Actions to take disciplinary action against an employee. Restoring discipline after the New Year holidays

13.09.2017, 19:37

Often, HR specialists have to deal with disciplinary offenses by employees. What is the order disciplinary action? Where do you need to start so that you can carry out the entire procedure without errors. Is this procedure regulated? Labor Code? We offer HR officers a procedure for applying disciplinary sanctions.

Step 1. Identify the disciplinary offense

Failure to perform or improper performance labor responsibilities imposed on the 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 explanatory letter 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 labor discipline needs to be confirmed. One of the design options is a memo about the violation job responsibilities, compiled by the immediate supervisor of the employee at fault. 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 (“”).

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 types disciplinary sanctions:

comment;
rebuke;
dismissal for appropriate reasons.

Federal laws, charters and regulations on discipline for certain categories of employees may also provide for other types of disciplinary sanctions.

It is not permitted to apply disciplinary sanctions not provided for federal laws, charters and regulations on discipline.

Before applying a disciplinary sanction, the employer must request from the employee.

If the employee refuses to give the specified explanation, a corresponding act is drawn up.

An employee’s refusal to provide an explanation is not an obstacle to applying disciplinary action.

Disciplinary action is 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.

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 action.

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. If the employee refuses to sign the specified order (instruction), a corresponding act is drawn up.

A disciplinary sanction can be appealed by an employee to state inspectorates or bodies for the consideration of individual labor disputes.

If within a year from the date of application of the disciplinary sanction the employee is not subject to a new disciplinary sanction, then he is considered to have no disciplinary sanction.

The employer, before the expiration of a year from the date of application of the disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.

The employer is obliged to consider the application of the representative body of employees about violation by the head of the organization, his deputies of laws and other regulatory legal acts on labor, the terms of the collective agreement, agreement and report the results of the consideration to the representative body of employees.

If the facts of violations are confirmed, the employer is obliged to apply disciplinary action to the head of the organization and his deputies, up to and including dismissal.

With special labor discipline, the procedure, terms of application and types of disciplinary sanctions may be different.

Bringing to disciplinary liability the head of the organization, the head of the structural unit of the organization, their deputies at the request of the representative body of employees

Bringing disciplinary action to the manager organization, the head of a structural unit of the organization, their deputies at the request of the representative body of workers is regulated by Art. 195, part 6 art. 370 Labor Code of the Russian Federation.

Trade union bodies, in particular the trade union committee of the organization, have the right to monitor compliance with labor legislation. In case of detection of facts of violation in the organization of labor legislation, local legal acts containing norms labor law, concealment of accidents at work, failure to comply with the terms of a collective agreement, a trade union agreement has the right to demand that the employer punish the head of the organization, its division or their deputies who are guilty of this.

The employer, upon application by the representative body of employees, usually the trade union committee, initiates disciplinary proceedings. It is characterized by the same stages as when identifying a violation of internal labor regulations employee, which were stated above. If the guilt of managers or their deputies in violating labor law norms is established, then the employer is obliged to apply “disciplinary action up to and including dismissal” to them (Part 2 of Article 195 of the Labor Code of the Russian Federation).

The employer informs the applicant (trade union committee) about the results of the disciplinary proceedings. The response period is not defined in labor legislation. However, it must include the time that the legislator sets for applying a disciplinary sanction to the military commander. 3, 4 tbsp. 193 Labor Code of the Russian Federation. Usually this is one month, and based on the results of an audit, inspection of financial and economic activities or an audit - two goals from the date of the disciplinary offense. If, due to the circumstances specified in the statement of the trade union committee, a criminal case has been initiated against the head or his deputy, then the period for reporting to the trade union bodies is extended for the duration of the proceedings in the main case.

Procedure for applying disciplinary sanctions

Procedure for applying disciplinary action The Labor Code of the Russian Federation is not regulated in detail. This often leads to a violation of the labor rights and freedoms of the employee.

Disciplinary proceedings as a legal relationship

Disciplinary proceedings are always a legal relationship, the main subjects of which are the employer and the employee. The content of a legal relationship is considered to be the rights and obligations of its parties. The current labor legislation enshrines mainly legal status employer. Analysis of disciplinary proceedings allows us to identify a certain set of rights of an employee who, in the opinion of the manager, violated the internal labor regulations. An employee is a full-fledged subject of legal relations within the disciplinary proceedings. He has the right to familiarize himself with all materials according to which he is accused of unlawful labor behavior, give his assessment of the content of the materials presented to him, and demand the provision of new materials. In complex disciplinary proceedings, an employee may request an audit, an inspection of financial and economic activities, or, if its results can resolve the issue of his guilt or innocence. The current legislation does not prohibit an employee from involving specialists or a representative of a trade union organization as consultants in disciplinary proceedings.

In this part, labor legislation still needs further improvement. Specification of disciplinary proceedings is possible in by-laws, local regulations legal acts. This practice is typical, for example, for budgetary organizations. Ministries and departments develop and approve procedures for conducting performance reviews and applying disciplinary sanctions to state civil servants of their subordinate organizations. Such regulatory legal acts establish a detailed procedure for conducting official inspections and applying disciplinary sanctions to civil servants, the composition of the commission tasked with conducting the inspection, its powers and the processing of the inspection results. The by-laws of local regulatory legal acts specifically highlight a section that establishes the rights of the employee who is being inspected: to give oral and written explanations, submit petitions, get acquainted with documents during the inspection, appeal the decisions and actions of the commission that conducts the inspection.

A single disciplinary legal relationship can be classified as a complex legal relationship. It consists of a number of elements characteristic of each stage. Elementary legal relations are discrete, that is, they are interrupted in time and consist of certain parts. Thus, the employee’s right to submit petitions, get acquainted with documents, appeal the actions of the employer’s representative or the commission conducting the inspection corresponds to the corresponding obligation of the employer to consider a specific petition, provide the employee with the necessary documents for review, and consider the complaint filed by him. These legal relations can arise and end at each stage of disciplinary proceedings. This does not exclude its systemic nature, the unity of rights and obligations of participants in disciplinary proceedings.

Stages of disciplinary proceedings

Disciplinary proceedings include several stages.

Firstly, before applying a disciplinary sanction, the manager invites the employee to give written explanation due to circumstances indicating a violation of the internal regulations of the organization. If the employee refuses to provide the employer with an explanation in writing, after two working days a corresponding act is drawn up. This document must contain the following details: place and date of drawing up the document; last name, first name, patronymic, position of the compiler and employee, short description alleged violation of labor discipline; an offer to the employee to give an explanation and his refusal, actual or default; an explanation of what exactly was the employee’s failure to fulfill his job duties.

Secondly, the employer (his authorized representative - head of the personnel department, deputy director of personnel) will request from the employee’s immediate supervisor Required documents, confirming the employee’s violation of labor discipline, one hundred opinion on the selection of a certain (necessary in the circumstances) disciplinary measure for the violator.

Thirdly, assessing the materials collected on the fact of violation of internal labor regulations, the employer makes a decision about the guilt of the employee, i.e., whether he has committed a disciplinary offense.

Fourthly, before imposing a disciplinary sanction, the employer takes into account the severity of the offense committed and the circumstances mitigating the employee’s guilt.

Fifthly, in accordance with Part 1 of Art. 192 of the Labor Code of the Russian Federation, the employer exercises his right to apply disciplinary action to a violator of internal labor regulations or limit himself to other means of educational influence. The effectiveness of disciplinary action largely depends on this stage of disciplinary proceedings. Reducing it only to punishment is unjustified both theoretically and practical point vision. The educational role of this stage depends on the personality of the employee, on the level of his professional training, legal and moral culture. This is a rather complex and responsible process for the employer. Sometimes a conversation with the manager is enough to correct the offender, and in some cases the application of a disciplinary measure leads to confrontation and increased tension in the employer’s relationship not only with the employee, but also with the primary production team. For this stage, pedagogical, psychological preparation leader as a manager.

This stage ends with the adoption of an appropriate decision to punish the employee or, at the discretion of the employer, to leave collected materials motionless. In practice, in the latter case, the employer does not issue any procedural act. The employer does the same if a minor violation of labor discipline is detected or there is insufficient material to establish it. In the latter case, the employee’s right to protection of “his labor rights and freedoms” (Article 2 of the Labor Code of the Russian Federation) is obviously violated, since the employee cannot protect his good name, honor and dignity. You can only appeal the relevant order of the employer, and not the negative opinion created during the investigation about the possible dishonesty of the employee.

Sixthly, the employer chooses a disciplinary measure and issues an appropriate order. An order (instruction) to apply a disciplinary measure 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 order (instruction) against signature, then the authorized representative of the employer draws up a corresponding act (Part 6 of Article 193 of the Labor Code of the Russian Federation). The details of the act are similar to those set out for the act of refusal to give an explanation for the fact of violation of internal labor regulations.

Disciplinary proceedings are subject to certain procedural time limits: one month and six months. Disciplinary action is not applied if more than one month has passed from the date of discovery of the misconduct. The monthly period does not include the time the employee is ill, on vacation, or the time required to take into account the opinion of the representative body of employees, if required by law (Part 2 of Article 82 of the Labor Code of the Russian Federation).

After the expiration of the six-month period, the employee cannot be subject to disciplinary action. When conducting an audit, inspection of financial and economic activities or an audit, the period during which a disciplinary sanction may be imposed is increased to two years.

The specified time frame does not include the time of criminal proceedings (Part 4 of Article 193 of the Labor Code of the Russian Federation).

Disciplinary proceedings are characterized by the rule that only one disciplinary sanction can be applied to an employee for the same disciplinary offense.

This does not exclude the application of administrative or criminal measures to the employee. A violator of internal labor regulations can also be disciplined, since deprivation of a bonus is not considered a disciplinary sanction.

Along with the mandatory stages of disciplinary proceedings outlined, it is also possible optional: 1) appealing a disciplinary sanction to bodies for consideration of individual labor disputes; 2) termination of disciplinary proceedings as a result of its review by the competent authorities, for example by a superior manager.

Removal of disciplinary action

From a legal point of view, disciplinary action is usually always a lasting condition, limited to a certain period within the employment relationship. If within a year from the date of application of the disciplinary sanction the employee has not committed a new violation of the internal labor regulations, then his state of punishment ceases, and the violator, in accordance with Part 1 of Art. 194 of the Labor Code of the Russian Federation “is considered not to have a disciplinary sanction.”

Before the expiration of one year, the employer can remove a disciplinary sanction from an employee either on its own initiative or at the request of his immediate supervisor or an elected representative body (trade committee). The initiative can also come from the violator of labor discipline himself. In accordance with Part 2 of Art. 194 of the Labor Code of the Russian Federation may make such a request to the head of the organization.

The state of punishment indicates a continuing systematic educational influence, which can be effective in organizing proper accounting of violators of internal labor regulations and monitoring their labor behavior. At medium and large enterprises, the employer can assign these responsibilities to the immediate supervisors of the labor process, who keep special logs of violations and violators of internal labor regulations in the production teams subordinate to them.

The labor relationship that develops between an employee and an employer consists of accepting certain rules and responsibilities. The employer is obliged to provide proper conditions labor, pay wages on time, etc. The employee, for his part, must conscientiously perform his job duties, comply with labor discipline, internal regulations and other duties.

There is no secret to the fact that the interests of the employee and the employer are fundamentally antagonistic. It cannot be said that all employees are undisciplined and violate internal regulations, and all employers have a tendency to find fault and inflate demands. At each time, the quality of workers generally corresponds to the quality of employers. In this case, the only way the employer can influence the employee is disciplinary action.

Sample orders

Disciplinary sanctions are punishment for violation of discipline. Adjustable.

High level labor relations depends on:

Proper practice of interaction between employees and management.
Properly organized labor processes.
Self-discipline of workers.

Most people are designed in such a way that they do not have a self-disciplining impulse, and they need some external influence, which has a “focusing” effect. This is, first of all, labor rules, routine, discipline, established patterns of working communications.

What makes people comply with these external restrictions? If we talk again about the vast majority of workers, then for them this compelling factor is, of course, the fear of punishment. In social and labor relations, this punishment takes the form of disciplinary action, which is addressed in 4 articles of the Labor Code in Chapter 30 “Labor Discipline”. Moreover, three of them (192-194) concern general issues disciplinary sanctions, the fourth (195) is devoted to the disciplinary liability of managers and deputies at the initiative of the representative body of workers (trade unions).

A disciplinary sanction is a normatively established method of influence on an employee, which is subject to application in case of failure to comply or improper execution employee of his duties (through his own fault) – i.e. in case of disciplinary offence.

Video: Article 192 of the Labor Code of the Russian Federation Disciplinary action

Types of disciplinary sanctions

Federal labor legislation established 3 types of disciplinary sanctions:

Comment.
Rebuke.
Dismissal.

Local acts of an organization or department within these boundaries may establish additional gradations, such as a severe reprimand, a reprimand entered into a personal file, etc. At the same time, the legislation does not allow the use of measures that go beyond those established in the Labor Code. Physical pressure, fines, lengthening the working day are illegal forms of penalties.

Application certain type a disciplinary sanction must be justified and proportionate to the action (inaction) of the employee that served as the reason for the sanction. In addition to the severity of the offense (or the consequences of inaction), the law requires taking into account other circumstances that should be taken into account when deciding to impose a disciplinary sanction. Arbitrage practice knows many cases when the imposition of an inappropriate penalty on an employee was canceled along with the consequences that this penalty entailed.

The question of what offenses to apply a reprimand and reprimand for is left to the discretion of the employer. The reasons that may lead to dismissal are established by law in Art. 81 TK. This list cannot be expanded and includes such offenses as:

Absenteeism.
Drunkenness in the workplace.
Committing theft.
Disclosure of secrets and so on.

Taking disciplinary action against an employee

From the moment the offense was committed, the employee is obliged to provide an explanation to in writing with a description of the reasons that caused the offense. The manager has the right not to impose a penalty if the described reasons can be considered valid or justifiable.

If no explanation is provided, the penalty is imposed without it. At the same time the law sets a deadline within the limits of which a penalty may be imposed.

Within 1 month from the date of discovery of the misconduct, not taking into account the time of illness, vacation, as well as the time the situation was considered by the representative body of employees.
Within 6 months from the date of the offense.
Within 2 years from the date of the commission of the offense identified as a result of a financial, economic or audit inspection, audit, not taking into account the time required to investigate the case.

In cases where the employee’s guilt is not obvious, an internal audit is required. For this purpose, a special commission is created, the result of which is a document resulting from the inspection.

The employee whose guilt was clearly proven by the audit is subject to disciplinary action.

Order of disciplinary action

The order for disciplinary action does not have unified form, is drawn up on the organization’s letterhead and must contain information about the violation, the time it was committed, the written explanation received, a reference to the article of the Labor Code of the Russian Federation in accordance with which the penalty is imposed, and the type of penalty.

The order is signed by the manager and brought to the attention of the employee against signature within three days. When a penalty is imposed in the form of dismissal, it is also recorded in the work book.

Appealing a disciplinary sanction

An employee of any organization has the right to appeal both the fact of imposition of a penalty and its type. Art. 193 of the Labor Code establishes that in order to restore his labor rights, an employee has the right to apply:

To the Federal Labor Inspectorate.
To the commission on labor disputes.
To court.

Labor inspectors carry out a supervisory function over compliance with labor legislation. In particular, they are empowered to take measures to restore the violated rights of workers: issue instructions to employers to eliminate violations of the law, to hold them accountable, to prevent violations of labor rights, etc.

The labor dispute commission is formed from representatives of workers and employers in equal parts. An employee can appeal to the commission within three months from the date on which it became known about a violation of his labor rights. The decision in the commission is made by a majority vote. In relation to a disciplinary sanction, the decision may contain an indication to cancel the penalty or to leave the complaint without satisfaction.

The decision of the commission is made in writing and must be executed within three days. The decision can be appealed in court.

Judicial restoration of labor rights should be used in cases of wrongful dismissal. In this case, it is not necessary to contact the labor inspectorate and commission. Appealing dismissal in court imposes the obligation on the employer to prove the employee’s guilt.

Removal of disciplinary action

The disciplinary sanction is lifted in general procedure automatically one year after its application. The employer may, by a separate order, lift a previously imposed penalty at any time.

Early withdrawal of foreclosure is an incentive measure.

Passes without conflicts. However, not all of them are resolved peacefully. In the entire spectrum of relationships between employer and employee, the issue of discipline is considered the most important. Special meaning when solving it, have the personal qualities of the participants in the dispute. Meanwhile, mechanisms are also needed to keep the situation within the framework of legal norms.

General rules

If there are grounds, the employer may impose disciplinary sanctions on the employee. Labor Code of the Russian Federation provides several measures of responsibility for employees. The employer can apply them in any order. The established measures are remark, reprimand and dismissal. The latter is used for serious violations. In practice, managers impose the softest first disciplinary action. Labor Code of the Russian Federation sets certain order application of liability measures. It is worth saying that many terms that were used previously are not provided for in the current legislation. In particular, this applies to such a concept as “severe reprimand”. Meanwhile, some leaders continue to threaten its use. Employees should be aware that there is no such thing as a “severe reprimand”. IN work book the fact of dismissal is recorded. The application of other sanctions is recorded in the employee’s personal card.

Normative base

Art. 192 of the Labor Code of the Russian Federation is applied when improper execution an employee of his functions defined in the Code, contract, internal regulations and other regulations. When concluding a contract, the employee must familiarize himself with local documents, establishing his duties and responsibilities, against signature. Art. 192 of the Labor Code of the Russian Federation establishes the right of the employer to hold employees accountable. In practice, a certain procedure for applying measures has developed.

Reprimand as a disciplinary sanction

The Code does not establish a clear list of violations for which this measure is applied. However, in practice it can be charged for serious, repeated or systematic violations. For example:

Application procedure

As a rule, it follows after the imposition of the mildest sanction. This has a certain practical meaning. The leader, by first applying the observation, pursues two main goals. First of all, the employee is given a chance to improve. At the same time, the employer relieves himself of the risks of subsequent litigation. It should be said that the Code prohibits the application of two sanctions for the same violation. This means that if an employee had a remark, he will not be reprimanded.

Important point

As part of the legal proceedings, first of all, the issue of applying more lenient measures to the employee is clarified. If the employer, acting as a defendant, cannot provide evidence that the reprimand followed the remark, then the absence of facts will testify in favor of the applicant, an employee defending his rights. The court may regard the actions of the manager who applied the measure of liability as disproportionate to the violation.

Recording a violation

Before you publish reprimand order, a certain order must be followed. First of all, the violation for which a sanction is imposed must be recorded. To do this, the employee’s immediate supervisor must provide the management of the enterprise with a memo. It describes the fact of non-compliance with the requirements. The note sets out the circumstances, the date of the event, and specific persons who participated in it. In addition, the document must contain a phrase of the following type: “In accordance with the above, I request that disciplinary measures be taken against...”. The violator’s immediate superior can express his own opinion about what happened, but in a presumptive formulation.

Act

It is worth saying that if there is a memo, the manager can begin the procedure for imposing sanctions. But for greater legitimacy, it is advisable to issue an act of violation. This document is considered more advantageous from a legal standpoint, since it must contain at least three names of employees in the same department. If disputes arise, they will be called as witnesses.

Features of compilation

The act is drawn up arbitrarily. It contains the same information as in the memo, but without comments. The text begins with the phrase “We, who have signed below... have drawn up an act stating that...”. The document must contain a phrase stating that the offender has been asked to give a written explanation of the event. It is necessary to take into account that the name of the perpetrator mandatory is present among other persons signing the act. In this case, it is impossible to require a signature from the employee. We can only suggest. An employee has the right to refuse to sign a document. In this case, a corresponding mark is placed opposite his last name.

Notification

As stated above, the offender should be asked to provide a written explanation. As with the signature of the act, it is impossible to require the employee to provide explanations. This is an employee's right. He may not use it. The employer’s right to ask for an explanation from an employee is established by Articles 192 and 193 of the Labor Code. These norms regulate the actions of the manager. The request for the employee to provide a written explanation is set out in the notice. It is delivered to the offender against signature. After this, the violator must also respond in writing within two days. If the employee does not sign the notification, a report about this is drawn up.

Refusal to explain

After 2 days, if there is no response from the violator, a report is drawn up. The specified period is provided for in Article 193 of the Code. An act of refusal to provide a written explanation should not be drawn up earlier than 2 days from the date of familiarization with the notification. Otherwise, this action may contribute to a decision in favor of the perpetrator if the proceedings continue in court. After receiving an explanation and considering it, you can draw up a reprimand order. It is worth saying that this document will be drawn up even if the employee refuses to give explanations. The main thing is to meet the deadlines.

Reprimand: sample local act

The document is also drawn up in any form. However, a number of rules must be followed. IN local act the imposition of a sanction shall indicate:

Serial number of the document.
Date of.
Information about the manager and employee.
The reason why the employee was reprimanded. The local act is drawn up in such a way that it is clearly clear why the sanction was applied to the employee. The document describes the offense without going into all the details.

More details about design

The name of the enterprise must be present in the header of the document. Below is the order number. It is determined in accordance with internal document flow. After this, the name of the document is indicated - Order to issue a reprimand ... (the full name of the offender is given here). The following is a brief description of the offense. For example, “Impose a penalty in the form of a reprimand for failure to fulfill the functional duties established in the employment contract without a good reason.” The wording depends on the nature of the violation. The order may contain various grounds to apply sanctions. For example, if a reprimand is announced due to the systematic tardiness of an employee, acts indicating this are indicated. These documents must contain specific dates and times. You can also reflect information about the presence/absence of a written explanation. At the end of the document, the signature of the director of the organization, as well as the employee who committed the offense, is signed. The registration date is set.

Consequences

The fact of a reprimand is reflected in the employee’s personal card (form T-2). Information about this sanction is not present anywhere else. However, it negatively affects the amount of bonuses, bonuses, and other additional incentives. However, even after a sanction has been imposed, the employee can correct the situation. If he does not violate the rules within a year after receiving it, it will be removed automatically. In addition, a reprimand as a disciplinary sanction can be terminated early. This will require a petition from the employee and his direct superior. It should be noted that such a situation is possible only if the perpetrator is loyal to the internal investigation of what happened and in the absence of refusals on his part to give an explanation and sign acts.

Nuances

Many employers are interested in whether it is necessary to enter the fact of systematically applying a reprimand to one employee in the work book? As mentioned above, according to the general rules, only information about dismissal is entered into this document. However, in practice, if for objective reasons the manager is forced to constantly reprimand an employee, this information can be included in the work book. If the sanction was applied once, the document remains “clean”.

Challenging

In case of disagreement with the applied measure of responsibility, the employee can appeal the management’s decision in court. The legislation allows 3 months for this. The employee draws up a corresponding statement, which sets out the essence of the incident and indicates what exactly he does not agree with. The head of the enterprise must assume that the employee will take such a step. However, as practice shows, a reprimand, unlike dismissal, is practically not challenged in court. In any case, the likelihood of the employee’s claim being satisfied will be minimized if there is documentary evidence of the employer’s actions.

Illegality of the sanction

If the reprimand was issued illegally, and this is proven in court, the organization’s management faces administrative liability. It is established by Article 5.27 of the Administrative Code. Normally, sanctions are provided for both the enterprise as a whole and for a specific individual. Individuals may be fined up to 5 thousand rubles, legal entities - up to 50 thousand.

Additionally

Of course, the head of the organization must take measures to ensure proper compliance with the internal regulations of the enterprise. This is not always possible using diplomacy. At the same time, the leader must maintain a balance between sanctions and rewards, and not apply the law without reason. Such cases of non-compliance with internal regulations, such as one-time lateness, non-compliance production task within the allotted time, negligence accidentally committed during the implementation professional activity, do not have a significant impact on the progress of the process throughout the enterprise. Accordingly, such misconduct should not always immediately translate into grounds for the imposition of serious sanctions. In most cases, the employee is well aware of his mistake. Nobody wants to be cornered. But when using the official collection mechanism, this will certainly happen. The head of an enterprise must strive to maintain the “golden mean”. In each case, you should collect explanations for the violations committed or draw up a report if they are refused. If more than three such situations accumulate, it will be quite legal to apply penalties. However, in this case, a conversation should be held with the employee. During the conversation, the leader explains the motives for his actions and decisions made. Of course, this should not look like an excuse. However summary situations with a further prospect of lifting the sanction will please the violator more than articles of the Code that allow the lifting of the punishment.

Conclusion

After applying a reprimand, the manager has only one form of punishment - dismissal. The employee, in turn, needs to think about his behavior and evaluate future prospects. A reprimand can be considered the final argument, a way of bringing the employee’s actions into compliance with the regulations. Therefore, the use of this measure is justified only when an employee directly and openly violates the norms established by the Code and other legal documents. From all that has been said above, the following conclusion can be drawn. If a situation arises where the offense is not serious enough to impose a punishment, you need to use common sense and not impose a sanction. If the employee turns out to be unreceptive to conversations and continues to violate, it is necessary to use legal mechanisms.

New edition of Art. 193 Labor Code of the Russian Federation

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.

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.

Commentary on Article 193 of the Labor Code of the Russian Federation

As for the practice of using disciplinary sanctions in companies, Article 193 of the Labor Code of the Russian Federation is devoted to this. It should be noted that there are several controversial points here.

Any disciplinary action shall be special order implementation (Article 193 of the Labor Code of the Russian Federation).

First, the offending employee is required to provide a written explanation of the offense (being late, for example), which he may not give. Then - no later than one month from the moment of the offense - a direct disciplinary sanction is carried out - a remark, a reprimand.

After this, management issues an order and gives it to the employee for review.

In addition to the lengthy and very “paper” procedure for disciplinary sanctions, there is another factor that makes this punishment not very attractive to employers. Any penalty can be challenged in court, and the court first of all takes into account the severity of the offense. Therefore, for example, a reprimand for improper dress code or being late will most likely simply be dismissed by the court.

However, practice shows that Russian leaders use reprimands quite often. Moreover, after two reprimands within a year, an employee can be fired by law. Workers in our country know little about their rights, which is why they rarely go to court. So it is very convenient for an employer to use reprimands as a threat of dismissal for being late, for taking a long lunch, or for having the “wrong” appearance.

Another comment on Art. 193 Labor Code of the Russian Federation

1. To understand the essence of the employee’s misconduct, the employer must obtain an explanation from him in writing. In the explanation, the employee must indicate the reasons for the offense and the circumstances under which it was committed. The employee may refuse to explain, which should not be considered an independent disciplinary offense, but may nevertheless affect the employer’s assessment of the employee’s personality. If the employee refuses to give an explanation, the employer must draw up a statement of refusal after two working days. This act must indicate the calendar date, place and reason for its preparation, as well as indicate the witnesses present when the employee was asked to provide an explanation and his refusal to do so. The act must be signed by an official of the employer and the witnesses present.

An employee’s refusal to give an explanation cannot be an obstacle to bringing him to disciplinary liability if there is other evidence of an offense (for example, memos from his immediate supervisor) and an act of refusal to give an explanation. They may provide documentary grounds for the application of disciplinary measures.

2. The educational value of a disciplinary sanction is preserved if it is applied directly after the commission of an offense. Therefore, the rule has been established that the penalty must be applied no later than one month from the date of discovery of the offense. The day of detection must be considered the day when the immediate supervisor of the violating employee became aware of it. In cases where there is a question of dismissal of an employee for committing theft (including minor) of someone else’s property at the place of work, embezzlement, intentional destruction or damage, the month period will be calculated from the date the court verdict or the act of the body authorized to do so enters into legal force. application of administrative penalties (for example, resolutions of an official of an internal affairs agency). The monthly period can be increased by:

Employee illness;

He is on vacation;

Necessary to take into account the motivated opinion of the elected body of the primary trade union organization.

The time of illness of an employee is understood as a period of temporary incapacity for work. The time spent on vacation should be understood as the periods of all vacations provided by the employer to the employee (including educational, in connection with pregnancy and childbirth, as well as those provided without pay). wages). In accordance with the provisions of Art. 373 of the Labor Code of the Russian Federation (see commentary to it) upon dismissal for repeated failure by an employee - a member of a trade union without good reasons labor duties, if he has a disciplinary sanction (see paragraph 5 of Article 81 of the Labor Code of the Russian Federation and the commentary thereto), the employer is obliged to notify the elected body of the primary trade union organization so that the latter can assess the legality and validity of the upcoming dismissal. The elected trade union body, no later than seven working days from the date of receipt of the documents, reviews the submitted documents and communicates in writing to the employer its reasoned opinion on this issue (including the illegality or inappropriateness of dismissal). If you disagree with this opinion of the trade union committee, the employer has the right to terminate the employment contract with the employee no later than one month from the date of receipt of the motivated opinion of the elected trade union body. This period can no longer be extended while the employee is ill or on vacation.

Other circumstances that seem objective to the employer cannot serve as a basis for extending the period for applying disciplinary sanctions. Yes, the decision Supreme Court Russian Federation dated May 24, 2002 N GKPI2002-375, it is recognized as illegal to extend the deadlines for applying disciplinary sanctions to railway transport workers for the period they are en route on passenger and freight trains, as well as for the period of their use of accumulated rest days.

Such a tough position of the legislator and the judiciary is due to the need to protect the interests of the parties employment contract. Firstly, the effectiveness of any punishment depends on its efficiency and inevitability. Secondly, the employee should not long time be under threat of disciplinary sanctions being applied to him.

In any case, disciplinary sanction must be applied no later than six months from the date of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - no later than two years. These deadlines can be extended only for the duration of the criminal case by the bodies of inquiry and investigation.

3. By general rule For each disciplinary offense, the employer can apply only one disciplinary sanction provided for by the Labor Code or the statutes and regulations on discipline. Along with this, it is possible and necessary to simultaneously bring the employee to property (material - according to labor law) or civil liability in the event that his misconduct resulted in property damage. In this case, the rules and deadlines provided for by labor and civil legislation must be observed. In addition, along with disciplinary measures, disciplinary measures may be applied to the employee at the same time. For example, an employee may be reprimanded and deprived of a bonus for the period when labor discipline was violated.

4. As a general rule, the head of the organization exercises the full authority to apply disciplinary measures. At the same time, local regulations (orders of the head, job descriptions or internal labor regulations) redistribution of competence to bring employees to disciplinary liability may be carried out between officials of the employer organization various levels. Thus, the head of a workshop may be authorized to issue comments and reprimands to the workers of the workshop, and the head of a branch or representative office, on the basis of a power of attorney, may have full disciplinary powers, including dismissal of employees for violations of labor discipline. In some cases, the distribution of competence to apply disciplinary measures is carried out centrally. For example, the Charter on the discipline of crews of support vessels Navy it is provided that the commander of the ship (captain) can issue a reprimand, reprimand, severe reprimand and warn about incomplete official compliance, and the official who has the right to hire - the commander of a formation of ships or a military unit - enjoys full disciplinary powers (clause p. 15 and 16 of the Charter).

5. The order (instruction) on punishment is announced to the employee no later than three days from the date of publication against signature. This is necessary to confirm that the employee is familiar with the penalty applied to him. To optimize and record this procedure, it is advisable to include a note on the order (instruction) form itself indicating that the employee has familiarized himself with it. If the employee refuses to sign the acknowledgment, then an act is drawn up, similar in form and content to the act of refusal to give an explanation for the commission of a disciplinary offense (see paragraph 1 of the commentary to this article).

6. An employee may not agree with his being brought to disciplinary liability or with the type of penalty applied. In this case, he can appeal the employer’s actions to the state labor inspection authorities or labor dispute resolution authorities.

In accordance with the provisions of Part 2 of Art. 357 of the Labor Code of the Russian Federation (see commentary to it) in the event of an appeal by a trade union body, an employee or another person to the state labor inspectorate on an issue that is being considered by the relevant body for consideration of an individual or collective labor dispute (with the exception of claims accepted for consideration by the court, or issues on which there is a court decision), the state labor inspector, upon identifying an obvious violation of labor legislation or other regulatory legal acts containing labor law norms, has the right to issue an order to the employer that is subject to mandatory execution. This order may be appealed to judicial procedure within ten days from the date of its receipt by the employer or his representative. Moreover, in accordance with the provisions of Art. 23.12 of the Code of the Russian Federation on Administrative Offenses The Federal Labor Inspectorate and the state labor inspectorates subordinate to it are vested with the right to consider cases of violations of labor legislation and to prosecute those responsible officials employer to administrative liability.

If an employee disagrees with disciplinary action, he or she may appeal the employer’s actions to the labor dispute commission, except in cases of dismissal for committing a disciplinary offense (see Articles 385 - 391 and the commentary thereto).

An employee, in compliance with established procedures and in the presence of sufficient grounds, may resort to judicial protection of his rights in the event of an alleged or actual violation of them when bringing him to disciplinary liability. In addition to protecting your rights in the manner prescribed by the provisions of Art. Art. 391 - 393 of the Labor Code of the Russian Federation (see commentary to them), the employee can appeal the employer’s actions to the magistrate. In accordance with sub. 7 clause 1 art. 3 of the Law on Magistrates in the Russian Federation of December 17, 1998 N 188-FZ (SZ RF. 1998. N 51. Art. 6270), magistrates consider cases arising from labor relations, with the exception of cases of reinstatement at work.

Courts of general jurisdiction consider labor disputes related to bringing workers to disciplinary liability, both at first instance and by appealing decisions of the labor dispute commission and magistrates. In cases involving applications for reinstatement of an employee at work, courts of general jurisdiction are necessarily the first instance. Based on the results of the consideration of the case, the court makes a decision or issues a court order. In accordance with the provisions of Art. 211 of the Civil Procedure Code of the Russian Federation, a court decision or court order is subject to immediate execution if it is made on an application for payment of wages to an employee for three months and reinstatement at work.