Company, ensuring the rights and legitimate interests of the Company’s members and social guarantees for employees. When exercising his rights and fulfilling his obligations, the Director must act in the interests of the Company, exercise his rights and fulfill his obligations towards the Company in good faith and reasonably.

1.4. The rights and obligations of the director in the field of labor relations, as well as social guarantees are determined by the Labor Code of the Russian Federation, laws and other regulatory legal acts, constituent documents and internal documents of the Company, this employment contract.

1.5. During the period of his tenure as a director, he is not entitled to hold positions, establish or take part personally or through affiliated enterprises of any organizational and legal form or through affiliated persons in any commercial organizations, with the exception of Companies that are part of a holding company, which includes the Company itself , as well as in accordance with a special decision of the General Meeting of Participants of Damas LLC, adopted by a simple majority of the Company's participants participating in the voting. The director is not entitled to make on his own behalf in his own interests or in the interests of third parties transactions similar to those that are the subject of the Company's activities.

1.6. The Director is not entitled to disclose information that has become known to him in connection with the performance of official duties, which constitutes a commercial secret and confidential information about the activities of the Company, the disclosure of which may cause damage to the Company.

1.7. The director is subject to all types of compulsory social and medical insurance in the manner and under the conditions established for employees by the legislation of the Russian Federation.

2. Obligations of the parties

2.1. The duties of the director include the exercise of all powers of the sole executive body of the Company as a commercial organization, the rights and obligations of the Company in relation to the members of the Company and its employees, state authorities and local governments, as well as the rights and obligations of the Company related to its production and economic activities and management of subsidiaries and affiliates.

2.2. Director's duties:

Provides preparation and submits to the General Meeting of Members of the Company the annual report, annual financial statements, including a profit and loss statement, as well as proposals for the distribution of profits;

Informs the general meeting about the current production and economic activities of the Company and financial and economic indicators;

Based on the data of observation, research and analysis of production and commercial processes in the activities of the Company, it prepares and implements specific programs economic development Society;

Exercises strict control over the rational use of material, labor and financial resources;

Organizes the production and economic activities of the structural divisions of the Company and the effective interaction of subsidiaries business companies;

Controls the work and ensures effective interaction of departments and other structural divisions of the Company;

Develops and implements methods for rapid response to crisis and non-standard situations that may arise in the activities of the Company;

Ensures the fulfillment of the Company's obligations to counterparties under business agreements;

Provides selection, placement, training, certification, advanced training of the Company's personnel and rational use of employees' labor;

Ensures compliance in the Company with the internal documents of the Company, and the principles of corporate culture;

Takes measures to eliminate the causes and conditions that may lead to conflict situation a team;

Organizes observance of labor discipline and safety regulations;

Organizes accounting, ensures the compilation and timely submission of accounting and statistical reporting on the activities of the Company, to the tax authorities and state statistics authorities;

Ensures payment by the Company of taxes and other mandatory payments within the terms, procedure and amounts determined by the current legislation;

Carries out other duties that are assigned or will be assigned to the director by the Charter, internal documents of the Company and the current legislation of the Russian Federation.

2.3. The director of the Company has the right:

Independently, within its competence, resolve all issues of the production and economic activities of the Company;

Act on behalf of the Company without a power of attorney, including representing its interests in all government and local government bodies, organizations, enterprises and institutions of any form of ownership, make transactions on behalf of the Company;

Issue powers of attorney for the right to represent on behalf of the Company, including powers of attorney with the right of substitution; - within its competence, make decisions on spending the Company's funds, including funds and reserves created by the Company; - approve the staff list of the Company, branches and representative offices;

Dispose of any property of the Company, except for cases when the resolution of such issues falls within the competence of the general meeting of members of the Company;

Approve prices and tariffs for products, works and services; - open settlement and other accounts in Russian and foreign banks, sign payment documents;

Approve internal documents of the Company within its competence;

Organize the preparation and holding of the General Meetings of the Company's Members;

Sign payment, financial and other outgoing documents;

Coordinate and organize the interaction of subsidiaries with each other and with the main company;

Approve organizational structure, staffing, job descriptions of employees of the Company, branches and representative offices of the Company; - issue orders on the appointment of employees of the Company, on their transfer and dismissal, apply incentive measures and impose disciplinary sanctions;

In accordance with the current legislation, determine information constituting a commercial secret and confidential information about the activities of the Company;

Give instructions and orders on all issues of the current activities of the Company, exercise control over their execution;

Exercise other rights and powers within the competence of the Director of the Company.

2.4. The Company assumes the following obligations:

Comply with the terms of this Agreement, the charter and internal documents of the Company;

To provide normal conditions the director's work to provide him with: a working office, telephone, fax and other operational communication services;

Reimburse the director for hospitality expenses in the amount approved by the decision of the general meeting of the Company's participants;

Pay for the activities of the director in the manner, amount and terms specified in this Agreement;

Carry out in relation to the director all types of compulsory social and medical insurance provided for by the current legislation and ensure the payment of appropriate benefits to him;

3. Working hours

3.1. The director is given irregular working hours.

3.2. The time of attendance at work, the need to leave on business trips are determined by the director independently, based on the production need, the current tasks facing the Company and the need to fulfill the duties assigned to him by this agreement.

4. Rest time

4.1. The director determines a break for rest and meals during the working day on his own, at a convenient time for himself.

4.2. The director is given two days off a week.

4.3. The director is granted an annual basic paid leave of 28 calendar days.

4.4. The main and additional paid holidays are granted to the director during the working year within the terms set by him independently, taking into account the current production and economic activities of the Company and fixed in the vacation schedule.

5. Activity payment

5.1. The remuneration for the activities of the director consists of the official salary.

5.2. Official salary director is set in the amount of _______ (______) rubles per month.

5.3. Subject to the fulfillment of the business plan of the Company and the official duties assigned by this agreement, the director is paid a vacation remuneration in the amount of the average monthly salary for each annual paid vacation. The decision to pay vacation remuneration is made by the General Meeting of the Company's Members.

6. The term of the contract and the procedure for its termination

6.1. This agreement comes into force from the moment of its signing by the parties and is valid for three years until the relevant decision of the General Meeting of Members of the Company on the appointment of a director.

6.2. This agreement may be terminated early:

At the initiative of the director own wish), if the director has filed an appropriate application for early termination of this agreement. The director's application must be addressed to the General Meeting of Members of the Company, submitted to the office at the location of the Company no later than one month before the date of termination of the contract. A copy of the letter of resignation must also be sent to the Chairman of the General Meeting of Members of the Company at the address of his place of residence (or the location of the member of the Company, the head of which is the Chairman of the General Meeting of Members of the Company). The General Meeting of Members of the Company is obliged, within thirty days from the date of receipt of the director's application for dismissal and termination of the employment contract, to decide on the resignation of the director and elect a new director; - in connection with the adoption by the General Meeting of Members of the Company of a decision on early termination of the employment contract;

In connection with the dismissal of the director of the debtor organization in accordance with the legislation on insolvency (bankruptcy); - on other grounds provided for by the current labor legislation of the Russian Federation.

6.3. In case of liquidation or reorganization of the Company, when the position held by him cannot be retained by the Commercial Director, the Company is obliged to notify him of the forthcoming termination of the contract no later than two months in advance. In this case, the Company shall pay the director a severance pay in the amount and in the manner established by the current legislation.

7. Director's responsibility

7.1. The Director shall be liable to the Company for losses caused to the Company by his guilty actions (inaction), unless other grounds and amount of liability are established by federal laws.

7.2. The Director is not responsible for the damage caused to the Company in the following cases:

If the damage has arisen in connection with actions that can be classified as a normal production and economic risk;

If the damage was caused by force majeure or other circumstances emergency which the director could neither foresee nor prevent by reasonable measures;

If the damage is not a direct result of the actions (inaction) of the director.

7.3. In determining the grounds and extent of the director's liability, the usual conditions must be taken into account. business turnover and other circumstances relevant to the case.

7.4. The director is liable for damages resulting from decisions taken by him that go beyond his competence. The director is not released from liability if the actions entailing liability were taken by the persons to whom he transferred his rights.

7.5. For violations labor discipline The director is liable in accordance with the current labor law Russian Federation. Penalties on the directors are imposed by decisions of the General Meeting of the Company's Members.

8. The procedure for changing the terms of this agreement.

8.1. The terms of this agreement may be changed by mutual agreement of the Director of the Company and the General Meeting of Members of the Company.

8.2. All changes and additions to this agreement are valid if they are executed in writing and signing by the Director and Chairman of the General Meeting of Members of the Company. In the event that during the period of validity of this agreement changes are made to labor legislation, this agreement is valid in the part that does not contradict the law, while additional agreement not included in this agreement.

8.3. In the event of disagreements in the performance of the terms of this agreement, they are subject to settlement through negotiations between the Director and the General Meeting of the Company's Participants. In case of failure to settle disputed issues during the negotiation process, disputes are resolved in court in the manner prescribed by the current legislation of the Russian Federation.

8.4. In all other respects that are not provided for by this agreement, the parties are guided by the current legislation of the Russian Federation.

8.5. This Agreement is made in duplicate, having equal legal force. One copy of the agreement is kept by the director, the other - in the documents of the General Meeting of the Company's participants.

Signatures, addresses and details of the parties to the employment contract

Society Director

A copy of the employment contract received (a)

"_____" ____________________ 200____ ______________________________________________

(signature) (Surname, initials of the director)

According to Article 273 of the Labor Code, the head of an LLC, represented by the president or general director, is recognized as the only executive body that manages the company and personnel. He also has the status of an employee of the organization and is subject to labor laws. To fix the powers of the head, an employment contract is concluded with the general director of the LLC, a sample of which is presented below.

The document is drawn up in accordance with the norms of Article 57 of the Labor Code and at the same time reflects all the nuances and features of the status of the general director. That is, employment contract with director(sample below in the article) uses general rules and has a structure similar to a regular employment agreement.

The heading of the document indicates the date and place of the conclusion of the contract, the name of the organization, its TIN, the full name of the representative of the institution and the data of the document on the basis of which it acts. Then you need to indicate the full name and passport details of the person accepted for the managerial position. In the body of the document without fail indicate:

• place of work of the head;
• lists general job responsibilities;
• date of entry into office;
• working conditions;
• remuneration regime: the amount of salary, the procedure for calculating and paying salaries and other payments;
• rest regime: days off and the procedure for granting vacation;
• conditions of compulsory social insurance;
• period of the contract. This period is determined by the constituent documents or by agreement of the parties.

A sample of filling out an employment contract with the director of an LLC

Nuances when concluding a document

Since the general director is the legal representative of the enterprise, carries out activities on his behalf and in the interests of the institution, the position should be prescribed identically to the definition set out in.

If the director is hired with, this must be indicated in the contract. For leadership positions? according to the law, it is up to 6 months.

Payroll should also be given special attention. If the manager's salary exceeds 25% of the total value of the institution's assets, then this contract is recognized big deal, and must be approved by the board of directors or a meeting of founders.

In the employment contract, you can specify the amount of compensation payments in the event of termination of cooperation. The sum of the manager's severance pay must be equal to at least three salaries.

One of the main clauses of the contract is the non-disclosure of commercial secrets and liability for the dissemination of classified information.

When drawing up a document, the question may arise as to whether it is necessary to make a clause on the liability of the head. Lawyers believe that this is not necessary, since the director is considered a materially responsible person by default.

If the sole founder and head are the same person

Labor legislation does not directly prohibit concluding an employment contract with the head if he is a co-founder. But what if he is the only founder. This situation does not have a clear answer and various departments, such as the Ministry of Finance, Rostrud, off-budget funds express opposing views on this issue.

Representatives of departments believe that signing an agreement with oneself in the person of the head and founder is impossible. They are based on the norms of the law set out in paragraph 3 of Art. 182 Civil Code RF. However, this legislative act does not apply to labor relations. Nevertheless, representatives of Rostrud expressed the opinion that an employment contract is a bilateral agreement, and in the absence of one of the parties, the conclusion of such a contract is impossible.

It follows from this that the signing of an employment contract between an employer and an employee in the same person is not allowed. The Ministry of Finance adheres to the same point of view and forbade taking into account the amount of wages and social contributions for the general director in expenses.

Having decided to conclude an agreement with yourself as a leader who is a sole founder, you need to consider:

• When drawing up an agreement, the parties are a legal entity - an employer and an individual - an employee. When carrying out business activities, the institution acts as a legal entity, and not on behalf of the founders, therefore, literally, you conclude an agreement with the company, and not with yourself.
• Nowhere in the Labor Code is there a direct prohibition on the execution of such a contract. Article 11 contains a list of persons to whom labor legislation does not apply, but the director, who is the sole founder, is not indicated there.
• IN Federal Laws No. 255-FZ of December 29, 2006 and No. 167-FZ of December 15, 2001 state that pension and social insurance contributions are paid from all employees, including from the wages of directors who are the sole founder of an LLC.

IN Tax Code RF in paragraph 21 of Art. 270 stipulates that when calculating the expense item, it is impossible to include remuneration of the management, except for those paid under an employment contract. It follows from this that the implementation of the write-off of expenses for the salary of the director is possible.

Sample and rules of an employment contract with the commercial director of LLC

A commercial director is a specialist in charge of the sales department, an employee who carries out activities related to the procurement, logistics and marketing of the enterprise. This employee takes office and is dismissed by the Order of the general director or president of the institution. Labor contract with such an employee belongs to the category of contracts with managers and is drawn up according to all the rules inherent in this group. The document must contain:

• subject of the contract;
• identifying data of the parties;
• validity period of the document;
• information about the probationary period, if any;
• date of entry into office;
• rights and obligations of the employer and employee;
• mode of work and rest;
• conditions for accrual and payment of wages and other incentive payments;
• situations and cases that make it possible to amend the contract or terminate it.

The body of the document must indicate necessary knowledge and skills for a candidate for a position, prescribe job responsibilities. For full disclosure of information, additional clauses on non-disclosure of trade secrets and others may be included in the agreement.

Employment contract with the executive director of LLC

The executive director carries out activities related to the management of the organization, settlement production processes in order to maximize profits. An employment agreement is drawn up in accordance with labor legislation, taking into account the requirements for the category of contracts with managers. The structure of the contract is completely identical to the previous example.

The main contract may be accompanied by a work schedule, an agreement on non-disclosure of commercial secrets and job description. All changes to the employment contract are made by drawing up an Additional Agreement.

Who signs the contract

In order to determine who has the right to endorse an employment contract with the head, it is necessary to find out which body is authorized to choose the general director. Law No. 14-FZ of February 8, 1998 states that the head is elected at a general meeting of participants, but in practice the board of directors can also make a decision. Such powers are disclosed in the Articles of Association of the LLC.

If a director is elected at a general meeting, the contract is signed by the chairman or a certain member of the LLC is elected to sign the contract with the director.

In the second case, the contract is signed by the employer by the chairman of the board of directors or another authorized person - this can be either a member of the board or a simple participant.

If the contract is drawn up by the director, who is the sole founder, then he puts signatures from both parties.

Rupture of the contract

Termination of the employment contract with the head entails the emergence of many controversial issues. The dismissal of a director may be common grounds set out in the Labor Code of the Russian Federation, and on special ones, indicated in article 278 Labor Code. Special circumstances arise from the specifics of a leadership position. So, in what cases can a director be fired:

• by decision of the new owner of the institution within three months from the date of entry into ownership;
• if the activity carried out by the director resulted in the non-preservation or misuse of assets, caused damage to property, losses;
• with regular violations of official duties;
• in the cases provided for in Art. 81 and Art. 278 of the Labor Code of the Russian Federation (disability, termination of the contract, etc.);
• if at the general meeting it was decided to terminate cooperation with this person as a director.

It should be remembered that the legislation establishes increased responsibility for leadership positions. Article 277 of the Labor Code clearly states that the director is financially liable for the damage caused to the institution as a result of his actions.

Also, do not forget that upon dismissal of the general director without obvious violations, the employer is obliged to pay impressive compensation provided for in article 279 of the Labor Code of the Russian Federation.