According to Article 253 of the Labor Code of the Republic of Kazakhstan, the head of the executive body of a legal entity has the right to terminate the employment contract early by notifying the owner of the property of the legal entity or the person (body) authorized by the owner or the authorized body of the legal entity in writing at least two months in advance. In other words, (…) the director himself has the right to resign if the job no longer suits him.
Thus, the right of the head of the organization to terminate the employment contract at his own request is provided for by law and the contract and can be exercised by him at any time, while he is only obliged to notify the employer in writing no later than two months in advance.
If the director has submitted a letter of resignation at his own request, which is received by the partnership or founder (the owner of the property of a legal entity is the legal entity itself, however, most likely, as it seems to me, in this case the legislator meant the participants of the legal entity), and there were no other grounds for his dismissal, then he is dismissed precisely on this basis, as his own desire, since the director is, in fact, the same hired employee to whom labor legislation applies, including the right to early termination of the employment contract.
After the termination of the employment contract, it will not be at all superfluous for the dismissed director to request information about the first manager after some time (say, after 1 – 2 months) and check whether he is still listed in the register. If the fears are confirmed, he should apply to the registering tax authority and the justice authority with a statement that he is no longer the director of the company, and attach a copy of the notice of termination of the contract and, preferably, information about the receipt of such notice by the participant. He should also contact the banks where the accounts are opened with the same statement.
If the participants of the partnership or the partnership itself evade formalizing the termination of the employment contract with the director, then in this case it would not be superfluous to overcome such evasion by issuing a court decision on this (by analogy with Russian judicial practice, for example, the decision of the Oktyabrsky District Court of the Kirov Region dated 09.04.2012 in case No. 2-8412012 or the appellate ruling of the Kirov Regional Court dated 13.06.2012 in case No. 33-1718).
The same rule can be applied to absent participants.
If, despite the measures taken, the participants/shareholders of the company do not make a decision to appoint a new director, the former director, whose information is listed in the databases, has the right to apply to the court with a demand to the registering authority to exclude the inaccurate information from the register. In support of his demand, he can refer to the fact that in this case the basis for terminating his powers as director is his own expression of will, drawn up in accordance with Art. 253 of the Labor Code of the Republic of Kazakhstan.
Unfortunately, the current legislation of Kazakhstan does not regulate the procedure for excluding information about the director from the official databases of tax authorities and justice authorities, when the director terminates the employment contract, if there is no decision of the founders to appoint a new director and an order on the new director’s assumption of office.
Domestic judicial practice on this issue is also unknown.
At the same time, as noted in the judicial practice of Russian courts on this matter, the absence of legal regulation regarding the procedure for excluding (cancelling) a record of a person entitled to act on behalf of a legal entity without a power of attorney, in the event of an objective impossibility of filing an application with the registration authority in the prescribed form, cannot be a reason for refusing to satisfy the application of the former director and restoring his violated rights (Resolution of the First Arbitration Court of Appeal dated 29.04.2013 in case No. A43-26295/2012).
In addition, there is a response on this issue from the Ministry of Finance of the Republic of Kazakhstan dated 16 October 2014, according to which the basis for making changes to the registration data of tax authorities of information about the head of a legal entity in this case may be a court decision.
At the same time, in this case we believe that it is necessary to sue the registration authorities, since if the claim is filed against the founders, there is a risk that the courts will apply the provision provided for in paragraph 15 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, according to which the court does not have the right to appoint or terminate the powers of the executive body of the LLP by its decision even if the specified issues are not resolved by the general meeting by a majority vote of the participants, since, in the opinion of the Supreme Court, the resolution of such conflicts should be carried out by the participants themselves in accordance with the Law and the constituent documents of the partnership.