The labor legislation of the Russian Federation regulates some features of building a hierarchical ladder of all positions in the company, taking into account the protection of the interests of all employees working in certain positions.
Strict legal regulations are also implemented in relation to admission or transfer to the most senior management positions in the company - the positions of director and general manager. Let's consider the most important legal aspects of the procedure for electing a director of an enterprise to the post of general manager, as well as the regulatory features of documentation. Dear readers! To solve your specific problem, call the hotline or visit the website. It's free.
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Transfer of an employee to the position of director of an LLC: legal gaps
The transfer to the position of director of a person who is an existing employee of the company is a procedure implemented in the jurisdiction of two different branches of legislation - labor and civil.
When considering the legal norms enshrined in them, one can observe the presence of a number of obvious gaps in the legal norms - regarding the regulation of the transfer of an existing employee of the company to the position of general director in an LLC. Namely:
1. The term of office of the director of an LLC: if its establishment is not within the competence of the board of directors of the business company, then it cannot exceed the period specified in the organization’s charter.
At the same time, the charter cannot reflect an indefinite period (Clause 1, Article 40 of the Law “On LLC” dated 02/08/1998 No. 14-FZ, Article 190 of the Civil Code of the Russian Federation).
Thus, on the one hand, concluding an open-ended employment contract with the director of an LLC is not prohibited by labor legislation (Article 59 of the Labor Code of the Russian Federation), on the other hand, if his term of office is limited, concluding such an agreement is inappropriate (since, without authority, the director will not be able to fulfill his duties). duties, his signatures will be illegal).
2. Initially, an employee of an enterprise can work on a permanent employment contract. Transfer from it to an urgent one, to which there is no alternative when hiring an LLC director in the general case, the courts tend to consider as an illegal procedure (appeal ruling of the Irkutsk Regional Court dated August 16, 2013 in case No. 33-6746/13).
Taking into account this peculiarity of the relationship between legislative norms, as well as the position of the courts, we will consider possible legal scenarios for the transfer of an existing employee of an enterprise to the position of director.
Features and examples of filling out books in special cases
Entries in the work book about a transfer to another position, which is temporary in nature, are not made in the employee’s work book. With regard to transfers to another permanent job, the necessary entries are made as follows.
External Transfer Record
When making an entry in the work book, if an employee is transferred from one entrepreneur to another, it is necessary to enter data on dismissal and hiring in the order of transfer in the section containing information about the work. Information is provided by various organizations. The correct execution of such actions will look like this:
Closed Joint Stock Company "Bochka"
01/1315/2010 Accepted as a repairman. Order from
14 05/14/2012 Dismissed by transfer to the open joint-stock company "ZARA" (OJSC "ZARA") with the consent of the employee, paragraph 5 of part one of article 77 of the Labor Code of the Russian Federation Order dated 05/14/2012 No. 17-k
HR Inspector Signature
Open Joint Stock Company "ZARA"
15 15. 05.2012 Hired to the economic department as a repairman as a transfer from the closed joint stock company "Bochka". Order No. 58-k dated May 15, 2012
Record of internal transfer
Before recording a transfer to another position or another structural unit within the same organization in the work book, you must make sure that a transfer and not a transfer is actually taking place. In this case, the situation is simplified by the same order of making entries. For example, a change of position should be formalized as follows:
Limited Liability Company "Captain"
11 08/15/2012 Admitted to the legal department as a lawyer. Order No. 11-k dated August 15, 2012
12 12/16/2012 Transferred to the position of leading lawyer. Order No. 25-k dated December 16, 2012
In the event that it is necessary to record a transfer to another position in the work book while simultaneously changing the department, the entered data should look like this:
14 08/12/2008 Hired in the advertising department as a manager. Order No. 15-k dated August 12, 2008
13 04/15/2009 Transferred to the commerce department to the position of general manager. Order dated April 15, 2009 No. 24-k
The employer should pay special attention to strict compliance with the stipulated rules when entering information about the activities of employees, since otherwise, he may have difficulties in the future when assigning a pension. A personnel employee must clearly be able to distinguish between which names refer to positions and which to professions, in which cases the word accepted is used, and in which -> appointed.
Transfer to the position of director of an LLC de jure: general scenario
Of course, a scenario is possible, it can be conditionally called general, in which a current employee of the LLC will have a fixed-term employment contract for his position. In this sense, there will be no obstacles from the point of view of labor law to the appointment of this employee as General Director in the transfer procedure, which is regulated by the provisions of Art. 72.1 Labor Code of the Russian Federation.
This procedure involves:
1. The founders make a decision to appoint a new general director and reflect this decision in the minutes. If there is 1 owner of the company, then only a resolution issued by him will be required.
2. The conclusion by the company’s personnel service of an additional agreement with the employee regarding the transfer to the position of director (later in the article we will consider the nuances of concluding this agreement with the employee).
See a sample additional agreement to the employment contract on the transfer of an employee to the position of General Director of an LLC for a certain period in ConsultantPlus. Trial access to the legal system is free.
Translation of corrections in the work book
Corrections can be found in work books. These could be mistakes made when filling out the work book - for example, they made a mistake with the date of hire. There are planned corrections - for example, if an employee changed his last name. In this case, the HR department makes changes and certifies with a signature and seal.
The translation is done in a standard way - the erroneous/corrected fragment is translated, it is crossed out in the translation, then the actual data is translated. At the very end, the seal of the organization and the data of the employee who made the correction are translated.
Legal transfer to de facto LLC: additional agreement on combination
If for some reason the trust scenario described above cannot be implemented, then the following option is possible: appointing a current employee of the LLC to the position of director of the company. He assumes that the personnel department in the scenario under consideration will ask the employee who wants to be made a director to sign:
- additional agreement - on combining the current position (for example, financial director) with the position of the head of the company for a certain period;
- additional agreement - on changing the terms of the current employment contract (for example, in terms of minimizing the powers of the financial director and changing salaries).
De jure, the employee will combine 2 positions, but de facto, he will work only in 1 of them (general director) with an indefinite employment contract.
The scenario under consideration is rather beneficial to the employer because:
1. If a person signs a second additional agreement (on minimizing powers in the main position), he will have to make every effort to be a good leader, since if the corresponding agreement is canceled (on the grounds provided by law), he will become a financial director with the same powers and he will no longer be able to earn a salary without the consent of the employer.
2. If a person does not sign the second agreement, then the employer will have reason to ask the employee for results for 2 positions at once - it is unlikely that they will be satisfactory given the seriousness of both positions. As a result, there will be grounds to terminate both agreements or even the employment contract as a whole.
Translation of work books issued in Russia
Work books issued / processed in Russia will be in Russian - we have office work in the official language.
We believe that our client needs a translation from Russian into one of the main foreign languages.
The main and main point is to find out the registration requirements from the receiving party. If you submit a translation to the embassy, in what form do they need the translation? If you are sending a finished translation outside of Russia, in what form do they want to receive the document?
You can submit either a regular copy of the work record book or a certified copy. A certified copy can be of two types: certified by a notary and certified by the human resources department at the place of work.
A notarized copy can be made if the book is “closed” - the last entry must be about the dismissal. If the last entry is not about dismissal, the notary will not be able to make a copy, because
The original work permit must be kept by the employer. If your employment record is currently kept by your employer, the HR department will prepare a copy for you: the copy will be certified by the organization’s seal, and on the last page there will be the entry “Currently working” or a similar entry.
Expert opinion
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Lawyer with 6 years of experience. Specializes in family law. Knows everything about the law.
Your assistance may be needed in translating the names of firms and organizations where you previously worked - these firms and companies may have approved names in English/German/French.
Combining positions: nuances
Russian legislation in most scenarios of intra-corporate legal relations does not imply any prohibitions on combining positions as a director. However, there are exceptions here, and one of those that you should pay attention to first of all concerns combining the positions of director and chief accountant (or other competent employee of the organization responsible for accounting).
The fact is that the director cannot simultaneously perform the function of the chief accountant (as well as vice versa - the chief accountant cannot be appointed director as part of a combination) at enterprises that have economic indicators exceeding those defined for companies:
- having the right to conduct simplified accounting (taking into account the criteria defined in paragraph 5 of Article 6 of the Law “On Accounting” dated December 6, 2011 No. 402-FZ);
- having the status of medium-sized businesses (taking into account the criteria defined in subclause 1.1, clause 1, article 4 of the Law “On the Development of Entrepreneurship” dated July 24, 2007 No. 209-FZ and the Russian Government Decree dated April 4, 2016 No. 265).
Thus, in a large company, the appointment of a chief accountant to the position of general director is possible only within the framework of mechanisms that do not involve combination.
You can learn more about the features of concluding employment contracts for combinations in the article “Registration of combining positions in one organization .
Dismissal of the boss
When the functions of a manager cease, a person either looks for another job or is offered to stay and perform other duties. For example, it is quite common to transfer the general director to the position of deputy director, because the manager’s experience is often very valuable for the organization. If the company is not interested in the employee, then he is fired. Let's consider both options.
To dismiss a representative of the executive body, a decision by the participants of an LLC (JSC) is not always necessary. So, for example, there is no need for an additional meeting of the organization’s participants if a person wants to leave the post of his own free will, or his contract expires. If the agreed period ends and shareholders cannot meet for some reason, there are 2 options:
1. Re-read the Charter of the enterprise. Often it contains a clause stating that the actions of the general director are valid until the election of a new leader by shareholders.
2. The manager has the right to transfer powers (all or some) to another employee of the company on the basis of a power of attorney. The scope of functions and the period for which they are assigned are indicated in the document.
To dismiss, the general director must write a statement of his own free will. Then the new director, by his order, appoints him to another position (for example, the option of transferring the general director to the position of deputy director is being considered). But you can do it simpler: fire the manager, while paying him monetary compensation for unused vacation. This must be done on the day of dismissal or no later than the next day when the employee asked for payment. It is also possible to provide leave with subsequent dismissal. In this case, financial compensation for the planned vacation is not provided.
But if there is a need to remove a given manager from his position earlier than expected, then this can be done under the following circumstances:
- if the termination of a person’s work in this position becomes a decision of the shareholders’ meeting;
- in case of officially declared and legally recognized bankruptcy of the organization;
- if in the process of work the manager makes rash decisions that result in damage to the enterprise;
- if the boss fails to comply with the terms of the employment contract.
Legal transfer to a de jure LLC: the role of the board of directors
The most, perhaps, labor-intensive, but the only one that allows for the transfer of an employee from an open-ended employment contract to the position of de jure general director (that is, in accordance with Article 72.1 of the Labor Code of the Russian Federation) is the vesting of the competence to determine the terms of office of the director of the company to the board of directors. .
First of all, a board of directors must be established in the organization: the decision to create it is enshrined in the company’s charter. The list of competencies of the board of directors is, as a rule, fixed in a separate regulation adopted by the founders. In this provision, in particular, there must be wording that the formation of the executive management bodies of the LLC is within the competence of its board of directors.
The board of directors has the right to adopt a regulation on the general director of the enterprise, which will reflect that the terms of office of the general director are determined by the employment contract, which can be fixed-term or indefinite.
Actually, for a transfer to the position of general director under a permanent employment contract, an additional agreement is again drawn up - this time on the transfer. This agreement is generally signed by the employer on the part of the chairman of the board of directors.
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- order fulfillment in a short time;
- affordable prices;
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In addition, we save completed translations, which means that if you need to re-translate your work book due to making a new entry, the cost of the service and the time it takes to complete the work will be much less for you!
All the main nuances and rules for making certain entries in the work book, including the answer to the question of how to write a transfer to another position in the work book, are contained in the following regulatory documents:
- Rules for maintaining and storing work books, producing book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225>
- Instructions for filling out, approved by Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 No. 69.
When entering information into employee work books, the employer should strictly adhere to the established general rules, which are enshrined in the above regulations.
However, before entering any information regarding the employee’s activities, it is necessary to first determine which provision of the law served as the basis for formalizing the corresponding changes.
Transfer to the position of director of a joint stock company: nuances
How to formalize a transfer to the position of General Director, in turn, in a joint stock company?
Taking into account the specifics of the legislation regulating corporate and labor relations in joint-stock companies, it is legitimate to say that such enterprises do not have the difficulties that characterize the corresponding transfer to an LLC. The current rules of law regulating the establishment and activities of a joint-stock company do not in any way regulate how the term of office of a director should be determined. Thus, the founders of a joint-stock company can fix it not only in the charter, but also in any local regulatory act - for example, a decision on the appointment of a director.
It is worth noting that the board of directors of a joint-stock company, unlike the similar structure of an LLC, by default does not have those competencies that imply the establishment of the term of office of the director of the organization - these competencies are not listed in subparagraph. 9 clause 1 art. 65 of the Law “On JSC” dated December 26, 1995 No. 208-FZ.
Thus, in a JSC it is possible to establish the powers of the general director indefinitely. In this case, there are no obstacles to the transfer of an employee with an open-ended employment contract to the position of General Director of the JSC on the basis of Art. 72.1 Labor Code of the Russian Federation.
Translation time and cost
Select the language into which you want to translate the work book to determine the timing and cost of translation:
As an example, let's take a book issued in 1978 in Tbilisi. Some of the recordings will be in Russian, some in Georgian.
What to do? Where to begin? We find out from the customer what language the translation is needed.
If you need it in Russian, it means the book will be used in Russia. We find out from the customer whether certain points need to be translated or whether the entire document needs to be translated. We find out by certification - to certify it with a notary or with the seal of a translation agency.
We found out everything and got to work. We make a regular copy, translate it into Russian, and have the finished translation certified by a notary.
If it turns out that translation is needed into English, it means that the work book will be used outside of Russia. We find out from the customer whether certain points need to be translated or whether the entire work needs to be translated. We find out by certification - to certify it with a notary or with the seal of a translation agency.
If all the questions have been answered, let’s get started. First, we translate from Georgian into Russian, then we translate the resulting document from Russian into English. It is impossible to directly translate from Georgian into English - the notary will not certify the translation.
Results
Transfer of an existing LLC employee to the position of director in accordance with Art. 72.1 of the Labor Code of the Russian Federation (that is, as a de jure transfer) is possible only if the employee is working on a fixed-term employment contract. If the original contract is indefinite, then the employee can be appointed director of the LLC when re-signing the employment contract, in a combination manner, or under Art. 72.1 of the Labor Code of the Russian Federation - if the board of directors of the company receives the competence to determine the term of office of the director. In JSC, the corresponding transfer can be carried out under Art. 72.1 of the Labor Code of the Russian Federation without any restrictions.
You can learn more about the nuances of processing a transfer within an organization in the following articles:
- “Order to transfer an employee to another position - sample”;
- “Sample order for transfer to remote work”.
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Subsequent procedure
Next, the process of hiring an employee is carried out in the general manner. Based on the decision made, the founders of the company enter into an employment contract with the general director. This agreement can be fixed-term (no more than 5 years) or indefinite. When concluding a fixed-term contract, the period of work is determined by agreement of the parties or the constituent documents of the company.
An order to hire a director is issued in form T-1. After this, the manager issues his first order to take office. The wording in this order may be as follows: “In pursuance of the decision of the participants, I begin my duties on _____ (specify date)” (
