Any punishment, including disciplinary punishment, must be reasoned, officially formalized and carried out in strict accordance with labor legislation. Otherwise, it is possible to appeal the order to impose a disciplinary sanction on the part of the employee. Let us consider further what types there are disciplinary sanctions and how legally correct the imposition of punishment should be carried out.

Disciplinary action under the Labor Code of the Russian Federation

Disciplinary action in labor relations is a punishment applied to an employee of an organization, regardless of his rank and status. A penalty may be imposed in the following cases:

• in case of failure to perform or poor performance of one’s official duties;
• in case of violation of the company's norms and rules prescribed in internal regulations:
  • violation of labor discipline,
  • presence at work under the influence of alcohol or drugs,
  • disclosure of trade secrets, etc.

These and other reasons for which punishment may follow are spelled out in the Labor Code (LC) of the Russian Federation, in Art. 81.

It is worth noting that a citizen’s ignorance of his official duties does not relieve him of responsibility for failure to fulfill them. All actions that an employee must carry out are specified in the employment contract concluded between him and the employer. Familiarization with this document is a priority when applying for employment.

Curious facts

Application of a disciplinary sanction is allowed no later than 1 month from the date of recording the offense, and does not take into account the time spent on sick leave, on vacation, as well as the period of time spent taking into account the opinion of the representative body of employees.

Disciplinary measures can be applied only if the employee’s guilt is proven and the fact of the violation is documented. For example, if an employee did not go to work for an unexcused reason, and his absenteeism record was not marked on his work time card, then it will not be possible to take any disciplinary measures against him.

A disciplinary violation can be recorded with the following documents:

• act. It is drawn up mainly in case of violations of a disciplinary nature. For example, if you are late for work, absenteeism, etc.;
• memorandum. It is drawn up by the manager of the employee who has committed a crime regarding non-fulfillment or poor performance of official duties, in case of violation of reporting, etc.;
• protocol of the commission's decision. This document is drawn up, for example, in the event of material damage to the company.

The employee has the right to appeal a disciplinary sanction with the help of the state labor inspectorate.

The validity period of a disciplinary sanction is one year and if during this time the employee does not receive a new disciplinary sanction, then he will be considered without a disciplinary sanction.

Terminology of disciplinary action as a legal act

Disciplinary action, like any procedural action, is strictly regulated by the Labor Code (LC) of the Russian Federation. Violation of the rules and procedures for imposing a penalty may lead to an appeal against its application and invalidation.

The disciplinary procedure implies that the case has a subject, an object, a subjective and an objective side:

• subject is an employee who has committed a disciplinary offense;
• object – norms and procedures established in a labor organization;
• the subjective side is the employee’s fault;
• the objective side is the relationship between the fault of the employee at fault and the consequences.

Types of disciplinary liability of employees

There are several types of disciplinary sanctions that are approved by the labor legislation of the Russian Federation (Article 192 of the Labor Code). Only these types can be used in labor relations, while others will be illegal.

Types of penalties:

• comment,
• rebuke,
• dismissal.

The list is modeled in order of increasing severity of punishment for violations. A reprimand is the mildest measure of influence and is issued orally. A reprimand is also given verbally, but has more serious consequences.

If an employee has several reprimands, he can be fired legally. Dismissal, as a disciplinary measure, is used in the case of repeated violations for which the employee was previously given a more lenient punishment.

Only one penalty can be applied for one violation. Let's give an example: an employee did not complete the work within the specified period. If the employer reprimands the employee for this, then he has no right to issue an additional reprimand.

Disciplinary liability is considered to be the employee’s obligation to bear penalties in accordance with labor legislation when committing unlawful actions.

Reasons for imposing a penalty

A penalty may be imposed by the employer on an employee if there are grounds for doing so. The reason for disciplinary action is the commission of a disciplinary offense (Article 189 of the Labor Code of the Russian Federation).

What exactly falls under the definition of violation of discipline:

• being late for work;
• absence from work without a valid reason (absenteeism);
• being at work under the influence of alcohol or drugs;
• violation of safety regulations;
• disclosure of trade secrets;
• failure to fulfill or poor quality performance of official duties prescribed in the employment contract;
• non-compliance with the norms and rules of the company’s internal regulations, etc.

Any violations committed by the employee that are not included in the list possible reasons to impose a disciplinary sanction cannot become a basis for imposing punishment. Only one disciplinary sanction may be imposed for one offense.

Disciplinary sanctions can be general or special. General ones are used in all work collectives, and special ones only in certain areas, for example, in the Armed Forces of the Russian Federation or in public service.

Some facts

When an employee is released early from a penalty, the employer needs to support and formalize the order “to remove the penalty,” and the employee needs to read it and sign it. An organization can draw up an order form independently.

General disciplinary sanctions, according to Art. 192 Labor Code of the Russian Federation:

• comment,
• rebuke,
• dismissal.

A reprimand is the most gentle measure of influence, while dismissal is an extreme measure.

Time limits for imposing disciplinary sanctions under the Labor Code of the Russian Federation

The imposition of a penalty is possible only within a certain period of time after the violation has occurred. This period is equal to 1 calendar month from the date of recording the disciplinary offense committed, but no more than 6 months must pass from the date of its commission. It should be noted that this period does not include the time when the employee was on vacation, sick or absent from the workplace for other reasons.

If a violation is revealed during any inspection, then the statute of limitations is 24 months (Article 193 of the Labor Code of the Russian Federation).

The procedure for imposing a disciplinary sanction on an employee

There is a certain procedure for taking measures for a disciplinary violation (Article 193 of the Labor Code of the Russian Federation). A change or omission of any of the stages may make the imposition of a penalty unlawful and lead to its cancellation.

Stage No. 1: the employer receives a signal that an offense has been committed.

This signal must be given in written form. This could be an act, a report, a memorandum or a protocol of the commission’s decision after any inspection. Any of the listed documents must contain a description of the violation committed. The date the employer receives the signal is the date the case for imposing a disciplinary sanction is opened.

Interesting information

If there is a dispute, the employer's demand for explanations and the corresponding act on the absence of these explanations in writing are grounds for disciplinary action. However, if the employee provides an explanatory note within the deadlines, the penalty may be canceled.

Stage No. 2: presenting a written request to the employee for an explanation of the committed act.

After reading this requirement, the employee must sign.

Stage No. 3: the employee’s explanation of the event.

The form of presentation is an explanatory note. It must contain a description of the reasons that led to the violation. The reasons can be either respectful or disrespectful.

The assessment of the reasons for this criterion is the responsibility of the employer; he has the right to classify them at his own discretion. The Labor Code of the Russian Federation does not regulate the concept of “good reason”, therefore generally accepted grounds apply: illness, lack of material resources for work, carrying out instructions from superiors, etc.

The employee has the right not to write an explanatory note; in this case, after 2 days of waiting, the employer (or other responsible person) must draw up a special act on the lack of explanations from the employee. This act must be signed by the employer (or the employer’s representative) and 2 witnesses.

Stage No. 4: imposition of disciplinary action.

If the employer recognizes the reason for the misconduct on the part of the employee as disrespectful, then he has the right to apply one of the disciplinary measures. Such a decision is formalized by issuing an order. This document should contain the following points:

• order number and date of issue;
• the basis for drawing up the document is the wording that a certain disciplinary measure has been applied to a specific employee (indicating his full name and position);
• an indication of the reason why the penalty was imposed;
• employer's signature.

The order is an important document for confirming the facts of imposition of penalties. Several such documents are a valid basis for the employer to take an extreme disciplinary measure - dismissal (Article 81 of the Labor Code of the Russian Federation).

If there are no other penalties within one year, and after that year, the penalty must be removed from the employee. If the employer wishes, it can be removed during this one year, as well as at the request of the employee, or at the request of a representative body or the employee’s manager.

Stage No. 5: familiarization of the employee with the issued order.

This must be done by HR department employees or the employer himself no later than 3 working days from the date of its publication. Familiarization with the order is confirmed by the employee’s handwritten signature. If a citizen refuses this procedure, then a special act is drawn up that records the refusal.

Alternative Disciplinary Measures

Disciplinary measures can be applied not only in labor collectives, but also in other structures. For example, in the ranks of the Armed Forces of the Russian Federation, in government agencies. The legal regulation of disciplinary sanctions in these structures is carried out accordingly by the Charter “On the Armed Forces of Russia” and the Federal Law (FL) “On Civil Servants”.

The list of disciplinary measures in the Armed Forces, in addition to the standard ones, also has a number of additional punishments:

• demotion in rank;
• disciplinary arrest;
• deprivation of leave;
• expulsion (if we are talking about military training, courses, educational institutions);
• assigning a job out of turn, etc.

Watch the video about the time limits for bringing an employee to disciplinary liability.

Consequences of imposition of a penalty

A penalty is an official warning to the employee about the inadmissibility of the offenses he has committed. Repeated violations lead to further penalties in the form of comments and reprimands. In such a case, the employer has the right to dismiss the employee on a legal basis with the appropriate wording.

If, despite the existing penalties, the employee has not committed such violations during the year, then the penalty imposed on him will be automatically removed.

Any questions you may have can be asked in the comments to the article.

In the course of their professional activities, employees often commit certain violations of labor discipline, which may constitute a disciplinary offense.

To suppress and prevent such offenses, the employer must be aware of possible disciplinary measures and the procedure for imposing it on an employee: when there is the right to dismiss him, and when it is necessary to limit himself to a less severe punishment. Issues of applying disciplinary sanctions are proposed to be considered in this article.

Disciplinary action

In general, liability in labor law is the obligation of a participant in a social-labor relationship to suffer the adverse consequences of committing an action or inaction that causes harm to another participant in the legal relationship. A type of liability applied within the framework of labor law is disciplinary liability, which is understood as the obligation of an employee to answer for a disciplinary offense committed by him and to bear the penalties provided for by labor legislation.

The basis for bringing to disciplinary liability is the commission of a disciplinary offense. According to Art. 192 Labor Code of the Russian Federation A disciplinary offense can be defined as the failure or improper performance by an employee, through his fault, of the work duties assigned to him.

The object of a disciplinary offense, that is, those social relations that are violated as a result of its commission, is the internal labor regulations. According to the object, disciplinary offenses can be divided into four groups:

Encroachments on full use of working time (absenteeism, tardiness);

Encroachments on the careful and correct use employer's property;

Encroachments on the order of management of production processes in the organization (failure to comply with orders, instructions);

Encroachments that create a threat to the life, health, morality of an individual employee or the entire workforce (violation of labor protection rules).

On its objective side, a disciplinary offense can be expressed in the unlawful failure or improper performance by an employee of his labor duties, that is, it can be either an action or an inaction. In some cases, for the emergence of an offense, the presence of consequences in the form of harm and, accordingly, a causal connection between the act and the consequences is required. As for the subjective side, there must be guilt, in any form - intent or negligence. Failure by an employee to fulfill labor duties for reasons beyond his control is not a labor offense.

The subject of a disciplinary offense is always the employee.

Unlike a crime, a disciplinary offense is not characterized by a social danger, but is a socially harmful act. As a consequence, it entails the application of disciplinary measures.

Article 192 of the Labor Code of the Russian Federation are provided the following types disciplinary sanctions:

Comment;

Rebuke;

Dismissal for appropriate reasons.

At the same time, it is indicated that federal laws, charters and regulations on discipline for certain categories of employees may also provide for other disciplinary sanctions. The application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline, that is, local regulations, is not permitted.

All disciplinary measures are imposed by the employer.

The most severe, extreme disciplinary measure is dismissal. This is possible in the following cases:

1) repeated failure by an employee to perform job duties without good reason , if he has a disciplinary sanction ( clause 5 art. 81 Labor Code of the Russian Federation);

2) single gross violation of labor duties by an employee (clause 6, 9 And 10 tbsp. 81,clause 1 art. 336 And Art. 348.11 Labor Code of the Russian Federation), namely:

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;

Commitment at the place of work of 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 resolution of a judge, official, body authorized to consider cases of administrative offenses;

The establishment by the labor safety commission or the labor safety 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.

In addition, dismissal is possible clause 7 And 8 hours 1 tbsp. 81 TKRF in cases where guilty actions giving grounds for loss of confidence and an immoral offense, respectively, were committed by the employee at the place of work and in connection with the performance of his job duties.

Separate grounds for dismissal at the initiative of the employer are provided for the heads of the organization, his deputies and the chief accountant ( clause 9 And 10 tbsp. 81 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;

One-time gross violation of labor duties.

Procedure for applying disciplinary sanctions

The procedure for bringing to disciplinary liability is regulated Art. 193 Labor Code of the Russian Federation. Based on labor legislation, the following stages of disciplinary proceedings can be distinguished.

Initiation of disciplinary proceedings. The employer interviews witnesses and 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. The employer must request from the employee who allegedly committed a disciplinary offense written explanation . If after two working days the employee does not provide the specified explanation, then an act of refusal to give written explanations is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.

The manager’s choice of a specific method of influencing the offender and making a decision. When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account. The following rules must be followed:

Disciplinary action applies no later than one month from the date of discovery of the offense , 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 action cannot be applied later than six months from the date of commission of the offense , and recovery based on the results of an audit, inspection of financial and economic activities or an audit - later than two years. The specified time limits do not include the time of criminal proceedings;

For every disciplinary offense Only one disciplinary sanction can be applied .

Issuing an order (instruction) and bringing to disciplinary liability. 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 a corresponding act is drawn up.

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

Removal of disciplinary action. Disciplinary action is in effect within one year from the date of application . If within a year from the date of application of the disciplinary sanction the employee is not subjected to a new disciplinary sanction, then he is considered to have no disciplinary sanction, that is, it is automatically removed (without any special orders).

The employer, before the expiration of a year from the date of application of a disciplinary sanction, has the right to remove it from an 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 (early removal of a disciplinary sanction). A corresponding order is issued regarding the early lifting of a disciplinary sanction.

Circumstances to be checked when imposing 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 offense was committed without good reason;

Was the performance of actions that the employee did not perform (performed improperly) within the scope of his duties and what document provided for these duties;

Is the employee familiar with the local act, which stipulates the corresponding responsibilities, against signature;

Whether the disciplinary measures applied to the employee are provided for by law or by regulation or charter on discipline;

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

Was the penalty imposed by the same official? Disciplinary action can only be imposed by the supervisor. Other persons can impose penalties only on the basis of documents that specifically state such powers.

Features of bringing to disciplinary liability head of the organization, head of a structural unit, their deputies at the request of the representative body of workers

The employer is obliged to consider the application of the representative body of employees about the violation by the head of the organization, the head of the structural unit, their deputies of labor legislation and other acts containing labor law, the terms of the collective agreement, agreement and report the results of its consideration to the representative body of employees.

If the violation is confirmed, the employer must apply disciplinary action to the head of the organization, the head of the structural unit, and their deputies, up to and including dismissal.

Dismissal as a disciplinary measure

Cases where a disciplinary offense may lead to dismissal are clearly regulated. In practice, it happens that an employer tries to fire an unwanted employee on these grounds. This may lead to the dismissal being declared illegal and, accordingly, compensation to the employee for forced absence. Let's consider when a disciplinary measure such as dismissal can be applied in more detail.

Clause 5 of Art. 81 Labor Code of the Russian Federation provides for termination employment contract behind repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction . Dismissal on this basis will be lawful if the following circumstances exist simultaneously:

1) the employee has a disciplinary sanction for the last working year, it has not been removed or extinguished, there is an order (instruction) to impose a disciplinary sanction;

2) the employee committed a disciplinary offense, that is, a labor offense - did not fulfill his labor duties 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) the employer took into account the employee’s previous behavior, his many years of conscientious work, and the circumstances of the offense.

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. It is also necessary to make a reference to documents confirming the commission of the offense. The dismissal of trade union members is carried out taking into account the opinion of the trade union. Other disciplinary measures cannot be applied.

Clause 6 of Art. 81 Labor Code of the Russian Federation provides as grounds for dismissal the commission of single gross violation of labor duties by an employee and points to five possible options such violations. The list is exhaustive and is not subject to broad interpretation. For all five subparagraphs clause 6 art. 81 Labor Code of the Russian Federation the terms and rules for imposing disciplinary sanctions must be observed ( Art. 192 And 193 Labor Code of the Russian Federation). IN paragraph 6 of Art. 81 Labor Code of the Russian Federation The following grounds for dismissal are provided.

Firstly, this absenteeism (pp. "A"), that is, absence from the workplace without good reason throughout 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). Thus, the Labor Code of the Russian Federation has given a more stringent definition of absenteeism than it was before. Dismissal on this basis can be made as specified in Resolution of the Plenum of the Armed Forces of the Russian Federation dated April 17, 2004 No.2 (paragraph 39), for the following violations:

A) abandonment of work without good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the employment contract, as well as before the expiration of the two-week notice period (see Art. 80 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);

C) the employee stays outside the workplace without good reason for more than four hours in a row during the working day;

D) unauthorized use of time off, as well as unauthorized going on vacation (main, additional).

Often, dismissal for absenteeism is associated with the employee’s refusal to start work to which he has been transferred. But if the transfer to another job was carried out in violation of the transfer rules, such a refusal cannot be qualified as absenteeism. When the court reinstates an employee who was illegally dismissed for absenteeism, payment for forced absenteeism is made from the day the dismissal order is issued: only from this time is absenteeism forced.

Typically, the court considers valid reasons for an employee’s absence from the workplace to be those confirmed by documents or testimony:

Employee illness;

Transport delay in case of an accident;

Passing exams or tests without proper registration of study leave;

Floods and fires in the apartment and other circumstances.

Subparagraph “b” of paragraph 6 of Art. 81 Labor Code of the Russian Federation provides such grounds for dismissal as appearing at work in a state of alcohol, drug or other toxic intoxication . 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 under the Code of Civil Procedure of the Russian Federation. In any case, it is necessary to draw up an act on the commission of such a disciplinary offense, as required general rules bringing to disciplinary liability.

Subparagraph “c” of paragraph 6 of Art. 81 Labor Code of the Russian Federation a new ground for dismissal has been introduced, classified as gross violations - 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, including the disclosure of personal data of another employee. An employer can fire an employee for a one-time offense of this kind. Since the vast majority of employees do not know what is considered a commercial or official secret, much less any other secret, employers can abuse this basis for dismissal. Therefore, according to this issue Additional clarification is required - in particular, whether all employees of the organization are responsible for the non-disclosure of commercial or official secrets or only those whose employment contracts indicate the corresponding condition, whether what is specified in the organization’s charter is a secret protected by law, etc.

Subclause “d” of clause 6 of Art. 81 Labor Code of the Russian Federation contains a basis such as committing at the place of work theft (including small) of someone else's property, its embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of the relevant administrative body (police, for example). If there are no such documents, and there is only, say, a report from a watchman about an attempt to remove production products, the employee cannot be fired on this basis, otherwise the court, when considering a dispute over dismissal, will reinstate him at work, that is, the fact of theft must be established by the competent authorities. The one-month period for dismissal in this case is calculated from the moment the court verdict or decision of another competent body enters into force.

Subparagraph “e” of paragraph 6 of Art. 81 Labor Code of the Russian Federation provided as a basis for establishing by the labor protection commission or the labor protection commissioner violation by an employee of labor protection requirements, if this violation entailed serious consequences or knowingly created a real threat of such consequences . Serious consequences include an industrial accident, an accident, or a catastrophe. But the consequences indicated here or the obviously real threat of their occurrence must be proven by the employer when considering the dispute in court.

In addition to what has already been mentioned, clause 7 art. 81 Labor Code of the Russian Federation establishes the possibility of dismissing an employee who directly services monetary or commodity assets for committing guilty actions that give rise to loss of confidence in him on the part of the employer . On this basis, only an employee who directly services monetary or commodity assets can be dismissed, regardless of what type of material liability (limited or full) is assigned to him. In the absolute majority, these are the so-called financially responsible persons (by law or by contract), that is, sellers, cashiers, warehouse managers, etc. (you cannot include watchmen among them: they protect material assets that are under lock and key). The employer must prove the mistrust of the employee with facts (acts of calculation, weighting, shortage, etc.).

Clause 8 of Art. 81 Labor Code of the Russian Federation provides for dismissal for the commission of an immoral offense by an employee performing educational functions , incompatible with the continuation of this work. 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 in everyday life (for example, a teacher beats his wife, tortures his children). It should be noted that educational support staff cannot be dismissed on this basis. It is necessary to establish the fact of misconduct and the circumstances interfering with work activity.

Clause 9 of Art. 81 Labor Code of the Russian Federation establishes the employer's right to dismissal of the heads of an organization (branch, representative office), their deputies and chief accountants for making an unfounded decision that resulted in a violation of the safety of property, its unlawful use or other damage to the property of the organization . However, the unreasonableness of a decision is a subjective concept, and in practice it is assessed by the employer (individually or collectively). If an employee, by his decision, prevents a possible more harm property of the organization, such a decision cannot be considered unreasonable. If the specified in clause 9 situation, the employer must prove the employee’s guilt in a labor dispute. Dismissal on this basis is a disciplinary sanction, therefore the previously described rules must be observed.

Clause 10 of Art. 81 Labor Code of the Russian Federation considers as grounds for dismissal heads of organizations (branch, representative office), their deputies, chief accountants - one-time gross violation of their labor duties . This is also a disciplinary dismissal where the rules are followed Art. 193 Labor Code of the Russian Federation. The question of whether the violation committed is gross is decided by the court, taking into account the specific circumstances of the case. In this case, the responsibility to prove that such a violation actually took place and was of a gross nature lies with the employer. In accordance with clause 49 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004№ 2 As a gross violation of labor duties by the head of the 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 to the health of employees or property damage to the organization.

Clause 1 of Art. 336 Labor Code of the Russian Federation establishes the right to dismiss teacher for repeated gross violation of the charter of an educational institution within a year .

In addition, how those who have committed a disciplinary offense can be dismissed athletes for sporting disqualification for a period of six months or more , and for the use, including single use, of doping agents and (or) methods identified during doping control in the manner established in accordance with federal laws ( Art. 348.11 Labor Code of the Russian Federation).

A disciplinary sanction is a punishment imposed on a military personnel or employee in case of violation of established disciplinary norms. If you need to know exactly what you will encounter, you should familiarize yourself with the question in detail. Everything related to collection is considered in Article 192 of the Labor Code of the Russian Federation.

Types of disciplinary action

Disciplinary action is a common measure officially adopted in accordance with the law. There are several species with their own characteristics. After getting acquainted with them, a person will find out the details possible consequences one or another violation:

Comment

A reprimand is the simplest way of punishment from a boss or supervisory authority. In this case, collection occurs verbally, so it rarely entails serious consequences. Typically, such a penalty is a preliminary action, after which you will have to face a fine or dismissal.

A reprimand remains the simplest measure, so it is issued even for minor offenses, for example, being late.

Rebuke

A reprimand is a serious reprimand made in writing. Usually its appearance entails strict enforcement measures or “entering into a personal file.” This indicates a long validity period, so it will not be possible to remove it freely.

Here is a sample order to issue a reprimand:

In practice, such a punishment cannot be called weak, because depending on the offense, a fine is issued, or a demotion in position and rank occurs.

The reprimand is not eliminated in short term. This requires special conditions, as well as the mandatory absence of violations for a long time. Otherwise, management will increase the punishment, if necessary, going as far as dismissing the employee.

Dismissal

Dismissal is a categorical punishment from management. Such decisions are made in cases of serious violations of discipline or complete failure to comply with all instructions. Moreover, it is almost impossible to refute the decision, even using your own rights specified in the legislation of the Russian Federation.

Dismissal becomes the final measure of punishment. Such disciplinary action results in loss of employment and is supported by documented reasons. In such cases, it will not be possible to get away with a fine, no matter how much the employee insists on it, which is directly related to the seriousness of the reasons that led to the dismissal.

Procedure for applying disciplinary sanctions

It is described officially, and its details can be clarified in Article 193 of the Labor Code:

• The employer establishes the fact of a disciplinary offense by receiving a report containing the facts of the violations committed.

The administration is obliged to take into account not only the act committed, but also the circumstances that caused such actions;

• Before imposing any disciplinary sanction, you should require an explanation from the employee in writing:

• The employee has the right to refuse to disclose the reasons that led to the misconduct, after which a detailed report will be drawn up according to the following example:

• The decision on disciplinary action takes into account the decision of the trade union committee or other body representing the rights of employees. Disciplinary action may be imposed on the basis of criminal proceedings;
• The punishment is imposed exclusively in the form of an order and must be brought to the attention of the employee against signature within 3 days:

• The employee does not want to sign the notice, then the procedure for filling out the corresponding act is carried out.

Administration decision

Most often, disciplinary action is removed by decision of the administration. The reason may be the wrongness of the chosen method of punishment or the length of service of the employee. It’s rare that management wants to continue to punish an employee until the end of the term, so they use measures solely to intimidate the team.

If the administration makes a decision, the disciplinary sanction is lifted ahead of schedule, and the corresponding order is issued:

The employee is notified of this, but he should not commit the same offenses in the future, otherwise the sanction may be increased. An excellent example is dismissals after 3-4 late arrivals to the workplace.

Trade union committee decision

When issuing a disciplinary sanction, the decision of the trade union committee is also taken into account. It can also be used for early removal of a sentence. Such actions became possible after amendments were made to the Labor Code, where official representatives appeared responsible for the rights of employees. You can now seek help, which will be provided after a new review of the case.

The decision of the trade union committee is a complex issue. Until now, it is issued taking into account the wishes of management, so it does not always turn out to be correct. Most often, employees do not even try to contact the relevant authorities, although their support is indicated in the legislation of the Russian Federation.

Duration of disciplinary action

Disciplinary action can only be applied within 1 month from the day the violation was established. However, during this period the following intervals are not taken into account:

• sick leave;
• vacation pay;
• time required for agreement with the trade union.

This penalty cannot be applied within the following periods:

• After 6 months from the date of the disciplinary offense.
• After 24 months from the date of commission of the offense identified as a result of relevant checks.

These deadlines do not take into account the time it will take to conduct a criminal case (if it is opened).

Appealing a disciplinary sanction

An employee may appeal a disciplinary sanction if he does not agree with such a decision. To do this, he must contact the State Labor Inspectorate, the labor dispute commission or the court, drawing up the appropriate act according to the sample:

The petition should be drawn up as truthfully as possible, otherwise, if facts of fraud are established, the punishment may be increased.

You can file an appeal within 3 months from the date of the order. However, this period is reduced to 1 month if the result of the disciplinary sanction is dismissal.

There can be many reasons for an appeal, including:

• the order for collection was executed incorrectly;
• the penalty was issued in violation of the deadlines;
• the punishment was imposed while the employee was on sick leave or on vacation;
• the employee did not receive notice of the request.

After approval of the appeal, the body that made such a decision is obliged to take strict action against the head of the organization. The reason for this will be confirmation of the illegality of the actions.

Video: Disciplinary action in the workplace

The issue of disciplinary action will be fully discussed in the following video:

The procedure for making a decision requires detailed consideration at various levels. Disciplinary sanctions are drawn up only in writing, supported by the necessary documentation. There are certain validity periods, as well as instruments of influence for early removal of punishment.

Article 192. Disciplinary sanctions

For committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

1) remark;

2) reprimand;

3) dismissal for appropriate reasons.

Disciplinary sanctions, in particular, include the dismissal of an employee on the grounds provided for points 5, 6, 9 or 10 part one of article 81, paragraph 1 of article 336 or Article 348.11 of this Code, as well as paragraph 7, 7.1 or 8 of the first part of Article 81 of this Code in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by an employee at the place of work and in connection with the performance of his job duties.

Not allowed application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline.

When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.

Article 193. Procedure for applying disciplinary sanctions

Before applying disciplinary action, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.

Disciplinary action is applied no later than one month from day of discovery misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees.

A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction can be applied.

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up.

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

12 Characteristics of the grounds for dismissal of an employee

Agreement of the parties. On this basis, any type of employment arrangement can be annulled. This requires not only the consent of the employee, but also obtaining permission from the head of the organization.

The employment contract has expired. The contract, which was concluded for a short period of time until the moment when the absent worker takes up the position, is cancelled. The situation is the same with a seasonal work agreement. The employee must be informed in writing no later than 3 days before the end of the contract (except for termination of a fixed-term contract).

Cancellation of a contract at the initiative of the worker himself.

Transfer of an employee to another position in another company at his request or after receiving his consent to do so.

Disagreement to work in an organization if its subordination has been changed or reorganization has been carried out. Dismissal must occur no later than 3 months after ownership arose. If the employee is satisfied with everything, he can continue to perform his job duties.

Cancellation of the contract at the request of the head of the company.

If an employee refuses to perform his direct labor duties due to the fact that the terms of a previously concluded employment contract have been changed in some way.

The employee refused to be transferred to another position if such a transfer was necessary for him due to health reasons, and the current employer does not have the necessary conditions.

Refusal of a worker to perform his functions if the employer has been moved to another location.

If the rules for concluding an employment contract were violated, as a result of which further performance of job duties is impossible.

Violation of labor discipline by an employee and failure to fulfill his duties. This may include: absenteeism without a valid reason; showing up at the workplace while intoxicated, for which there is evidence; disclosure of official secrets, as well as violation of safety regulations by employees (which in turn led to grave consequences).

If an employee is not suitable for the position he occupies due to an insufficient level of qualifications. This must be confirmed by the results of the employee’s certification.

The employee will be laid off (if he does not belong to the category of people whose layoff is prohibited by law). This may be fraught with the application of various penalties to the employer who allowed this. All employees must receive notice of layoffs in writing 2 months before dismissal.

Bringing employees to disciplinary liability for committing disciplinary offenses in accordance with Article 22 of the Labor Code of the Russian Federation is right, and not the obligation of the employer, therefore, he is free to use it or not to use it. However, when using the right granted to him, the employer must be guided by the standards established by the Labor Code of the Russian Federation and other federal laws. In addition to legal ones, there are also social and ethical rules that a personnel officer, when applying disciplinary sanctions, must remember, know and follow as commandments.

Let's talk about them.

"Remember the essence"

According to part one of Article 192 of the Labor Code of the Russian Federation, disciplinary sanctions are applied for committing a disciplinary offense. The latter refers to the failure or improper performance by an employee, through his fault, of the labor duties assigned to him. In jurisprudence, a misdemeanor is not only a guilty act, but also an unlawful act of a person capable of delinquency (in this case, an employee).

What is meant by labor responsibilities? According to part two of Article 21 of the Labor Code of the Russian Federation, the employee is obliged to:

• conscientiously fulfill his labor duties assigned to him by the employment contract;
• comply with internal rules labor regulations organizations;
• observe labor discipline;
• comply with established labor standards;
• comply with labor protection and occupational safety requirements;
• treat the property of the employer and other employees with care;
• immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the employer’s property.

This formulation of the norm gives grounds to conclude that disciplinary sanctions can only be applied for failure to perform or improper performance of those job duties that are associated with execution labor function and are directly indicated in the employment contract, and all other obligations (for example, to observe labor discipline, fulfill labor protection requirements, etc.) remain outside the scope of part one of Article 192 of the Labor Code of the Russian Federation. These conclusions have no basis, since this norm implies the entire set of labor responsibilities of an employee assigned to him within the framework of labor relations, and not just the labor function. Most often, the employee’s responsibilities listed in part two of Article 21 of the Code are fully reproduced in the text of the employment contract, and thus ambiguities are eliminated: for non-fulfillment or improper fulfillment of any of them, disciplinary sanctions may be applied to the employee.

Analyzing the essence of disciplinary action, one cannot ignore the following question. Cases of bringing an employee to disciplinary liability for actions not related to the performance of work duties still occur. Thus, employers often apply disciplinary sanctions for “inappropriate behavior that disgraces the honor of the work collective” after bringing an employee to administrative responsibility, for example, for petty hooliganism, other offenses not related to the employee’s work activity and committed by him outside working hours and outside the employer’s assignment .

Disciplinary action may be taken only for failure to perform or improper performance of labor duties, that is, duties conditioned by the existence of an employment relationship between employee and employer. Meanwhile, exceptions to this rule are possible, and they are provided for by federal laws in relation to certain categories of government employees. For exam- duties, but also committing offenses that discredit the honor of a prosecutor.

In local regulations of organizations, disciplinary offenses for the purpose of determining schemes for applying disciplinary sanctions are divided into two groups:

• non-fulfillment or improper fulfillment of duties stipulated by employment contracts, job and production (by profession) instructions;
• violation of labor discipline, that is, violation of the rules of conduct mandatory for all employees, determined in accordance with the Labor Code of the Russian Federation, federal laws, collective agreements, agreements, employment contracts, local regulations of the organization, as well as disobedience of employees to these rules.

As already noted, any differentiation of disciplinary sanctions depending on what occurs - failure to fulfill labor duties or their improper performance - is not provided for by law. At the same time, if it is established in local regulations, then it should be assumed that the criteria for the proper performance of duties are:

• proper way;
• due date;
• proper place;
• proper volume;
• proper subject;
• other.

One of the qualifying signs of a disciplinary offense is guilt the employee who committed it. In law, guilt is understood as a person’s mental attitude, in the form of intent or negligence, to his unlawful behavior and its consequences. Guilt in the form of intent means that a person foresaw the illegality of his behavior and the possibility of negative consequences, desired or allowed them and consciously, intentionally did not take measures to prevent them; in the form of negligence - a person foresaw the possibility of harmful consequences of his action or inaction, but frivolously counted on their prevention or did not foresee the possibility of such consequences, although he should and could have foreseen them. For the institution of disciplinary responsibility, the form of guilt is not of fundamental importance. However, the theory of law, as well as the codes of the Russian Federation, have not found a more successful definition of guilt, except by revealing the essence of its forms.

Before applying disciplinary action to an employee, it is necessary to establish the existence of guilt. The most common disputes are regarding lateness to work due to transport problems, poor weather conditions, which the employee is not able to foresee, even if he wishes. The courts have more than once found the application of disciplinary sanctions for absenteeism to be unlawful due to the fact that the employee was not to blame for his absence from the workplace for more than 4 hours in a row during the working day. In order for absence from work to fall under “truancy”, it must be due to unjustified reasons. Whether the reason given by the employee is valid is determined by the employer. However, the court’s point of view does not always coincide with the employer’s opinion. Thus, the administrative detention of an employee, carried out on legal grounds, was recognized by the court as a valid reason for the employee’s absence, and his dismissal for absenteeism was unlawful.

The list of circumstances, as well as the reasons for the employee’s absence from the workplace, giving the employer grounds for applying disciplinary sanctions, was determined by Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” (as amended . as of November 21, 2000). First of all, equated to absenteeism without a good reason :

a) abandonment of work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the contract, as well as before the expiration of the 2-week warning period;

b) abandonment of 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;

c) the employee stays without good reason for more than 4 hours during the working day outside the territory of the enterprise, institution, organization or outside the territory of the facility, where he, in accordance with his job duties, must perform the assigned work;

d) unauthorized use of days off, as well as unauthorized departure on vacation (main, additional). It must be taken into account that the use of rest days by an employee is not considered absenteeism in the case where the employer, contrary to the law, refused to provide them, and the time the employee used such days did not depend on the discretion of the employer.

In addition, absenteeism is considered absenteeism due to the employee’s disagreement with a transfer made in compliance with the law.

The following are not considered absenteeism:

• employee failure to attend public events;
• employee’s avoidance of performing actions not related to work duties;
• the employee’s refusal to start work to which he was transferred in violation of the law;
• an employee being, without good reason, not at his workplace, but in the premises of another or the same workshop, department or on the territory of an enterprise or facility where he must perform labor functions;
• removal of an employee from work by the employer.

Disputes about the legality of applying disciplinary sanctions due to the employee’s innocence also occur in relation to other disciplinary offenses. IN judicial practice there were decisions when improper execution job responsibilities was not recognized as a disciplinary offense for the reason that the incorrect wording of the duties did not make it possible to determine how the employee should fulfill these duties, and therefore, the employee’s guilt could not be considered established.

Another category of controversy concerns periods application of disciplinary sanctions. So, the natural question is whether it is possible to bring an employee to disciplinary liability during the probationary period? After all, an employee is hired on the condition of a test in order to check his compliance with the assigned work? Here it should be assumed that the legislation does not provide for any restrictions on the application of disciplinary sanctions during the probationary period. Basically, disputes about dismissal under Article 71 of the Labor Code of the Russian Federation are based on the fact that violation of labor discipline, and primarily tardiness, is cited as an unsatisfactory test result. The employees’ position boils down to the fact that the test was assigned to them in order to test their business qualities and qualifications, and being late does not indicate that their knowledge and professional qualities do not allow them to perform the work assigned to them. To avoid such disputes, employers should not only keep records of all violations of labor discipline, but also promptly apply disciplinary sanctions.

"Don't invent"

Before the introduction of the Labor Code of the Russian Federation, every self-respecting market-type employer invented new types of disciplinary sanctions. The Labor Code of the Russian Federation was ignored under the pretext that it did not meet modern conditions of economic development.

We know nothing about punishment with canes in the nineties of the last century, but “salary reductions” took place at every step. It was designated by a capacious word - “fine”. Fines were imposed not only by small and medium-sized enterprises, but also by large enterprises that declared law-abidingness as the main corporate value. Often, deprivation of bonuses was prescribed in the internal labor regulations or personnel regulations in the “Disciplinary Liability” section. Transfers to a lower-paid job or a lower position were also considered an effective measure to combat failure to fulfill official duties, failure to comply with standards, and violation of labor discipline.

It cannot be said that all employers were so bloodthirsty. There was another category - loyal and progressive, who believed that the effect of persuasion, educational conversations and oral comments could be greater than that of punishment. Conversations and persuasion do not seem to be disciplinary sanctions subject to recording, but with their help they can also influence an employee who improperly performs his duties, ignores labor discipline, etc. However, in order for all these verbal “warnings” and “appearances” not to be forgotten, accounting was still required, as well as a description of the schemes for using each of them. So disciplinary sanctions were included in local regulations, imposed orally and not providing for detailed recording, and therefore, compliance with labor legislation.

Illusions of the early-mid-nineties of the last century that the new Labor Code of the Russian Federation should provide for European methods of dealing with negligent workers, allowing for free disposal of size wages, and a simplified dismissal procedure, dissipated as orders were issued by the state labor inspectorate. They finally disappeared after the introduction of the Labor Code of the Russian Federation, which directly prohibited employers from inventing new disciplinary sanctions.

So, let us turn once again to Article 192 of the Labor Code of the Russian Federation. According to its first part, the employer has the right to apply the following 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 disciplinary sanctions (part two of Article 192). The application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted (part three of Article 192).

If you are a commercial organization, stop trying to find federal laws that complement the list of types of disciplinary sanctions. In relation to Article 192 of the Labor Code of the Russian Federation, among the federal laws that expand the list of types of disciplinary liability, or, in legal terms, regulating the procedure for bringing to special disciplinary liability, the first should be called the Federal Law of July 31, 1995 No. 119-FZ “On the Fundamentals of the Russian Civil Service Federation" (as amended on 07.11.2000). Along with measures of general disciplinary liability (reprimand, reprimand, dismissal), its Article 14 provides for a warning about incomplete official compliance, as well as a still severe reprimand. In the Law of the Russian Federation “On the Prosecutor’s Office of the Russian Federation,” the list of disciplinary sanctions is supplemented by a reduction in class rank, deprivation of the badge “For impeccable service in the Prosecutor’s Office of the Russian Federation,” and deprivation of the badge “Honorary Worker of the Prosecutor’s Office of the Russian Federation.” In fact, all of the listed special types of disciplinary sanctions are, to one degree or another, reproduced in other federal laws dealing with civil servants.

Considering that by introducing your own “Regulations on Discipline” you automatically apply to yourself the norm of part two of Article 192 of the Labor Code of the Russian Federation, you are committing nothing more than a legal error. It “stretches back” from the time of the Labor Code of the RSFSR, when the nature of such documents as charters and regulations on discipline was not defined. Part two of Article 130 of the Labor Code of the Russian Federation only provided that in some sectors of the national economy, statutes and regulations on discipline apply to certain categories of workers. The new owners of industry-forming enterprises used this norm in their own way and adopted charters and regulations in the form of local regulations. The Labor Code of the Russian Federation fills this gap - it is established that charters and regulations on discipline for certain categories of workers are approved by the Government of the Russian Federation in accordance with federal laws (part five of Article 189). Even now, no one prohibits an employer from adopting a local regulatory act that specifies the internal labor regulations regarding disciplinary liability and calling it a “regulation.” However, it will not fall under the provisions of parts two and three of Article 192 of the Labor Code of the Russian Federation, and therefore should only provide for penalties established by the Labor Code of the Russian Federation.

The disciplinary statutes and regulations provided for by this norm, in particular, include:

• Regulations on discipline of railway transport workers (approved by Decree of the Government of the Russian Federation of August 25, 1992 No. 621 (as amended on May 24, 2002);
• Charter on discipline of workers of the fishing fleet of the Russian Federation (approved by Decree of the Government of the Russian Federation of September 21, 2000 No. 708);
• Charter on discipline of maritime transport workers (approved by Decree of the Government of the Russian Federation dated May 23, 2000 No. 395);
• Charter on discipline of employees of organizations with particularly hazardous production in the field of atomic energy use (approved by Decree of the Government of the Russian Federation of July 10, 1998 No. 744);
• Disciplinary charter of militarized mine rescue units in transport construction (approved by Decree of the Government of the Russian Federation of July 30, 1994 No. 879) and others.

The Disciplinary Charter of the Customs Service of the Russian Federation stands somewhat apart - it was approved not by the Government of the Russian Federation, but by the President of the Russian Federation (Decree No. 1396 of November 16, 1998).

To prevent inventions from continuing, let us pay attention to the following points.

1. Fines . In jurisprudence, a fine is understood as one of the types of liability, expressed in a sum of money, which is subject to recovery from the person who committed a crime or infraction and is assigned within the limits provided for by criminal law, legislation on administrative offenses, tax and customs legislation, and other branches of legislation. Bodies and their officials whose jurisdiction provides the authority to resolve legal disputes and resolve cases of offenses, assess the actions of subjects of law from the point of view of their legality or illegality are authorized to impose fines. The exception is civil law relations, in which a fine is understood as one of the types of penalties, that is, a sum of money established by law or contract that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of the obligation.

The employer’s desire to introduce a system of fines is often due not to the fact that the employee does not fulfill duties or production standards at all, but to the fact that the duties are performed improperly - not in full, untimely or formally, production does not meet the specified standards, etc. The indignation of employers that in most European countries wage reductions are legalized, but in Russia they are not, is not entirely justified. According to Article 8 of the ILO Convention on the Protection of Wages (01.07.1949 No. 95), deductions (deductions) from wages are permitted under the conditions and within the limits prescribed by national legislation or determined in a collective agreement or in a decision of an arbitration body. Russian labor legislation really limits the cases and grounds for deductions from wages. However, many employers still have not read the Labor Code of the Russian Federation to the end and have not discovered the norm contained in part three of Article 155. It directly establishes that in case of failure to fulfill labor standards (job duties) due to the fault of the employee, payment of the standardized part of the salary is made in accordance with with the amount of work performed. So far, this norm seems suitable only for material impact on workers and subject to labor rationing. In relation to employees whose job responsibilities are very difficult to account for, recommendations for its use have not yet been fully developed. In order for part three of Article 155 of the Labor Code of the Russian Federation to become working and its application to be legal, in job descriptions employees, production instructions, workers need to determine the mechanism for recording the performance of duties, as well as fulfill the requirements of Article 163 of the Labor Code of the Russian Federation.

It is advisable to describe in detail the scheme for applying the third part of Article 155 of the Labor Code of the Russian Federation either in the internal labor regulations, or in the regulations on payment or another act, but at the same time not classify these actions of the employer as disciplinary sanctions, much less call them fines.

2. Deprivation of bonuses or “deprivation of bonuses.” This is a more legalized form of material influence on the employee. At the same time, it does not apply to disciplinary measures.

The Legal Department of the Ministry of Labor of Russia back in 2000, in its letter dated July 31, 2000 No. 985-11, explained that the legislation does not contain the concept of “deprivation” of a bonus; The legislation proceeds from the fact that failure to pay a bonus to a violator of labor discipline is not a disciplinary sanction. In each specific case, such issues are resolved in the manner established by the current regulations on bonuses in the organization. This legal position is also true in relation to the Labor Code of the Russian Federation. However, it is necessary to pay attention to the definition of the concept of “wages” contained in Article 129 of the Labor Code of the Russian Federation, from which it follows that wages are remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation and incentive payments; therefore, it also includes various types of bonuses. In order for a bonus to truly meet the criteria for an “incentive payment”, the regulations on bonuses or regulations on remuneration, or other local regulatory legal act regulating issues of remuneration, should define a list of grounds for its payment and describe the system for recording them. But it is not necessary to describe for which offenses the bonus is not paid - for legally significant reasons, the employer’s actions will be subject to disciplinary measures against the employee.

At the same time, in the provision on bonuses or other local regulations, it is possible to link the deprivation of a bonus or a reduction in its size with disciplinary sanctions (for example, “a bonus is not paid to employees who have disciplinary sanctions”). With this approach, it is advisable for the employer to determine periods of non-payment of the bonus (for example, specify that the condition for payment of the bonus is the absence of disciplinary sanctions by the employee during the period of work for which the bonus is accrued).

As for other forms of monetary pressure on employees for disciplinary offenses, invented for last years- deprivation of percentage bonuses, bonuses for the special nature of work, reduction of travel expenses or vacation pay - then they directly contradict the current legislation, and the employee’s first appeal to the state labor inspectorate or to the court will confirm this. The decision of the latter will already relate to the methods of monetary influence of the state on the employer.

By the way, despite accusations of Belarus of the old, Soviet type of government, its Labor Code is more specific regarding these issues. Article 198 of the Labor Code of the Republic of Belarus establishes that “the following may be applied to employees who have committed a disciplinary offense, regardless of the application of disciplinary measures: deprivation of bonuses, change in the time of provision labor leave and other measures"; “the types and procedure for applying these measures are determined by the internal labor regulations, collective agreement, agreement, and other local regulations.”

What conclusions can be drawn from the above?

Since neither payment of wages in accordance with the amount of work performed, nor deprivation of bonuses (deprivation of bonus, reduction in its size) are disciplinary measures, they:

a) can be applied simultaneously with disciplinary sanctions;

b) their use is not taken into account when dismissing an employee for repeated failure to fulfill job duties.

3. Warning, censure. Despite the fact that a warning as a legal means of influence refers to measures of administrative liability, the requirement for its compliance with the characteristics enshrined in the Code of Administrative Offenses of the Russian Federation is not as strict as in relation to a fine; especially if it is specified as “a warning about the application of disciplinary measures.” Along with the concept of “warning”, such a form of influence as “put on sight” is used. In fact, these are equivalent concepts - an employee who has committed an offense is warned that if he commits an offense again, he will be “put on notice”, “put under control”, etc. “Censure”, at its core, is a concept of the same kind. Blame is understood as a statement in which the speaker expresses a negative assessment of the employee’s action, his behavior, with the aim of causing a negative emotional reaction in the latter.

Such measures of influence, as a rule, are introduced in organizations whose management does not seek to “cut from the shoulder” and fire people for minor offenses. In case of a minor violation of labor discipline, for example, taking a smoke break before the lunch break, an educational conversation is held with the employee; the employee is warned that if a similar offense is committed again, he will be subject to disciplinary action in the manner prescribed by the Labor Code of the Russian Federation. At the same time, in local regulations these events are often called corporate disciplinary sanctions.

Do not neglect the law and call things by their proper names. Warning, reprimand, etc. can be considered disciplinary measures impact, but not to disciplinary measures responsibility and not to types of disciplinary penalties. In the theory of personnel management, disciplinary action is understood as instruments of both a positive influence on personnel (encouragement) and a negative one (sanctions, team reaction, etc.). Warning and censure are in the field of employee education, which does not have any legal consequences. Their main goal is to show the employee that he has shortcomings, to help overcome negative traits in behavior and communication with people, and to develop respect for the rules accepted in the organization.

The form of recording and recording such measures of influence on an employee can be either oral or written.

In general, warning, censure, etc. are a kind of analogue of the measures of social influence provided for by Article 138 of the previously in force Labor Code of the Russian Federation, according to which the administration has the right, instead of applying a disciplinary sanction, to refer the issue of violation of labor discipline to the consideration of the work collective, and the latter to apply such measures of social influence as a comradely remark, a public reprimand .

Provided that local regulations provide for the possibility of making a decision to issue a warning to an employee or to censure him by the work collective, all mechanisms must be spelled out in detail in these acts. If written records of such measures are kept, it is necessary to remember that in the case where, upon committing a disciplinary offense, the employer limited himself to censure and there is written confirmation of this, then the application of a disciplinary sanction for the same offense may be considered unlawful. To such a situation, the courts, by analogy, can apply the provision of paragraph 29 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes,” according to which, if the employer, instead of applying disciplinary action to the employee, penalties referred the issue of his violation of labor discipline to the consideration of the labor collective, by whose decision social sanctions were applied to the employee, he does not have the right to subject the violator to disciplinary action for the same offense, since he did not take advantage of the right granted to him to bring the employee to disciplinary liability. Therefore, you should review your local regulations regarding the mechanism for applying disciplinary measures in conjunction with disciplinary sanctions. Remember that since the Labor Code of the Russian Federation does not contain norms regulating the procedure for applying measures of social influence, your local regulations will be carefully studied by the court and the state labor inspectorate.

"Remember the deadlines"

According to part three of Article 193 of the Labor Code of the Russian Federation, disciplinary sanction is applied no later than 1 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 required to take into account the opinion of the representative body of employees. Part four of the same article establishes that a disciplinary sanction cannot be applied later than 6 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 2 years from the date of its commission; the specified time frame does not include the time of criminal proceedings.

With disciplinary action, you cannot be late. You must always remember about deadlines. It is with verification of compliance with established deadlines that state labor inspectorates and courts that consider disputes related to disciplinary action begin.

Let us analyze the above provisions of Article 193 of the Labor Code of the Russian Federation and determine from what moment the calculation of the monthly period begins. Based on the wording of part three of Article 193 of the Labor Code of the Russian Federation, the period is counted from the moment detection misconduct, it does not matter how it was discovered. For example, the obligation to detect lateness for work by the employee’s immediate supervisor in the system of recording work attendance at the checkpoint is controversial. In this case, the employee’s attendance at work is recorded by a special employee who records the time of employees’ attendance and, accordingly, is the first person to detect a violation of labor discipline. The same can be said in relation to personnel department employees, who, by the regulations of the department and (or) job descriptions, may be given the authority to exercise discipline control in various forms (workplace inspections, etc.). In this case, it will be these workers who will record the fact of violation of labor discipline.

But, at the same time, in most cases, the person who has the opportunity to detect a disciplinary offense is the employee’s immediate supervisor. Thus, the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” determined that the day of detection of the misconduct, from which the month period begins, is considered the day when the person in service the employee is subordinated, it became known about the commission of an offense, regardless of whether it is vested with the right to impose disciplinary sanctions or not.

Neither the Labor Code of the Russian Federation nor other acts of labor legislation contain an explanation of how to count the monthly period in the event of a long absence of an employee. In order for the deadlines established by part three of Article 193 of the Labor Code of the Russian Federation to be formally met, as well as to find out the reasons for the employee’s long absence from work, logically, the starting point should begin from the last, and not from the first, day of absenteeism. This legal position can also be seen in court decisions. However, this is only possible if the misconduct ends, that is, the employee shows up for work. How to act in case of long-term absenteeism and fulfill the requirements of Article 193 of the Labor Code of the Russian Federation is explained in detail below.

By virtue of the law, the monthly period for applying a disciplinary sanction does not count only the time the employee is ill or on vacation; absence from work for other reasons, including in connection with the use of days of rest (time off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the flow of the specified period. Vacation that interrupts the course of a month should include all vacations provided by the employer in accordance with current legislation, including annual (main and additional) vacations, vacations in connection with training in educational institutions, short-term vacations without pay, and others.

In addition, as established by part three of Article 193 of the Labor Code of the Russian Federation, the time required to take into account the opinion of the representative body of workers when it comes to applying a disciplinary sanction in the form of dismissal against a member of a trade union is not included in the monthly period.

How to record the fact of committing an offense? After all, before the employer issues an order (instruction) to apply a disciplinary sanction, a lot can change (the exact date of the offense, its essence, etc. will be forgotten). To record the date and substance of the disciplinary offense, the documents listed in the next section of this publication can be used.

When applying a disciplinary sanction in the form of dismissal under subparagraph “d” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation, the monthly period is calculated from the date of entry into force of the sentence that established the employee’s guilt in theft of someone else’s property, or the resolution of the competent authority to impose penalties on the employee for this offense administrative penalty. Regarding the last act - the resolution of the body authorized to draw up protocols on administrative offenses - there are several features that must be taken into account:

• 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. It does not apply to other offenses;
• if the same offense, in accordance with local regulations, relates to disciplinary offenses, and in accordance with the Code of Administrative Offenses of the Russian Federation - to administrative offenses, and a case of an administrative offense is initiated, then the month period begins from the moment the offense is discovered, and the employer is not charged link the application of disciplinary sanctions with the decision to bring to administrative responsibility. For example, an inspection of a store conducted by officials of control and supervisory authorities revealed an offense such as failure to use a cash register when releasing goods to customers. A protocol on an administrative offense under Article 14.5 of the Code of Administrative Offenses of the Russian Federation was drawn up. However, this offense is also a disciplinary offense, since the obligation to use the cash register is assigned to the seller by his employment contract and production (by profession) instructions. If the employer waits for the decision of the control and supervisory authority, then he risks missing the month deadline established by Article 193 of the Labor Code of the Russian Federation, since the time frame for investigation and consideration of a case of an administrative offense established by Articles 28.7 and 29.6 of the Code of Administrative Offenses of the Russian Federation is equal to one and a half months and may be in the case the complexity of the cases under consideration has been extended for another 1 month. Since the moments of detection of administrative and disciplinary offenses coincide, in practice events will develop in such a way that during the investigation and consideration of the offense, the period for imposing a disciplinary sanction will expire before the decision to impose an administrative penalty is issued. When applying a disciplinary sanction in cases similar to the example described, it should be remembered that as a result of the investigation and consideration of an administrative offense, it may be established that the employee is not at fault, and then he will have grounds to go to court or the state labor inspectorate.

Part four of Article 193 of the Labor Code of the Russian Federation establishes that disciplinary sanction cannot be applied later than 6 months from the date committing misconduct, and based on the results of an audit, inspection of financial and economic activities or an audit - later than 2 years from the date of its commission; the specified time frame does not include the time of criminal proceedings.

Naturally, this rule can be applied to an employee who continues to work in the organization. If the fact of committing a disciplinary offense is established after the employee’s dismissal, there can be no question of disciplinary liability.

At the same time, the employer has the right to apply a disciplinary sanction to the employee even if, before committing this 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. This follows from paragraph 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes.”

The six-month period from the date of commission of a disciplinary offense corresponds to the one-month period from the date of discovery of the misconduct as follows. If the offense was committed, for example, on April 1, and the employer discovered it on August 1, then until September 1, the employer can apply a disciplinary sanction to the employee. If the employer discovered it on September 1, then the penalty can be applied only until October 1. But if the offense was discovered on October 1, then the 6-month period from the date of its commission has expired, and, therefore, the employer cannot exercise its right to bring the employee to disciplinary liability. The exception is cases when the misconduct is discovered as a result of an audit, inspection of financial and economic activities or an audit. Then the period for applying a disciplinary sanction increases to 2 years from the date of commission of the offense. However, the limitation on within a month, provided for in part three of Article 193 of the Labor Code of the Russian Federation.

"Be scrupulous"

Scrupulous recording of facts of disciplinary offenses is necessary. Firstly, in order not to forget about exact date their commission and essence, and secondly, in order to have a documentary basis for the head of the organization to issue an order (instruction) to apply a disciplinary sanction, if the employee’s immediate supervisor is not vested with the authority to apply disciplinary sanctions.

HR practice has developed two approaches to the preparation of documents confirming the commission of a disciplinary offense:

• upon failure to perform or improper performance of labor duties stipulated by the employment contract, the employee’s immediate supervisor draws up a proposal to bring the employee to disciplinary liability;
• on the fact of violation of labor discipline, non-compliance with internal labor regulations, a report is drawn up.

A relatively small number of organizations delegate the authority to apply disciplinary sanctions to heads of structural units. As a rule, these employees are given the right to submit representations to the head of the organization (deputy head of the organization for personnel) about bringing the employees subordinate to them to disciplinary liability. The expediency of preparing such a presentation is explained by the fact that only the employee’s immediate supervisor can determine whether the employee, for example, is properly performing his job duties. Practitioners proceed from the fact that to confirm the fact of non-fulfillment or improper performance of functions, it is not necessary to involve other employees, and therefore, it is inappropriate to draw up a report. As an example of presentation, the form given in the “PAPERS” section can be used. His immediate superior can also notify the head of the organization that an employee has committed a disciplinary offense by sending a memo. And only if he wants to protect himself from accusations of bias, and also distribute the burden of his responsibility to other employees, the fact of committing a disciplinary offense can be recorded using an act.

It is advisable to draw up an act in the event of detection of violations of labor discipline, identification of facts of non-compliance with internal labor regulations. Thus, if control over labor discipline is carried out by employees of the personnel department, and during workplace inspections they revealed facts of being late for work, leaving the workplace during the working day, absenteeism, appearing at work in a state of intoxication, etc., then such offenses it would be correct to reflect it in an act signed by several employees (approximate forms of acts, as well as examples of their completion, are given in the “PAPERS” section).

Scrupulousness is necessary not only when drawing up representations and acts, but also when taking into account all disciplinary sanctions imposed on the employee. Since labor legislation prohibits the entry of information about disciplinary sanctions into work books, and the personal card does not provide columns for entering such information, the employer establishes the forms and methods for recording disciplinary sanctions independently. As a rule, an extract from the order (instruction) of the head of the organization on the application of a disciplinary sanction, as well as representations, acts and other documents that served as the basis for issuing the order, are filed in the employee’s personal file. Instructions for record keeping in an organization may stipulate that an order (instruction) to apply a disciplinary sanction is placed directly in the personal file or compiled into a separate file “Orders for personnel (personnel).”

Since orders (instructions) on penalties, in comparison with other orders regarding personnel, have a shorter storage period (only 5 years), practice has developed another way of entering information about the application of a disciplinary sanction to an employee into a personal file - by maintaining a sheet (sheet , cards) of rewards and penalties, which is stored in the employee’s personal file throughout his entire work in the organization. Such a document was necessary for the personnel service to determine the possibility of rewarding the employee in accordance with part three of Article 137 of the Labor Code of the Russian Federation, which established that during the period of validity of the disciplinary sanction, incentive measures are not applied to the employee. The Labor Code of the Russian Federation does not contain a ban on rewarding employees who have disciplinary sanctions. Meanwhile, personnel services continue to keep records of penalties to determine the employee’s right to promotion, the degree of the next penalty imposed, taking into account the existing one, to timely remove disciplinary sanctions, etc. It would be more correct to call such a document a “sheet of penalties”, since to reflect information about incentives, the corresponding section is provided in the personal card (the list of penalties can be maintained in the form given in the “PAPERS” section).

Gazette of the Supreme Soviet of the USSR, No. 20(83), 07/05/1940.

"Listen to the explanation"

The employer is obliged to listen to the employee’s explanations before applying disciplinary collection. Moreover, by virtue of the first part of Article 193 Labor code RF, he must require explanations in writing.

The employee can present his explanations in various ways.

First of all - in the explanatory note . It is advisable that this document be drawn up by the employee in any form by hand. However, in a number of organizations, in order for the explanations to be harmonious and logical, the practice is to use template forms in which the employee is asked to fill out columns (rows, cells) intended to answer the questions: what are the reasons (motives) for committing a disciplinary offense, does the employee consider himself guilty of the misconduct; if not, then who, in the employee’s opinion, should be subject to disciplinary action. The explanatory note is addressed either to the head of the organization, or his deputy for personnel, or the head of the personnel department, or the head of the structural unit that includes the employee. Who specifically should be defined in the local regulations of the organization.

The second option for obtaining explanations is to record the employee’s explanations in an act drawn up upon the commission of a disciplinary offense , by certifying the employee’s explanations with his signature.

According to part two of Article 193 of the Labor Code of the Russian Federation, an employee’s refusal to give an explanation is not an obstacle to the application of disciplinary action. However, it does not at all follow from this that if an employee refuses to explain the reasons for his behavior, then the employer can safely apply disciplinary action. The refusal must be recorded- either in an act drawn up upon the commission of a disciplinary offense, or in a separate act on refusal to give explanations. In the first case, after stating the essence of the offense and the signatures of the compiler and those present, a note is made that the employee refused to provide explanations, and the persons involved in drawing up the act once again put their signatures.

One of the most difficult situations in personnel practice is long absence. The employee does not show up for work and does not provide any information about himself or the reasons for his absence. The employer suffers losses - the work is not completed, it is impossible to fire the employee, since the reasons for the absence are unclear, and the staffing table does not allow hiring a new employee. In this case, the employer can be advised only one thing: to send a notification letter to the employee’s known place of residence or location, in which he is required to explain the reason for his long absence from work and warn that if within a certain period of time from does not receive a response, the employer will exercise its right to apply disciplinary sanctions, up to and including termination of the employment contract under subparagraph “b” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation. It should be noted here that when considering cases of reinstatement at work of those dismissed for long absence, the courts resolved this issue differently: there were also cases of reinstatement because the employee long time was absent due to temporary incapacity for work, and there was no opportunity to notify the employer, and cases of dismissal for long absence of an employee who never showed up for work were recognized as lawful.

If there are doubts about the veracity of the information received from the employee as a result of his explanations, the HR department checks them. For example, a human resources inspector may call the employee's home health department and find out whether there was a plumbing malfunction that the employee cited as the reason for his tardiness. If an employee has submitted a certificate of temporary incapacity to work to justify the reason for his absenteeism, but there are doubts about its authenticity, a HR specialist can contact a special unit of the Federal Social Insurance Fund of Russia, which monitors the legality of issuing certificates of incapacity for work.

The reasons for the employee’s failure to fulfill his official duties, listed in the explanatory note, should be analyzed together with the employee’s immediate supervisor. In addition, it will be necessary to study the terms of the employment contract describing the employee’s job function and job responsibilities, the provisions of the job description and other documents relating to the employee’s job function.

"Don't overdo it"

According to part five of article 193 of the Labor Code of the Russian Federation For each disciplinary offense, only one disciplinary sanction can be applied .

It is unacceptable for an employee to be subject to one disciplinary sanction, for example a reprimand, for committing one disciplinary offense, and then another for the same offense. If, for example, an employer reprimanded the employee for appearing at work on April 7, 2003 while intoxicated, and issued a corresponding order, then he does not have the right to apply a disciplinary offense to the same employee for the same disciplinary offense (that is, for appearing at work on April 7, 2003). year under the influence of alcohol) a second disciplinary sanction, for example, dismissing an employee under subparagraph “b” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation. Having reprimanded the employee, the employer exercised his right to choose the type of disciplinary sanction, and he has no right to change his decision.

Another thing is a continuing disciplinary offense, that is, an offense that continues over a long period of time. If, upon discovering a disciplinary offense, the employer applied a disciplinary sanction, but this disciplinary offense continues (it is this offense, and not the next one, even a similar one), then in accordance with the explanations of the Supreme Court of the Russian Federation (paragraph 32 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation when resolving labor disputes” (as amended on November 21, 2000), it is permissible to apply a new disciplinary sanction to an employee, including dismissal on appropriate grounds.

A continuing offense continues uninterrupted until it is stopped. The employer applies disciplinary action precisely for the purpose of suppressing behavior expressed in non-fulfillment or improper fulfillment of a specific job duty. If it is not fulfilled, that is, it was not possible to stop this disciplinary offense by bringing the employee to disciplinary liability, the employer has the right to apply a new disciplinary sanction for the same offense. For example, an employee was reprimanded for late preparation of reports for the first quarter. However, even after the disciplinary sanction was applied, the employee did not prepare reports within the time allotted to him by the employer. In this case, the employer did not stop the misconduct by applying a disciplinary sanction, and he has the right to exercise his right to apply a new disciplinary sanction. Naturally, everything said is lawful only if the employee is really guilty of committing an offense.

Repeated offense is another matter. This is understood as an offense committed again after a certain time has passed after the suppression of a similar offense. Let's take the same example. After being reprimanded for untimely preparation of reports for the first quarter, the employee prepared the reports within the time limits established by the order (instruction) on the application of disciplinary action. When preparing reports for the second quarter, the employee again violated the deadlines for preparing reports, that is, he committed a similar offense. In this case, the employer cannot use the above clarification of the Supreme Court of the Russian Federation.

As for repeated disciplinary offenses, for the application of paragraph 5 of Article 81 of the Labor Code of the Russian Federation, it is not of fundamental importance whether a similar offense was committed or another. By the way, employers need to be careful here. This provision provides that the basis for dismissal is only repeated failure to fulfill duties in conjunction with disciplinary action, but not repeated improper performance of job duties. This formulation already allows employees to defend their case in the courts, citing the fact that they only improperly fulfilled their duty, and therefore, there are no grounds for dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation.

The law does not prohibit an employer for the same offense bring the employee to both disciplinary and financial liability . If the purpose of the first is to suppress the misconduct, then the purpose of the second is to compensate for the damage caused to the employer, including as a result of the commission of the misconduct. This follows from part six of Article 248 of the Labor Code of the Russian Federation: “compensation for damage is made regardless of the employee being brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer.” When bringing an employee to disciplinary and financial liability at the same time, the employer must fulfill the requirements established by both Chapter 30 and Chapter 37 of the Labor Code of the Russian Federation.

In the same way, he is not bound by the prohibition on the use of such measures of material pressure on an employee for failure to perform or improper performance of labor duties, such as deprivation of bonus or reduction in its size . If a disciplinary sanction was applied to an employee (for example, a reprimand) and if, in accordance with a local regulatory act of the organization (for example, a regulation on bonuses or regulations on wages), this is reflected in the amount of the bonus or its payment in general, then deboning or paying the bonus in a smaller amount cannot be considered a second disciplinary sanction (see the commandment “Thou shalt not invent”).

Suspension from work is not a disciplinary sanction. , carried out according to the rules established by Article 76 of the Labor Code of the Russian Federation. The employer has the right to apply disciplinary sanctions to an employee who, through his (the employee’s) fault, has not undergone a mandatory periodic medical examination in the prescribed manner, and at the same time is obliged to remove him from work. The same actions can (in relation to the application of disciplinary sanctions) and must be taken (in relation to removal) if the employee, through his own fault, has not undergone training and testing of knowledge and skills in the field of labor protection in the prescribed manner. The employer must suspend an employee who appears at work in a state of alcohol, drug or toxic intoxication; however, the suspension will not prevent him from bringing the employee to disciplinary liability.

"Don't exceed"

This refers to the powers that are often exceeded by both personnel department employees and heads of structural divisions, when, before issuing the corresponding order (instruction), they loudly and in the presence of the entire team announce a reprimand or reprimand, or that the employee is fired.

The right to apply disciplinary sanctions The employer is entitled to the first part of Article 22 of the Labor Code of the Russian Federation. According to part four of Article 20 of the Code, the rights and obligations of the employer in labor relations are carried out:

• an individual who is an employer;
• management bodies of a legal entity (organization) or persons authorized by them in the manner established by laws, other regulatory legal acts, constituent documents of a legal entity (organization) and local regulations.

In organizations, the right to bring an employee to disciplinary liability is usually vested in sole executive body, that is, the head of the organization (CEO, director, president, etc.). This right is enshrined either in the constituent documents or in other local regulations of the organization (for example, in the regulations on the general director, regulations on material and moral incentives for personnel), as well as in the employment contract with the head of the organization.

By order on the distribution of responsibilities, the head of the organization can delegate the authority to bring employees to disciplinary liability to his Deputy for Personnel or other official .

It is extremely rare that the authority to apply disciplinary sanctions is transferred to the heads of structural units. As a rule, in resolving issues of bringing to disciplinary liability line managers are given the main, but not decisive role - they are assigned the right to direct submissions on bringing subordinate employees to disciplinary liability, reports or office notes containing proposals to bring the employee to disciplinary liability.

The actions of HR department employees in the scheme for applying disciplinary sanctions must be strictly described in the organization’s local regulations (for example, in the regulations on material and moral incentives for personnel, regulations on the HR department, job descriptions of department specialists).

"Be fair"

Part three of Article 135 of the previously existing Labor Code of the RSFSR provided that when imposing a disciplinary sanction, the severity of the offense committed, the circumstances under which it was committed, previous work and the behavior of the employee should be taken into account.

Since the entry into force of the Labor Code of the Russian Federation, the right to choose the type of disciplinary sanction belongs entirely to the employer. At first glance, from the point of view of the law, he is not charged with clarifying the listed circumstances and facts.

But if today the Supreme Court of the Russian Federation had to give explanations on the application of Article 193 of the Labor Code of the Russian Federation, it would undoubtedly draw the attention of employers to the fact that the severity of the offense, the circumstances of its commission, the previous characteristics of the employee and his behavior must be taken into account when determining disciplinary measures for an employee, since all of them are key elements principles of validity and fairness of any type of legal liability.

At present, a draft federal law “On Amendments and Additions to Article 193 of the Labor Code of the Russian Federation” has already been prepared, which proposes to supplement Article 193 of the Code with the following part: “When imposing a disciplinary sanction, the compliance of the disciplinary sanction with the gravity of the offense committed, the circumstances in which it was completed, the previous work and the behavior of the employee” - that is, in fact, return the previously withdrawn norm. In the explanatory note to the bill, the non-inclusion of this legal norm in the Labor Code of the Russian Federation is called a technical omission. The developers of the bill proceed from the fact that earlier (during the period of the Labor Code of the Russian Federation) it forced the employer to make more objective decisions when bringing employees to disciplinary liability. According to the conclusion of the Committee on Labor and Social Policy of the State Duma of the Russian Federation on the draft federal law “On Amendments and Additions to Article 193 of the Labor Code of the Russian Federation,” the absence of a rule on the employer’s obligation to take into account a number of factors when applying disciplinary sanctions will lead to the fact that in practice the employee may be, for example, dismissed for minor violations of labor discipline, although the application of such a disciplinary measure will not correspond to the degree of his guilt and take into account other significant circumstances. This will create real opportunity abuse of rights. The bill received 29 reviews from legislative (representative) and 50 reviews from senior executive bodies state power subjects of the Russian Federation.

The Legal Department of the State Duma Staff did not express any legal comments on the bill; The Federation Council Committee on Social Policy supported the concept of the bill.

The Government of the Russian Federation, on the contrary, considered the adoption of this bill inappropriate. The main argument for this position is the opinion that establishing a specific list of circumstances that must be taken into account when bringing an employee to disciplinary liability will narrow the range of issues examined by the employer when identifying the reasons that led to the commission of a disciplinary offense. As follows from the conclusion of the Committee on Labor and Social Policy of the State Duma of the Russian Federation on the bill, the opinion of the Government of the Russian Federation is based on a restrictive interpretation of the proposed norm as an exhaustive list of circumstances to be taken into account by the employer when imposing a disciplinary sanction. However, from the explanatory note it follows that the concept of the bill is not to establish an exhaustive list of circumstances to be taken into account, but to legally oblige the employer to make more objective decisions when bringing employees to disciplinary liability. When finalizing the bill for the second reading, amendments may be made to it in order to expand the specified list or make it open.

The official review of the Government of the Russian Federation rightly notes that before applying a disciplinary sanction, the employer must request an explanation from the employee in writing. Indeed, having received the employee’s explanations, the employer can find out the circumstances of the disciplinary offense, as well as the degree of guilt of the employee who committed it. But the employer’s obligation to take into account the circumstances clarified in this way is not established by the Labor Code of the Russian Federation.

In addition, it is stated that the severity of the offense committed, the circumstances under which it was committed, as well as the employee’s previous work and behavior, as well as other circumstances of the case, must be taken into account by state labor inspectorates or labor dispute resolution bodies when the employee appeals the imposed disciplinary sanction. It seems that this argument cannot be considered justified, since these bodies in their activities must be guided only by the law. The absence in the law of an indication of the need to take into account the above circumstances will not allow making decisions about the inadequacy of the penalty applied by the employer.

Taking into account the above, the Committee on Labor and Social Policy of the State Duma of the Russian Federation supported the draft federal law “On Amendments and Additions to Article 193 of the Labor Code of the Russian Federation” and recommended State Duma adopt it in the first reading.

Whether or not amendments will be made to the Labor Code of the Russian Federation obliging, when applying a disciplinary sanction, to take into account the severity of the offense committed, the circumstances in which it was committed, the previous work and behavior of the employee, the employer should remember fairness. And also that the court will still check whether the employer took into account these circumstances, and if not, it will strongly recommend that the employer reconsider its decision, especially if it resulted in dismissal (the court does not independently replace one disciplinary sanction with another, as well as dismissal with another sanction). has the right, since imposing a disciplinary sanction on an employee is the competence of the employer with whom the employee has an employment relationship (part two of paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” ).

"Do it according to the rules"

The employer’s decision to apply a disciplinary sanction to an employee must be expressed in order (instruction) of the employer . Within three working (not calendar!) days from the date of publication, due to the requirements of part six of Article 193 of the Labor Code of the Russian Federation, it must be announced to the employee against receipt.

If a decision is made to apply such a disciplinary sanction as dismissal on the appropriate grounds, then the order (instruction) is drawn up according to the unified form No. T-8 - on termination of the employment contract with the employee. In this case, in the lines “grounds for dismissal” a link is given to the clause and article of the Labor Code of the Russian Federation, and in the line “Grounds” the documents are listed that document the fact of detection of a disciplinary offense (act, explanatory note, etc.).

Since the unified form of a general order (instruction) on the application of a disciplinary sanction in the form of a reprimand or reprimand has not been approved at the federal level, the employer independently determines its content. Such an order (instruction) should reflect:

• the essence of the disciplinary offense;
• time of commission and time of discovery of the disciplinary offense;
• type of penalty applied;
• documents confirming the commission of a disciplinary offense;
• documents containing the employee’s explanations.

The order (instruction) on the application of a disciplinary sanction can also provide a brief summary of the employee’s explanations.

One of the essential points in the preparation of this document is the approval of the project by the head of the legal service or the organization’s lawyer. The approval must be preceded by a check of the order (instruction) for compliance with the legislation of the applied disciplinary sanction and compliance with the deadlines for bringing to disciplinary liability. The head of the legal service or the organization’s lawyer must familiarize himself with all materials relating to the disciplinary offense, as well as the explanations of the employee for whom the order (instruction) to apply a disciplinary sanction is being prepared. An approximate form of an order to apply a disciplinary sanction is given in the “PAPERS” section (page 55).

"Make no mistake"

When counting or summing up disciplinary sanctions, one cannot make mistakes.

Previously, the attention of employers was drawn to the fact that neither the deprivation of bonuses and lawful reduction of wages, nor reprimands and other inventions are considered disciplinary sanctions. Consequently, their summation is unlawful and unfounded. It is impossible to deprive a bonus (produced, of course, on legal grounds) as the first penalty and, if the employee commits one disciplinary offense during the year, apply paragraph 5 of Article 81 of the Labor Code of the Russian Federation.

What else needs to be paid attention to when summing up disciplinary sanctions is the “following” of disciplinary sanctions when transferring an employee. For example, an employee holding the position of quality control engineer was reprimanded for producing a defective batch of products. A month later, the employee was transferred to the position of head of the quality control department. In this position, he committed a disciplinary offense, which resulted in failure to provide department employees with OKC stamps. Can an employer apply a disciplinary sanction to him in the form of dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation? Answering this question, one should proceed from the essence of disciplinary responsibility: it is focused not on ensuring the fulfillment of a labor function within the framework of a specific and defined position, but on ensuring the employee’s diligence and conscientious attitude towards work in general. Transfer to another position, to another job with the same employer does not entail the cancellation of the disciplinary sanction. It does not matter that it was imposed for failure to perform or improper performance of labor duties in another position or other work.

When summing up disciplinary sanctions, you need to remember the following.

"Remember forgiveness"

In accordance with part one of Article 194 of the Labor Code of the Russian Federation, 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 without disciplinary action . Therefore, before determining whether another offense gives grounds to believe that there is a repeated failure to fulfill duties, you should review the orders for personnel (personnel) on the application of disciplinary sanctions, an extract from the order (instruction) on the application of a disciplinary sanction in the employee’s personal file, “sheet penalties" or another document recording penalties to determine whether the previously imposed disciplinary sanction has lost its force.

A disciplinary sanction can also be withdrawn from an employee. According to part two of Article 194 of the Labor Code of the Russian Federation, 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:

1) on your own initiative. The employer, based on his own observations of the employee, can issue an order (instruction) to lift a disciplinary sanction for the employee’s impeccable behavior, high performance indicators and other positive characteristics. As a rule, the HR department is entrusted with monitoring the behavior of an employee after a disciplinary sanction has been imposed on him. In this case, he will be the initiator of the removal of the disciplinary sanction;

2) at the request of the employee himself. The employee, realizing his negative behavior, made every effort to correct the consequences of a previously committed disciplinary offense, proved himself on the positive side, and increased the quality and performance of his work. Why doesn’t he himself turn to the employer with a request to take into account his services to the organization and “forget” about the previously committed offense? He must put his request in writing in the form of an application addressed to the head of the organization or the person whose administrative act imposed the disciplinary sanction;

3) at the request of the employee’s immediate supervisor. The initiative of the immediate manager is expressed in a document entitled “petition” or “representation”;

4) at the request of the representative body of workers. The representative body can express its opinion in the same form as the employee’s immediate supervisor, i.e. in a petition or submission.

A petition to lift a disciplinary sanction against an employee can also be voiced orally, for example, at a meeting of the labor collective. In this case, it is recorded in the minutes of the meeting and must be reviewed by the employer.

The final decision on whether or not to lift a disciplinary sanction based on a request from an employee or a petition from an immediate supervisor or a representative body of employees is made by the employer, or rather, the person whose administrative act applied it.

On the removal of a disciplinary sanction, the employer must issue a corresponding order (instruction), on the basis of which the relevant information is entered into the personnel records documents (an example of an order (instruction) on the removal of a disciplinary sanction is given in the “PAPERS” section (p. 56).

"Don't forbid"

According to Part 7 of Article 193 of the Labor Code of the Russian Federation, a disciplinary sanction can be appealed by an employee to state labor inspectorates or bodies for the consideration of individual labor disputes (the labor dispute commission and the court). Any restriction of an employee’s right to appeal through local regulations, individual acts (receipts from the employee that he will not complain, etc.) is void.

It was previously noted that, for example, a court considering a labor dispute about the illegality of dismissal for committing a disciplinary offense cannot replace dismissal with another type of penalty. However, by recognizing the employer’s decision as unlawful, he thereby limits latest terms application of other disciplinary sanctions. Thus, if a disciplinary sanction was applied by a person not authorized to bring the organization’s employees to disciplinary liability, and as a result of consideration of the case in court or in a labor dispute commission, or an inspection by the state labor inspectorate, it is canceled, then the employer risks missing the deadlines allotted by the Labor Code of the Russian Federation for the application of disciplinary sanctions.

In order for the procedure for bringing disciplinary liability to be manageable at the employer level, the latter should not prohibit employees from appealing the actions of their immediate supervisors. Such a prohibition in relation to jurisdictional bodies (courts, federal labor inspection) is illegal, and in relation to higher officials of the organization - it only limits the opportunity to resolve the dispute without leaving the organization.

From the history of disciplinary responsibility

Institute disciplinary responsibility in pre-revolutionary Russia included various measures disciplinary collection: “reprimands more or less severe”, “reprimands with entry into the service record” and “reprimands without entry into the service record”, “deduction from salary”, “deduction from service time of various periods”, “movement from a higher position to a lower one” , “removal from office” and “dismissal from office”. It should be noted that in the overwhelming majority they were linked to criminal liability, as they were provided for in relation to persons in the public service. As for free-hire workers, the employer established penalties independently for defects, failure to comply with production standards, tardiness and other violations, of which the least was a deduction from earnings, and the most common was dismissal.

Until 1863 (the reforms of Alexander II), corporal punishment was used not only against serfs, but also against hired workers, journeymen, and students. Their rights in Russian factories and factories were not regulated by any acts until 1886 (before the introduction of the decree “On the supervision of factory industry establishments and on the mutual relations of factory owners and workers”). However, cases of punishing workers with whips and rods occurred until the end of 1905. Only with the first Soviet decrees was corporal punishment finally abolished, and education through persuasion was proclaimed as the main method of dealing with discipline violators. Over time, the Soviet state reconsidered such a loyal attitude towards disciplinary offenses, and in 1940 (June 26) the Decree of the Presidium of the Supreme Soviet of the USSR was issued “On the transition to an 8-hour working day, to a 7-day working week and on the prohibition of unauthorized departure of workers and employees from enterprises and institutions." This act established judicial (!) liability: “for absenteeism without a valid reason, workers and employees of state, cooperative and public enterprises and institutions are brought to trial and, by a verdict of the people’s court, are punished by corrective labor at the place of work for up to 6 months with deduction from wages.” fees up to 25%." People's judges who considered such cases individually (without the participation of people's assessors) were ordered to resolve them within no more than 5 days and to carry out sentences in these cases immediately. In addition, directors of enterprises and heads of institutions were also brought to justice for failing to bring to trial those guilty of absenteeism without good reason. By the way, being more than 20 minutes late was then equivalent to absenteeism. Judicial liability in the form of correctional labor was abolished only in 1956.

By 1971, the Labor Code of the RSFSR provided for such types disciplinary penalties, How:

• comment;
• rebuke;
• severe reprimand;
• transfer to a lower-paid job for up to 3 months;
• dismissal (for appropriate reasons).

Transfer to a lower-paid job “lasted” as a disciplinary measure until 1992 (until amendments and additions were made to the Labor Code of the RSFSR by Law of the Russian Federation of September 25, 1992 No. 3543-I). Having ratified ILO Convention No. 105 on the Abolition of Forced Labor (Federal Law No. 35-FZ of March 23, 1998), Russia had to bring national legislation into line with the standards of the Convention. Transfer to a lower-paid job as a disciplinary measure, that is, for the purpose of maintaining labor discipline, meets the criteria for forced labor set out in the said Convention. There is not a word in the new Labor Code of the Russian Federation about transfer as a measure of disciplinary liability. Moreover, Article 4 of the Code directly establishes a ban on forced labor, that is, performing work under the threat of any punishment (forceful influence), including for the purpose of maintaining labor discipline. It should be noted here that, in accordance with certain charters and regulations on discipline, transfer to another, lower-paid job or another, lower position for a period of up to 3 months is still possible, but only with the consent of the employee.