Why top managers “leave”: the opinion of business owners. Compensation for dismissal of top managers (Dubinskaya S.) Conflict-free dismissal of a top manager as a production necessity

Dismissing an employee is an unpleasant process in itself. Moreover, it is one of those that can easily result in unforeseen consequences and litigation. And the dismissal of a top manager is a special case - this category of employees has everything top-notch: tasks, goals, salaries and... conflicts that may arise during separation. Managing partner of the law firm “Kovalev, Ryazantsev and Partners” Evgeniy Kovalev, director of the branch of the personnel holding “ANKOR” Olga Khakimova, general director of the Planet Auto Group discuss what difficulties one may encounter when dismissing a top manager and how to avoid them. » Andrey Koltsuk and Elena Kalemeneva, head of the legal consulting department of the VneshEkonomAudit company.

For what reasons are top managers most often fired?

Evgeny Kovalev:

Before answering this question, we need to decide who is considered top. We are accustomed to the fact that this is the general director, his deputies, the chief accountant... But there are types of businesses where employees do not formally occupy leadership positions, but are key figures on whom, in fact, the entire business rests. Most often this is common in legal, auditing, and medical practice. I think they can also be called tops.

Elena Kalemeneva:

So far, the legislation of the Russian Federation does not contain such a concept as “top manager”. And sometimes, due to the loose wording with which the employer designates management positions, questions arise. For example, does the position designated in the staffing table as financial director apply to management? On the one hand, everyone understands that this is the deputy director for financial issues. But if an employee wants to receive the guarantees provided for a deputy manager, he should formally be called that way - “deputy general director.” Consequently, upon dismissal, already at this stage a dispute may arise as to whether the person is a top manager.

Yet what makes a business owner or CEO fire top managers?

Olga Khakimova:

- ANCOR literally a few months ago, in February of this year, conducted a study to find out the reasons for the dismissal of employees of different categories. 95% of respondents holding management positions said that they made the decision to leave the company on their own, and only 5% were fired at the initiative of the employer. The main reason for his dismissal was low efficiency and divergence of views on the further development of the company.

Elena Kalemeneva:

The peak of dismissals of top managers occurred in 2008–2009. The economic crisis forced many owners to take the helm of companies, including in order to save on the salaries of hired managers. It was then that the company owners realized how effective or ineffective their existing apparatus was. At this time, many wisely parted with unnecessary employees and replaced top managers, while simultaneously optimizing the management process.

Evgeny Kovalev:

The dismissal of any employees, including top managers, occurs when the hopes and expectations of one side do not coincide with the hopes and expectations of the other. A special case is a divergence of views regarding the development of an enterprise.

Evgeny Kovalev:

There is a rule: by paying attention to the first violation, you may exclude subsequent ones. And, on the contrary, by your inattention to the first, you provoke subsequent ones. Therefore, if the employer records all the shortcomings, violations of functionality or discipline at the top and, what is important, brings this to his attention in a timely manner, then the separation subsequently will not be controversial. Both sides will understand the reason for it, and when the reason is clear, there is no basis for mutual accusations.

Olga Khakimova:

It is generally better not to lead to a conflictual dismissal, because the employer’s emotions can ultimately cost him dearly. Therefore, if the company nevertheless decided to fire a top executive, then the person must be prepared for this in advance.

Elena Kalemeneva:

The employer is required to have good knowledge of labor legislation, because often he cannot even competently explain to the employee the reason for his dismissal. A common example: dismissal of an employee due to failure to complete the probationary period. But in nine cases out of ten, the employer does not make any comments to the employee during this probationary period and does not monitor the strict implementation of the functionality. Yes, we don’t like to document certain things, but very often it is a timely documented violation that makes the employer’s life much easier when a conflict arises.

- What difficulties might an owner encounter when firing a hired manager?

Andrey Koltsuk:

The most important difficulty is the loss of a manager, that is, a person who performed and controlled the production or business process. This is a loss of money invested in a person, a loss of some information. At the same time, finding a replacement leader in Russia is not so easy. On the one hand, we have a shortage of personnel, but on the other, a shortage of jobs. It turns out to be a paradox: finding a job is not easy, but finding an employee is also a big problem.

Olga Khakimova:

Often the owner cannot clearly formulate the tasks and deadlines that he sets for his top managers. There are often cases when they are formulated in the process of work. And then mutual claims arise: “You didn’t do it!” - “You didn’t say that this should be done!” In Russia, simple rules are often neglected: all conditions must be specified in the contract, and all violations must be documented. And therefore, during conflicts, they cannot respond in any way to the accusations of the fired person.

Elena Kalemeneva:

Agree. Often, employers turn to lawyers for help when the issue of dismissing a top manager becomes very acute and the matter smells of a lawsuit. But once you look at the documentation, it becomes clear: the company is not ready for this process. If the owner wants to dismiss a person for not completing the probationary period, then he must explain the reason. Most directors don't even know that this needs to be done.

Evgeny Kovalev:

You should start thinking about dismissing an employee at the moment the contract is signed. And it is best to discuss dismissal issues at the stage of peace and friendship, when both parties have no complaints against each other, because later, when the conflict begins and emotions come into play, it will be very difficult to adequately agree. Often these conflicts are generated by inconsistency at the initial stage.

What to do if the conflict could not be avoided and the top manager refuses to write a statement of his own free will?

Elena Kalemeneva:

The Labor Code clearly states that we can dismiss an employee only on the grounds provided for by labor legislation or other laws. And only one article of the Labor Code contains a clause that states that other grounds for termination of the contract may be provided for in the employment contract itself. But in relation to deputies and heads of structural divisions, these grounds no longer apply. Therefore, at the stage of concluding an employment contract, we can foresee some situations and prescribe them, but we still will not be able to jump over the rule of law.

Evgeny Kovalev:

There is nothing easier than firing a person. You just need to carefully follow the procedure. How do we do it? At the stage of dismissal, the owner is overwhelmed by emotions; the grounds for dismissal include the reason that the employer has formulated for himself, but which is not a legal basis. The employee goes to court, and a lawsuit begins that lasts six months or even more. After it, as a rule, the employee is reinstated, receives compensation for forced absence, and then resigns of his own free will.

Andrey Koltsuk:

Most often this cannot be avoided. You can only competently organize work with the team and convey the company’s values ​​to each employee. In this case, the risks that the fired manager will take part of the team with him are reduced. The market has a concept of the cost of a particular specialist, so even if the departing employee offers your employee more favorable financial conditions, this benefit will be small. And a sane person would never exchange a company whose values ​​he accepted for a new job where he was only offered a little more money.

Elena Kalemeneva:

The most effective way to avoid the need to fire a manager and thereby prevent turnover in the team is to increase the credibility of him. For example, give him a small share of the business and make him a partner.

What do you think are some ways to sweeten the pill when firing an executive?

Olga Khakimova:

The dismissed top manager must be sure that he will receive recommendations, if necessary. Unless, of course, they are fired for theft or embezzlement. In addition, in the West, a service such as outplacement has been developed - assistance in the subsequent employment of laid-off workers. This greatly reduces the intensity of the relationship when the employee and the employer separate.

Evgeny Kovalev:

It is generally accepted that outplacement is a service for an employee who leaves the company. But it also has a positive effect on the company itself, and on those people who remain to work in it. If they see how management treats a person leaving the enterprise, then the loyalty that the heads of all companies without exception strive for is preserved.

Andrey Koltsuk:

If a conflict has already arisen, then no positive letters of recommendation will help to separate peacefully. I don’t think this is an effective way to break up, at least I haven’t encountered one.

- How effective is the non-disclosure agreement on trade secrets that is signed with top executives?

Evgeny Kovalev:

The entire baggage of intellectual property is very mobile along with its carrier, so it is sometimes very difficult for an employer to track what exactly a new employee brought to the company and what he took away when leaving. But no matter what documents a top manager signs when hiring, the most important controller is his reputation. If he positions himself as a decent person, he will never disclose information about the company from which he left, because first of all this will damage his image. Nobody likes informers and traitors.

Elena Kalemeneva:

Often, organizations that want to maintain trade secrets do not define them in documents. That is, they do not prescribe by order what exactly that secret is, they do not determine the list of persons who will have access to it. In this case, the employee may be responsible for the safety of such information if he himself somehow ensured its safety. Unfortunately, employers approach this issue formally: if the permit is signed, then they can ask the employee if information has been leaked. This is not always possible, and today most non-disclosure agreements do not work.

Andrey Koltsuk:

An agreement on non-disclosure of confidential information is ineffective, because in Russia there is no provision for any prosecution other than administrative one for this. Theoretically, an employer can insure itself at the stage of signing an agreement, but it is impossible to legally oblige a person, for example, to pay for losses incurred due to the disclosure of some information.

- How to ensure that the dismissal of a top manager does not negatively affect the company’s reputation?

Olga Khakimova:

The manager must at least think about what official version of the top manager’s dismissal to convey to the team and broadcast externally. Because rumors spread very quickly in a company and have a negative impact on the work process.

Evgeny Kovalev:

Any situation must be approached individually. It cannot be said that the dismissal of a top manager from an organization will negatively affect its reputation. The opposite is also possible: if the top himself is a difficult and conflict-ridden person, then the company that fired him will score points because he got rid of the problematic manager in time.

Andrey Koltsuk:

In this case, both sides bear losses, but I don’t think that the change of director will have a strong impact on the company’s image. The image component of a breakup is of a very individual nature. If a manager is fired because of theft or because he overlooked the fact of theft, that’s one thing. If he does not suit the employer in terms of fulfilling his duties, that’s another matter. It happens that the parties simply do not find a common language in the process of work. Therefore, it is impossible to combine issues of reputation and name ways to preserve it.

Google hid from the public for a decade cases in which top executives were forced out of the company over allegations of sexual harassment, The New York Times reported this week in a major investigation. One such case is the dismissal of Android creator Andy Rubin from the company. The company hid the accusations against him, and upon leaving he received a gigantic compensation of $90 million.

The NYT material is based on corporate and court documents, as well as interviews with three dozen current and former top managers and employees of Google regarding the episodes mentioned. You can read it in its entirety. The Bell provides a brief summary.

• The formation of a culture of permissiveness at Google was encouraged from the very beginning by its founders, Larry Page and Sergey Brin, notes the NYT. Page had an affair with one of the company's first engineers, Marissa Mayer, and Brin had an extramarital relationship with one of the employees in 2014. Currently, the company officially discourages relationships between managers and their subordinates.
• Google's bylaws provide for the termination of a contract if an employee is accused of sexual harassment. But the company itself took a flexible approach to the application of this rule, especially when it came to key employees, the publication claims.
• One of the most notorious scandals occurred with the creator of the Android operating system, Andy Rubin, who was accused of inappropriate behavior by an employee who had previously had an extramarital relationship with him. Google not only kept the real reason for his dismissal secret, but also paid him a huge compensation.

"Farewell to the Hero"

• Andy Rubin helped Google create the Android operating system, which is now installed on 80% of smartphones worldwide. The attitude towards him in the company was special and even to the point of any accusations. As senior vice president and then head of Google's robotics division, he received a salary of $20 million, a bonus and bonuses in the form of company shares. In 2012, the company also lent him $14 million to buy a beachfront home in Japan at less than 1% interest, NYT sources say.
• The former top manager of Google allowed himself a lot, people who worked with him say - for example, he often called his subordinates “stupid” or “incompetent” (Rubin’s press secretary denies this). The company's management did not interfere much - at least until a video with sex scenes was found on his work computer. According to former and current Google top managers, Rubin was deprived of his bonus for this episode.
• In 2014, his former colleague from the Android division filed a complaint with the company's human resources department, accusing Rubin of sexual harassment. According to her, in 2013 he forced her to perform oral sex on him in a hotel room. By this time, the woman wanted to break off their relationship, although she feared the consequences for her career. The incident at the hotel put an end to this relationship.
• Google conducted an investigation into the incident and the company decided that the complaint against Rubin was justified, two top managers of the company told NYT. Rubin denied the allegations, but Page decided he should leave the company. All this did not prevent the company’s board of directors from approving the payment of compensation to him in the form of shares in the amount of $150 million. This was an incredibly generous amount even by Google standards, according to the publication’s interlocutors. Page argued that Rubin had not received adequate compensation for his contributions to Android in previous years. It is unknown whether the members of the board of directors knew about the ongoing investigation at the time of the decision.
• After the results of the investigation appeared, the parties agreed that Google would pay Rubin $90 million in stages - in the first two years he would receive $2.5 million per month, and in the next two - $1.25 million, according to sources familiar with the terms of the dismissal top manager. The severance agreement also stipulated that Rubin could not work for competing companies or speak negatively about Google. Finally, the corporation decided to defer the repayment of the $14 million loan.
• In a public statement upon his dismissal, Google thanked Rubin and later invested millions of dollars in his venture capital firm Playground Global.
• Thanks to Google, Rubin's fortune increased 35 times in less than ten years - to $350 million, according to the lawsuit of his ex-wife.
• Rubin's spokesman Sam Singer denied a NYT report that he had left the company over allegations of inappropriate behavior. According to him, the former top manager left Google of his own free will. “The New York Times story contains many inaccuracies about my work at Google and incredible exaggerations about my compensation,” Rubin himself responded to the publication. He clarified that he never forced a woman to have sex in a hotel. According to Rubin, these false statements are part of a campaign by his ex-wife to damage his image during their divorce and child custody dispute.

But the NYT also reported on several other cases involving allegations of sexual harassment against the company's top managers.

• David Drummond was a Google lawyer at the time of his extramarital relationship with his colleague and subordinate of his deputy, Jennifer Blakely. They began dating in 2004 and had a son in 2007, after which Drummond disclosed their relationship to the company, Blakely told the newspaper. Google took action on this matter, since formally the company did not allow relationships between managers and their subordinates. “One of us had to leave the legal department,” Blakely said. “And it definitely wasn’t David.” In 2007, she was transferred to the sales department, and a year after that she left the company altogether. During her dismissal, she was forced to sign documents stating that she left of her own free will. She and Drummond soon separated and went through a court battle over child custody. He now heads the company's legal department and is chairman of Google's venture fund called CapitalG.
• Google's senior vice president and head of search, Amit Singhal, was also paid millions in compensation when he left the company. In 2015, an employee reported that Singhal harassed her at a company function, NYT sources said. Google studied this incident and found out that the top manager was drunk at the time and that none of those present saw what the girl was talking about. However, the company still recognized her assertion as justified. After leaving Google, Singhal joined Uber as head of engineering. But he didn’t stay there for long—a few weeks later, Recode wrote about his resignation from Google due to allegations of inappropriate behavior. Uber management responded by firing Singhal due to the fact that he hid this information from them.

There are no irreplaceable employees. This harsh but fair truth was once again confirmed by 2015. An entire team of brilliant, professional, qualified managers at the helm of international corporations left their comfortable chairs not of their own free will. And all this has happened in the last few months. Moreover, the reasons for leaving in most cases were unusual and curious reasons, and the reality of some situations is still difficult to believe.

The higher a person flies up the career ladder, the lower, and most importantly, the faster, he has to fall down. Of course, this does not always happen and not to everyone. At the same time, a series of high-profile dismissals in 2015 clearly demonstrates that even a minor detail can easily become the reason for the departure of a “cool boss”. And for the combination to work, it is enough to be in the right place at the right time.

The Deception of the Century by Martin Winterkorn

Just yesterday, this man held the post of CEO of the Volkswagen concern and chaired the company’s board of directors. Over eight years of “impeccable” work, the share of Volkswagen in the total revenue of industrial enterprises in Germany increased to 20%, and the enterprise’s contribution to the state’s GDP amounted to 2%.

As it turned out later, the car brand, which was considered a model of decency and responsibility, was deceiving its customers all over the world. Along with advanced systems and options, special software was installed in the cars, which underestimated air pollution levels during environmental tests. During normal operation, emissions into the atmosphere exceeded the norm by 10-35 times. After the fraud was exposed by US experts, Winterkorn had no choice but to resign.

Julie Hamp - fired due to problems with police

Two unprecedented cases in the Japanese automobile business. For the first time in corporate history, a woman rose to the level of vice president of Toyota. Unfortunately, success unexpectedly gave way to a loud scandal. Julie Hamp was detained by police because 57 tablets of oxidone, which is prohibited from importing into Japan, were hidden in a package sent to her name. The painkiller was not included in the customs declaration. And although Hamp was subsequently released without charges, her career was already over.

Hisao Tanaka – fired for falsifying reports

Could you ever imagine that the world-famous international concern Toshiba, headquartered in Tokyo, would artificially increase key financial indicators in its reporting? For Mr. Hisao Tanaka, this practice has in some sense become routine, since the CEO and President have artificially inflated operating profit figures since 2008. The amount that the enterprising manager “finished” amounted to approximately $1.22 billion, which increased the real figures by more than 30%. Mr. Tanaka had to resign, although he was still very far from the record of Olympus managers, who hid losses for 20 years.

Cho Hyun-aa - reason for dismissal bag of nuts

This corporate scandal definitely deserves first prize in the “Most Ridiculous Dismissal of the Year” category. Ms. Cho Hyun-a turned 40 when she had to say goodbye to her post as vice president of Korean Air. It is noteworthy that even the status of the daughter of the president of the corporation did not help avoid shame. The essence of the incident boils down to the delay of the plane’s departure due to a “flaw” by the flight attendant, who did not offer Madam Vice-President the nuts that had been provided before departure. As a result, dessert was still served, but not on a plate, but in a paper bag. The delay in the plane's departure posed a serious threat to the safety of passengers and created a lot of additional inconvenience. Following the trial, Cho Hyun-aa was sentenced to 12 months in prison, but four months after the verdict, the sentence was suspended for 24 months.

Amy Pascal - reason for dismissal politically incorrect statement

At the peak of her career, Ms. Pascal headed the film production department of Sony Pictures Entertainment. After careless statements in personal correspondence, a qualified manager had to transfer to the position of an ordinary producer. The remark that the US President probably liked the films “Django Unchained” and “12 Years a Slave” cost Amy Pascal her job due to hackers from North Korea. Presumably, computer geniuses from the DPRK thus decided to take revenge for the release of the comedy “The Interview,” which ridiculed their native state.

Of course, it is impossible to insure against all unforeseen situations. Under certain circumstances, even the most highly qualified, recognized and successful organizer will not be able to avoid dismissal. But it is not difficult to draw the main lessons from the cases described above. To deceive the company's clients and senior management means to deceive oneself. And disrespect towards colleagues lower on the ladder of ranks, just like non-compliance with elementary norms of political correctness, is a formidable weapon that at any second changes direction and begins to work against you.

And if you prefer to work for the best boss in the world - for yourself - then we invite you to our Banc De Binary platform to learn how to trade binary options! In this business, you definitely don’t face the threat of dismissal, and promotion depends entirely on you!

“Problem” employees can be compared to a malaise for the company. For some, it’s like a toothache; when you part, it immediately gets better. Others are like a runny nose, unpleasant, but you can live, and without them it’s even better. The “treatment” procedure, i.e. dismissals also happen differently. From homeopathy, namely mutual agreement to leave quietly, to taking antibiotics - detailed preparation and strict adherence to the dismissal procedure.

But there is a category of “problem” employees with whom medications are powerless. Because they are like ulcers, chickenpox and cirrhosis of the liver at the same time. They can haunt you in nightmares for a long time, and every team member will definitely notice their disappearance. Because these are top managers who make important decisions for the business and the entire team.

CEO's opinion

Ekaterina Zaslavskaya,
director of the Kyiv office
law firm ILF

Mikhail graduated from an MBA in the USA, managed two large IT companies, and even listed the shares of the latter on the stock exchange in Warsaw. Flashing his Hollywood smile, he came to your business to bring products to European markets and rebuild internal processes. Under his arm, he brought a detailed plan - how your company will conquer the world in five years. And its happy owner will hide forever from worldly affairs on a personal island in the Pacific Ocean. The plan looked surprisingly convincing, the prospect of the island beckoned. After three months of Mikhail’s active work, the company’s income fell by 35%. To the decision jointly with other top leaders to develop exports to France and Belgium, Mikhail responded with a categorical “No.” And I went to write emails to my Estonian partners. A month later the situation worsened. Mikhail, with a crazy gleam in his eyes, continued to follow his own strategy, promising that next month, you’ll see, everything will get better. A sneaky thought crept into your mind that it was time to say goodbye to Mikhail. But how?

The most popular reasons are:

1. Low efficiency

If a company’s performance remains at a consistently low level for the 4th quarter in a row, this is not encouraging. It’s really sad if your KPIs fly down at the speed of a hungry eagle towards a rabbit trembling in the bushes. This, for example, happened during the reign of Ford CEO Mark Fields. For 25 years he worked valiantly for the benefit of the company. But then Mark took over. By failing to respond in time to changing market trends, Ford lost market share and stock price by 40%. Therefore, Mark was fired.

2. Irreconcilable contradictions

When your target audience is the US middle class, but your manager believes in the potential of rural Namibia, you may have problems. Or here's a story from the life of Caroll Bartz, a former Yahoo manager. During her two years of leadership, she still hasn’t decided whether to invest in Yahoo’s digital technologies. The departure of the best employees at Facebook and Google, racing to develop their innovations, clearly hinted what to do. However, Bartz was stuck. And they fired her over the phone, which she energetically told the entire world media about. So, in the name of preserving your reputation and simply out of respect, it is better to tell the person about your dismissal personally.

3. Foul play

Banal theft of corporate equipment or poaching of clients is baby talk. Indeed, in our inventive world, there are much more sophisticated types of fraud. Thus, cyber terrorists brazenly stole 50 million euros from one Austrian company with clients such as Boeing and Airbus. And all because a letter with an order to urgently transfer a huge amount to the account came from the personal email of the company’s CEO. This, of course, was a fake, behind which were evil terrorists. However, the manager was still fired for “exceeding official authority” and inability to come up with a secure password for his own email account.

Managers also simply disappear, for example, in order not to be detected and fired. Sometimes they go away on their own. Having done everything they could for the company or out of shame that they did nothing. In all these cases, two people enter the arena: a successor, who must be found and prepared, and a lawyer who will formalize all this clearly and without consequences.

How to prepare for a manager's dismissal? What legal grounds should be chosen for each case? What nuances should be taken into account so as not to lose in court if the manager goes there?

Lawyer's opinion

Sergey Silchenko,
partner in labor and tax law practice
law firm ILF

Deciding to fire a top manager is not just resolving a personnel issue. This is a business decision, and it can have serious consequences for both the employee and the company he leads or works for. Not only the separation procedure itself is important, but also the consequences, in particular the possibility of a labor dispute.

Reasons and risks for dismissing a manager

An employment contract with a top manager is similar to a marriage contract. It is built on trust; the parties try to carefully regulate all aspects of future labor relations, from a detailed list of job responsibilities to the social package. A detailed, carefully worked out contract with a manager often eliminates controversial issues that arise upon his dismissal.

1. U dismissal on the grounds provided for by the contract (clause 8 of article 36 of the Labor Code)

The law allows you to conclude a contract with company managers (Part 4 of Article 65 of the Economic Code of Ukraine). It may provide for additional grounds for its termination not provided for by law. You can write down all the KPIs for the manager and establish that if he does not achieve them, the contract with him can be terminated early. It is also quite acceptable to establish dismissal from work as a punishment for misconduct.

The practice of hiring managers of state-owned enterprises in Ukraine suggests that there is no need to be shy when coming up with reasons for dismissal. Various standard forms of contracts approved by government bodies contain, as a rule, 10 or more grounds for early termination of a contract, not provided for by the Labor Code.

If you decide to fire a manager on this basis, it is important to follow the procedure established by the contract (warn in advance, pay compensation, etc.). Violation of the dismissal rules often becomes the reason for the reinstatement of a top manager by court decision. Therefore, if you have agreed on all the procedures within the contract, follow them, and your separation from your manager will go smoothly and painlessly.

2. Termination of powers of an official (clause 5, part 1, article 41 of the Labor Code)

This basis for dismissal was introduced into the Labor Code of Ukraine only in 2014 in order to improve the country’s investment climate. Thanks to this, any member of the executive body or official of the company can be dismissed.

For dismissal on this basis, it is not necessary to give advance notice, even if this is provided for in the contract. In addition, there is no need to look for a reason for dismissal, explain its expediency, or find out the employee’s guilt. As compensation for the possibility of being fired at any time, the top manager received the right to a “golden parachute” - severance pay in the amount of 6 months of average earnings.

This basis allows you to quickly respond to any negative consequences of the manager’s actions, if you are ready to part with the appropriate amount to pay your former top executive.

3. Violation of labor discipline

Like any employee, a top manager can be fired on this basis. In accordance with the Labor Code, such dismissal is possible:

• in case of systematic failure to fulfill labor duties, if a disciplinary or public penalty was previously applied to the employee;
• in case of absenteeism, including absence from work for more than 3 hours without a valid reason;
• when appearing at work drunk, under the influence of narcotic or toxic intoxication;
• in case of theft of the property of an enterprise, confirmed by a court verdict or a decision of an authority authorized to impose an administrative penalty;
• in the event of a one-time gross violation of labor duties by the manager.

Judicial practice has formulated general approaches, the observance of which will make it possible to correctly and legally dismiss a manager. When dismissing, it is important to find out and reliably establish:

a) what exactly was the violation that became the reason for dismissal:

b) could it be a basis for termination of the employment contract under one of the above-mentioned provisions of the Labor Code;

c) whether the employer complied with the rules and procedures for applying disciplinary sanctions provided for by law, in particular, the deadline established for this has not expired;

d) whether a disciplinary sanction has already been applied for this offense;

e) whether the severity of the offense committed and the harm caused by it, the circumstances under which the offense was committed, and the employee’s previous work are taken into account.

When dismissing a manager for violating labor discipline, it is important to follow these simple rules:

• Record the fact of violation of labor discipline.
• Contact the employee for a written explanation of the violation.
• Issue a reasoned dismissal order and familiarize the employee with it against signature.

Dismissal for a disciplinary offense can be made no later than 1 month from the date the offense was discovered, and 6 months from the date it was committed.

You need to understand that such dismissal is usually followed by a claim for reinstatement. Therefore, haste and emotions are not your best advisers. It is best to seek advice from a qualified attorney.

3. Dismissal Pon agreement between the parties (Clause 1, Article 36 of the Labor Code of Ukraine)

The most peaceful way to quit if you know how to forgive. It can be used in case of ineffective work of a top manager, or if contradictions arise regarding the business strategy. Also, I advise you to use this basis in obviously risky conditions, which in the future may become the basis for your loss in a labor dispute (for example, the manager went on sick leave or is a single mother with a child under 14 years old, etc.). Although you are not obligated to pay “compensation” in this case, no one will stop you from assigning severance pay to the fired person. Especially if it is important to maintain a good relationship with your former manager.

The dismissal algorithm for this reason is not complicated:

• The employee submits a written application to the employer, in which he asks to dismiss him by agreement of the parties within a certain period (date). Here it is also advisable to indicate clause 1 of Art. as the basis for dismissal. 36 Labor Code.
• Then a general meeting of the company’s participants (or another body authorized to make such decisions) is held, or the sole owner issues an order (instruction) on dismissal.
• Alternatively, the employer may himself issue a dismissal order by agreement of the parties from a certain date, and the employee will personally indicate in the order that he agrees with this dismissal.

In conclusion, I would like to draw attention to two important aspects. Actions related to dismissal must be timely and prompt, because a negative top manager is worse than a fox in a henhouse. He knows exactly how to create maximum problems for you.

But the rush cannot be justified. Dismissal may be followed by legal proceedings. Therefore, your documents must be drawn up carefully, and the dismissal procedure must be strictly followed. By doing this you will save your money, nerves and time, which, as we know, is a valuable capital.

Dismissal is most often a difficult and painful process. In the case of dismissal of a top manager from among the company's management, this is often also a costly process.

Over the past few years, a stable practice has developed in Russia of paying large compensations in the event that a top manager leaves his company not on his own initiative or is forced to do so before the expected end of the contract.

Due to the large amount of payments - usually they amount to salaries from six months to a year - such compensation is called the “golden parachute”.

And at this stage, a conflict of interest often arises: the employer thinks about how to minimize the amount of payments, or even avoid them altogether, and the employee is interested in the maximum amount of compensation.

In this article we will look at several options for legal disputes that accompany such disagreements.

Current legislation today provides for two grounds for payment of compensation:

In case of termination of an employment contract with a top manager due to a change in the owner of the organization’s property (Article 181 of the Labor Code of the Russian Federation);

In connection with the decision to terminate the employment contract (clause 2 of article 278 of the Labor Code of the Russian Federation).

In both cases, the dismissed person must be paid compensation not less than three times the average monthly salary, as established by Art. 279 Labor Code of the Russian Federation.

However, a variety of judicial practices have currently developed regarding the payment of compensation amounts, which we will consider further.

1. The court refuses to pay three times the salary under Art. 181 of the Labor Code of the Russian Federation, since the plaintiff, despite his leadership position, was dismissed for other reasons.

When an employee claims a “golden parachute” payment, it can be difficult to prove that the circumstances of his dismissal give him the right to compensation.

Arbitrage practice. The employee filed a claim for compensation for leave upon dismissal, severance pay and moral damages, citing the fact that upon dismissal he was paid severance pay for only 10 days, and not in the amount of three average salaries, as provided for in Art. 181 of the Labor Code of the Russian Federation in case of dismissal of the deputy director due to staff reduction.

In refusing to satisfy the demands, the court referred to the circumstances in which the entry in the plaintiff’s work book about his acceptance into a managerial position did not correspond to the text of the order referred to in the work book. There are no other documents that would confirm the fact of his acceptance for the specified position at a given time, namely an application for employment, an order, an employment contract.

In this regard, the court’s conclusion that the presence of an entry in the work book in the absence of an order on the basis of which it was made does not confirm the fact that the plaintiff was hired for a managerial position, the appeal court considered justified.

In refusing to satisfy the demands for recovery of severance pay in the amount of three months' salary, the court was guided by the fact that the dismissal took place on a different basis, namely in connection with the employee's refusal to continue working when the terms of the employment contract changed, which does not give him the right to pay such compensation.

(Appeal ruling of the Penza Regional Court dated March 29, 2016 in case No. 33-980/2016)

2. If, when the owner of the organization changes, the manager resigns on his own initiative, compensation is not paid.

The current version of the Labor Code does not give a clear answer to the question of whether in all cases of termination of an employment contract under clause 2 of Art. 278 of the Labor Code of the Russian Federation, this compensation should be paid. The commentary of the Plenum of the Supreme Court in this regard seems insufficiently complete and does not clarify a number of issues that remain open.

In this case, the employee cannot be dismissed at the initiative of the employer. However, he himself may refuse to continue working due to the above circumstances; the new owner has the right to terminate the employment contract with the top manager within 3 months.

Arbitrage practice. The plaintiff appealed to the court with a demand to declare illegal the employer’s refusal to make the final payment upon dismissal in accordance with Art. 181 Labor Code of the Russian Federation.

The court, refusing to satisfy the demands, justified its position by the fact that Art. 181 of the Labor Code of the Russian Federation, as amended before 04/02/2014, established that in the event of termination of an employment contract with the head of an organization, his deputies and the chief accountant in connection with a change in the owner of the organization’s property, the new owner is obliged to pay said employees compensation in the amount of not less than three average monthly earnings of the employee.

The specified compensation is paid to the head of the organization, his deputies and the chief accountant in the event of termination of the employment contract with them due to a change in the owner of the organization’s property, i.e. upon termination of the contract at the initiative of the employer under clause 4, part 1, art. 81 Labor Code of the Russian Federation.

Clause 2 of Art. 278 and Art. 279 of the Labor Code of the Russian Federation, to which the plaintiff also referred, established the payment to the head of an organization of compensation for the early termination of an employment contract with him by decision of the authorized body of a legal entity, or the owner of the organization’s property, or a person (body) authorized by the owner on termination of the employment contract in the absence of guilty actions ( inaction) of the leader.

Thus, given that the plaintiff was not dismissed on the grounds provided for in paragraph 4 of Part 1 of Art. 81 or clause 2 of Art. 278, paragraph 3, part 1, art. 83 of the Labor Code of the Russian Federation, there are no legal grounds for satisfying the claim.

(Appeal ruling of the Investigative Committee for civil cases of the Supreme Court of the Republic of Buryatia dated 04/02/2014 in case No. 33-1456)

Arbitrage practice. The plaintiff filed a lawsuit to recover severance pay and compensation for violating the deadline for its payment, as well as monetary compensation on the day the benefits were actually paid.

By the decision of the district court, the claim was partially satisfied, the employer was charged a lump sum severance pay and interest in the amount of 1/300 of the current refinancing rate of the Bank of Russia on the unpaid amounts of the final settlement debt for each day of delay up to and including the day of actual settlement.

The appeal ruling of the Investigative Committee in civil cases overturned this decision on the following grounds.

When resolving these claims, one should be guided by the provisions of Art. 78 of the Labor Code of the Russian Federation, which provides that an employment contract can be terminated at any time by agreement of the parties, as well as the provisions of Ch. 27 of the Labor Code of the Russian Federation, which regulates the payment of compensation to dismissed employees.

It follows from the agreement on termination of the employment contract that, in addition to the calculation upon dismissal, the employee must be paid severance pay in the amount of five official salaries in connection with the termination of the employment contract by agreement of the parties.

The court did not take into account that, according to the agreement, this amount is subject to payment in addition to the calculation upon dismissal and is an additional compensation payment for termination of the employment contract by agreement of the parties.

Therefore, the court had to check and evaluate the parties’ arguments about the plaintiff’s right to receive this compensation payment, that is, about the violation of the plaintiff’s rights to receive it upon termination of the employment contract by agreement of the parties.

Compensations are monetary payments established for the purpose of reimbursing employees for costs associated with the performance of their labor or other duties provided for by this Code and other federal laws.

The payment of compensation to an employee in connection with voluntary dismissal, in connection with the termination of an employment contract by agreement of the parties, is not provided for by law; The defendant also does not have local regulations on the issue of such compensation payments.

In satisfying the claims for recovery of severance pay in connection with the termination of the employment contract by agreement of the parties, the court of first instance did not take into account the circumstances established in the case and was not guided by the provisions of labor legislation, including Art. Art. 164, 178 of the Labor Code of the Russian Federation, did not take into account that the employment contract with the plaintiff, the local acts of the defendant did not establish the payment of compensation on the grounds and in the amount defined in the agreement on termination of the employment contract between the parties, and also did not take into account the basis for the dismissal of the plaintiff and as a result, I came to the erroneous conclusion that there were grounds for collecting compensation in favor of the plaintiff upon dismissal by agreement of the parties in the amount<...>and derivative claims for monetary compensation for violation of terms of payment upon dismissal, interest.

From the above it follows that the plaintiff did not have the right to demand compensation from the employer.

(Appeal ruling of the Investigative Committee for civil cases of the Altai Regional Court dated 09/03/2014 in case No. 33-7125/2014)

3. If the dismissal of a manager occurred in connection with his making an unfounded decision, which resulted in a violation of the safety of property, its unlawful use or other damage to the property of the organization, compensation is not paid.

The employer has the right to dismiss the deputy head of the organization for making an unreasonable decision if he proves that such a decision entailed adverse consequences for the organization.

According to paragraph 48 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2, when considering the question of whether the decision taken was unfounded, it is necessary to take into account whether adverse consequences occurred precisely as a result of this decision and whether they could have been avoided if something else was made . In this case, the employer must provide confirmation of the occurrence of adverse consequences.

Arbitrage practice. The court of first instance came to the correct conclusion that there were legal grounds for collecting compensation in the amount of three salaries from the defendant in favor of the plaintiffs in accordance with Art. 181 of the Labor Code of the Russian Federation is not available, since compensation upon dismissal provided for in Art. 181 of the Labor Code of the Russian Federation, is paid exclusively in the event of termination of the employment contract with the head of the organization, his deputies and the chief accountant in connection with a change in the owner of the organization’s property, that is, on the basis provided for in paragraph 4 of Part 1 of Art. 81 of the Labor Code.

Since the plaintiffs were dismissed on the basis provided for in paragraph 9 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, the grounds and legality of dismissal were not disputed by the plaintiffs, then there are no grounds for satisfying the stated requirements.

(Appeal ruling of the Investigative Committee for civil cases of the St. Petersburg City Court dated March 20, 2014 in case No. 33-3988/2014)

Thus, from the above judicial practice we can conclude that, if desired and with proper regulatory justification, the employer can either reduce compensation payments to a minimum or avoid them altogether. But when making such a decision, you need to take into account the possible consequences, since this practice of dismissals may in the future scare away potential replacements for fired top managers. Most often in such situations, the parties find a compromise in transferring compensation equal to three months of the employee’s salary.