Disciplinary action - penalty (punishment) imposed on an employee in connection with his violation labor discipline. 2
The imposition of disciplinary penalties is provided for by the Labor Code Russian Federation, disciplinary charters (for example, the Disciplinary Charter of the Armed Forces of the Russian Federation, the Disciplinary Charter of Internal Affairs Bodies), laws (for example, the Law on State civil service in the Russian Federation, the Law “On Service in the Customs Authorities of the Russian Federation”), other regulatory legal acts (for example, the Regulations “On Law Enforcement Service in Agencies Controlling the Traffic in Narcotic Drugs and Psychotropic Substances”) and local regulations.
Article 192 Labor Code provided the following types disciplinary sanctions:
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dismissal for appropriate reasons.
Federal laws, charters and discipline regulations may provide for other disciplinary sanctions. Thus, the federal law “On the State Civil Service of the Russian Federation” provides, in addition to those listed, the following penalties:
warning about incomplete job compliance
exemption from a civil service position.
Disciplinary sanctions also include dismissal for negative reasons (for absenteeism, showing up at work in a state of alcoholic or toxic intoxication, a single gross violation or systematic violations of discipline, disclosure of legally protected secrets, theft at the place of work, violation of labor protection requirements, and others - article 81 of the Labor Code).
Only disciplinary sanctions provided for by law may be applied.
When imposing a penalty, the severity and circumstances of the offense must be taken into account. Only one disciplinary sanction can be imposed for one offense (penalties do not include financial liability). Before imposing a penalty, in any case, a written explanation will be required from the person who committed the offense.
The procedure for imposing penalties . Sanctions are applied in a certain manner established by law. The main provisions related to a certain procedure for imposing sanctions are enshrined in the Labor Code of the Russian Federation and in other regulations. They include a number of conditions that ensure the legality of the imposition of these penalties to the maximum extent possible. Yes, Art. 136 of the Labor Code of the Russian Federation provides for the need for the administration to obtain an explanation from the violator of labor discipline before announcing a penalty in writing, and also sets a deadline for imposing a penalty. It cannot be more than one month from the date of discovery of the offense and six months from the date of its commission, and based on the results of an audit or inspection of financial and economic activities - no later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings. This period excludes the time the employee is ill or on vacation. 3
An employee’s refusal to provide an explanation cannot serve as an obstacle to the application of a penalty.
For the correct calculation of the statute of limitations when imposing penalties, it is essential exact date detection of misconduct. The administration may learn about the misconduct, but not have a complete understanding of all the circumstances of the case and the degree of guilt of the employee. For this purpose, inspections, audits, inventories, etc. are appointed. And then the question arises: which day should be considered the moment the violation was discovered - the date the inspection was completed or the day when the administration first became aware of the fact of the offense? This date is the moment when the administration began to have accurate data about the fact of the offense. However, a penalty can be imposed within a total period of six months from the date of the offense.
For each violation of labor discipline, only one disciplinary sanction can be applied.
Article 136 of the Labor Code of the Russian Federation establishes the need to notify the employee of the penalty announced to him by order against receipt. If within a year from the date of imposition of the penalty, the worker or employee is not subject to a new disciplinary sanction, then the previously announced penalty loses force. If the employee showed himself to be positive side, then the head of the institution (enterprise) can issue an order (instruction) to lift the penalty without waiting for the expiration of a year.
The administration is not obliged to take measures disciplinary action in the order in which they are specified in the law.
A disciplinary sanction is imposed on the employee no later than 1 month from the date of discovery of the disciplinary offense.
A disciplinary sanction cannot be applied later than 6 months from the date of commission of a disciplinary offense, and in cases established by the laws of the Republic of Kazakhstan or the discovery of a disciplinary offense based on the results of an audit or inspection of the financial and economic activities of the employer - later than 1 year from the date of the employee’s commission of a disciplinary offense.
Note: There are cases when the same offense may apply to both disciplinary and, for example, administrative responsibility. In this case, the employer needs to be careful when applying penalties.
It should be noted that the rule on the passage of a month from the date of entry into force of the decision of the competent authority applies only to such administrative offenses as theft of someone else's property, embezzlement, deliberate destruction of property or damage to property. As for the situation when the same offense may relate to both disciplinary and administrative liability, the month period begins from the moment the offense is discovered, and the employer should not link the application of a disciplinary sanction with a decision to impose administrative liability. For the reason that if the employer waits for a decision from the authorized body for the consideration of administrative offenses, then he risks missing the month deadline established by Article 74 of the Labor Code of the Republic of Kazakhstan. Because in administrative proceedings the terms may be longer than those given to the employer by the Labor Code of the Republic of Kazakhstan.
If we assume that the employer imposes a disciplinary sanction on the employee in accordance with the described situation, then it should be borne in mind that at the end of the investigation and consideration of the administrative offense, it may be established that the employee is not at fault, and then the latter will have grounds to appeal to the court or the state labor inspectorate.
Cases when the period for imposing a disciplinary sanction is suspended.
The following cases are exceptions:
when the employee was released from work due to temporary disability;
the period of release of the employee from work while performing state or public duties;
the employee is on vacation or on a business trip.
In these cases, the period for imposing a disciplinary sanction is suspended during the employee’s absence.
Duration of disciplinary action
A disciplinary sanction is valid for 6 months from the date of its application. The exception is the application of a disciplinary sanction in the form of termination of an employment contract at the initiative of the employer.
After a 6-month period, the disciplinary sanction is automatically lifted and the employee is considered not to have been subject to disciplinary action. The employer's act on the lifting of the disciplinary sanction is not issued. However, if within a 6-month period from the date of application of the penalty the employee is subjected to a new penalty, the original one remains in force and is taken into account along with the last applied disciplinary sanction. By establishing the validity period of a disciplinary sanction, the legislator allows for the possibility of its early removal. Early removal of a disciplinary sanction is possible both on the own initiative of the employer who applied the sanction, and at the request of the immediate supervisor of the employee who was subjected to the sanction, or at the request of a representative of the employees, for example, a trade union. The employee also has the right to make a request to have the disciplinary sanction lifted.
An employee from whom a disciplinary sanction is lifted early is considered not to have been subject to sanction. An order or instruction of the employer who imposed the disciplinary sanction is issued regarding the early lifting of a disciplinary sanction.
Labor legislation does not establish any period after which the question of lifting a disciplinary sanction may be raised. The possibility of early withdrawal is determined based on specific circumstances, the behavior of the employee and the initiative of persons who have the right to apply for the removal of the penalty.
Beginning of the form
In accordance with Articles 22 and 192 of the Labor Code of the Russian Federation, the employer, having the powers of disciplinary authority, in the event of an employee committing a disciplinary offense, independently selects disciplinary measures. At the same time, according to many private business leaders, the understanding of this authority is based on the principle “I do what I want,” and this, in their opinion, gives them the opportunity to apply any measures of responsibility to employees. However, the legislator has established the following disciplinary sanctions that can be applied by an employer to employees who have violated labor discipline:
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dismissal for appropriate reasons.
The given list of penalties, unlike incentive measures, is exhaustive and cannot be expanded. Additional disciplinary measures are possible only if the employee is subject to special disciplinary liability. Part 2 of Article 192 of the Labor Code of the Russian Federation states that federal laws, charters and regulations on discipline for certain categories of employees may also provide for other disciplinary sanctions. Thus, the Federal Law “On the State Civil Service of the Russian Federation”, in addition to the general list of penalties applied to employees, provides for such penalties as a warning about incomplete official compliance, dismissal from a civil service position to be filled.
Conclusion
This stage is not mandatory in the procedure for imposing a disciplinary sanction, however, the employer must remember that if the disciplinary sanction is unfounded or the rules for imposing it are not followed, the employee has the right to have his labor rights restored. According to the provisions of the Labor Code of the Russian Federation (part 7 of Article 193 of the Labor Code of the Russian Federation), any disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) to the bodies for consideration of individual labor disputes (commission on labor disputes(hereinafter referred to as the CTS), court) in the manner prescribed by law. The main powers of the state labor inspection are enshrined in articles 356-357 of the Labor Code of the Russian Federation. The competence and procedure for considering individual labor disputes of the CCC are specified in Articles 387-390 of the Labor Code of the Russian Federation. Articles 391-397 of the Labor Code of the Russian Federation address the issue of consideration of individual labor disputes in court. Based on the foregoing, we draw your attention to the fact that when considering legal disputes regarding reinstatement at work, the obligation to prove the validity of dismissal rests with the employer. At the same time, in case of failure to comply with the established procedure and (or) deadlines, the dismissal may be considered illegal, and the dismissed employee will be reinstated in his position, in addition, the court will oblige the employer to pay the employee wages for the period of forced absence. Labor law does not know the concept of “repayment” of a penalty and uses only the concept of “removal” of a disciplinary sanction. Therefore, after a year has passed from the date of imposition of the penalty, the employee is considered to have not had a disciplinary sanction. This approach of the legislator, naturally, excludes the entry of a disciplinary sanction into the work record book. However, the penalty is lifted due to the expiration of the specified period only on the condition that during this period the employee will not be subjected to a new disciplinary sanction. Namely, subjected, that is, the violation of labor discipline itself within a year after the imposition of a penalty does not prevent the removal of the penalty after a year, unless the owner, within this period, managed to subject the employee to a new penalty. The one-year period is calculated from the date of imposition; the day of imposition should be considered the day of notification to the employee against receipt of the announcement of the penalty [3, p.79].
The legislator provides for notification to the employee of the imposition of a penalty as one of the stages of applying the penalty. Until the employee is notified, the procedure for applying a penalty is considered unfinished. The owner has the right, by order, to lift a disciplinary sanction at any time before the expiration of a one-year period from the date of imposition. However, the Labor Code of the Russian Federation allows for early removal of penalties under two conditions: 1) if the employee has not committed a new violation of labor discipline; 2) proved himself to be a conscientious worker. It is prohibited to apply incentives to the employee during the period of validity of the disciplinary sanction.
List of information sources used:
To maintain labor discipline, the Labor Code of the Russian Federation provides not only incentives for work, but also disciplinary liability of employees.
Disciplinary sanctions are imposed on employees who have committed a disciplinary offense, namely failure to comply or improper execution their work responsibilities. A disciplinary offense is always characterized by the employee’s guilt (intentional or careless). It is very important to correctly follow the procedure for imposing a disciplinary sanction, otherwise the employee will be able to appeal against its imposition in court.
Types of disciplinary sanctions
The first type of disciplinary action is a reprimand. Contrary to popular belief, today the Labor Code of the Russian Federation does not provide for the inclusion of comments in work book. Moreover, no disciplinary actions are entered into it. Information about all disciplinary sanctions is stored in the employee’s personal file.
The second type of penalty is a reprimand. And finally, the third and most severe type of disciplinary action is dismissal.
Federal laws may provide for other types of disciplinary sanctions against certain categories of employees (for example, in relation to government employees). However, a disciplinary sanction cannot be applied that is not provided for by federal law. Therefore, the possibility of unauthorized establishment of additional disciplinary sanctions by the employer is excluded - neither in the employment contract, nor in the collective agreement, nor in the local normative act.
Dismissal as a type of disciplinary sanction can only be carried out on the following grounds:
Firstly, repeated failure by an employee to fulfill work duties without good reason, if he already has a disciplinary sanction (Clause 5, Part 1, Article 81 of the Labor Code of the Russian Federation).
Secondly, a one-time gross violation by an employee of labor duties (clause 6, part 1, article 81 of the Labor Code of the Russian Federation), which includes:
- absenteeism, that is, the absence of an employee from the workplace without good reason during the entire working day, or for more than four hours in a row during the working day;
- the appearance of an employee at work (at his workplace, on the territory of the employer, a facility where, on behalf of the employer, the employee must perform his work) in a state of alcohol, narcotic or other toxic intoxication;
- disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties (this also includes disclosure of personal data of another employee);
- committing theft (including petty theft) at the place of work, intentional destruction or damage to property, embezzlement (this fact must be established by an act of the relevant government body that has entered into legal force);
- violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or at least knowingly created a real threat of such consequences (this fact must be established by the labor protection commission or the labor protection commissioner) .
Thirdly, the adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (Clause 9, Part 1, Article 81 of the Labor Code of the Russian Federation);
Fourthly, a one-time gross violation by the head of the organization (branch, representative office) or his deputies of their labor duties;
Fifthly, repeated gross violation of the charter within one year educational institution(Clause 1 of Article 336 of the Labor Code of the Russian Federation);
Sixth, the commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer (clause 7, part 1, article 81 of the Labor Code of the Russian Federation);
Seventh, the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, and some other actions that are grounds for loss of confidence in the employee (clause 7.1, part 1, article 81 of the Labor Code of the Russian Federation);
Eighth, the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation).
The list of grounds for dismissing an employee as a disciplinary sanction is exhaustive.
In practice, it is very common to deprive employees of bonuses as a measure of influence on them for improper performance of duties. Deprivation of a bonus is not a type of disciplinary sanction. This does not mean that employees should not be deprived of bonuses. You can deprive, but this will not be a disciplinary sanction. This is very important, because there is such a basis for dismissal as repeated failure by an employee to fulfill his job duties, provided that he has a disciplinary sanction. It will not be possible to dismiss an employee on this basis if in his personal file there is only an order to deprive him of a bonus, but there are no documents confirming the imposition of penalties such as a reprimand and a reprimand.
Time limits for imposing disciplinary sanctions
A disciplinary sanction cannot be imposed if more than one month has passed since the employer discovered the misconduct (namely 30 calendar days). But the following is excluded from this period:
- employee's sick time;
- employee vacation time;
- the time during which the representative body of workers forms its opinion.
It is illegal to impose a disciplinary sanction if more than six months have passed since the commission of the offense (even if one month has not yet passed since the discovery). A longer period is established for an offense that is revealed as a result of an audit, audit, or inspection of financial and economic activities. For such an offense, the employee can be brought to disciplinary liability within two years from the date of commission of the offense.
It is important to note that these periods (6 months and 2 years) do not include the time of criminal proceedings.
Procedure for imposing disciplinary sanctions
After discovering a disciplinary offense, and making sure that the time frame for bringing to responsibility has not expired, the employer is obliged to require a written explanation from the employee regarding the offense committed. The employee must provide this within two working days. If the employee does not do this, then a report is drawn up.
It is very important to draw up this document. The employee’s refusal (direct or tacit) to provide explanations after drawing up the report will not prevent the imposition of a penalty. The law does not say what form the act should take. But, apparently, this should be a commission document.
The Labor Code prohibits the application of multiple penalties for one offense. For each offense only one penalty is applied.
The imposition of a disciplinary sanction must be formalized by order. The order must be submitted for review by the employee within three working days from the date of its publication. If the employee does not want to sign the order, then a report about this is also drawn up.
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 of 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.
The application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted.
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. If facts of violation of labor legislation, local legal acts containing labor law norms, concealment of industrial accidents, failure to comply with the terms of a collective agreement or agreement are discovered in an organization, the trade union committee 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 disruption labor rights and employee freedoms.
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 and local regulatory 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 a written explanation of the circumstances indicating that he has violated the internal regulations of the organization. If the employee refuses to provide the employer with an explanation in writing, a corresponding report is drawn up after two working days. 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.
According to the conclusion employment contract the 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 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 non-fulfillment or improper fulfillment by a civil servant through his fault of the duties assigned to him official duties, a warning may be issued for incomplete job performance.
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 for 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 Plenum resolution Supreme Court Russian Federation dated March 17, 2004 No. 2 “On the application by the 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 was recovered in her favor. average earnings for the period of forced absence and the amount of compensation for moral damage (decision of the Dzerzhinsky District Court of Perm dated January 22, 2014 in case No. 2-133-14).
When an employer applies a disciplinary sanction, the level of guilt of the employee should also be taken into account, including: whether any harm was caused to them, what external factors prompted the employee to a certain act, whether there was intent in his actions. It is equally important to take into account general characteristics employee: experience, achievements, personal and business qualities, professionalism, health status.
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 optimal option It is better to familiarize the employee with it under his personal signature, thereby further confirming 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 written explanation The legislation of the Russian Federation provides an employee with 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.
Any special requirements to the employee's explanation, with the exception of written form and deadlines for provision are not provided for by the Labor Code of the Russian Federation, therefore it can be drawn up arbitrarily in the form 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 executive, 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). wages- clause 34 of Resolution No. 2), as well as the time required to take 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 absence, 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 start calculating the monthly period from last day 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. 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 labor Relations V in this case terminate only upon 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 in the form of a reprimand on the employee, and to recover in favor of the employee cash for compensation 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, provisions, 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 execution duties for reasons beyond the employee's control (say, due to lack of necessary materials, disability, lack of 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 as 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 local regulatory act of the employer does not stipulate a specific workplace this employee, then if a dispute arises over the issue of where the employee should be when performing his job duties, one should proceed from the fact 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 to perform job duties without good reason due to a change in in the prescribed manner labor standards (Article 162 of the Labor Code of the Russian Federation), because By virtue of the employment contract, the employee is obliged to perform the work specified in this contract labor function, 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 due to a change determined by the parties terms of the employment contract 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.Children's preschool teacher for refusing to work according to shift schedule with other groups of children and in another building, after applying disciplinary sanctions in the form of a reprimand and reprimand, she 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 avoidance without good reason from medical examination workers of certain professions, as well as refusal to undergo work time special training and passing exams on labor protection, safety regulations and operating rules, if this is prerequisite permission to work.
Also, an employee’s refusal, without good reason, to conclude a full-time agreement should also be considered a violation of labor discipline. financial liability for the safety of material assets, if the fulfillment of duties for the maintenance of material assets constitutes the employee’s main job function, which is agreed upon when hiring, and in accordance with 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 came to the conclusion 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 have not been installed. Referring toletterRostruda dated 08/09/2007 N 3042-6-0, the court indicated that job description- this is not just a formal document, but an act defining 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 employer;
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 (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 comply with it without good reason labor responsibilities. 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. In such circumstances, the dismissal of an employee for 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.