1. Documentary confirmation of the fact of violation. Thus, absence from the workplace can be confirmed by a time sheet, lateness for work - by a memo from the person responsible for admitting workers to the administrative building. In addition to direct (primary) documents confirming the disciplinary offense, it would not be superfluous to draw up a corresponding report (about being late, absent from work, showing up at work with obvious signs of alcohol intoxication, etc.).
REGISTRATION OF THE FACT OF A DISCIPLINARY INFORMATION BY AN EMPLOYEE
The first thing that needs to be done to correctly apply a penalty to an employee is to document the offense (action or inaction) that is a violation of labor duties or discipline and for which a penalty is planned to be applied. In practice (depending on what kind of violation the employee committed), this fact is usually documented in the following documents:v a memo (for example, when an employee fails to complete a task or uses the employer’s resources (Internet, copy machine, etc.) for personal purposes;
v an act (for example, in case of absence from work or refusal to undergo a medical examination);
v decision of the commission (based on the results of an investigation into the fact of damage to the employer or the fact of disclosure of confidential information).
The listed documents can confirm the commission of an offense both individually (for example, a decision of a commission) and in aggregate (for example, if an employee is absent from the workplace during the working day, first, as a rule, a memorandum is drawn up, and then an act).
The obligation to familiarize the employee with these documents is not established by the Labor Code of the Russian Federation.
Question from practice. Is the act a document confirming the employee’s violation of labor discipline? The act is a document that confirms the fact of violation of labor discipline by the employee.
The Labor Code of the Russian Federation does not establish a list of documents that are drawn up in order to record the commission of a disciplinary offense by an employee, including in the case of violation of labor discipline. According to the State System of Documentation Support for Management (GSDOU), approved by the Main Archive, the act is one of the most common management documents and, as a rule, is drawn up to record a certain fact.
Due to the fact that, on the basis of Article 192 of the Labor Code of the Russian Federation, a disciplinary sanction can be applied to an employee only in the event of failure to perform or improper performance of labor duties through his fault, when applying such a sanction to an employee, the employer must have documentary evidence of the employee’s guilt and the circumstances that led to violation of labor discipline. At the same time, according to Part 5 of Article 192 of the Labor Code of the Russian Federation, the severity of the offense and the circumstances under which it was committed must be taken into account.
Thus, the act can act as a document that records the employee’s violation of labor discipline, as well as the consequences of this violation.
Prepare a sample form for filling out the act.
2. Requesting an explanation from the employee in writing.
In this explanation, the employee must explain his behavior, indicate its reasons (for example, the employee may indicate that he was absent from work due to illness, or because he was unable to fulfill his work obligation to draw up a report due to failure to provide the necessary information by other departments, etc. .P.).
It should be noted that providing evidence of one’s explanations is the employee’s right. Thus, he has the right to attach a certificate of incapacity for work or a copy of the memorandum to a written explanation, but he may not do this. The employer does not have the right to demand the specified actions from him and not accept the explanation on the basis of refusal to perform them.
There are two ways to request an explanation from an employee:
- either hand over the relevant notice to him personally and obtain the employee’s signature on a second copy, - or send the same letter by post with acknowledgment of receipt.
However, in practice, the question often arises: is the employer obliged to obtain evidence that the employee has received such a request? Most often, this question arises when an employee does not show up for work, does not receive postal correspondence, and the employer is actually deprived of the opportunity to request an explanation. The best option in this situation would be to send a request to the employee to provide explanations by telegram.
RECEIVING AN EXPLANATION FROM AN EMPLOYEE WHO COMMITTED A VIOLATION
The procedure for applying disciplinary sanctions is determined by Article 193 of the Labor Code of the Russian Federation. Before issuing an order to impose a disciplinary sanction, a written explanation must be requested from the employee. Otherwise, the application of the penalty is considered illegal. The employee is given the opportunity to indicate valid reasons for his misconduct. The Labor Code of the Russian Federation does not specify in what form the employer must request this explanation.
Therefore, if the employee is ready to submit an explanatory note, a written notice of the need to provide an explanation need not be issued. If the situation is clearly of a conflict nature, then it is better to prepare this notification in writing and hand it to the employee against signature. If the employee refuses to sign the notice, a corresponding act must be drawn up.
The Labor Code of the Russian Federation allows the employee two working days to provide explanations, which are counted from the date following the day the demand is presented.
Often the employee refuses to provide any explanation for his misconduct. If after this period the employee has not provided an explanation, then a corresponding act is drawn up (Article 193 of the Labor Code of the Russian Federation). If there is such an act and a document indicating that an explanation was requested from the employee, a disciplinary sanction can be applied without an explanatory note from the employee.
The Labor Code of the Russian Federation stipulates that an employee’s failure to provide an explanation is not an obstacle to applying a disciplinary sanction.
It should be taken into account that the application of a disciplinary sanction on the day an explanation is requested can be challenged in court. Therefore, if an employee refuses to provide an explanation, then a report must be drawn up after two working days.
Judicial practice interprets this issue extremely ambiguously. For example, the Decree of the St. Petersburg Court dated September 8, 2010 N 12408 states that if an employee refuses to provide an explanation, then dismissal on the day the explanation is requested is not a violation. However, there are court decisions that express a different opinion. Thus, the Moscow City Court, in its Ruling dated July 6, 2010 in case No. 33-19977, indicated the following: since the explanation was requested on November 18, 2009, the deadline for its submission expired on November 20, 2009, despite the fact that on the day the explanation was requested the employee refused to provide it. Therefore, the employer unlawfully applied a disciplinary sanction in the form of dismissal on November 19, 2009. The court found that the employer violated the two-day deadline provided by law for the employee to provide an explanation, since the employee was disciplined on the same day that he was asked to give an explanation.
To avoid legal risks, it is recommended to record the lack of explanation and apply disciplinary measures after two working days.
Question from practice. When is it necessary to draw up a report stating that an employee has not provided an explanation for a violation of discipline? An act of failure to provide explanations must be drawn up after two working days from the date the relevant request was presented to the employee.
According to Article 193 of the Labor Code of the Russian Federation, an act stating that the employee did not provide an explanation for the fact of the violation of discipline is drawn up after two working days from the date of presentation of this requirement. Accordingly, if the claim is submitted on Monday, then the first day will be Tuesday, and the second will be Wednesday. In this case, due to the specified norm, the second day must expire. Thus, if no explanations have been received by 24 hours on Wednesday, then on Thursday, a corresponding act can be drawn up. If the employee submits an explanatory note, the employer’s further actions depend on the reasons for the misconduct indicated in it. If the employer considers them to be valid, then no disciplinary action will be taken. Otherwise, the explanatory note becomes one of the grounds for applying a reprimand or reprimand.
If, after two working days, the employee does not provide the specified explanation, then a corresponding act is drawn up (previously, the obligation to draw up an act was not assigned to the employer). Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.
Prepare a sample for filling out the notification.
Prepare a sample form for filling out the act.
Prepare an example of a written request and an absence from work report
ACT
No. 05/o
03/22/2006 Moscow
About the absence of Alexander Ivanovich Petrov from the workplace
By this act we certify that the manager of the purchasing department, Petrov A.I. was absent from work from 09:00 to 15:45 on March 22, 2006. His absence Petrov A.I. explained by the breakdown and subsequent repair of his car.
Head of the Qloquirtx warehouse, A. V. Yakushin
HR Department Specialist O(oai,b) T. A. Vyalova
(position) (signature) . (full name)
deputy General Director/-,
on personnel management 0*9™" A.M. Aleksandrov
(position) (signature) (signature transcript)
If the employee refuses to give an explanation, this fact is recorded in a special act.
Example of an act of failure to provide explanations
000 "IKS" (name of the enterprise)
ACT
No. 04/o
02/21/2011 Novosibirsk
About failure to provide explanations
By this act we certify that in our presence, Deputy General Director for Human Resources Kurochkin A.V. On September 20, 2011, he demanded from the loader D.N. Vavilov. provide a written explanation for the absence of D.N. Vavilov. at work on September 19, 2011 during the working day (from 08.00 to 17.00) no later than 09:00 on September 22, 2011.
Vavilov D.N. by the time of 09:00 on September 22, 2011 did not provide any explanation for his absence from work on September 19, 2011.
warehouse manager signature. V. Yakushin
HR specialist signature T. A. Vyalova
deputy gene. directors
for personnel management signature A.V. Kurochkin
Deadlines for issuing an order to impose a penalty
An order to apply a disciplinary sanction can be issued only if no more than six months have passed since the day the offense was committed, and no more than one month has passed since the day it was discovered (Article 193 of the Labor Code of the Russian Federation). In this case, the day when the misconduct was discovered is the day when the employee’s immediate supervisor became aware of this misconduct. And it doesn’t matter whether this manager has the right to use a reprimand or reprimand (clause 34 of the Resolution of the Plenum of the Supreme Council of the Russian Federation of March 17, 2004 N 2).
Penalty can be applied:
no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees;
no later than six months from the date of commission of the offense;
based on the results of an audit, inspection of financial and economic activities or an audit - no later than two years from the date of its commission (the specified time frame does not include the time of criminal proceedings).
The following must be taken into account:
The one-month period for imposing a disciplinary sanction must be calculated from the date the offense was discovered.
The day on which the misconduct is discovered, from which the month period begins, is considered the day when the person to whom the employee is subordinate for work (service) became aware of the commission of the offense, regardless of whether he was vested with the right to impose disciplinary sanctions.
The monthly period for applying a disciplinary sanction does not include the time the employee is ill, on vacation, or the time required to comply with the procedure for taking into account the opinion of the representative body of employees. The absence of an employee from work for other reasons, including in connection with the use of rest days (time off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the flow of the specified period.
Vacation that interrupts the course of a month should include all vacations provided by the employer in accordance with current legislation, including annual (main and additional) vacations, vacations in connection with training in educational institutions, and vacations without pay.
Procedure for issuing a disciplinary sanction
After the immediate supervisor has clarified all the reasons for the violation of labor discipline and has drawn up the relevant acts, he must send the following documents to the official authorized to make a decision on the application of disciplinary sanctions:
written explanations (reports, memos) of persons involved in the commission of the offense;
a memo outlining the essence of the disciplinary offense;
a written explanation of the person who committed the violation of labor discipline;
written explanations (reports, memos, acts) of persons involved in the discovery of the fact of the offense committed;
working time schedule or a copy of the order on working hours;
other documents necessary for making a decision on imposing a disciplinary sanction and (or) applying material sanctions (job descriptions, extracts from the ETKS, copies of regulatory documents whose requirements were violated, medical examination protocols, acts recording the fact of a violation, for example, on the appearance of working while intoxicated or an act of absence from work, etc.).
Procedure for filing a disciplinary sanction
After receiving an explanatory note or drawing up a report stating that after two working days the employee has not provided an explanation, you can issue an order to apply a reprimand or reprimand. In this case, the employer decides independently what kind of punishment to apply in this case. In such a situation, it is necessary to take into account the circumstances of the misconduct, its consequences, the reasons cited by the employee, etc.
If dismissal is applied to an employee as a disciplinary sanction, then the order is drawn up according to unified forms No. T-8, T-8a. When imposing a disciplinary sanction in the form of dismissal, the wording of the reason for dismissal must exactly correspond to the basis in the Labor Code or federal law, indicating the article and paragraph. The form of the order (instruction) to apply a reprimand or reprimand is not unified. Such an order is issued in simple text form, according to the general rules required for the preparation of organizational and administrative documents.
The order must include the following information:
surname, name, patronymic of the employee;
the position of the employee to whom the penalty is applied;
the structural unit where the employee works;
the offense committed by the employee, with references to the violated clauses of the contract or job description and to documents confirming this violation;
the circumstances of the offense, the degree of its severity and the employee’s guilt;
type of disciplinary sanction imposed (reprimand or reprimand).
As the basis for issuing an order, official memos, acts, protocols are indicated, indicating their originating (or registration) number and date, the details of another document recording the employee’s misconduct or an act of refusal to provide explanations are indicated.
It is allowed to create a form for an order to impose a disciplinary sanction based on the model of unified forms. Alternatively, an order to bring disciplinary action can be created in the form of an order (instruction) to reward an employee. This form should be registered in the Album of forms used in the organization. Prepare a sample of filling out an order to apply a disciplinary sanction in the form of a comment.
Prepare a sample for filling out an order to apply a disciplinary sanction in the form of a reprimand.
The order is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the document, a corresponding act is drawn up.
If the employee refuses to familiarize himself with the order, the order to impose a disciplinary sanction is announced to him by reading it aloud. The fact of this kind of familiarization is recorded by the immediate supervisor by drawing up an appropriate act, which is signed by two witnesses who were present during the familiarization.
An example of an act of refusal to sign in order to familiarize yourself with the order
000 "I KS" (name of enterprise)
ACT
An entry about a disciplinary sanction is not made in the work book (Part 4, Article 66 of the Labor Code of the Russian Federation), except in cases where the disciplinary sanction is dismissal.
It is not necessary to make a record of a disciplinary sanction on your personal card (form T-2). But if necessary (to ensure internal accounting), this information can be reflected in section 10 “Additional information”.
CONSEQUENCES OF APPLYING A PENALTY TO AN EMPLOYEE
If an employee has a disciplinary sanction (no matter a reprimand or reprimand), the employer has the right to:
not pay incentive payments to the employee in whole or in part, if local regulations stipulate that these payments are not made in the presence of outstanding disciplinary penalties;
in case of repeated (within a year) violation of labor discipline, dismiss the employee (clause 5, part 1, article 81 of the Labor Code of the Russian Federation).
EMPLOYER'S RESPONSIBILITY FOR VIOLATION OF THE PROCEDURE FOR APPLICATION OF PENALTY.
Actions in case of appeal of a disciplinary sanction by an employee to state labor inspectorates or bodies for consideration of individual labor disputes (for example, to a labor dispute commission). A separate right of an employee to protect his labor interests is his right to go to court. In this case, the employee is not obliged to comply with any pre-trial procedure for resolving the dispute. So, he decides at his own choice where to turn for support: first to the labor inspectorate, and then to the court, or directly to the judicial authorities.
If during an inspection (including one carried out based on an employee’s complaint) in accordance with Part 7 of Article 193 of the Labor Code of the Russian Federation) it is discovered that the employer has violated the procedure for applying a disciplinary sanction or applied a penalty without grounds, the Federal Labor Inspectorate may hold the organization administratively liable under Article 5.27 of the Code Russian Federation on administrative offenses. In addition, the penalty applied will be considered illegal. Accordingly, if due to this penalty any amounts were not paid to the employee, they will have to be paid to him with interest (monetary compensation) for the delay in payment (Article 236 of the Labor Code of the Russian Federation).
13.09.2017, 19:37
Often, HR specialists have to deal with disciplinary offenses by employees. What is the disciplinary procedure? Where do you need to start so that you can carry out the entire procedure without errors. Is this procedure regulated by the Labor Code? We offer HR officers a procedure for applying disciplinary sanctions.
Step 1. Identify the disciplinary offense
Failure to fulfill or improper performance of labor duties assigned to an employee is called a disciplinary offense (Article 192 of the Labor Code of the Russian Federation). An employee who has committed a disciplinary offense can be held accountable by applying disciplinary measures to him. Moreover, holding people accountable is a right, not an obligation of the organization.
Step 2. We require an explanation
After committing a disciplinary offense, the employee must be required to write an explanatory note. This document, containing an explanation of the reasons for what happened, will be attached to the memo about the violation of discipline (disciplinary act).
It is clear that the explanatory note must be written by the employee personally and addressed to the head of the enterprise. The law does not establish a uniform form for such a document, so an explanatory note about being late for work can be written in any form.
Step 3. In case of refusal to provide an explanation, we draw up an act
Step 4. Write a memo
The next step in the procedure for imposing a disciplinary sanction is writing a memo. The fact is that the fact of violation of labor discipline must be confirmed. One of the formatting options is a memo regarding violation of official duties, drawn up by the immediate supervisor of the offending employee. This document can be drawn up in any form, since the current legislation does not contain a unified form for the memo. The main thing is to describe the actions (inaction) of the employee that served as the basis for drawing up the note and indicate the type of disciplinary sanction imposed.
Step 5. Issue an order
The next stage in the procedure for applying disciplinary sanctions under the Labor Code of the Russian Federation is the publication of an order. However, before issuing an order, you need to decide on the type of punishment.
Labor legislation establishes a list of disciplinary sanctions that can be applied to an offending employee (“”):
- comment;
- rebuke;
- dismissal.
These types of penalties are in order of increasing responsibility depending on the severity of the offense. That is, a reprimand is the mildest measure of disciplinary liability, and dismissal is the most severe (“”).
Management has the right to impose disciplinary sanctions on an employee for failure to comply with disciplinary liability.
Related materials:
Management has the right to impose disciplinary sanctions on an employee for failure to comply with
Disciplinary action- punishment imposed on an employee in connection with his violation of labor discipline.
Types of disciplinary action:
- Remark - made orally;
- Reprimand - condemnation of an employee’s unlawful behavior (without entering it into the work book, personal file);
- Dismissal on appropriate grounds - it can be recognized as lawful, in accordance with current legislation, under three simultaneous conditions: the grounds for dismissal are provided for by current legislation and correspond to actual circumstances; the dismissal procedure has been followed and corresponds to the specifically provided grounds; the employment contract has been terminated.
For each disciplinary offense, only one disciplinary sanction can be applied. For certain categories of employees, federal laws, charters and discipline regulations may provide for other types of punishment. But it should be remembered that disciplinary sanctions can only be imposed in accordance with the law. There is no list in labor legislation, so whether to punish an employee or not is decided by the head of the company, taking into account the employee’s explanations.
An employee can appeal a disciplinary sanction in court if the labor duties assigned to him are not specified in the employment contract.
The imposition of disciplinary sanctions is regulated by Art. 193 Labor Code of the Russian Federation
Before imposing a disciplinary sanction, the fact of violation of labor discipline must be documented. After this, the employee must write an explanatory note outlining the reasons for his behavior. The reasons are carefully analyzed by management and it is determined whether they are valid or not. If after two working days an explanation is not provided, an act signed by two or more witnesses is drawn up. A manager who has such an act in hand can impose a disciplinary sanction without explanation to the employee.
The disciplinary process must be strictly followed. If the disciplinary sanction is found unlawful, the employee may demand compensation for moral damages and restoration of violated rights.
Information about penalties is not entered into the employee’s work book and personal card of form No. T-2 (clause 5 of the Rules for maintaining and storing work books).
The absence of an employee from work is recorded in the working time sheet. During absence from attendance, the employee is not paid wages. If we are talking about failure to fulfill job duties, you will need evidence of the employee’s unsatisfactory work - customer complaints, work plans and schedules, technical specifications, etc.
When all evidence of the employee’s guilt has been collected, about disciplinary action. If the penalty is a reprimand or reprimand, then the order is issued in free form. If an employee is fired, then this is formalized by an order to terminate the employment contract with the employee using the unified form No. T-8 (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). An order to impose a penalty in the form of a reprimand or reprimand is announced to the employee against signature within three working days from the date of issue, not counting the time the employee is absent from work (Article 193 of the Labor Code of the Russian Federation). If an employee refuses to sign an order, a report about this is drawn up.
Terms of disciplinary action
A disciplinary sanction can be imposed on an employee no later than one month from the date of discovery of the misconduct. This period is suspended only for the period of vacation, illness of the employee and taking into account the opinion of the representative body of employees.
“A penalty cannot be applied later than six months from the date of commission of the offense. Based on the results of an audit, inspection of financial and economic activities or an audit - no later than two years from the date of its commission” (Article 193 of the Labor Code of the Russian Federation). This applies to those offenses that are not discovered immediately after the commission, but after some time (waste of company funds). And if the misconduct was discovered later than the specified period, the employee cannot be held accountable. The six-month period does not include the time of criminal proceedings.
An employer has the right to dismiss an employee if, for example, he brought a sick leave certificate confirming that he was sick for five days out of ten missed, and the rest are not valid. In this case, an explanatory note is required from the employee, on the basis of which the issue of dismissal is decided.
The date of the order to impose a disciplinary sanction will be the day when management became aware that the employee was absent for an unexcused reason, or a later date within the time limits specified in Article 193 of the Labor Code of the Russian Federation.
Cash compensation for vacation is paid to the employee regardless of the grounds for dismissal. If an employee has several unused vacations left, then upon dismissal the employer must pay for all of them, no matter what their duration. But such an employee cannot take a vacation before dismissal, since the employment contract with him is terminated on grounds of guilt (Article 127 of the Labor Code of the Russian Federation).
Not all employees can be fired for committing a disciplinary offense, even if there are grounds for this. For some, a complicated procedure for terminating an employment contract is provided (pregnant women, minors, etc.).
Removal of disciplinary action
An employee is considered to have no penalty if he is not subject to a new penalty within a year from the date of application of the disciplinary sanction. (Article 194 of the Labor Code of the Russian Federation).
A disciplinary sanction can be lifted from an employee earlier at the initiative of the administration, at the request of the employee himself, at the request of his immediate supervisor or a representative body of the labor collective (Article 194 of the Labor Code of the Russian Federation).
A request to lift a disciplinary sanction can be expressed in a statement (if the employee himself requests), an internal memo (if the request comes from the immediate superior), or a petition from a representative body. If the head of the company agrees to remove the penalty from the employee ahead of schedule, he puts a positive resolution on this document. After this, you need to prepare an order to remove the disciplinary sanction in free form.
Article 192. Disciplinary sanctions
For committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:
1) remark;
2) reprimand;
3) dismissal for appropriate reasons.
Disciplinary sanctions, in particular, include the dismissal of an employee on the grounds provided for points 5, 6, 9 or 10 part one of article 81, paragraph 1 of article 336 or Article 348.11 of this Code, as well as paragraph 7, 7.1 or 8 of the first part of Article 81 of this Code in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by an employee at the place of work and in connection with the performance of his job duties.
Not allowed application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline.
When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.
Article 193. Procedure for applying disciplinary sanctions
Before applying disciplinary action, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.
Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.
Disciplinary action is applied no later than one month from day of discovery misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees.
A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.
For each disciplinary offense, only one disciplinary sanction can be applied.
The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up.
A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.
12 Characteristics of the grounds for dismissal of an employee
Agreement of the parties. On this basis, any type of employment arrangement can be annulled. This requires not only the consent of the employee, but also obtaining permission from the head of the organization.
The employment contract has expired. The contract, which was concluded for a short period of time until the moment when the absent worker takes up the position, is cancelled. The situation is the same with a seasonal work agreement. The employee must be informed in writing no later than 3 days before the end of the contract (except for termination of a fixed-term contract).
Cancellation of a contract at the initiative of the worker himself.
Transfer of an employee to another position in another company at his request or after receiving his consent to do so.
Disagreement to work in an organization if its subordination has been changed or reorganization has been carried out. Dismissal must occur no later than 3 months after ownership arose. If the employee is satisfied with everything, he can continue to perform his job duties.
Cancellation of the contract at the request of the head of the company.
If an employee refuses to perform his direct labor duties due to the fact that the terms of a previously concluded employment contract have been changed in some way.
The employee refused to be transferred to another position if such a transfer was necessary for him due to health reasons, and the current employer does not have the necessary conditions.
Refusal of a worker to perform his functions if the employer has been moved to another location.
If the rules for concluding an employment contract were violated, as a result of which further performance of job duties is impossible.
Violation of labor discipline by an employee and failure to fulfill his duties. This may include: absenteeism without a valid reason; showing up at the workplace while intoxicated, for which there is evidence; disclosure of official secrets, as well as violation of safety regulations by employees (which in turn led to grave consequences).
If an employee is not suitable for the position he occupies due to an insufficient level of qualifications. This must be confirmed by the results of the employee’s certification.
The employee will be laid off (if he does not belong to the category of people whose layoff is prohibited by law). This may be fraught with the application of various penalties to the employer who allowed this. All employees must receive notice of layoffs in writing 2 months before dismissal.
According to the conclusion of an employment contract, an employee not only acquires a certain list of rights, but also bears a number of responsibilities, for example, to conscientiously fulfill his labor duties assigned to him by the employment contract; comply with internal labor regulations; observe labor discipline, etc. Failure or improper performance by an employee, through his fault, of the labor duties assigned to him is a disciplinary offense (), for which a disciplinary sanction is imposed. Let's consider their types and features of application.
For committing a disciplinary offense, the employer has the right to impose a disciplinary penalty. However, it is necessary to take into account the gravity of the offense committed and the circumstances under which it was committed. Therefore, you should carefully consider the procedure for imposing a disciplinary sanction, because As a rule, the result of inaccurate or incorrect execution of documents justifying the application of a disciplinary sanction is the emergence of a labor dispute.
In cases where the employee perceives a violation of his labor rights in the actions of the employer, he has the right to file an application with the state labor inspectorate without any time limit. And for the resolution of individual labor disputes - to the labor dispute commission and (or) to the court within the time limits established by law (Articles 386 and 392 of the Labor Code of the Russian Federation).
The article provides for a simple procedure for applying disciplinary sanctions for such violations. At the same time, not all employers manage to avoid mistakes and violations in the procedure established by law. Moreover, in most cases, employers do not take into account the fact that the main criteria for the legality of imposing a disciplinary sanction are the sequence of actions of the employer and the availability in full of all documents confirming the fact of the disciplinary action, as well as indicating the legality of the employer’s actions in applying this sanction.
Types of disciplinary sanctions and application features
The current legislation, namely -, regulates that for committing a disciplinary offense, i.e. Failure to perform or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:
1) remark;
2) reprimand;
3) dismissal for appropriate reasons.
In accordance with Art. 192 of the Labor Code of the Russian Federation, this list is not exhaustive, because Federal laws, charters and regulations on discipline may provide for other disciplinary sanctions for certain categories of employees.
For example, Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation” for committing a disciplinary offense, that is, for failure or improper performance by a civil servant through his fault of the official duties assigned to him, a warning may be issued for incomplete official compliance.
The legislation clearly states that the application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted. From which it follows that there are two types of disciplinary liability: general, provided for by the Labor Code of the Russian Federation, and special, which is borne by employees in accordance with the charters and regulations on discipline.
Therefore, organizations cannot independently impose any additional disciplinary sanctions (the provided list is exhaustive), however, in practice, referring to Art. 192 of the Labor Code of the Russian Federation, employees are often given a disciplinary sanction: “severe reprimand” or “reprimand with warning,” although such categories are not provided for by the Labor Code of the Russian Federation, as well as the application of various fines, deprivation of allowances and additional payments. Similarly, it would be illegal, for example, to transfer an employee as a disciplinary sanction to a lower-paid position.
For each disciplinary offense, only one disciplinary sanction can be applied (Article 193 of the Labor Code of the Russian Federation).
In addition, when imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account. However, as practice shows, disciplinary measures applied by employers do not always objectively correlate with the committed act. As a result, when resolving labor disputes, the court recognizes the unfoundedness of the decision made by the employer.
Keep in mind that when considering cases, the courts are guided by the fact that the employer must provide evidence indicating not only that the employee committed a disciplinary offense, but also that when imposing a penalty, the severity of this offense and the circumstances in which it was committed were taken into account. committed (Part 5 of Article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee and his attitude towards work.
If, when considering a case on reinstatement at work, the court comes to the conclusion that misconduct actually occurred, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied (clause 53 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application courts of the Russian Federation of the Labor Code of the Russian Federation", hereinafter referred to as Resolution No. 2).
Arbitrage practice.Thus, the court, resolving a dispute about reinstatement at work, came to the conclusion that the disciplinary measure applied to the plaintiff did not correspond to the severity of the offense alleged by the defendant, was unfair and unfounded. At the same time, the court considered that the defendant did not provide evidence that the disciplinary sanction in the form of dismissal was commensurate with the gravity of the offense committed, in the defendant’s opinion. By a court decision, the plaintiff was reinstated at work, and the defendant’s average earnings for the period of forced absence and the amount of compensation for moral damage were recovered from the defendant in her favor (decision of the Dzerzhinsky District Court of Perm dated January 22, 2014 in case No. 2-133-14).
When applying a disciplinary sanction, the employer should also take into account the level of guilt of the employee, including: whether any harm was caused to him, what external factors prompted the employee to take a certain action, whether there was intent in his actions. It is equally important to take into account the general characteristics of the employee: experience, achievements, personal and business qualities, professionalism, health.
In any case, the decision to impose a disciplinary sanction provided for by the Labor Code of the Russian Federation is made by the employer, who has the right, and not the obligation, to do so as provided by law. Therefore, in some cases it is quite appropriate to limit yourself to a verbal warning, personal conversation, etc.
It should also be understood that disciplinary sanctions can be imposed by managers and other officials vested with appropriate powers on the basis of documents (the organization’s charter, local regulations, etc.).
The special liability provided for in discipline regulations and statutes applies to all employees who are subject to them. At the same time, direct employers themselves do not have the right to make any additions or changes to them. The difference between these regulations is the presence of more stringent penalties for certain categories of workers. As an example, we can cite Decree of the President of the Russian Federation of November 10, 2007 N 1495 “On approval of general military regulations of the Armed Forces of the Russian Federation,” namely, the Charter of the Internal Service, the Disciplinary Charter and the Charter of the Garrison and Guard Services of the Armed Forces of the Russian Federation.
Sequence of actions when applying disciplinary sanctions
The procedure for applying disciplinary sanctions is regulated by Art. 193 of the Labor Code of the Russian Federation, which states that before applying a disciplinary sanction, the employer must request a written explanation from the employee. But a written explanation, as a rule, is provided in response to any circumstances, therefore, despite the fact that the Labor Code of the Russian Federation does not contain a requirement to document the fact of a violation, it is necessary to do this, because From the day the misconduct is discovered, the period allotted to the employer for applying a disciplinary sanction begins to run.
The fact of a disciplinary offense by an employee can be recorded by drawing up an official or memorandum from the official to whom the employee is subordinate, regardless of whether this person has the right to impose penalties or not. Of course, in the optimal version, it is better to familiarize the employee with it under his personal signature, thereby further reinforcing the legality of his actions.
Also, the fact of a disciplinary offense can be recorded in the form:
Act (absence from work, refusal to undergo a medical examination, etc.);
Conclusions of the commission (based on the results of an internal investigation).
If an employee is asked to provide a written explanation orally, a situation may arise when the employee denies that the employer has fulfilled his obligation under Art. 193 of the Labor Code of the Russian Federation, and indeed requested a written explanation. Therefore, it is recommended to require an explanation of the circumstances of the violation committed by the employee in writing. To provide a written explanation to the employee, the legislation of the Russian Federation provides two working days.
Some employers make a mistake and issue an order to impose a disciplinary sanction on the day a written explanation is requested, which should not be done, because this action of the employer can be challenged by the employee in court.
The Labor Code of the Russian Federation does not provide for any special requirements for the employee’s explanation, with the exception of written form and deadlines for submission, therefore it can be drawn up arbitrarily in the form of an explanatory note to the employer.
Please note that this is a right, not an obligation of the employee. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. Rather, such a rule is provided in order to give him the opportunity to express his own view of the event, explain the reasons for the disciplinary offense, and present reasoned facts in his defense. This is one of the guarantees that the imposition of a penalty will be lawful.
If after two working days an explanation is not provided by the employee, then if there is a firm intention to apply a disciplinary sanction against the employee, an act on the employee’s refusal to give an explanation should be drawn up, with which the employee must be familiarized with a personal signature (if a refusal to familiarize is made, a corresponding note is made in this same document).
In paragraph 23 of Resolution No. 2, it is explained that when considering the case of reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.
Therefore, when imposing a disciplinary sanction, it is necessary to check the following circumstances:
Is the disciplinary offense grounds for imposing a disciplinary sanction;
Are there really no valid reasons for non-fulfillment or improper performance of labor duties;
Are the employee’s culpable unlawful actions (inaction) related to the performance of his job duties;
Are certain job responsibilities provided for by any local regulatory act or other document and is the employee familiarized with it under his personal signature;
Is the disciplinary measure applied to the employee provided for by the legislation of the Russian Federation;
Have the deadlines and procedures for imposing disciplinary sanctions been observed?
Does the official who signs the order (instruction) on bringing to disciplinary liability the right to apply a disciplinary sanction against the employee;
Has the employee’s previous behavior and his attitude towards work been taken into account?
Only if all the above conditions are met can the application of disciplinary action be lawful.
Time limits for applying disciplinary action
On the application of a disciplinary sanction, an order (instruction) of the employer is issued, which contains information about the specific disciplinary offense of the employee. The employee must be familiarized with this order (instruction) with a personal signature. The refusal to sign should be recorded in the relevant act.
According to Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction can be applied to an employee no later than one month from the date of discovery. The day when the misconduct was discovered, from which the period for applying a disciplinary sanction is calculated, is considered to be the day when the employee’s immediate supervisor became aware of the misconduct committed, which is confirmed by the relevant document (an official or memo, act, commission conclusion, etc.).
The designated period for applying a disciplinary sanction does not include the period when the employee was absent from work due to illness or was on leave (regular, educational, paid or without pay - clause 34 of Resolution No. 2), as well as the time required for taking into account the opinion of the representative body of workers. Here we are talking about the motivated opinion of the representative body of employees when terminating an employment contract. Absence from work for other reasons does not interrupt the specified period.
In case of long-term absenteeism, when the reason for the employee’s absence is not known for certain and he may not know about the imposition of a penalty, it is advisable to begin calculating the monthly period from the last day of absenteeism, from the day before the employee appears at work.
In any case, the application of a disciplinary sanction after six months from the date of commission of the offense is not allowed, and based on the results of an audit, inspection of financial and economic activities or an audit - after two years from the date of its commission (Article 193 of the Labor Code of the Russian Federation). The specified time limits do not include the time of criminal proceedings.
The application of a new disciplinary sanction to an employee, including dismissal, is also permissible if the failure or improper performance, through the fault of the employee, of the work duties assigned to him continued, despite the imposition of a disciplinary sanction. At the same time, it must be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the offense, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the notice period for dismissal (clause 33 of Resolution No. 2).
In practice, employers often apply disciplinary sanctions to employees when the period for their application has already expired, thereby allowing a violation of the legislation of the Russian Federation, which leads to the recognition of the disciplinary sanction as illegal.
Arbitrage practice.The employee filed a lawsuit against the employer to declare the order to impose a disciplinary sanction on her in the form of a reprimand illegal and to cancel it.
The court concluded that the employee was brought to disciplinary liability in violation of the one-month period established by law. Evidence of suspension of this period on the grounds specifiedPart 3 Art. 193The Labor Code of the Russian Federation was not included in the case materials and they were not presented to the court. The court was critical of the defendant’s arguments that he had met the six-month deadline for bringing the plaintiff to justice, since the provisionsPart 4 Art. 193The Labor Code of the Russian Federation is applied in cases where the disciplinary offense could not be detected within the month established by Part 3 of Art. 193 of the Labor Code of the Russian Federation to bring an employee to disciplinary liability.
In this regard, the court decided to declare illegal and cancel the order to impose a disciplinary sanction on the employee in the form of a reprimand, to recover money in favor of the employee to compensate for moral damage (decision of the Lermontov City Court of the Stavropol Territory of the city of Lermontov dated 02/09/2012 in case No. 2-19/2012).
Please note: information about penalties is not entered into the work book, except in cases where the disciplinary sanction is dismissal (Article 66 of the Labor Code of the Russian Federation).
The concept of disciplinary offense
We think it would be useful to clarify what constitutes a disciplinary offense, since practice shows that employers often interpret it erroneously. So, a disciplinary offense is a culpable unlawful failure or improper performance by an employee of his assigned job duties (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, regulations, technical rules, other local regulations, orders, other organizational and administrative documents of the employer, etc.).
Only such failure to perform or improper performance of labor duties is considered guilty when the employee’s act is intentional or careless. Failure to perform or improper performance of duties for reasons beyond the employee’s control (for example, due to lack of necessary materials, disability, insufficient qualifications) cannot be considered a disciplinary offense. For example, the legislation of the Russian Federation does not provide for the right of the employer to recall him from vacation early without the employee’s consent, therefore the employee’s refusal (regardless of the reason) to comply with the employer’s order to go to work before the end of the vacation cannot be considered a violation of labor discipline (clause 37 of Resolution No. 2) .
Only such illegal actions (inaction) of an employee that are directly related to the performance of his job duties can be recognized as a disciplinary offense. Thus, an employee’s refusal to carry out a public assignment or violation of the rules of behavior in public places cannot be considered a disciplinary offense.
Violations of labor discipline, which are disciplinary offenses, clause 35 of Resolution No. 2 include, among other things:
a) the absence of an employee from work or the workplace without good reason.
It must be borne in mind that if the employment contract concluded with the employee or the employer’s local regulatory act does not stipulate the specific workplace of this employee, then in the event of a dispute arising over the issue of where the employee should be when performing his job duties, It should be assumed that, by virtue of Part 6 of Art. 209 of the Labor Code of the Russian Federation, a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer;
Arbitrage practice.The director of the institution explained that the employee was not at the workplace, which is his office, at the time specified in the dismissal order.
Taking into account the provisions of the employee’s job description submitted to the court by the defendant, the court accepted the plaintiff’s explanations that the office was not his only workplace. The absence of an employee from the workplace for some time, which is not his only one, is not absenteeism. The possibility of an employee being in other premises of the employing organization, as well as outside the territory of the institution, may be due to his official duties.
Thus, the court came to the conclusion that it was necessary to recognize the dismissal order as illegal and satisfy the employee’s request for reinstatement at work (decision of the Leninsky District Court of Kostroma dated May 26, 2010 in case No. 2-568/2010).
b) refusal of an employee, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure (Article 162 of the Labor Code of the Russian Federation), because By virtue of the employment contract, the employee is obliged to perform the labor function defined by this contract and to comply with the internal labor regulations in force in the organization (Article 56 of the Labor Code of the Russian Federation).
It should be borne in mind that refusal to continue work in connection with a change in the terms of the employment contract determined by the parties is not a violation of labor discipline, but serves as a basis for termination of the employment contract under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Art. 74 Labor Code of the Russian Federation;
Arbitrage practice.An MDOU teacher for refusing to work on a shift schedule with other groups of children and in another building after applying disciplinary sanctions in the form of a reprimand and reprimand was dismissed from work on the grounds provided forclause 5, part 1, art. 81Labor Code of the Russian Federation.
The court concluded that disciplinary sanctions, including dismissal from work, were illegal and subject to cancellation. By the court's decision, the teacher's claim against the preschool educational institution for the cancellation of the disciplinary sanction, reinstatement at work, payment for forced absence and compensation for moral damage was satisfied in full (decision of the Ust-Kulomsky District Court of the Komi Republic dated December 2, 2011 in case No. 2-467/2011).
c) refusal or evasion without good reason from a medical examination of workers in certain professions, as well as refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work.
Also, a violation of labor discipline should be considered a refusal by an employee, without good reason, to conclude an agreement on full financial responsibility for the safety of material assets, if the fulfillment of duties for servicing material assets constitutes the employee’s main job function, which was agreed upon when hiring, and in accordance with According to the current legislation, an agreement on full financial liability can be concluded with him (clause 36 of Resolution No. 2).
Please note that the application of a disciplinary sanction can be recognized as legal in cases of non-fulfillment or improper performance by an employee of labor duties only when he has been familiarized with each of the local acts establishing the relevant duties under his personal signature, because This requirement is provided for in Art. 22 Labor Code of the Russian Federation.
Therefore, courts often overturn disciplinary sanctions against employers due to the lack of familiarization of the employee with the document that he violated.
Arbitrage practice.During the hearing, the court found that when applying for a job, the employee signed only an employment contract and an agreement on full financial responsibility. The job description was approved only in 2012, and disciplinary sanctions were imposed for disciplinary offenses committed by the employee in 2011.
The court concluded that when applying a disciplinary sanction in the form of a reprimand, the employer could not be guided by the job description, since when concluding the employment contract, the employee was not familiar with it, and his job responsibilities were not established. Referring toletterRostruda dated 08/09/2007 N 3042-6-0, the court indicated that a job description is not just a formal document, but an act that defines the tasks, qualification requirements, functions, rights, duties and responsibilities of the employee.
By a court decision, bringing an employee to disciplinary liability was declared illegal (definitionSamara Regional Court dated July 30, 2012 in case No. 33-6996).
Dismissal as a disciplinary measure
The most severe, extreme disciplinary measure is dismissal. Thus, in cases of application of a disciplinary sanction in the form of dismissal, employees often challenge the actions of the employer if:
There were valid reasons for absence from work during working hours;
The employee is not familiarized with the dismissal order or other local acts of the employer under his personal signature;
The procedure provided for in Art. 193 of the Labor Code of the Russian Federation, including violation of the deadlines for bringing the employee to disciplinary liability;
The employee is dismissed for a violation for which he has already been subject to a disciplinary sanction (please note that only one disciplinary sanction can be applied for each disciplinary offense, i.e., the employee cannot be reprimanded and fired at the same time for one violation).
As an example, let’s take a closer look at one of the grounds for dismissal of employees, related to disciplinary sanctions. Thus, upon dismissal for repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction (Clause 5, Part 1, Article 81 of the Labor Code of the Russian Federation), the following conditions must be met:
The employee, without good reason, failed to perform or improperly performed his job duties;
For failure to fulfill labor duties earlier (no later than the calendar year), a disciplinary sanction has already taken place (an order has been issued);
At the time of his repeated failure to fulfill his labor duties without good reason, the previous disciplinary sanction had not been removed or extinguished;
The employer took into account the employee’s previous behavior, his previous work, attitude to work, circumstances and consequences of the offense.
Employers often make the mistake of believing that a previous disciplinary sanction alone is sufficient to subsequently dismiss an employee.
Arbitrage practice.The court found that the employee was dismissed from his position due toclause 5, part 1, art. 81Labor Code of the Russian Federation for repeated failure to fulfill labor duties without good reason. At the same time, the employer does not indicate in the order for which specific violation of labor duties the disciplinary sanction in the form of dismissal was applied (which labor duties were again not fulfilled). This order contains only references to previously applied disciplinary sanctions.
As a result, the court concluded that the employee was subject to disciplinary liability in the form of dismissal for the same actions for which he had previously been subject to disciplinary liability. And since the employer did not prove what new disciplinary offense (committed after a disciplinary sanction was applied to the employee) served as the basis for the dismissal of the plaintiff, the employer had no grounds for terminating the employment contract with him underclause 5, part 1, art. 81Labor Code of the Russian Federation.
The employer's argument about his right to dismiss an employee due toclause 5, part 1, art. 81The Labor Code of the Russian Federation, in the presence of two disciplinary sanctions, without waiting for him to commit a new disciplinary offense, is erroneous, based on an incorrect interpretation of the norm of paragraph 5 of part 1 of Art. 81 Labor Code of the Russian Federation. Within the meaning of this norm, for the dismissal of an employee on this basis, there must be a reason in the form of a disciplinary offense committed by the employee after a disciplinary sanction was applied to him.
In the present case, the employer dismissed the employee for the same offenses for which he had previously been subject to disciplinary sanctions in the form of reprimands and reprimands. Under such circumstances, the dismissal of an employee on this basis could not be recognized as legal, and he was subject to reinstatement (decision of the Meshchansky District Court of Moscow dated January 16, 2013 in case No. 2-512/2013).
Thus, if errors made by the employer are identified, the state labor inspectorate can bring the employer to administrative liability, and by a court decision, the employee can be reinstated at work, and the average earnings for the period of forced absence, as well as the amount compensation for moral damage. Therefore, when deciding to impose a disciplinary sanction on an employee, all conditions provided for by law must be observed and the established procedure must be strictly followed.