According to Art. 253 of the Labor Code of the Republic of Kazakhstan the Head of the executive body of the legal entity shall be entitled to terminate the employment contract, notifying the owner of the legal entity authorized by the owner of the property or the person (body) or authorized body of a legal entity in writing at least two months prior. In other words, (…) the director has the right to resign if he would no longer be satisfied with his work.
Thus, the right of the head of the organization to terminate the employment contract by himself is stipulated by the law and the contract, and can be implemented at any time, while it is only required to notify the employer in writing not later than two months prior.
If the director has submitted a letter of resignation, which is received by the partnership or founder (owner of the property of the legal entity is a legal entity itself, however, most likely, I think, in this case, the legislator had in mind the participants of the legal entity), and there were no other grounds for his dismissal, he shall be dismissed based on his own desire, as the director -, in fact, is the similar employee who is subject to labor law, including the right for early termination of the employment contract.
Upon termination of the employment contract it will be a good practice for the dismissed director to request after a while (say, after 1 – 2 months) the information about the first head and check if he was still listed in the registry. If fears are confirmed, it should apply to the registration tax authority and judicial authority with the application stating that he is no longer a director of the company, and attach a copy of the notice of termination of the contract and desirable information about its receipt by the other party. It should also apply to the bank, where he opened an account with the same application.
If the participants of the partnership or the partnership itself evades registration of termination of the employment contract with the director, in this case, it will be a good practice to overcome such avoidance by court decision (by analogy with the Russian judicial practice, for example, the decision of the Oktyabrsky district court of Kirov region dd. 9.04.2012 with regard to case No. 2-8412012 or appeal conclusion of the Kirov regional Court dd. 13.06.2012 with regard to case No. 33-1718).
The same rule can be applied to the absent participants.
If, despite the measures taken, the participants / shareholders of the company do not take a decision on the appointment of a new director, former director, details of which are registered in the database shall have the right to go to court with a demand to the registration authority to delete untrue information from the registry. In support of his claim, he may refer to the fact that in this case the basis for the termination of his powers as a director was his own desire, drawn up in accordance with Art. 253 TC RK.
Unfortunately, in Kazakhstan, the legislation does not regulate the procedure for exclusion of information about the director from the official database of the tax authorities and judicial authorities, in case of termination of an employment contract by the director, if there is no decision of the founders concerning the appointment of a new director and order of the entry into office of the new Director.
There is also no information on domestic jurisprudence on this issue.
However, as noted in this respect in the judicial practice of the Russian courts, the lack of legal regulation in relation to exclusion procedures (annulment) of the recording of a person having the right to act on behalf of the legal entity without power of attorney, in the conditions of the objective impossibility of applying to the registering authority under the established form cannot be the reason for the refusal to satisfy the request of the former director and restore its violated rights (Decision of the First Arbitration Court dated 04.29.2013 with regard to case No. A43-26295 / 2012).
In addition, on this issue there is a response of the Ministry of Finance of the Republic of Kazakhstan dated October 16, 2014, according to which in this case the basis for making changes in the registration data of the tax authorities in regard of information on the managers of the legal entity may be represented by a court decision.
At the same time, in this case we believe that the legal proceedings must be exactly with the registration authorities, as if the lawsuit is filed to the founders, there is a risk that the court will use p. 15 of Regulatory Resolution of the Supreme Court, according to which the court has no right for deciding to appoint or terminate the powers of the executive body of the LLP even if these issues are not resolved by the general meeting by a majority of the votes, since, according to the Supreme Court the resolution of such conflicts should be done by the participants in accordance with the law and the constituent documents of the partnership.
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