Made A Director Without Consent In Franklin
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FAQ
How is a director removed in a proprietary company? A proprietary company may by resolution of the members remove a director from office and may by resolution appoint another person as a director instead (s 203C, Corporations Act). This is a replaceable rule and a propriety limited company may have other requirements.
This is commonly known as a 'silent director'. While there is no general rule that prohibits this, it is important to understand the duties and obligations that arise if you have been appointed a director of a company.
As per the 2013 Act, the removal of a director can only take place during a general meeting through the approval of an ordinary resolution. Notably, this condition is applicable unless the director in question was appointed either through proportional representation or under section 163.
A director can be removed without their consent under certain conditions, usually, governed by a company's bylaws, shareholders' agreements, and local jurisdiction. Here are common methods for director removal: Shareholder Vote - In many jurisdictions, directors can be removed by a majority vote of the shareholders.
The statutory provision allowing any director to be removed from office by ordinary resolution of the shareholders is in Section 168 of the Companies Act 2006 (CA06). Importantly, the resolution must be proposed at a formal shareholders' meeting and cannot be passed as a written resolution.
The director is an employee of your company - Although a director may have a service contract as an employee, they can be removed without their consent under the provisions of the Companies Act.
Unless there is a special provision in the company's Articles of Association a director cannot be removed from office by the Board of Directors, and only the shareholders can remove a director. The Articles may provide a procedure for this; otherwise the statutory procedure must be used.
Section 168 provides that a company can remove a Director by passing an ordinary resolution at a meeting. Special notice is however required. On receipt of notice of an intended resolution to remove a Director, the company must send a copy of the notice to the Director concerned.
The statutory procedure allows any director to be removed by ordinary resolution of the shareholders in general meetings (i.e., the holders of more than 50% of the voting shares must agree). This right of removal by the shareholders cannot be excluded by the Articles or by any agreement.
