Appointment to a managerial position: how not to make a mistake with a candidate. Is it possible to appoint a specialist who does not have a higher education to the position of director or deputy director of a research institute? With employees appointed

  • general characteristics labor law
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  • Grounds for the emergence of labor relations
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    • Election to office
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  • Fundamentals of labor law in foreign countries
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Appointment to a position or confirmation to a position

This basis is sometimes confused with such a formal moment as issuing an order for employment (appointment to a position). A number of authors, citing the appointment of heads of branches (representative offices) of legal entities as such a basis, substantiate this viewpoint with civil legislation, which states that heads of representative offices and branches are appointed legal entity and act on the basis of his power of attorney (clause 3 of article 55 of the Civil Code of the Russian Federation; clause 4 of article 5 of the Law on companies with limited liability; clause 4 art. 5 of the Law on Joint Stock Companies) 2 See, for example: Paramonova S.V. Regulation of work of the head of a separate structural unit organizations //Labor law. 2009. No. 5..

At the same time, this civil law norm does not talk about the method of establishing labor relations between the company and the head of the branch (representative office); it only indicates that the employer in relation to such a manager is the company (and not the branch), but the method of employment this position can be anything: it can be election, or competition, or any other procedures that are established in a given business company.

The appointment to the position referred to in Art. 16 and 19 of the Labor Code of the Russian Federation, involves a certain procedure that may be established by law or otherwise normative act. At the same time, the Code equates such concepts as “appointment to a position” and “confirmation in a position.”

Yes, the Attorney General Russian Federation appointed to the position (Article 12 of the Law on the Prosecutor's Office) in the manner established by this Law. In particular, his appointment is carried out by the Federation Council of the Federal Assembly of the Russian Federation on the proposal of the President of the Russian Federation. If the candidate for the position proposed by the President of the Russian Federation Prosecutor General If the Russian Federation does not receive the required number of votes from members of the Federation Council, the President of the Russian Federation shall submit a new candidate to the Federation Council within 30 days.

Another example of appointment to a position could be appointment to the position of head of a unitary enterprise. Despite the fact that the Law on Enterprises does not clearly indicate what this procedure consists of, it nevertheless states that the appointment of the head of a unitary enterprise, the conclusion with him, amendment and termination of an employment contract are carried out by the owner of the property of the unitary enterprise. The procedure for the appointment and dismissal of heads of state (municipal) unitary enterprises is determined by by-laws. For example, Resolution of the Moscow Government dated September 21, 2011 No. 441-PP approved the “Procedure for the appointment and dismissal of heads of state unitary enterprises (state-owned enterprises, state-owned enterprises) of the city of Moscow” 2 Appendix 2 to the resolution of the Moscow Government of September 21, 2011 No. 441-PP “On improving the system of interaction between executive authorities of the city of Moscow in the exercise of the rights of the owner of property and the founder of state unitary enterprises (state-owned enterprises, state-owned enterprises) of the city of Moscow.”. Here, in particular, it is indicated that the appointment of heads of enterprises is preceded by the selection of applicants for the position of manager (general director, director), which is carried out by the executive authority of the city of Moscow, under whose departmental subordination is the state unitary enterprise (state enterprise, state-owned enterprise) of Moscow, or the Moscow Property Department.

Applicants for this position may be:

  1. persons included in the register of certified managers, formed by the Moscow Property Department in the manner established by it;
  2. persons included in the management personnel reserve of the city of Moscow, formed in accordance with the legal acts of the city of Moscow (clause 1.1 of the Procedure).

Next, the executive body under whose departmental subordination the enterprise is located, the proposal for the candidacy of a manager is sent for approval to the Moscow Property Department (clause 1.3.2.1 of the Procedure). The appointment is made by the Moscow Government. Simultaneously with the adoption legal act on the appointment of the head of an enterprise by the executive body under whose departmental subordination this enterprise is located, an employment contract is concluded with this manager in three copies, one of which is sent to the Moscow Property Department (clause 1.2.4 of the Procedure).

Appointments made in credit institutions can be considered confirmation of a position. According to Art. 11.1 Banking Law 3 the federal law dated December 2, 1990 No. 395-1 “On banks and banking activities.” a credit organization is obliged to notify the Bank of Russia in writing of all proposed appointments to the positions of head of a credit organization, chief accountant, deputy chief accountant of a credit organization, as well as to the positions of head, deputy heads, chief accountant, deputy chief accountant of a branch of a credit organization. The Bank of Russia, within a month from the date of receipt of the specified notification, is obliged to give consent to the specified appointments or submit a reasoned refusal in writing. If the candidate is approved, the employee is confirmed in the position, on the basis of which an employment contract is concluded with him.

Until approval, such employees perform duties for the position for which they are applying (This case is the only one when an employee “performs duties.” Performing duties for a vacant position is unacceptable.).

When I decide to appoint the best specialist leader or not, I analyze two factors. The first is a person’s personality type, the second is his desire and skills. In this article I will show with examples who should not be appointed as a leader.

Employee personality type

It is obvious that people with behavioral problems, unrestrained, highly manipulative, and who do not love others cannot be appointed to leadership positions. However, when deciding who to appoint as a leader, I analyze the personality type based on the Enneagram. www.enneagraminstitute.com, www.etcen.ru. This theory involves dividing people into 9 types - some of them are capable of being a leader, while others I would not recommend appointing to leadership positions.

First of all, you need to understand what type of personality the candidate is. leadership position. For example, I do it this way - each type has its own characteristic behavior

o Type 1 (Reformer) - a principled, purposeful and perfectionistic person.

o Type 2 (Helper)- generous, noble, willing to please people, owner of his loved ones.

o Type 3 (Success Oriented Personality) - adaptable, success-oriented, energetic and status-conscious.

o Type 4 (Individualist) - emotional, bright, immersed in one’s own experiences, temperamental.

o Type 5 (Thinker)- insightful, innovative, introverted and isolated.

o Type 6 (Loyalist)- attractive, responsible, restless and suspicious.

o Type 7 (Enthusiast)- spontaneous, multifaceted (versatile), destructive, scattered (scattered).

o Type 8 (Confrontator)- self-confident, decisive, strong-willed and prone to confrontation.

o Type 9 (Peacemaker) - receptive, reassuring, agreeable and helpful

Among them, there are types who are undesirable to be appointed as managers, especially in conditions of crisis, startup or rapid development of the company. They are good in periods of stability and calm, in mature markets. In particular, there are many leaders of this type in Europe.

Assistant. He is a person who wants to please and requires personal affection. He is good at working with people, he is comfortable with him, and he achieves success. But when he becomes a leader, then crisis situations may become depressed, avoid responsibility, over-delegate authority, and demand that others do his work. For example, we have a leader of this type. He strives to avoid conflicts at all costs, even in situations where defending his point of view and making tough decisions is necessary. As a result, employees sit on his neck, and colleagues treat him and his position with irony. It is better to appoint such people as deputies of tougher leaders.

Individualist. This is an emotional, bright and temperamental person, immersed in his own experiences. He is always timeless; there are no working hours, schedules or deadlines for him. He is a man of mood. One of my deputies is exactly like this - he comes to work when he wants, leaves when he wants, can become depressed for a minor reason, and is very sensitive to situations when he believes that he is not appreciated. A person takes up a lot of my time, he needs constant support and care. But I tolerate this man’s shortcomings because he has amazing creative thinking. He is able to find a way out of any situation and come up with an intricate scheme that provides economic benefits. In addition, this person is irreplaceable as a cultural sector.

Thinker. This is a shrewd and reserved person, he considers himself an expert, but he will not be a good leader. It is difficult for him to manage his subordinates, since he is busy only with his own work problems. Such a person believes that everyone should understand and do everything themselves. I had a manager of this type: to all my questions about the results of his department’s work he answered, “I work normally, but I don’t have time for my employees.” I had to part with him, since the effectiveness of a manager is measured through the effectiveness of his department, and he did not improve the efficiency of his employees.

Peacemaker. He is an agreeable and helpful person, often allowing others to lead. At the same time, he tends to create his own ideal inner world in order to protect himself from problems. The management has the feeling that all instructions run into a wall of indifference. I have such a manager - when communicating with him, I constantly get the feeling that the person has a “late ignition”: she often needs to be reminded of what she must do. At the same time, the employee is very caring and feels comfortable with her. Such people also have very big problems with initiative. Therefore, if you don’t want problems, then better leader such a person should not be appointed. I have this person in the area of ​​working with partners, she is great at solving conflict situations- she simply doesn’t get involved in them... and for control and reminders there is Outlook /

Loyalist. He is responsible, restless and suspicious, constantly doubting the effectiveness of his work. He needs external authority, a leader. I have several such leaders. They perform well in leadership legal service, security service, planning department - that is, where the work is planned and procedural. But in crisis conditions it is very difficult for such people to work - they can fall into deep thought, without making decisions for a long time. There is only one way out - to periodically communicate with them, instill confidence, confirm your right to leadership, and help them find a way together.

Now a little about those who are successful in leading other people. They also have their own problems and this must be taken into account when appointing them to a position.

Reformer. A principled, purposeful person, it is important for them to maintain high standards in everything. Despite the fact that he considers himself fair and reasonable, people may perceive him as tough, despotic, demanding strict compliance with his demands. I have a manager of this type. Up to a certain point, her rigidity in demanding that tasks be performed exactly as she sees them drove her colleagues crazy. Then I had to gently intervene to correct her behavior - quietly, in the process of discussing work issues, I explained to her my policy in working with personnel. These people are very good in situations where you need to debug a process. Especially when the project reaches the stage of stable development and needs to be structured. They are good at developing, implementing and maintaining standards. But they need constant contact; they want to feel the support of their leader.

Success-oriented people. They are easily adaptable, energetic and status-conscious, constantly demanding confirmation of their status, recognition, and are ready to appropriate other people's achievements; they can go over their heads in achieving their goals and do not accept criticism. At the same time, they are very effective in achieving goals, and are terribly worried when something doesn’t work out. I have many such leaders, and they require my constant attention in order to be successful. However, they are the ones who pull the company out in crisis situations (if senior management has the patience to work with such people).

Enthusiast. This is a spontaneous, versatile, absent-minded person. It can be effective, but only for a short period of time, and then suddenly switches to new project, forgetting about the previous one. He is the soul of the team, management feels comfortable with him, but he quickly begins to irritate with his scattered nature. I have experience working with such people, and I know that they require constant, almost daily, monitoring. You need to be able to limit their initiatives and ensure that their sincerity turns into the final result. Such people are good at new projects - they quickly light up, pull people along with them, they are good at convincing. They are good as business managers, sales departments, and can be commercial directors. In no case should you bet on “procedural” areas - production, finance, legal department.

Confrontator. This is one of the most complex types. He is self-confident, decisive, prone to confrontation. Believes that he must control any situation, as well as people. It is difficult for him to delegate tasks or share leadership with someone. In any situation, he rushes like a tank, trying to achieve his goal at any cost. When appointing such a person to a position, be prepared that he will try to take your place.

Desire and skills of a person

Almost everyone has leadership abilities - some have more, some have less. As a rule, there is a lack of knowledge, skills, abilities and experience. No employee can become a leader if he has not worked under a sensitive mentor, is not given regular retraining and is not invited to participate in the exchange of experience. For example, a young woman worked in my company: she successfully sold, found a common language with employees and management. For her activity, she was enrolled in the personnel reserve and a training program was outlined. But then the head of the department suddenly quit for us. And we appointed this employee (she is an Enthusiast by type) in his place. Problems immediately began: the person was depressed, there were a lot of conflicts in the team, the assigned tasks were not being completed. The reasons are banal - it doesn’t work out all at once, he can’t concentrate on the process, the project starts to get boring... I had to promptly send this manager for training - teach him how to set goals, plan, look for resources, find and motivate people, control them, etc. In addition, , we assigned her a mentor from among experienced directors, and once a month I personally met with her and discussed emerging problems. As a result, in three months we got a successful manager who manages a team of 40 people well. But if that employee had no desire, then all our efforts would have been in vain.

Therefore, you cannot appoint the best employee as a manager if the person himself does not want it.

Often in enterprises, after the dismissal of an employee, his position remains vacant. Some employers are in no hurry to adjust the staffing table and exclude vacancies from it. Instead they rely on current employees performance of duties on vacant positions. However, such an action is not entirely legal.

Features of definitions

A vacant position is a vacant position provided for in staffing table, for which there is no employee listed. If an employee is absent due to illness or a business trip, then his workplace is retained by him. Accordingly, this is no longer a vacant position. The temporary performance of duties under it is regulated by Article 74 of the Labor Code.

Replacing an absent employee

According to the law, the appointment of an existing employee to the position of an employee who is on a business trip, on vacation, for treatment, etc., is a transfer. Replacing an absent employee is due to production needs. The law allows for transfer to another job without the employee’s consent.

Since this is not a vacant position, the period of temporary performance of duties for it is strictly limited. It cannot exceed a month during a (calendar) year.

Difficulties in practice

As in the case of a vacant position, performing duties locally labor activity a temporarily absent employee is possible if the appropriate qualifications are available. If replacing an employee involves a lower level, it is necessary written agreement transferred employee.

The implementation of this rule may cause some problems in practice. The fact is that the Labor Code does not establish criteria for comparing the qualifications of different specialties, positions and professions. This means that the employer must develop such an assessment system himself. Of course, all criteria must be formalized and staff must be familiar with them.

The employer must act very carefully, without violating the interests and All decisions must be made exclusively within the framework of the law. Otherwise, a labor dispute may arise.

Combination

An employee can simultaneously perform the duties of his main position and replace an absent employee. In such cases they talk about combination. It should be taken into account that the employer does not have the right to transfer the employee to another job without his consent and release from his main activity. If an employee wishes to combine job responsibilities, he must give written permission to do so.

Additional payments

An employee who has agreed to combine, in accordance with Article 151 of the Labor Code, has the right to additional payments. The amount of additional payment is established by agreement of the parties. According to current regulations, additional payments may be received by a full-time deputy of an employee who is temporarily absent from work.

Clarifications of the Supreme Court

Previously, a provision was applied according to which the amount of the surcharge was determined as the difference between official salaries employees, if the replacement employee is not a full-time assistant (substitute) for the absentee.

However, by the Ruling of the Supreme Court Collegium this rule was found to be in violation labor rights employees. As a result, full-time assistants (deputies), Ch. engineers, etc.

Nuances

If the position of an absent employee is filled by an employee with a release from his main activity, he can count on receiving a salary in an amount not less than average earnings, which he received at his workplace.

The general rules for determining the average salary are established by the Government in Decree No. 213 of 2003.

Performing duties for a vacant position

It has already been said above that the appointment of an employee to replace an absent employee is a transfer. This situation is possible if the employee is absent temporarily, i.e. he is not dismissed from the enterprise. The courts adhere to the same position.

In particular, you can pay attention to Resolution of the Plenum of the Supreme Court No. 16 of 1992. Paragraph 12 of this document provides an interpretation of the provisions of Article 26 of the Labor Code of the RSFSR. Despite the fact that this Code has not been in force for a long time, many of its rules can be applied today. Moreover, the wording of Articles 26 of the Labor Code and 74 of the Labor Code in the part regulating the transfer of an employee to the place of a temporarily absent employee at the initiative of the employer is the same. Accordingly, there is no doubt that the judicial authorities, when considering labor disputes, will take into account the explanations given in the said Resolution.

Paragraph 12 of the document stipulates that the performance of duties in a vacant position for a certain period is possible with the written consent of the employee. It follows from this that the Supreme Court, in fact, introduced the new kind transfers of employees to other jobs. Meanwhile, according to labor legislation, performing duties in a vacant position is not allowed. Consequently, the provision present in the Resolution of the Plenum cannot be applied.

The above means that the order to perform duties for a vacant position can be considered invalid. The local document must use completely different wording. Many leaders, taking advantage of citizens' ignorance and their legal illiteracy, issue clearly illegal orders. It should be remembered that any decision of the employer can be challenged.

Questions about timing

Many ignorant citizens are interested in what period of performance of duties for a vacant position can be established by order of the manager? The Labor Code says nothing about this. There are no explanations in labor legislation because this form of employee transfer is not provided for at all. Consequently, it is not entirely correct to talk about any (including continuous) period of performance of duties for a vacant position. In such cases, the employee should be considered to have been transferred permanently. This, in turn, requires the consent of the employee. Let us turn to the explanations of the Supreme Court.

Resolution No. 16 states that if an employer transferred an employee without his consent, and he, in turn, began working voluntarily, then this action may be considered legal. Therefore, the employee will be considered holding the position from the 1st day of transfer.

Establishing a specific deadline for fulfilling duties for a vacant position has no legal significance for regulating labor relations. Such a temporary appointment of an employee must be considered a permanent transfer to another place (subject to his consent) in accordance with Article 72 of the Labor Code.

conclusions

The fact of voluntarily fulfilling the duties of an open position transforms the interaction between employer and employee from the first day of appointment. Consequently, the position itself ceases to be vacant.

Decor

When an employee is appointed to a vacant position, the standard hiring or transfer procedure is applied. In the first case, the candidate provides everything Required documents, writes a statement. The employer and the citizen enter into an agreement.

Before signing, the candidate must carefully read the contents of the document. The fact is that some employers use incorrect language. Signing the contract means voluntary agreement with the terms of employment.

Often, employers take advantage of employees’ legal illiteracy and appoint them to act in vacant positions. And the employees, in turn, voluntarily agree to this. In practice, it turns out that employees do both their own and others’ work. Remuneration, in turn, as a rule, in such cases does not correspond to the volume of work activity. It is quite difficult to challenge such situations, since employers take written consent from employees. Quitting is often the only option.

Nevertheless, if such contradictory situations arise, it is advisable to contact the labor inspectorate.

In essence, the employee can refuse to perform additional responsibilities. To do this, he needs to contact the employer directly and write a statement.

It is worth saying that many employees consciously agree with the employer’s proposal. This is usually associated with the employer's promises to pay high remuneration. But in reality, the employee does not always receive the expected amount. It is in such situations that problems begin. On the one hand, the employer’s actions are illegal, on the other hand, the employee himself agreed to the conditions.

Conclusion

To avoid any problems, employees should carefully read the documents issued by the employer. If you are unsure of the legality of certain conditions, it is advisable to consult an independent lawyer. Ignorance of the law often leads to very negative consequences.

The employer's orders must use only the wording that is provided for labor standards. In the Labor Code, the appointment of an employee for a vacant position is prohibited. If it does take place, it should be recognized as a transfer to permanent work. Accordingly, the position will no longer be vacant, and it is impossible to hire another person for it.

The appointment of an employee as acting for a particular position is permitted if the corresponding employee is absent for any reason, but remains on the company’s staff.

Appoint the General Director in the following order.

Before concluding an employment contract with the general director, a decision must be made by the owner of the organization on his election (appointment) to the position.

This decision can be made by:

  • general meeting of participants (shareholders) of the company, formalizing it in minutes (for example, in an LLC - protocol general meeting members of the company);
  • the board of directors (supervisory board) of the company (if the resolution of this issue is within its competence by the charter), formalizing it by decision.

This is provided for in Article 63 and paragraph 3 of Article 69 of the Law of December 26, 1995 No. 208-FZ, Article 37 and paragraph 1 of Article 40 of the Law of February 8, 1998 No. 14-FZ.

If the organization has only one owner, then CEO appointed on the basis solutions the only participant(shareholder) (clause 2 of article 7 and clause 1 of article 40 of the Law of February 8, 1998 No. 14-FZ, clause 2 of article 2 and article 69 of the Law of December 26, 1995 No. 208-FZ ).

Before concluding an agreement with the general director, check whether there are any violations in the procedure for making a decision on his election (appointment). The decision must not only be made in compliance with all legal requirements, but also correctly formalized (Article 40 of the Law of February 8, 1998 No. 14-FZ, Article 69 of the Law of December 26, 1995 No. 208-FZ). To check the correctness of the decision, refer to the organization's charter. First of all, it is necessary to check which body has jurisdiction over the issue of forming a sole executive body, whether the procedure for convening a meeting or session has been followed, whether the quorum necessary for making a decision has been met, and who is entrusted on behalf of the organization to sign an employment contract with the elected general director.

The general director may have the status individual entrepreneur. The legislation does not prohibit this (Article 40 of the Law of February 8, 1998 No. 14-FZ, Article 69 of the Law of December 26, 1995 No. 208-FZ).

Attention: if a person not from among the organization’s employees is applying for the position of general director, make sure that he is not on the register of disqualified persons (Article 32.11 of the Code of Administrative Offenses of the Russian Federation).

To do this you need to contact tax service With request(on paper or in in electronic format) (clause 4 of the Procedure approved by order of the Federal Tax Service of Russia dated December 31, 2014 No. ND-7-14/700@). Request forms on behalf of an individual And from the organization shown in Administrative regulations to provide information from the register of disqualified persons, which was approved by order of the Ministry of Finance of Russia dated December 30, 2014 No. 177n.

The request can be submitted electronically through the official website of the Federal Tax Service of Russia or a single portal of state and municipal services. A request on paper can be submitted to any tax office (by mail or through a representative of the organization).

The information contained in the register is open and is provided in the form of an extract in the form approved by Order of the Federal Tax Service of Russia dated December 31, 2014 No. ND-7-14/700@. If there is no information about disqualification in the register, a certificate will be issued stating that the requested information is missing.

You will need to pay 100 rubles for providing information. (Clause 1 of the Decree of the Government of the Russian Federation of July 3, 2014 No. 615).

Employees who have been disqualified are prohibited from holding leadership positions in the executive body of the organization for a period of six months to three years (Part 2 of Article 3.11 of the Code of Administrative Offenses of the Russian Federation). If a disqualified employee is in a managerial position, working as the head of an organization will mean failure to comply with an administrative decision, which may result in criminal liability for him (Article 315 of the Criminal Code of the Russian Federation). The employment contract concluded with such an employee must be terminated (Part 1 of Article 84 of the Labor Code of the Russian Federation).

Situation: What order should be used to formalize the appointment of the general director of a JSC or LLC?

The law does not establish this. To avoid any disputes in the future, it makes sense to draw up two documents at once:

  • order to take office;
  • The order of acceptance to work.

The director issues an order to take office on his own behalf. The basis for the order is the decision of the participants (shareholders) to whom the director is appointed. The order form has not been approved, so it may be free.

Such an order reflects that the procedure for electing a person to this position has been followed: the director was elected by the participants at the meeting, the decision of the participants is documented in the minutes. This order, together with the decision on election, will need to be submitted to the bank where the company’s current account is opened, and to other persons when it is necessary to confirm the powers of the director.

Order for employment (by form No. T-1 or in an independently developed form) must be completed in order to comply with the formal requirements of accounting legislation. Unlike the order on taking office, it does not reflect the election procedure, but determines the regime and nature of the director’s work, and the amount of the official salary.

The procedure for formalizing relations with the general director, who is the sole founder (participant, shareholder), has its own .

Employment contract

Situation: Is it possible to conclude an employment contract with the general director for a period exceeding five years?

The answer to this question depends on what kind of agreement is concluded with the general director.

The organization has the right to conclude both a fixed-term and an open-ended employment contract with the general director. This is explained by labor legislation provides for the right, not the obligation, to enter into a fixed-term employment contract with the general director. This is stated in Part 2 of Article 59 of the Labor Code of the Russian Federation.

An exception is provided only for cases where otherwise is established in federal legislation (Part 2 of Article 58 of the Labor Code of the Russian Federation). For example, this applies to the president of a state or municipal educational organization higher education, an employment contract with which can only be concluded for a period of no more than five years (Part 14 of Article 51 of the Law of December 29, 2012 No. 273-FZ). In other cases, the organization has the right to conclude an open-ended employment contract with the general director.

If an organization enters into a fixed-term employment contract with the general director, its term cannot exceed five years. In this case, the specific period of work within the five-year limit is determined constituent documents organization or agreement of the parties. This procedure follows from the provisions of Part 1 of Article 275 and Article 58 of the Labor Code of the Russian Federation.

This procedure meets the requirements of the laws on joint stock companies and LLCs (Clause 1, Article 40 of the Law of February 8, 1998 No. 14-FZ, Article 69 of the Law of December 26, 1995 No. 208-FZ) and is confirmed by a resolution of the Constitutional Court of the Russian Federation dated March 15, 2005 No. 3-P.

Read more about how, if necessary, to extend the agreement with the General Director fixed-term contract, cm. How to conclude a fixed-term employment contract .

Situation: Who should sign the employment contract with the CEO on behalf of the organization?

On behalf of joint stock company the employment contract with the general director must be signed by the chairman of the board of directors (or supervisory board). It may also be a person who is authorized by that governing body. This is stated in paragraph 3 of Article 69 of the Law of December 26, 1995 No. 208-FZ.

In an LLC, the employment contract on behalf of the organization must be signed by one of the following persons:

  • the chairman of the general meeting of participants or a member of the company who is authorized by the decision of the general meeting;
  • 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) if the resolution of such issues is referred by the charter to the competence of these structures of the company.

This procedure is provided for in paragraph 1 of Article 40 of the Law of February 8, 1998 No. 14-FZ.

For other organizations special rules are not provided for, therefore the agreement on behalf of the organization has the right to be signed by a person authorized to decide on the appointment of the general director to the position. It could also be the person who heads the relevant governing body.

Situation: Is it necessary to conclude an employment contract with the general director, who is the sole founder (participant, shareholder) of the organization?

No no need.

If the head of an organization is also its sole founder (participant, shareholder), an employment contract is not concluded with him (letter of the Ministry of Health and Social Development of Russia dated August 18, 2009 No. 22-2-3199). The arguments are as follows: the specifics of regulating the labor of organization managers are established in Chapter 43 of the Labor Code of the Russian Federation. At the same time, the provisions of this chapter do not apply to managers who are the only founders (participants, shareholders) of organizations. This clearly follows from the provisions of Article 273 of the Labor Code of the Russian Federation. This rule is based on the impossibility of concluding an employment contract with oneself, since the organization has no other founders (participants, shareholders).

In this situation, the director must decision assume the functions of the sole executive body. Management activities in this case, the director will carry out without concluding any contract, including an employment contract. The assumption of office is formalized by the appropriate by order.

A similar conclusion is contained in letters of Rostrud dated March 6, 2013 No. 177-6-1 and dated December 28, 2006 No. 2262-6-1.

Since an employment contract is not concluded with the general director - the sole founder (participant, shareholder), the organization is not obliged to accrue and pay him a salary. This follows from paragraph 1 of Article 135, paragraph 2 of Article 145 of the Labor Code of the Russian Federation.

However, the organization has the right to do this. After all, the absence of an employment contract with the general director - the sole founder (participant, shareholder) does not call into question the existence of labor relations between him and the organization. According to official explanations, relations that arise as a result of election to a position, appointment to a position or confirmation in a position are characterized as labor Relations on the basis of an employment contract (Article 16-19 of the Labor Code of the Russian Federation). In particular, this means that the specified manager is subject to mandatory social insurance in case of temporary disability and in connection with maternity and has the right to sick leave payment in general procedure, even in the absence of a prisoner with him general rules employment contract (clause 2 of the clarifications approved by order of the Ministry of Health and Social Development of Russia dated June 8, 2010 No. 428n). The legality of this position was also confirmed by the court (determination of the Supreme Arbitration Court of the Russian Federation dated June 5, 2009 No. VAS-6362/09).

Accordingly, the salary of such a general director is subject to personal income tax and contributions to compulsory social (pension, medical) insurance and insurance against accidents and occupational diseases in the general manner (Article 210 of the Tax Code of the Russian Federation, Article 8 of the Law of July 24, 2009 No. 212-FZ , Article 20.1 of the Law of July 24, 1998 No. 125-FZ, letter of the Ministry of Labor of Russia dated May 5, 2014 No. 17-3 / OOG-330).

The salary of the general director, who is the only founder (participant), can be set in the staffing table or order.

Employment history

Situation: What document should be indicated as the basis for hiring in the work book of the general director elected to the position by the general meeting of participants (shareholders) of the organization?

As the basis for hiring the general director, indicate in his work book:

  • or details of the order for the general director to take office;
  • or details of the minutes of the general meeting of participants (shareholders) (decision of the sole participant, minutes of the board of directors (supervisory board)) on the election (appointment) of the general director.

It is explained like this.

Column 4 of the work book indicates the date and number of the order (instruction) or other decision on hiring an employee (clause 3.1 of the Instruction, approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69).

The general director is the sole executive body of the company and is elected (appointed) to the position by the general meeting of participants (shareholders) of the organization (sole participant, board of directors (supervisory board)) for a certain period (clause 1 of article 40, article 39 of the Law of February 8 1998 No. 14-FZ, paragraph 1, 3 of Article 69 of the Law of December 26, 1995 No. 208-FZ).

The agreement between the organization and the general director is signed on behalf of the company by the chairman of the general meeting of participants (shareholders) (the only participant, the chairman of the board of directors (supervisory board) or another authorized person organizations (paragraph 2, paragraph 1, article 40 of the Law of February 8, 1998, No. 14-FZ, paragraph 2, paragraph 3, article 69 of the Law of December 26, 1995, No. 208-FZ).

Moreover, if an employment contract has been concluded with the general director, his hiring must be formalized by order (instruction) (Part 1 of Article 68 of the Labor Code of the Russian Federation). Therefore, the general director issues an order to take office.

Thus, for such an employee of the organization as the general director, as a basis for hiring in the work book, you can indicate both the details of the order for taking office and the details of the minutes of the general meeting of participants (shareholders) of the organization (decision of the sole participant, minutes of the council directors (supervisory board)) on the election (appointment) of the general director.

Similar clarifications are contained in the letter of Rostrud dated September 22, 2010 No. 2894-6-1.

Situation: Is it possible, when hiring a new manager, to combine his work with the departing manager to transfer affairs??

No impossible.

The responsibilities of the manager include managing the organization, including performing the functions of its sole executive body (Article 273 of the Labor Code of the Russian Federation). That is, there cannot be two leaders in an organization at the same time.

The specific procedure for transferring powers (cases) in the event of a change in the head of the organization should be fixed in advance in statutory documents the organization itself, job description manager or his employment contract (Article 57, 274 of the Labor Code of the Russian Federation). So, for example, in the section “Rights and obligations of an employee” of an employment contract with the head of an organization, the following clause may be included: “In the event of termination of the employment contract (both by agreement of the parties and unilaterally), the manager is obliged within ten working days after termination of the employment contract with him, transfer the affairs to the newly appointed manager (or the person performing his duties) in the manner established by the founder of the organization.”

Notification to the tax office

When changing the general director of an organization, it is necessary to notify the tax office within three days (Clause 5, Article 5 of Law No. 129-FZ of August 8, 2001). This is due to the fact that the general director is a person who has the right to act on behalf of the organization without a power of attorney. Information about it is contained in the Unified State Register of Legal Entities (subparagraph “l”, paragraph 1, article 5 of the Law of August 8, 2001 No. 129-FZ). Therefore, when hiring a new manager, this data must be changed.

Notification of a change of general director should be issued in the form of a signed application for amendments to the Unified State Register of Legal Entities (application for form No. Р14001, approved by order of the Federal Tax Service of Russia dated January 25, 2012 No. ММВ-7-6/25).

The new head of the organization can sign such a statement (letter of the Federal Tax Service of Russia dated August 23, 2006 No. GV-6-14/846).

Situation: what consequences may arise if the organization does not inform the tax office about the change of general director?

The tax office may fine the head of the organization. Transactions concluded by the new general director (before entering information about him into the Unified State Register of Legal Entities) may be declared invalid.

The General Director has the right to act on behalf of the organization without a power of attorney (Clause 2 of Article 54 of the Civil Code of the Russian Federation). In this case, information about it must be recorded in the Unified State Register of Legal Entities (subparagraph “l”, paragraph 1, article 5 of the Law of August 8, 2001 No. 129-FZ). Maintenance of the Unified State Register of Legal Entities is entrusted to the Federal Tax Service of Russia (clause 5.5.6 of the Regulations, approved by resolution Government of the Russian Federation dated September 30, 2004 No. 506). Therefore, the organization is obliged to inform the tax office about the change of general director within three days from the moment when new director began to fulfill his duties in accordance with the order (clause 5 of article 5 of the Law of August 8, 2001 No. 129-FZ). If information about the new general director is not provided (submitted untimely), tax office may fine the head of the organization 5,000 rubles. (Part 3 of Article 14.25 and Article 23.61 of the Code of Administrative Offenses of the Russian Federation).

In addition, transactions concluded by the new general director (before entering information about him into the Unified State Register of Legal Entities) may be declared invalid. This is explained as follows. An organization acquires rights for itself (including entering into contracts) and carries out responsibilities through its bodies (Clause 1, Article 53 of the Civil Code of the Russian Federation). The General Director acts without a power of attorney on behalf of the organization (subparagraph 1, paragraph 3, article 40 of the Law of February 8, 1998, No. 14-FZ and paragraph 3, paragraph 2, article 69 of the Law of December 26, 1995, No. 208-FZ ). A general director whose powers are not properly formalized (there is no information about him in the Unified State Register of Legal Entities) does not have the right to enter into transactions on behalf of the organization. Transactions made by an unauthorized person are declared invalid on the basis of Article 168 Civil Code RF. This approach is confirmed by arbitration practice (see, for example, resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 24, 2007 No. 3259/07, FAS Moscow District dated August 13, 2007 No. KG-A40-7913/07).

An invalid transaction does not entail any legal consequences. Its participants will have to return to each other everything received under the transaction (in kind or cash). Such rules are established in Article 167 of the Civil Code of the Russian Federation.

In addition, the organization's counterparties - VAT payers - may have problems related to the reimbursement of this tax from the budget. The fact is that invoices, which are the basis for VAT deduction, must be signed either by the head of the organization, or by persons authorized to do so by order of the head or by power of attorney (clause 6 of Article 169 of the Tax Code of the Russian Federation). If the invoice is signed by an unauthorized person, the buyer (customer) will not be able to receive a VAT deduction (Clause 2 of Article 169 of the Tax Code of the Russian Federation).

Situation: Are the powers of the general director terminated due to the expiration of the employment contract? The founders' decision to appoint new term or the appointment of a new general director is absent.

No, if neither party to the employment contract requested such termination.

The expiration of an employment contract is grounds for its termination under clause 2 of part 1 of Article 77 of the Labor Code of the Russian Federation. Therefore, upon expiration of the general director’s employment contract, the employment relationship must be terminated - a corresponding order is issued and an entry is made in work book(Part 1, 5 of Article 84.1 of the Labor Code of the Russian Federation). If for some reason this did not happen and the general director continues to work, the employment contract with him is transformed into an agreement concluded for an indefinite period (Part 4 of Article 58 of the Labor Code of the Russian Federation). In this case, the possibility of its termination due to the expiration of the term disappears and the agreement continues to be valid until the participants (shareholders) of the company make a decision to elect a new director or to extend the powers of the previous one. If by decision of the participants a new head of the organization is determined, then the employment contract with the previous one can be terminated on the basis of clause 2 of part 1 of Article 278 of the Labor Code of the Russian Federation.

The legitimacy of this position is confirmed by the courts, for example, in the ruling of the Supreme Arbitration Court of the Russian Federation dated July 7, 2010 No. VAS-8874/10, resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 11, 2010 No. A11-7140/2009, the East Siberian District dated July 8, 2010 No. A33-18690/2009. In the resolutions of the Federal Antimonopoly Service of the West Siberian District dated March 6, 2008 No. F04-1353/2008(1414-A27-16), dated November 22, 2007 No. F04-8027/2007(40277-A27-16) it is additionally noted that V Labor Code The Russian Federation does not provide for rules on the automatic termination of an employment contract with the head of an organization if the contract is fixed-term.

Appointment to a leadership position should be a thoughtful step, even for reservists. If you are forced to urgently look for a top manager, do not forget about assessment and training.

From the article you will learn:

It is advisable to nominate personnel from the enterprise reserve for the position of company manager. Department heads usually apply for this position.

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Find out who to appoint to a top position using the “7 Questions” technique

Determining which of the company's department heads is ready to be appointed to the position of head of more high level, use the “7 Questions” technique. It is advisable to have informal conversations for this purpose, for example over lunch. During this interview, ask seven questions to identify management potential and human qualities candidate for a top position.

Question 1.

A person lives by past merits or aims at active actions in the future. A simple question will help identify this: “I have read your personal file and the information contained therein. But could you briefly tell us what you did after you left school?”

It is not so important what exactly a person will say, it is much more important how. If he gets stuck talking about the past and can barely get to the present, let alone the future, that's not a good sign. Most likely, the person is focused on past achievements.

Question “What behavior or qualities of other people annoy you?” will help reveal the “shadow” of a person. Reveal his hidden qualities. For example, if your interlocutor says that he is annoyed by the dishonesty of others, then, most likely, he himself may be insincere and in certain situations is capable of deceiving.

Question 2.

Is the head of the department capable of setting goals for himself and achieving them? To find out, ask: “How would you schedule your work for a month if you got a new position?” Let’s say, answering this question, an employee repeats the phrase: “I’ll wait for specific instructions from higher management.” This suggests that the manager is inclined to wait for instructions from above. It is possible that he does not want to take responsibility. And this is not best quality for a leader, and the decision to appoint him to the position will most likely be premature.

Question 3.

Is the manager ready to motivate and develop employees in order to achieve high results? Ask a case question: “With the level of training and qualifications - always a problem. On the one hand, there are many people looking for work. On the other hand, there are few among them who have the necessary experience and knowledge. Therefore, you have to produce decent business results with people who have insufficient qualifications. How do you look at this problem? Listen to how and what the leader says and evaluate:

  • does the manager care about this problem, and how deeply;
  • Is he determined to independently train his subordinates, motivate them, that is, to receive above-average returns from average-level people?

If not, then it is unlikely that the company will benefit from appointing such a manager to a new position.

Question 4.

Does the employee know how to assess the importance of tasks and set priorities? Ask him: “What tasks do you consider the most important in your work today?” Based on the answer, you will again find out how a person plans his work, whether he thinks about tasks, and whether he evaluates their importance. In addition, you will understand whether he is able to prioritize.

Question 5.

Is the house manager supported in matters related to his work? This also determines how effectively a person will work. For example, if an employee has to travel frequently on business trips, and his wife is unhappy with this, then soon he will begin to think about changing jobs and will become worse at performing his duties.

Question 6.

How full of life does the head of the department live? You can understand this by asking the following question: “Do you find time to do something for your soul, something that is not related to work?” If a person answers: “No, all my interests are tied to work,” most likely he has a limited life. It’s hard to expect interesting things from such a person. non-standard ideas. It’s good if the manager talks about some of his hobbies and explains why it attracts him.

Question 7.

Does the employee have personal maturity and is capable of admitting mistakes? Ask: “Have you made mistakes in life and work? As a rule, all people make mistakes." If the manager answers: “No, I didn’t make any serious mistakes” or “I can’t remember any cases,” he is most likely lying. And not only you, but also yourself. If your interlocutor answers, for example, like this: “Of course, I also had mistakes. But mistakes are the only thing effective way accumulate experience,” then we can say that this is a mature person who is capable of admitting his mistakes.

Read more about the assessment of a candidate and the procedure for appointment to the position of chief in .

How to quickly assess the level of training of a reservist and further train him for appointment to a leadership position

If, due to an emerging production need, there is an urgent need to appoint an employee who has not completed training as part of the reserve training to the position of manager, you should not oppose the early promotion of the reservist. If during the training process a specialist demonstrated a steady increase in performance indicators, you can propose a compromise that would allow you to appoint a reservist to the position, complete his training, and evaluate him “at the entrance” - before he begins to work fully.

  1. Appoint a reservist to act as head of the sales department for, say, three months. This will become a conditional probationary period for him (when transferring from one position to another in the company, a probationary period cannot be established). At this time, the employee will begin to enter the position and complete training. In addition, you will distribute the remaining month of training for him over three months.
  2. After appointment, draw up a work and development plan for the employee, for example, for the last three months of 2017. Enter there everything that needs to be done for the position and training program in the reserve. For all tasks, define deadlines and indicate the criteria by which you will evaluate performance. Assign a mentor to the reservist.
  3. When the three months are up, . Determine how well he coped with professional tasks, whether he adapted to the new position, and whether he developed managerial competencies. In addition, determine whether he has properly mastered the remaining material from the program personnel reserve.

A commission should evaluate all this. Include in it the general and commercial directors, the immediate supervisor of the reservist, a mentor and yourself. The commission will decide whether the employee is able to work in the new position. In this case, prepare a long list of candidates from the personnel and external reserves who can be considered as applicants for the position.

Present this solution to the head of the company and the commercial director. Along the way, explain why it is necessary to evaluate the employee after he has completed training in the personnel reserve program and worked for three months as the acting head of the department. This will also help determine the term of appointment to a leadership position.

Often disagreements between the HR director and company managers arise due to the fact that managers simply do not understand the technology and the meaning of assessment, and also underestimate the importance of training reservists. The company's management will not be against your option, because you will let the employee try himself in a new position before he is appointed to it. Details about the nuances of appointing a reservist to occupied position read in .

How to correctly determine an employee’s career: manager or expert? How not to make a mistake with the appointment

Step 2.

Based on the profiles, develop competency models. The skills and knowledge of the expert and manager need to be specified in more detail. In other words, indicate what each competency consists of and how developed the employee should be. Then you will get a competency model. It will be useful in the future for assessing employees and drawing conclusions about what career to build.

Step 4.

Conduct an assessment: mini-assessment and interview based on the competency model. The mini-assessment is best carried out in the format business games. Give the assessees a daily to-do list and ask them to prioritize. First, employees do this individually, and then in groups.

When an employee performs an individual exercise, evaluate whether he knows how to plan his work, set priorities, and assign tasks to others. A group task will show whether the employee is able to interact with colleagues in the group, defend his point of view, and reach agreements.

An interview based on the competency model is conducted by a manager and an HR specialist. During the conversation, find out what the person is focused on - the process or the result, what goals he sets for himself, what he does to achieve them. Give feedback For everyone who has passed the assessment, indicate what they should develop. Develop a rating scale for committee members.

Step 5.

Adapt the new manager - draw up a program, development plan, memo. Otherwise, a promising specialist risks not meeting expectations. Based on the results of the employee assessment, develop a development plan. Read more about important points building a career as a reservist and appointment to a leadership position, read .

In conclusion, it must be emphasized that you should not think that your specialist, appointed to a higher position, does not need to be supported in the new field. Create an adaptation program for a new manager, assign him a mentor, as well as an HR specialist who will provide support for the employee during the first time in a new position.