Everyone seems to understand that every employee must conscientiously fulfill his or her job duties. However, what should an employee do if the employee violates labor discipline? And what should an employee do if he believes that he has suffered for no reason?
Unfortunately, not only the majority of workers do not know labor legislation, but also the heads of organizations often even Labor Code never opened. Therefore, the former suffer from the arbitrariness of their superiors, and the latter risk running into big trouble if their subordinates nevertheless seek the protection of the law.

Part 1. Types of disciplinary offenses

The basis for bringing to disciplinary liability is the commission of a disciplinary offense. According to Article 192 of the Labor Code of the Russian Federation disciplinary offense- this is the failure or improper fulfillment by an employee through his fault of the duties assigned to him labor responsibilities.
The same article states that the employer has the right to apply one of the following disciplinary sanctions:
- remark;
- reprimand;
- dismissal for appropriate reasons.
Federal laws, charters and regulations on discipline for individual categories employees may also be provided with other disciplinary action. First of all, such exceptions are provided for military personnel, civil servants and other public sector employees. For example, some laws establish disciplinary sanctions such as “severe reprimand” or “warning about incomplete official compliance.”
The Labor Code establishes the following rule: “the application of disciplinary sanctions that are not provided for by federal laws, charters and regulations on discipline, that is, local regulations, is not permitted.”
Thus, it is impossible to apply, say, a severe reprimand to an employee of a commercial company. The use of various types of fines, as well as wage reductions as a disciplinary measure, is also prohibited.
It should be noted that the law does not provide for a fundamental difference between a reprimand and a reprimand - so both can be used for the same reasons.
What is a legal reason for applying disciplinary action? Only failure to fulfill one’s labor duties established by law, employment contract, job description, internal labor regulations, orders and instructions of the manager and other local acts of the organization. It is important to remember here that this obligation must be clearly stated in one of these documents - an oral order, as they say, cannot be attached to the case.
The most severe disciplinary action- this, of course, dismissal, which can be applied in two cases:
1) if an employee repeatedly fails to fulfill his job duties without good reason, if he has a disciplinary sanction (clause 5 of Article 81 of the Labor Code of the Russian Federation);
2) in case of a one-time gross violation of labor duties by an employee (clauses 6, 9 and 10 of Article 81, clause 1 of Article 336 and Article 348.11 of the Labor Code of the Russian Federation).
In the first case, as can be seen from the text of the law, the employee must have previously been subject to disciplinary action - a reprimand or reprimand, and this punishment has not been lifted.
Single gross violations of labor duties include:
- absenteeism (absence from work without good reason for more than four hours in a row during the working day);
- appearing at work in a state of alcohol, drug 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;
- committing at the place of work theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, official, body authorized to consider cases of administrative offenses;
- determination by the labor protection commission or labor protection commissioner of a violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences.
It is also possible to dismiss under clauses 7 and 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation in cases where guilty actions giving grounds for loss of trust and an immoral offense, respectively, were committed by an employee at the place of work and in connection with the performance of his job duties.
A separate basis for dismissal at the initiative of the employer is provided for the heads of the organization, his deputies and the chief accountant (clause 9 of Article 81 of the Labor Code of the Russian Federation) -
making an unfounded decision that resulted in a violation of the safety of property, its unlawful use or other damage to the organization’s property.
On the topic " dismissal as a disciplinary sanction"We'll talk separately.

Part 2. Procedure for applying disciplinary sanctions

The procedure for bringing to disciplinary liability is regulated by Article 193 of the Labor Code of the Russian Federation. IN general case this order consists of the following steps.
1. Initiation of disciplinary proceedings.
The head of the organization gets acquainted with the proposal to bring the employee to disciplinary liability, received from a person who does not have the right to impose disciplinary measures (for example, with an internal memo) or makes such a decision independently.
Here, an act of committing a disciplinary offense is drawn up, signed by several employees of the organization (usually the immediate supervisor, an employee of the HR department and someone else).
2. Explanations from the employee.
The employer is obliged to request a written explanation from the employee who allegedly committed a disciplinary offense.
If after two working days the employee has not provided an explanation, then the employee’s failure to provide an explanation is not an obstacle to applying a disciplinary sanction: another act is drawn up - about the refusal to give written explanations.
3. The manager’s choice of the type of disciplinary sanction and assessment of the possibility of its application.
When imposing a disciplinary sanction, it is necessary to take into account the severity of the offense committed and the circumstances in which it was committed, observing following rules, established by law:
- 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. The day the misconduct was discovered is the day when the immediate supervisor became aware of the misconduct, regardless of whether he had the right to apply disciplinary measures.
- disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and punishment based on the results of an audit, financial check economic activity or an audit – later than two years (the specified time frame does not include the time of criminal proceedings);
- for each disciplinary offense only one disciplinary sanction can be applied.
Disciplinary action is valid for one year from the date of use. 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 has the right remove disciplinary action from the employee and ahead of schedule - on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees. A corresponding order must be issued regarding the early lifting of a disciplinary sanction.
When imposing a disciplinary sanction, the following circumstances must be clarified:
- what the offense was, and whether this could be grounds for imposing a disciplinary sanction;
- whether the performance of actions that the employee did not perform or performed improperly was within the scope of his duties and what document provided for these duties;
- whether the employee is familiar with the local act, which stipulates the corresponding responsibilities;
- whether the employee had valid reasons for committing the offense;
- whether the terms and procedure for imposing disciplinary sanctions have been observed.
4. Issuing an order (instruction) on bringing to disciplinary liability (imposing a disciplinary sanction).
The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the order (instruction) against signature, then again a corresponding act is drawn up.
A disciplinary sanction can be imposed only by the manager or a person who is vested with such powers in accordance with the local acts of the organization.
A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for considering individual labor disputes (a labor dispute commission, if the enterprise has one, or in court).

Part 3. Dismissal as a disciplinary measure

The list of cases of application of dismissal as a disciplinary sanction is clearly outlined by the Labor Code and is exhaustive. Incorrect application of this type of penalty can lead to an appeal in court and the reinstatement of the employee in his position and, accordingly, payment of compensation for forced absenteeism. And payment for forced absenteeism is made from the day the dismissal order is issued: only from this time absenteeism is forced.
Let's consider the grounds for applying dismissal as a disciplinary sanction.
Clause 5 of Art. 81 of the Labor Code of the Russian Federation provides for the termination of an employment contract for repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction.
To recognize such a dismissal as legal, the following circumstances must be met simultaneously:
1) the employee has a disciplinary sanction for the last working year, it has not been withdrawn or repaid;
2) the employee committed a disciplinary offense without good reason;
3) the employer requested from the employee a written explanation of the reasons for the labor offense no later than one month from the date of discovery of the offense and six months from the date of its commission (two years for an audit)
4) if the employee is a member of a trade union, then the opinion of the trade union must be taken into account.
The dismissal order in this case must indicate as a basis the numbers and dates of orders on previously imposed disciplinary sanctions, the essence of the offense, the date and circumstances of its commission, consequences, absence of valid reasons, absence (presence) of an explanation from the employee.
In addition, it is necessary to make a reference to documents confirming the commission of the offense - memo, acts, etc.
Clause 6 of Art. 81 of the Labor Code of the Russian Federation provides for a single gross violation of labor duties by an employee as grounds for dismissal.
Clause 6 of Art. 81 of the Labor Code of the Russian Federation establishes the following grounds for dismissal.
1. Absenteeism(clause “a”) – absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift) ).
In paragraph 39 of the Plenum Resolution Supreme Court RF dated April 17, 2004 No. 2 states that dismissal on this basis can be made for the following violations:
A) leaving work without a valid reason the person who concluded employment contract for an indefinite period, without warning the employer about termination of the employment contract, as well as before the expiration of the two-week warning period (see Article 80 of the Labor Code of the Russian Federation);
b) absence from work without good reason, that is, absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);
V) an employee staying for more than four hours in a row without good reason during the working day outside the workplace;
G) unauthorized use of time off, as well as unauthorized going on vacation.
TO valid reasons for the employee’s absence from the workplace the court usually considers those confirmed by documents or testimony:
- employee illness;
- delay of transport in case of an accident;
- accidents in the employee’s home, etc. circumstances.
2. Showing up for work alcohol, drugs or other toxic intoxication(paragraph “b”)
An employee who appears at any time of the working day (shift) in a state of intoxication, the employer is obliged to suspend from work on that day (shift). The removal of an employee is formalized by order. If the employee was not suspended from work, evidence of this basis is a medical report, a report drawn up at that time, witness testimony and other evidence. In any case, it is necessary to draw up an act of committing an offense.
Let us note that, according to the law, it is possible to prove the fact that an employee is in a state of intoxication without a medical report, but in practice this is quite problematic.
3. Disclosure of secrets protected by law– state, commercial, official and other, which became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee (clause “c”).
Here it is important to evaluate the following circumstances: does the organization have a trade secret protection regime, is the employee familiar with it, is the employee allowed access to information constituting a trade secret, etc. If at least one clause of the Federal Law “On Trade Secrets” is not observed, dismissal such a basis will be considered illegal.
4. Committing theft at the place of work(including small) other people's property, its waste, intentional destruction or damage, established by a court verdict or a relevant administrative resolution that has entered into legal force (paragraph “d”).
Here key point is the presence and entry into force of the act of the authorized government agency– all internal documents (memos, inventory acts, etc.) have no force for dismissal on this basis.
5. Violation of labor protection requirements by an employee, if this violation entailed grave consequences or knowingly created a real threat of such consequences (paragraph “e”), if it was established by the commission or the labor protection commissioner.
Grave consequences include: an industrial accident, an accident, a catastrophe, the presence of which (or the presence of a known real threat of their occurrence) must be proven by the employer when considering the dispute in court.
The Labor Code also provides the following grounds for dismissal for a single gross violation of labor duties.
Committing guilty actions that give rise to loss of trust to him from the employer (clause 7 of article 81 of the Labor Code of the Russian Federation).
Only an employee directly servicing monetary or commodity assets can be dismissed on this basis, regardless of what type of material liability (limited or full) is assigned to him.
The employer must prove the mistrust of the employee (acts of calculation, weighting, shortage, etc.).
Commitment of an immoral offense by an employee performing educational functions, incompatible with the continuation of this work (clause 8 of Article 81 of the Labor Code of the Russian Federation).
Immoral is an offense that is contrary to generally accepted morality (appearing in in public places drunk, obscene language, fighting, degrading behavior, etc.). An offense can be committed not only at work, but also at home.
The employer will have to establish both the fact of the misconduct itself and the circumstances preventing labor activity of this employee as a result of committing such an offense.
Dismissal of organization leaders(branch, representative office), their deputies and chief accountants for their adoption of an unfounded decision, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9 of Article 81 of the Labor Code of the Russian Federation).
The unreasonableness of a decision is a subjective concept, so it is assessed by the employer. However, if the employee disagrees with this assessment and a labor dispute arises, it is the employer who will have to prove the employee’s guilt.
A one-time gross violation of their labor duties by heads of organizations (branch, representative office), their deputies, chief accountants (clause 10 of article 81 of the Labor Code of the Russian Federation).
The obligation to prove that such a violation actually occurred and was of a gross nature also lies with the employer.
In accordance with paragraph 49 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, as a gross violation of labor duties by the head of an organization (branch, representative office), his deputies should, in particular, be regarded as failure to fulfill the duties assigned to these persons by the employment contract, which could lead to harm health of workers or causing property damage to the organization.
Repeated gross violation of the charter within a year educational institution teaching worker (clause 1 of article 336 of the Labor Code of the Russian Federation).
Sports disqualification for a period of six months or more, as well as the use, including single use, of doping agents and (or) methods by athletes (Article 348.11 of the Labor Code of the Russian Federation).
When dismissing an employee for any of the above reasons, the terms and rules for applying disciplinary sanctions established by Articles 192 and 193 of the Labor Code of the Russian Federation must be observed.

According to the conclusion of an employment contract, an employee not only acquires a certain list of rights, but also bears a number of responsibilities, for example, to conscientiously fulfill his labor duties assigned to him by the employment contract; comply with internal labor regulations; observe labor discipline, etc. Failure or improper performance by an employee, through his fault, of the labor duties assigned to him is a disciplinary offense (), for which a disciplinary sanction is imposed. Let's consider their types and features of application.

For committing a disciplinary offense, the employer has the right to impose a disciplinary penalty. However, it is necessary to take into account the gravity of the offense committed and the circumstances under which it was committed. Therefore, you should carefully consider the procedure for imposing a disciplinary sanction, because As a rule, the result of inaccurate or incorrect execution of documents justifying the application of a disciplinary sanction is the emergence of a labor dispute.

In cases where the employee perceives a violation of his labor rights in the actions of the employer, he has the right to file an application with the state labor inspectorate without any time limit. And for the resolution of individual labor disputes - to the labor dispute commission and (or) to the court within the time limits established by law (Articles 386 and 392 of the Labor Code of the Russian Federation).

The article provides for a simple procedure for applying disciplinary sanctions for such violations. At the same time, not all employers manage to avoid mistakes and violations in the procedure established by law. Moreover, in most cases, employers do not take into account the fact that the main criteria for the legality of imposing a disciplinary sanction are the sequence of actions of the employer and the availability in full of all documents confirming the fact of the disciplinary action, as well as indicating the legality of the employer’s actions in applying this sanction.

Types of disciplinary sanctions and application features

The current legislation, namely -, regulates that for committing a disciplinary offense, i.e. Failure to perform or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

1) remark;

2) reprimand;

3) dismissal for appropriate reasons.

In accordance with Art. 192 of the Labor Code of the Russian Federation, this list is not exhaustive, because Federal laws, charters and regulations on discipline may provide for other disciplinary sanctions for certain categories of employees.

For example, Federal Law No. 79-FZ dated July 27, 2004 “On the State Civil Service Russian Federation“for committing a disciplinary offense, that is, for failure or improper performance by a civil servant of the official duties assigned to him through his fault, a warning about incomplete official compliance may be issued.

The legislation clearly states that the application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted. From which it follows that there are two types of disciplinary liability: general, provided for by the Labor Code of the Russian Federation, and special, which is borne by employees in accordance with the charters and regulations on discipline.

Therefore, organizations cannot independently impose any additional disciplinary sanctions (the provided list is exhaustive), however, in practice, referring to Art. 192 of the Labor Code of the Russian Federation, employees are often given a disciplinary sanction: “severe reprimand” or “reprimand with warning,” although such categories are not provided for by the Labor Code of the Russian Federation, as well as the application of various fines, deprivation of allowances and additional payments. Similarly, it would be illegal, for example, to transfer an employee as a disciplinary sanction to a lower-paid position.

For each disciplinary offense, only one disciplinary sanction can be applied (Article 193 of the Labor Code of the Russian Federation).

In addition, when imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account. However, as practice shows, disciplinary measures applied by employers do not always objectively correlate with the committed act. As a result, when resolving labor disputes, the court recognizes the unfoundedness of the decision made by the employer.

Keep in mind that when considering cases, the courts are guided by the fact that the employer must provide evidence indicating not only that the employee committed a disciplinary offense, but also that when imposing a penalty, the severity of this offense and the circumstances in which it was committed were taken into account. committed (Part 5 of Article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee and his attitude towards work.

If, when considering a case on reinstatement at work, the court comes to the conclusion that misconduct actually occurred, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied (clause 53 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application courts of the Russian Federation of the Labor Code of the Russian Federation", hereinafter referred to as Resolution No. 2).

Arbitrage practice.Thus, the court, resolving a dispute about reinstatement at work, came to the conclusion that the disciplinary measure applied to the plaintiff did not correspond to the severity of the offense alleged by the defendant, was unfair and unfounded. At the same time, the court considered that the defendant did not provide evidence that the disciplinary sanction in the form of dismissal was commensurate with the gravity of the offense committed, in the defendant’s opinion. By a court decision, the plaintiff was reinstated at work, and the defendant 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 applying a disciplinary sanction, the employer should also take into account the level of guilt of the employee, including: whether any harm was caused to him, what external factors prompted the employee to take a certain action, whether there was intent in his actions. It is equally important to take into account general characteristics employee: experience, achievements, personal and business qualities, professionalism, health.

In any case, the decision to impose a disciplinary sanction provided for by the Labor Code of the Russian Federation is made by the employer, who has the right, and not the obligation, to do so as provided by law. Therefore, in some cases it is quite appropriate to limit yourself to a verbal warning, personal conversation, etc.

It should also be understood that disciplinary sanctions can be imposed by managers and other officials vested with appropriate powers on the basis of documents (the organization’s charter, local regulations, etc.).

The special liability provided for in discipline regulations and statutes applies to all employees who are subject to them. At the same time, direct employers themselves do not have the right to make any additions or changes to them. The difference between these regulations is the presence of more stringent penalties for certain categories of workers. As an example, we can cite Decree of the President of the Russian Federation of November 10, 2007 N 1495 “On approval of general military regulations of the Armed Forces of the Russian Federation,” namely, the Charter of the Internal Service, the Disciplinary Charter and the Charter of the Garrison and Guard Services of the Armed Forces of the Russian Federation.

Sequence of actions when applying disciplinary sanctions

The procedure for applying disciplinary sanctions is regulated by Art. 193 of the Labor Code of the Russian Federation, which states that before applying a disciplinary sanction, the employer must request a written explanation from the employee. But a written explanation, as a rule, is provided in response to any circumstances, therefore, despite the fact that the Labor Code of the Russian Federation does not contain a requirement to document the fact of a violation, it is necessary to do this, because From the day the misconduct is discovered, the period allotted to the employer for applying a disciplinary sanction begins to run.

The fact of a disciplinary offense by an employee can be recorded by drawing up an official or memorandum from the official to whom the employee is subordinate, regardless of whether this person has the right to impose penalties or not. Of course, in optimal option It is better to familiarize the employee with it under personal signature, thereby further reinforcing the legality of their actions.

Also, the fact of a disciplinary offense can be recorded in the form:

Act (absence from work, refusal to undergo a medical examination, etc.);

Conclusions of the commission (based on the results of an internal investigation).

If an employee is asked to provide a written explanation orally, a situation may arise when the employee denies that the employer has fulfilled his obligation under Art. 193 of the Labor Code of the Russian Federation, and indeed requested a written explanation. Therefore, it is recommended to require an explanation of the circumstances of the violation committed by the employee in writing. To provide a written explanation to the employee, the legislation of the Russian Federation provides two working days.

Some employers make a mistake and issue an order to impose a disciplinary sanction on the day a written explanation is requested, which should not be done, because this action of the employer can be challenged by the employee in court.

The Labor Code of the Russian Federation does not provide for any special requirements for the employee’s explanation, with the exception of written form and deadlines for submission, therefore it can be drawn up arbitrarily in the form of an explanatory note to the employer.

Please note that this is a right, not an obligation of the employee. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. Rather, such a rule is provided in order to give him the opportunity to express his own view of the event, explain the reasons for the disciplinary offense, and present reasoned facts in his defense. This is one of the guarantees that the imposition of a penalty will be lawful.

If after two working days an explanation is not provided by the employee, then if there is a firm intention to apply a disciplinary sanction against the employee, an act on the employee’s refusal to give an explanation should be drawn up, with which the employee must be familiarized with a personal signature (if a refusal to familiarize is made, a corresponding note is made in this same document).

In paragraph 23 of Resolution No. 2, it is explained that when considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

Therefore, when imposing a disciplinary sanction, it is necessary to check the following circumstances:

Is the disciplinary offense grounds for imposing a disciplinary sanction;

Are there really no valid reasons for non-fulfillment or improper performance of labor duties;

Are the employee’s culpable unlawful actions (inaction) related to the performance of his job duties;

Are certain job responsibilities provided for by any local regulatory act or other document and is the employee familiarized with it under his personal signature;

Is the disciplinary measure applied to the employee provided for by the legislation of the Russian Federation;

Have the deadlines and procedures for imposing disciplinary sanctions been observed?

Does the official who signs the order (instruction) on bringing to disciplinary liability the right to apply a disciplinary sanction against the employee;

Has the employee’s previous behavior and his attitude towards work been taken into account?

Only if all the above conditions are met can the application of disciplinary action be lawful.

Time limits for applying disciplinary action

On the application of a disciplinary sanction, an order (instruction) of the employer is issued, which contains information about the specific disciplinary offense of the employee. The employee must be familiarized with this order (instruction) with a personal signature. The refusal to sign should be recorded in the relevant act.

According to Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction can be applied to an employee no later than one month from the date of discovery. The day when the misconduct was discovered, from which the period for applying a disciplinary sanction is calculated, is considered to be the day when the employee’s immediate supervisor became aware of the misconduct committed, which is confirmed by the relevant document (an official or memo, act, commission conclusion, etc.).

The designated period for applying a disciplinary sanction does not include the period when the employee was absent from work due to illness or was on leave (regular, educational, paid or without pay - clause 34 of Resolution No. 2), as well as the time required for taking into account the opinion of the representative body of workers. Here we're talking about on the reasoned opinion of the representative body of employees upon termination of the employment contract. Absence from work for other reasons does not interrupt the specified period.

At long walk, when it is not known for certain about the reason for the employee’s absence 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. At the same time, it must be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the offense, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the notice period for dismissal (clause 33 of Resolution No. 2).

In practice, employers often apply disciplinary sanctions to employees when the period for their application has already expired, thereby allowing a violation of the legislation of the Russian Federation, which leads to the recognition of the disciplinary sanction as illegal.

Arbitrage practice.The employee filed a lawsuit against the employer to declare the order to impose a disciplinary sanction on her in the form of a reprimand illegal and to cancel it.

The court came to the conclusion that the disciplinary action against the employee was carried out in violation of the law. month period. Evidence of suspension of this period on the grounds specifiedPart 3 Art. 193The Labor Code of the Russian Federation was not included in the case materials and they were not presented to the court. The court was critical of the defendant’s arguments that he had met the six-month deadline for bringing the plaintiff to justice, since the provisionsPart 4 Art. 193The Labor Code of the Russian Federation is applied in cases where the disciplinary offense could not be detected within the month established by Part 3 of Art. 193 of the Labor Code of the Russian Federation to bring an employee to disciplinary liability.

In this regard, the court decided to declare illegal and cancel the order to impose a disciplinary sanction on the employee in the form of a reprimand, to recover money in favor of the employee for compensation for moral damage (decision of the Lermontov City Court Stavropol Territory Lermontov dated 02/09/2012 in case No. 2-19/2012).

Please note: information about penalties is not entered into the work book, except in cases where the disciplinary sanction is dismissal (Article 66 of the Labor Code of the Russian Federation).

The concept of disciplinary offense

We think it would be useful to clarify what constitutes a disciplinary offense, since practice shows that employers often interpret it erroneously. So, a disciplinary offense is a culpable unlawful failure or improper performance by an employee of his assigned job duties (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, regulations, technical rules, other local regulations, orders, other organizational and administrative documents of the employer, etc.).

Only such failure to perform or improper performance of labor duties is considered guilty when the employee’s act is intentional or careless. Failure to perform or improper performance of duties for reasons beyond the employee’s control (for example, due to lack of necessary materials, disability, insufficient qualifications) cannot be considered a disciplinary offense. For example, the legislation of the Russian Federation does not provide for the right of the employer to recall him from vacation early without the employee’s consent, therefore the employee’s refusal (regardless of the reason) to comply with the employer’s order to go to work before the end of the vacation cannot be considered a violation of labor discipline (clause 37 of Resolution No. 2) .

Only such illegal actions (inaction) of an employee that are directly related to the performance of his job duties can be recognized as a disciplinary offense. Thus, an employee’s refusal to carry out a public assignment or violation of the rules of behavior in public places cannot be considered a disciplinary offense.

Violations of labor discipline, which are disciplinary offenses, clause 35 of Resolution No. 2 include, among other things:

a) the absence of an employee from work or the workplace without good reason.

It must be borne in mind that if the employment contract concluded with the employee or the 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, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure (Article 162 of the Labor Code of the Russian Federation), because By virtue of the employment contract, the employee is obliged to perform the 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 in connection with a change in the terms of the employment contract determined by the parties is not a violation of labor discipline, but serves as a basis for termination of the employment contract under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Art. 74 Labor Code of the Russian Federation;

Arbitrage practice.An MDOU teacher for refusing to work on a shift schedule with other groups of children and in another building after applying disciplinary sanctions in the form of a reprimand and reprimand was dismissed from work on the grounds provided forclause 5, part 1, art. 81Labor Code of the Russian Federation.

The court concluded that disciplinary sanctions, including dismissal from work, were illegal and subject to cancellation. By the court's decision, the teacher's claim against the preschool educational institution for the cancellation of the disciplinary sanction, reinstatement at work, payment for forced absence and compensation for moral damage was satisfied in full (decision of the Ust-Kulomsky District Court of the Komi Republic dated December 2, 2011 in case No. 2-467/2011).

c) refusal or evasion without good reason from a medical examination of workers of certain professions, as well as refusal to undergo medical examination work time special training and passing exams on labor protection, safety regulations and operating rules, if this is prerequisite permission to work.

Also, a violation of labor discipline should be considered a refusal by an employee, without good reason, to conclude an agreement on full financial responsibility for the safety of material assets, if the fulfillment of duties for servicing material assets constitutes the employee’s main job function, which was agreed upon when hiring, and in accordance with According to the current legislation, an agreement on full financial liability can be concluded with him (clause 36 of Resolution No. 2).

Please note that the application of a disciplinary sanction can be recognized as legal in cases of non-fulfillment or improper performance of labor duties by an employee only when he has been familiarized with each of the local acts establishing the relevant duties under his personal signature, because This requirement is provided for in Art. 22 Labor Code of the Russian Federation.

Therefore, courts often overturn disciplinary sanctions against employers due to the lack of familiarization of the employee with the document that he violated.

Arbitrage practice.During the hearing, the court found that when applying for a job, the employee signed only an employment contract and an agreement on full financial responsibility. The job description was approved only in 2012, and disciplinary sanctions were imposed for disciplinary offenses committed by the employee in 2011.

The court concluded that when applying a disciplinary sanction in the form of a reprimand, the employer could not be guided by the job description, since when concluding the employment contract, the employee was not familiar with it, and his job responsibilities were not established. Referring toletterRostruda dated 08/09/2007 N 3042-6-0, the court indicated that 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 of the employer under his personal signature;

The procedure provided for in Art. 193 of the Labor Code of the Russian Federation, including violation of the deadlines for bringing the employee to disciplinary liability;

The employee is dismissed for a violation for which he has already been subject to a disciplinary sanction (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 calendar year) a disciplinary sanction has already taken place (an order has been issued);

At the time of his repeated failure to fulfill his labor duties without good reason, the previous disciplinary sanction had not been removed or extinguished;

The employer took into account the employee’s previous behavior, his previous work, attitude to work, circumstances and consequences of the offense.

Employers often make the mistake of believing that a previous disciplinary sanction alone is sufficient to subsequently dismiss an employee.

Arbitrage practice.The court found that the employee was dismissed from his position due toclause 5, part 1, art. 81Labor Code of the Russian Federation for repeated failure to fulfill labor duties without good reason. At the same time, the employer does not indicate in the order for which specific violation of labor duties the disciplinary sanction in the form of dismissal was applied (which labor duties were again not fulfilled). This order contains only references to previously applied disciplinary sanctions.

As a result, the court concluded that the employee was subject to disciplinary liability in the form of dismissal for the same actions for which he had previously been subject to disciplinary liability. And since the employer did not prove what new disciplinary offense (committed after a disciplinary sanction was applied to the employee) served as the basis for the dismissal of the plaintiff, the employer had no grounds for terminating the employment contract with him underclause 5, part 1, art. 81Labor Code of the Russian Federation.

The employer's argument about his right to dismiss an employee due toclause 5, part 1, art. 81The Labor Code of the Russian Federation, in the presence of two disciplinary sanctions, without waiting for him to commit a new disciplinary offense, is erroneous, based on an incorrect interpretation of the norm of paragraph 5 of part 1 of Art. 81 Labor Code of the Russian Federation. Within the meaning of this norm, for the dismissal of an employee on this basis, there must be a reason in the form of a disciplinary offense committed by the employee after a disciplinary sanction was applied to him.

In the present case, the employer dismissed the employee for the same offenses for which he had previously been subject to disciplinary sanctions in the form of reprimands and reprimands. Under such circumstances, the dismissal of an employee on this basis could not be recognized as legal, and he was subject to reinstatement (decision of the Meshchansky District Court of Moscow dated January 16, 2013 in case No. 2-512/2013).

Thus, if errors made by the employer are identified, the state labor inspectorate can bring the employer to administrative liability, and by a court decision, the employee can be reinstated at work, and the average earnings for the period of forced absence, as well as the amount compensation for moral damage. Therefore, when deciding to impose a disciplinary sanction on an employee, all conditions provided for by law must be observed and the established procedure must be strictly followed.

A disciplinary offense is a culpable, unlawful failure or improper performance by an employee of his assigned job duties. 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. By resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, violations of labor discipline, which are a disciplinary offense, include in particular:

• absence of an employee without good reason from work or the workplace;
• refusal by an employee to perform job duties without good reason due to a change in labor standards in accordance with the established procedure;
• refusal or avoidance without good reason from a medical examination of workers in certain professions, as well as an employee’s refusal to undergo special training and labor safety exams during working hours.

If dismissal for absenteeism is applied as a disciplinary sanction to an employee, it can be carried out:

• for absence from work without good reason, i.e. absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);
• for an employee being outside the workplace without good reason for more than four hours in a row during the working day;
• for leaving work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about termination of the contract, and exactly before the expiration of the two-week warning period;
• for leaving work without a good reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the warning period for early termination of the employment contract;
• for unauthorized use of days off, as well as for unauthorized going on vacation.

For unlawful, culpable failure or improper performance by an employee of his assigned job duties, the employer has the right to apply one of the penalties provided for in Article 192 of the Labor Code of the Russian Federation:

• comment;
• rebuke;
• dismissal for appropriate reasons.

Failure to accrue or reduce the amount of the bonus is not a disciplinary sanction, therefore it is carried out on the basis of the procedure provided for by the local regulations of the organization (individual entrepreneur).

Federal Law No. 90-FZ of June 30, 2006 clarifies what specific grounds for dismissal of an employee, provided for in Part 1 of Article 81 of the Labor Code of the Russian Federation, relate to disciplinary sanctions:

• repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;
• one-time gross violation of labor duties by an employee;
• 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);
• a single gross violation by the head of the organization (branch, representative office), or his deputies of their labor duties);
• in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by an employee at the place of work and in connection with the performance of his job duties.

Disciplinary sanctions also include the dismissal of a teaching employee due to repeated gross violation of the charter of an educational institution within one year.

The list of disciplinary sanctions enshrined in Article 192 of the Labor Code of the Russian Federation is exhaustive, which means that the application of any other penalty will be illegal.

Article 193 of the Labor Code of the Russian Federation provides for the procedure for applying disciplinary sanctions.

Thus, before applying a disciplinary sanction for committing a disciplinary offense, the employer must request an explanation from the employee in writing. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

Disciplinary action is applied to the employee immediately upon discovery of the misconduct, but no later than one month from the date of its discovery, 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 (if the employee is a member of a trade union organization). The day the misconduct was discovered, from which the period for applying a disciplinary sanction is calculated, is considered the day when the employee’s immediate supervisor became aware of the misconduct committed. It does not matter whether he has the right to impose disciplinary sanctions. It is not allowed to apply a disciplinary sanction after 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 - two years from the date of its commission, not counting the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction can be applied. However, if failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continues, despite the imposition of a disciplinary sanction, it is permissible to apply a new disciplinary sanction to him, including dismissal.

Disciplinary action is imposed by the employer. Other officials can use them only if such powers are granted to them by the relevant documents.

An order (instruction) is issued regarding the application of a disciplinary offense, which must indicate the reasons for its application, i.e. a specific disciplinary offense for which the employee is subject to punishment. When imposing a penalty, the severity of the disciplinary offense and the circumstances under which it was committed are taken into account.

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. Refusal to sign is certified by the relevant act.

A disciplinary sanction can be appealed by an employee both to bodies for consideration of individual labor disputes, which, in accordance with Article 382 of the Labor Code of the Russian Federation, are labor dispute commissions and courts, and to the state labor inspectorate. When considering the issue of applying a disciplinary sanction to an employee, the state labor inspectorate checks whether the procedure for applying a penalty, provided for in Article 193 of the Labor Code of the Russian Federation, has been followed in relation to the employee. If this is observed, it is recommended that the issue of the advisability of applying disciplinary sanctions be considered by the bodies for the consideration of individual labor disputes. In accordance with Article 391 of the Labor Code of the Russian Federation, the issue of disciplinary action in the form of dismissal is considered directly in the courts.

In accordance with Article 194 of the Labor Code of the Russian Federation, a disciplinary sanction is valid for one year from the date of its application. After this period, it is lifted automatically without the issuance of any order. Early lifting of a disciplinary sanction is possible both at the initiative of the employer and at the request of the employee’s immediate supervisor. The employee has the right to make a request to have the disciplinary sanction lifted.

The responsibilities of each employee include the proper fulfillment of his labor obligations, which are specified in the contract and the rules of the enterprise. However, unforeseen circumstances can often occur that will result in a disciplinary offense.

The Labor Code of the Russian Federation provides for penalties in such cases, which are considered disciplinary sanctions. Material penalties may also be applied to employees. However, the Labor Code of the Russian Federation has a number of features that may cause financial liability. Let's take a closer look at all the nuances.

What types of disciplinary actions can be taken against employees?

In addition to incentives, the Labor Code of the Russian Federation provides employees with certain penalties for violating their duties or the law. Their types are as follows:

• comment;
• rebuke;
• dismissal.

The Labor Code of the Russian Federation defines the simplest of them as a remark. It consists of a verbal warning to the employer for the employee’s misconduct, or can be issued as an order. A reprimand may be used for more serious violations and is formalized.

In case of systematic receipt of this type of punishment, information about this is indicated in the work book. The most severe type is dismissal, which is provided for employees who violate labor regulations and the Labor Code.

Types of disciplinary sanctions and the procedure for their application

The types of disciplinary sanctions under the Labor Code of the Russian Federation, which have legal grounds, were indicated above. However, enterprises may often be subject to material penalties, the application of which is not always provided for by law. These include:

• fines;
• deprivation of bonus;
• bringing to financial responsibility;
• temporary reduction of the social package.

Their use is possible only in some individual cases, for example, financial liability arises when the property of an enterprise is damaged. Regarding fines, the Labor Code prohibits their use, otherwise the employer faces administrative liability, and in some cases criminal liability.

The procedure for applying punishment to employees is that it can be applied to the employee within a month, and after the discovery of the misconduct. Vacation and sick leave time is not included here. The penalty is applied no later than 6 months according to Article 193 of the Labor Code of the Russian Federation. In connection with the audit and the issuance of a decision on it, due to the audit, the period increases to 2 years.

Such offenses cannot be detected immediately, which is why the term is much longer. If the specified period has passed, the law does not provide for holding the employee accountable.

For one offense only one type of punishment is applied. The application procedure is based on the drawing up of an order by the employer, the predecessor of which is an explanatory note from the employee.

The most severe type of disciplinary action

The most severe form of punishment is dismissal. It is possible with repeated violations of discipline, or with gross misconduct, such as:

• systematic absenteeism;
• disclosure of secrets;
• alcohol or drug intoxication;
• actions that resulted in an accident or incident;
• theft.

Each point may have its own specific facts and nuances. Dismissal under this article (Article 193 of the Labor Code of the Russian Federation) can have quite serious consequences. First of all, this is an entry in the work book, after which it is not easy to find new job, and even more so to prove your innocence in the current situation.

Sample order to apply a disciplinary sanction in the form of a reprimand

As previously mentioned, the procedure for formalizing a disciplinary sanction consists of drawing up an order, which is resolved only after the employee’s guilt has been proven. A sample reprimand order is not provided for by law, but must contain the following information:

• name of company;
• number, date and title of the order;
• the reasons for its preparation and the type of violation;
• grounds for issuing a reprimand;
• person responsible for execution;
• signature of the leader and the offender, seal.

A sample can also be provided at the enterprise itself, since it is usually developed individually in a specific organization.

What types of disciplinary sanctions are applied to military personnel?

Disciplinary sanctions may be applied to military personnel in accordance with Article 75 of this Charter. They are as follows:

• a severe reprimand or entered into a personal file;
• ban on layoffs;
• outfits out of turn (up to 5);
• early dismissal from service;
• determination for the position below;
• reduction of rank;
• disciplinary arrest or correctional labor.

In addition to non-financial punishments, military personnel may also lose part of their funds, which include one-time payments and various quarterly bonuses. In addition, the serviceman is recorded with this negative information in his personal card.

Therefore, you should be careful about your job responsibilities, follow the order of their actions, otherwise there is a possibility of receiving a disciplinary sanction, which may negatively affect further work at the enterprise.