Failure to fulfill official duties article. The penalty is determined taking into account the Labor Code of the Russian Federation, as well as laws in relation to certain groups of workers

carried out at the initiative of the employer. Labor legislation has established a complex dismissal procedure, and judicial practice includes certain nuances that were not disclosed by the legislator.

Conditions for the legality of dismissal for repeated failure to fulfill job duties

According to clause 5, part 1, art. 81 of the Labor Code, repeated failure by a worker who has been subjected to disciplinary action to fulfill work duties in the absence of a valid reason is a reason to terminate the contract at the will of the employer.

Based on the interpretation of the norm, in order to recognize the dismissal as lawful, 3 conditions are simultaneously necessary:

Violation of labor discipline

According to paragraph 35 of the resolution of the Plenum of the Supreme Court dated March 17, 2004 No. 2, the basis for dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code stands for non-compliance or guilty improper execution labor responsibilities.

Legislator and arbitrage practice There are 3 types of non-compliance with labor discipline:

Not being at work.
It is not necessary to indicate the employee’s specific workplace in the contract with the employee or in a separate act of the employer. In the absence of certainty, the provisions of Art. 209 of the Labor Code, where it is established that a worker is a place under direct or indirect control by the employer, where the employee must be located or where he must arrive in connection with work.
The legal consequences differ between being absent from the workplace for a short time and being absent for more than 4 hours in a row during a work shift or working day. According to Art. 81 of the Labor Code, an absence of more than 4 hours is absenteeism related to another reason for dismissal - a gross violation of labor duties.
Refusal of an employee to work due to acceptance by the employer local act about changes in labor standards.
NOTE! Do not confuse refusal to work due to changes in labor standards with refusal due to changes in conditions employment contract. The latter is not a violation of labor discipline and, in accordance with paragraph 7 of Part 1 of Art. 77 of the Labor Code is considered as a general basis for termination of labor relations.
Failure to comply mandatory conditions permission to work, in particular:
- refusal, evasion of medical examination;
- refusal to train and pass exams on safety precautions, operating rules and labor protection in work time etc.

Violation of labor discipline for a valid reason

Some clarity on the issue of which reasons are valid is provided by judicial practice and the interpretation of individual articles of the Labor Code:

Violation	Situation (reason)	Rationale
Absence from work	An employee was involved in an accident	Appeal ruling of the Tyumen Regional Court dated October 20, 2014 No. 33-5336/2014
	An employee works part-time due to non-payment of wages	Appeal ruling of the Khabarovsk Regional Court dated May 13, 2015 No. 33-2977/2015
	The employee was summoned to court as a party to the process	Determination of the Moscow Regional Court dated May 11, 2010 No. 33-9048/2010
	Fulfilling a public or state duty
	An employee donated blood
Refusal to work	The employer did not notify the employee about the upcoming change in labor standards 2 months in advance
Failure to comply with admission conditions	The employer did not organize a medical examination
Failure to comply with admission conditions	The employer did not organize training and examinations on safety precautions, operating rules and labor protection	Appendix to the resolution of the Ministry of Labor and Ministry of Education dated January 13, 2003 No. 1/29

How to fire an employee for failure to perform official duties: step-by-step instructions

The dismissal of an employee is carried out in 6 stages; including identifying and checking the motive for dismissal, formalizing the termination of the contract, paying the employee and issuing documents to him. Let's imagine the dismissal algorithm in the form of an instruction table:

Dismissal stage	Actions of the parties		Base
Identifying the basis		Failure of an employee to comply with labor discipline
Identifying the basis		Recording by the employer of a violation committed
		Obtaining an explanation from the employee
		Checking the timing of prosecution
		Identification of a previous outstanding disciplinary sanction against an employee	Art. 81, 194 TK
		Checking the possibility of dismissing an employee, i.e. whether he has “immunity” from dismissal at the current moment	Art. 81, 261 TK
Registration of dismissal		Issuance of a dismissal order
		Publication of a note-calculation	Resolution of the State Statistics Committee “On approval of unified forms...” dated January 5, 2004 No. 1
		Notifying the employee of dismissal
		Making an entry about dismissal in the work book
		Payment by an employer to an employee	Art. 84.1, 232 TK
		Payment by an employee for damage caused to the employer	Art. 232, 238 TK
Delivery of documents		Issuance of a work book and other documents to a dismissed person

NOTE! Sometimes the dismissal procedure does not end with a settlement - for example, if an employee appeals what he considers to be an unfair dismissal in a district court.

Detection of labor discipline violations

After or at the time an employee commits a violation of labor discipline, the employer must record the violation. At the same time, the Labor Code does not provide for such an obligation, but registration of the fact of violation is necessary in the interests of the employer himself - otherwise the employee has the opportunity to challenge the dismissal.

The procedure for identifying and registering violations in practice is as follows:

The employer is informed by any means of a fact that is supposedly a violation of labor discipline. Methods of notifying the employer may include:
- a report from the boss of the offending employee, his colleagues or other employees;
- complaints from third parties (for example, clients of the organization);
- an act drawn up based on an act committed by an employee, for example, an act of refusal to undergo a medical examination.
The employer checks the information received.
For example, when the immediate supervisor of an absent employee notifies the manager that the offender is not at work, the manager assembles a commission, which necessarily includes an employee of the organization’s human resources department. The commission verifies the fact of absence and its reasons.
The commission must approach the inspection responsibly. Thus, biased research, making an unfounded decision or conducting an inspection by an interested party is unacceptable, as stated, for example, in the appeal ruling of the Voronezh Regional Court dated June 17, 2014 No. 33-3172.
The inspection must determine what the worker’s non-performance or improper performance is. job responsibilities, interpreted as a violation, and also establish the time of its commission. The lack of data on this, according to Supreme Court of the Republic of Tatarstan, expressed in the appeal ruling dated September 8, 2014 No. 33-11352/2014, indicates that the fact of committing a disciplinary offense has not been proven.
Practice also speaks of the need to correlate the misconduct with subsequent dismissal. For example, pointing out the absence negative consequences for the organization, despite the stoppage of transport as a result of the absence of an employee, the Omsk Regional Court overturned the dismissal of the latter in an appeal ruling dated April 15, 2015 No. 33-2470/2015.
Upon confirmation of the received information about the violation, a violation of official duties is recorded. Registration can be done in the form of an official audit report or another form.
It is unacceptable to dismiss an employee if an audit does not reveal any violations. For example, in the appeal ruling dated August 22, 2014 No. 33-32951/2014, the Moscow City Court indicated that the inspection did not reveal any violation, therefore the dismissal order was illegal.

Checking the legality of dismissal in a specific situation

Once a violation has been identified, the employer must check whether the violation is a legitimate reason for dismissal. To do this, you need to perform a number of actions:

Request an explanation from the employee regarding the disciplinary violation he committed (Article 193 of the Labor Code).
If the employee refuses to receive the presented demand, it is advisable to read the demand out loud and put a corresponding mark on the document.
It is when giving an explanation that the employee is given the opportunity to declare that there is a good reason why he had to commit a violation, or other mitigating circumstances. Failure to provide an employee with an opportunity to provide an explanation is a violation of the dismissal procedure. In this case, the courts decide to reinstate the employee to his previous job, as determined, for example, by the Novgorod Regional Court in the appeal ruling dated October 10, 2012 No. 2-755-33-1600.
An employee’s refusal to give an explanation is not an obstacle to imposing a disciplinary sanction. If the employee does not provide an explanation within 2 working days, starting from the next day after the request was presented to him, then the employer draws up a corresponding act.

Check compliance with the deadlines established by the Labor Code.

So, by virtue of Art. 193 of the Labor Code, penalties are applied no later than six months after the commission of the offense and no later than a month from the moment it was discovered. At the same time, in accordance with Art. 81 dismiss an employee who has violated labor discipline, it is possible if he has a valid disciplinary sanction, which is extinguished one year after the imposition of general rule or earlier - at the will of the employer (Article 194 of the Labor Code). An employee who has a repaid penalty is considered not to have it at all.

Thus, at this stage, the employer must determine whether the statute of limitations for applying the penalty has expired and whether the previous penalty of the employee proposed for dismissal has not been repaid.

IMPORTANT! In practice, the provision of the law on the legality of dismissal under clause 5, part 1, art. 81 only in the presence of an outstanding disciplinary sanction causes a lot of difficulties.

To avoid violations when dismissing employees, we present the positions of the courts in relation to various situations:

Situation	Dismissal	Base
The employee had a disciplinary sanction, but the court declared the order to impose it illegal	Wrongfully	Appeal ruling of the Supreme Court of the Republic of Tyva dated March 22, 2016 No. 33-412/2016
For the misconduct that served as the basis for dismissal, the employee has already suffered disciplinary liability	Wrongfully	Appeal ruling of the Supreme Court Chuvash Republic dated March 11, 2015 No. 33-1061/2015
The worker committed all or part of the disciplinary offenses before being transferred to the current position	Wrongfully	Determination of the Supreme Court dated October 29, 2009 No. 5-B09-110
	Legally	Appeal ruling of the Moscow Regional Court dated February 15, 2016 No. 33-199/2016
The employee has committed a violation for which the employer wants to fire him, before the penalty for the first disciplinary offense is issued	Wrongfully	Appeal ruling of the Supreme Court dated April 11, 2014 No. 78-APG14-8
The employee committed several violations in one day	Wrongfully	Cassation ruling of the St. Petersburg City Court dated January 25, 2012 No. 33-815
The audit revealed several violations, but the employee was not held accountable for them	Wrongfully	Appeal ruling of the Astrakhan Regional Court dated February 19, 2014 No. 33-748/2014

Check the presence/absence of restrictions on the dismissal of an employee.
So, for example, according to Art. 81 of the Labor Code, it is prohibited to dismiss an employee who is on sick leave or on vacation, and by virtue of Art. 261 of the Labor Code, the employer cannot express the initiative to dismiss a pregnant employee. In other words, at this stage the manager is obliged to make sure that there are no obstacles to the dismissal of the violator of labor discipline.

Registration of dismissal

Download the order form

According to Art. 84.1 of the Labor Code, registration of dismissal occurs in the form of an order. In this case, disciplinary action is also imposed on the employee by order of the employer. But it is not necessary to duplicate orders; it is enough to issue one - on the imposition of a penalty in the form of dismissal and on the termination of the employment contract.

As Rostrud explained in letter No. 1493-6-1 dated June 1, 2011, dismissal, which is a disciplinary measure, is formalized by order. The act is drawn up on the basis of the unified form No. T-8, approved. Resolution of the State Statistics Committee dated January 5, 2004 No. 1. The column “Bases” is filled in on the basis of a memo, an explanatory note from the employee and acts of the employer.

But the issuance of 2 orders (on the application of penalties and on the termination of the contract in the T-8 form) will not be a violation of the law.

After issuing the order, the employer under Art. 84.1 The Labor Code is obliged to familiarize the worker with it. Since in in this case dismissal occurs as a result of a disciplinary offense and is a penalty, then the employer, by virtue of Art. 193 of the Labor Code, is obliged to familiarize the employee with the order within 3 days from its publication.

An entry about the dismissal of an employee is made in his work book. As stated in Art. 84.1 of the Labor Code, the wording of the grounds for dismissal must correspond to the text of the Labor Code.

Calculation and issuance of documents are carried out on the day of termination of labor relations. After issuing a dismissal order, the personnel service draws up a calculation note, which is used to account for payments due to the employee.

Let's summarize. Dismissal under clause 5, part 1, art. 81 of the Labor Code is possible when the basis is a violation of labor discipline if the employee has an outstanding disciplinary sanction and lacks a valid reason. Violation of labor discipline can be expressed in absence from the workplace, failure to comply with the conditions for admission to work, or refusal to work due to changed labor standards.

Dismissal begins with identifying the basis for it, which is then verified. After confirming the legality of the dismissal, an order is drawn up. IN last resort calculations are made and documents are issued to the worker.

It is possible to dismiss an employee on this basis if he repeatedly ignores his duties and already has a disciplinary sanction on this basis.

When hiring a new employee, the employer must familiarize him with his immediate responsibilities. General Responsibilities must be specified in the employment contract. A more complete scope of them is listed in the job description.

The employee must familiarize himself with this document against signature. This is stated in paragraph 3 of Art. 68 Labor Code of the Russian Federation. This must be done before signing the employment contract. Otherwise, the employer will not be able to apply disciplinary action to him, and subsequently dismiss the employee for failure to fulfill official duties.

In addition to the job description, the employee must familiarize himself with the rules internal regulations and other documents that are relevant to his new work.

Failure to fulfill one's job duties is a violation of labor discipline. It is possible to dismiss an employee on this basis only if there are 2 factors:

if the non-compliance has already occurred and the employee is subject to disciplinary action in any form on this basis;
if the employee did not perform his direct labor duties without a good reason.

In the case when an employee violates labor discipline under this clause for the first time, the employer has the right to apply any form of disciplinary action to him, except dismissal. This is stated in the Resolution of the Plenum of the Supreme Court dated March 17, 2004 No. 2.

The disciplinary sanction should not be withdrawn or extinguished; only then the employer can dismiss the employee if the violation occurs again. Otherwise, he must punish him again.

The Labor Code of the Russian Federation does not indicate which reasons are valid. This must be determined by the employer himself. But when dismissing an employee, he must justify his opinion.

Since dismissal for dishonest performance of duties is a dismissal at the initiative of the employer, it must be properly formalized.

The procedure for dismissal on this basis is as follows:

Collection of documents. The employer must prove that there was a repeated disciplinary offense.
It is necessary to check the job description for the exact inclusion of duties that the employee does not perform.
It is necessary to check whether the violator belongs to the category of workers who are prohibited from being dismissed at the initiative of the employer. For example, pregnant women or women who have children under 3 years of age. The full list is specified in Art. 261 Labor Code of the Russian Federation.
It is necessary to check the validity period of the previous disciplinary sanction and the period of imposition of the new one. In Art. 193 of the Labor Code of the Russian Federation states that the employer has the right to impose a disciplinary sanction on the employee within a month after the moment of detection.
It is necessary to require from the employee written explanation its violations;
It is necessary to take into account all the circumstances of the commission of a new offense and balance them with the punishment applied;
Check for a valid reason;
Issue a dismissal order. The employee must read the order and sign it;
The employer must then register the order.

On the day of dismissal, it is necessary to make a full settlement with the employee and issue him a work book, in which a record of dismissal will be made and the basis will be indicated, as well as the norm of the article of the Labor Code of the Russian Federation.

The company employee violated the terms of the contract or instructions. The company has the right to take disciplinary measures for improper performance of official duties. What to consider when imposing a penalty.

The penalty is determined taking into account the Labor Code of the Russian Federation, as well as laws in relation to certain groups of workers

Any company employee has obligations to the employer. For example, perform labor function, obey the rules and orders of management, etc. The parties agree upon what exactly the employee must do when signing labor agreement. Also, the newcomer is introduced to the job description upon signature, internal rules and other acts. If an employee violates job duties or other requirements, he will be held accountable for improper performance.

An employee who commits violations can be punished. IN labor legislation Several measures are provided:

comment,
rebuke,
dismissal.

Such measures apply to employees of any organizations (). In addition, the activities of certain categories of employees are regulated by special laws (Article 189 of the Labor Code of the Russian Federation). If the organization has a charter or discipline policy in accordance with the instructions of such law, the document may provide for additional penalties. For violating a job description or other violation, the employee is punished in accordance with these rules.

In particular, a professional athlete can be disqualified (Article 348.11 of the Labor Code of the Russian Federation). A teacher for serious violation of official duties is dismissed not only under Article 81 of the Labor Code of the Russian Federation, but also under Article 336 of the Labor Code of the Russian Federation. If failure to fulfill duties allowed executive, the rules apply. And in some cases, the actions of the violator are qualified as a criminal offense in accordance with. Negligence is punishable by a fine, labor, arrest or imprisonment - depending on the circumstances and the severity of the consequences.

As a general rule, people are not fired for improper performance of job duties if it happened once. The company has the right to dismiss for a repeated similar violation if it was committed less than a year after the first. But for a gross violation you are fired, even if it is a one-time violation.

For example, an organization terminated a contract with the head of a branch for a gross violation (clause 10, part 1, article 81 of the Labor Code of the Russian Federation). He drank alcoholic beverages with subordinates after hours on company premises. In a state of severe intoxication, the employee left the crowd, one of whom subsequently died. The company determined that the employee's actions caused an accident. The courts refused to satisfy his claim for restoration ().

Improper performance of official duties must be proven

The measures that threaten an employee for improper performance of duties or failure to perform them depend on a combination of several factors:

Reasons why the employee made a mistake.
Creatures of violation.
The consequences it entailed.

The employing company must find out what happened and how serious the consequences will be. This necessary stage when choosing a punishment for the violator (Article 193 of the Labor Code of the Russian Federation). For example, if the improper performance of official duties was minor, this is not a reason to fire the employee. Such dismissal would be a mistake; the employee would be able to challenge the company’s decision. The court will find that the penalty is disproportionate to the misconduct and will not only reinstate the employee, but also seek compensation in favor of the employee.

The court overturned the unjustified dismissal for improper performance of official duties

The court reinstated the employee in her position and ordered average earnings for forced absence. The employee was fired for repeated violation of work duties. In her office they found an item that had not been written off, although it should have been done. They were reprimanded for this. She then failed to ensure that the expired merchandise was removed from the store. The company considered this a repeated violation and fired the employee.

The court found that the employer violated the rules of holding liable:

The company fired the employee for violating instructions that were not in effect at the time the offense was committed.
The employee supervised the staff, but only she was punished, and the direct culprits were not brought to justice.
The company did not present evidence of violation in court.

The court ruled in favor of the employee, since the company did not confirm the failure to fulfill obligations ().

If you punish for failure to perform work duties, follow the procedure

An employee’s performance of his official duties is considered improper if he committed a violation without good reason, intentionally or through negligence. The Plenum of the Armed Forces of the Russian Federation, in resolution No. 2 dated March 17, 2004, indicated that the employee will have to be held accountable for violations:

legal requirements;
obligations under an employment contract;
internal regulations;
job descriptions;
regulations that apply to the company;
employer orders;
technical rules, etc. (resolution No. 2).

To comply with the rules, the company needs to establish the degree of guilt of the employee and other circumstances. Therefore, prosecution for improper performance of official duties is possible only after an investigation.

The general algorithm looks like this:

Draw up a document stating that you received information about the violation.
Order a trial. Set a commission or responsible persons. Create a document about the results.
Study the facts that were revealed during the investigation. Including pay attention to the reasons for the misconduct. The employee could be forced to violate his duties, and in this case he should not bear responsibility for improper performance. A valid reason cannot be ignored. Also evaluate the consequences of the offense.
Request a written explanation. If the employee does not give it, draw up a statement of refusal.
Choose a penalty taking into account all the circumstances.

So, the employer can fire you if the employee “repeatedly fails to perform without good reasons labor duties, if he has a disciplinary sanction" (LC Article 81, Part 1, Clause 5). To understand the meaning of this article, it is necessary to clarify such concepts as "disciplinary sanction", "good reasons", "labor duties" and their " non-compliance."

Let us remind you that when applying for a job (see section “Employment contract”), you had to sign an employment contract and other documents (internal rules, job descriptions, etc.), which list your job responsibilities. These documents certify that

a) there is a certain rule;

b) you are familiar with it.

The employer only needs to prove in writing that:

c) you violated it - and disciplinary action can be imposed on you. If, for example, job description exists, but you didn’t read it and didn’t sign on it, then there’s nothing to punish you for. Moreover, there is nothing to punish you for if such instructions do not exist at all.

A disciplinary sanction is a punishment that is imposed on an employee for “the failure or improper performance by the employee, through his fault, of the labor duties assigned to him” (Labor Code Article 192). The following disciplinary penalties exist:

a) remark;

b) reprimand;

c) dismissal “for appropriate reasons” (for example, for absenteeism).

That is, if you somehow violate your work duties, you should be reprimanded or reprimanded. In fact, there is no difference between them, and both can become grounds for dismissal if work duties are repeatedly violated.

It is important to remember the duration of the disciplinary action. The employee is considered subject to disciplinary action within a year (LC Article 194). That is, if he commits a second violation within a year, then he may be fired, but if later, not.

A typical mistake employers make when imposing a disciplinary sanction is the lack of explanatory note an employee subject to disciplinary action. After you have violated something, the employer must first demand a written explanation from you (LC Article 193). You must write it within 2 working days (that is, if you violated something on Friday, you can submit the explanatory note on Tuesday). In practice, employers require the employee to write an explanatory note immediately (“in half an hour”, “after lunch”, “in the evening!”, etc.). Such a demand is illegal! Say that you will write the document within 2 business days, as required by law. During this time, you can consult with a specialist or simply gather your thoughts and write an explanatory note that presents you in the most favorable light. You can even attach documents proving that you violated labor discipline for good reasons (for example, a doctor’s certificate).

If after 2 working days you have not provided an explanation, then the employer draws up a corresponding act (LC Article 193). In the absence of an explanatory note or an act confirming the employee’s refusal to provide one, the dismissal will be considered illegal.

Another mistake of the employer is violation of the deadlines for bringing to disciplinary liability. Penalty can be imposed within 1 month from the date of discovery of the offense (TC Art. 193).

The employer's order 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, a corresponding act is drawn up.

Attention! In this regard, the dates of reports on the employee’s misconduct, explanatory notes, orders for disciplinary action, time sheets and other documents are very important. Based on them, the court or labor inspectorate will be able to determine whether the deadlines established by law have been met.

In addition, a violation is considered such only if you committed it without good reason. Let's say you were unable to complete a task because you were injured. If you prove this - for example, bring a certificate from a doctor - then it is illegal to impose penalties on you. True, whether a reason is “good” is a relative concept. But if you have been subject to disciplinary action, you can appeal this decision.

When dismissing under the article, the employer must follow the following scheme: violation - demand for an explanatory note - explanatory note (within 2 days) - written reprimand or reprimand (within 1 month from the date of violation) - repeated violation (within a year from the date of the order for reprimand or remark) – dismissal.

Thus, you can be fired if

a) you violated your labor duties (which are recorded in the documents you signed);

b) the employer demanded an explanatory statement from you and no later than 1 month from the date of the violation issued an order for a reprimand or reprimand;

c) within a year you again violated your work duties.