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Publication date: 15.05.2024
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The court regarded the director's arbitrarily setting a higher salary for himself as a task for the company to compensate for the losses caused by his guilty actions
SITUATION
The company appealed to the commercial court with a claim to recover more than UAH 264,000 in damages from the director of the company. The claims are based on the fact that the defendant, being the director of the company, accrued and paid himself in the period from May 2020 until the termination of the employment relationship with the company (until September 28, 2021) monthly remuneration in an unreasonably inflated amount. The amount of the monthly remuneration accrued and paid to the defendant exceeded the amount of the remuneration established by the staff list of the company, approved by the decision of February 28, 2020 of the Sole Participant of the company.
COMMENT
By the decision of the commercial court, which was left unchanged by the decision of the appellate commercial court, the claim was satisfied in full. Courts of previous instances assumed that the defendant violated the norms of the current legislation and the statute by approving the company's new staff list by its order of May 22, 2020, setting a salary of UAH 32,000 per month for himself as the director of the company.
The Commercial Court of Cassation as part of the Supreme Court noted that the courts of previous instances established that the director of the company issued an order on May 22, 2020, that he begins to perform the duties of the director of the company "with payment in accordance with the staff list." According to this staff list, the company had the position of director with a salary of UAH 13,000.However, after the director assumed his position, on the same day, he approved the company's new staff list by his order. The company's monthly salary fund has undergone changes due to an increase in the salary of its director, in particular, from UAH 13,000 to UAH 32,000.
According to the first paragraph of the third part of Article 64 of the Economic Code of Ukraine (hereinafter referred to as the Economic Code of Ukraine), the enterprise, among other things, independently establishes its staff list. In accordance with the company's charter, its director submits the company's staff list to the general meeting of participants for approval. However, in the case file, there is no written decision of the sole member of the company to establish the defendant's monthly official salary in the amount of UAH 32,000 or approval of the staff list of the company with such official salary of the director of the company.
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The panel of judges of the cassation instance concluded that the courts of the previous instances reached a well-founded conclusion that the director of the company on the basis of the fifth part of Article 65 of the Civil Code, parts one and three of Article 8 of the Law of Ukraine of July 16, 1999 No. 996-XIV "On Accounting and Financial reporting in Ukraine", as well as the provisions of the company's Charter, is responsible to the company for losses caused to the company by its culpable actions or inaction, - for the correct calculation and payment of wages.
