Dismissal of a director of an LLC without the consent of the founders
LIQUIDATION OF ENTERPRISES
In judicial practice, there are often cases when a director of an LLC seeks to resign from his or her position but faces obstacles. One of the most common obstacles is the requirement to obtain the consent of the company’s founders (owners) for dismissal. This requirement can complicate the process, especially if the founder is absent or has left the company and moved outside Ukraine.
Pursuant to Article 145(4)(3) of the Civil Code of Ukraine (the “CC”) and Article 59 of the Law of Ukraine “On Business Associations”, the creation and dismissal of the company’s executive body (director) is the exclusive competence of the general meeting. Thus, in cases where a director of an LLC wishes to resign, he or she may face difficulties due to the need to obtain the consent of the company’s founders (owners).
1.
Before starting the process of dismissing a director of an LLC, it is necessary to draw up a resignation letter, indicating the exact date of dismissal, which must be at least two weeks from the date of submission of the letter.
The letter can be sent to the company's address or submitted in person at the company's office.
It is important for the LLC director to have documentary evidence to prove that he or she has submitted a resignation letter. This can be an incoming number or a fiscal receipt for sending a valuable letter to the company’s address.
This evidence is important for ensuring the legal status and protection of the employee’s rights under Article 38 of the Labor Code of Ukraine, which establishes the employee’s right to terminate the employment contract upon two weeks’ written notice to the owner or his authorized body.
2.
In order to carry out the procedure for dismissing a company's director, it is mandatory to convene a general meeting of shareholders, as they are the company's owners. This can be done on the basis of part 1 of Article 62 of the Law of Ukraine "On Business Associations", which allows convening a meeting at the request of the sole executive body, which includes the director.
To do this, the director must draw up an order to convene an extraordinary general meeting, which should include a list of agenda items, the date and place of the meeting.
It is important to remember that at least 30 days prior to convening the general meeting, the director must send a notice of the meeting to the participants (founders), which must include information about the place and date of the meeting.
In addition, it is recommended to publish an announcement in the official gazette, such as the Uryadovy Courier, regarding the extraordinary general meeting and the agenda so that all stakeholders are informed.
If the meeting does not take place for any reason, the director must draw up a protocol to that effect.
3.
Preparing and filing a statement of claim with the court is a key step in the process of establishing the fact of termination of a director's employment. The statement of claim must specify the date of dismissal, which was indicated in the resignation letter.
The following documents should be attached to the statement of claim:
- Protocol on the establishment of an LLC
- The company's charter, as well as any job descriptions, if any
- Order on appointment of a director
- Application for dismissal of a director
- Announcement in the newspaper about the general meeting, as well as the notice of the meeting with evidence of its sending to all founders of the LLC
- Proof of payment of the court fee for filing a statement of claim with the court
These documents will facilitate a more detailed consideration of the case by the court and help to confirm your claims.
To substantiate claims for the dismissal of a director, it is important to consider the following rules:
According to Article 8 of the Constitution of Ukraine, citizens have the right to go to court to protect their constitutional rights and freedoms.
According to Article 43 of the Constitution, everyone has the right to work and the opportunity to choose their job, and forced labor is prohibited.
Pursuant to Article 22 of the Labor Code, any restriction or preference in the conclusion, amendment or termination of an employment contract is unacceptable.
According to Article 38 of the Labor Code, an employee may terminate an employment contract in case of violation of labor legislation or the terms of the contract.
A violation of labor law that prompted the employee to terminate the contract should be grounds for dismissal.
An employment contract is an agreement between an employee and an employer to perform work for remuneration and to provide appropriate working conditions.
4.
After receiving a court decision on termination of employment, it is advisable to contact the tax service and the statistics authority with a notice of dismissal of the director.
This is an important step to ensure compliance with tax and statistical legislation.
5.
After a director is dismissed by a court decision, a lawsuit must be filed with the registration service at the place of registration of the company, demanding that it take appropriate action.
This means removing information about the company's director from the USR on the basis of a court decision.
If the owners are absent or ignore the director’s resignation letter, protect your labor rights in court.
Our labor law attorneys will help you with this legal defense.
Do you have any questions?
Call us now and get answers to all your questions!
+38 050 698-15-21+38 063 803-90-83