The procedure for issuing a disciplinary sanction to an employee. Types and procedure for imposing disciplinary sanctions

To maintain labor discipline, the Labor Code of the Russian Federation provides not only incentives for work, but also disciplinary responsibility of employees.

Disciplinary sanctions are imposed on employees who have committed a disciplinary offense, namely, failure to perform or improper performance of their labor duties. A disciplinary offense is always characterized by the fault of the employee (intentional or negligent). It is very important to correctly follow the procedure for imposing a disciplinary sanction, otherwise the employee will be able to appeal against his imposition in court.

Types of disciplinary sanctions

The first type of disciplinary sanction is a remark. Contrary to popular belief, today the Labor Code of the Russian Federation does not provide for the entry of comments in the work book. Moreover, no disciplinary sanctions are entered into it. Information about all disciplinary sanctions is stored in the employee's personal file.

The second type of penalty is a reprimand. And finally, the third and most severe type of disciplinary action is dismissal.

Federal laws may also provide for other types of disciplinary sanctions against certain categories of employees (for example, in relation to civil servants). However, it is impossible to apply a disciplinary sanction that is not provided for by federal law. Therefore, the possibility of unauthorized establishment of additional disciplinary sanctions by the employer is excluded - neither in the employment contract, nor in collective agreement, nor in local regulations.

Dismissal as a type of disciplinary sanction can be made only on the relevant grounds:

Firstly, the employee repeatedly fails to fulfill his labor duties without good reason, if he already has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation).

Secondly, a single gross violation by an employee of labor duties (clause 6, part 1, article 81 of the Labor Code of the Russian Federation), which includes:

• absenteeism, that is, the absence of an employee at the workplace without good reason during the entire working day, or for more than four hours in a row during the working day;
• the appearance of an employee at work (at his workplace, on the territory of the employer, the facility where, on behalf of the employer, the employee must perform his work) in a state of alcoholic, narcotic or other toxic intoxication;
• disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties (this includes, among other things, the disclosure of personal data of another employee);
• committing at the place of work theft (including petty), deliberate destruction or damage to property, embezzlement ( given fact must be established by an act of the relevant state body that has entered into legal force);
• violation by an employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or at least knowingly created real threat the occurrence of such consequences (this fact must be established by the commission on labor protection or the commissioner for labor protection).

Thirdly, the adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9, part 1, article 81 of the Labor Code of the Russian Federation);

Fourthly, a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

Fifth, repeated within one year gross violation of the charter educational institution(Clause 1, Article 336 of the Labor Code of the Russian Federation);

Sixth, the commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer (clause 7, part 1, article 81 of the Labor Code of the Russian Federation);

Seventh, the employee's failure to take measures to prevent or resolve a conflict of interest to which he is a party, and some other actions that are the basis for the loss of confidence in the employee (clause 7.1, part 1, article 81 of the Labor Code of the Russian Federation);

Eighth, the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation).

The list of grounds for dismissal of an employee as a disciplinary sanction is exhaustive.

In practice, it is very common to deprive employees of bonuses as a measure of influence on them for improper performance of duties. The deprivation of the award is not a type of disciplinary sanction. This does not mean that employees should not be deprived of bonuses. You can deprive, but only it will not be a disciplinary sanction. This is very important, because there is such a basis for dismissal as the employee’s repeated failure to fulfill his labor duties, provided that he has a disciplinary sanction. It will not be possible to dismiss an employee on this basis if he has only an order to deprive him of the bonus in his personal file, but there are no documents confirming the imposition of such penalties as a remark and a reprimand.

Deadlines for imposing disciplinary sanctions

It is impossible to impose a disciplinary sanction if more than one month (namely 30 calendar days) has passed from the day the misconduct was discovered by the employer. But the following is excluded from this period:

• sickness time of the employee;
• vacation time of the employee;
• the time during which the representative body of workers forms its opinion.

It is illegal to impose a disciplinary sanction if more than six months have passed since the date of the misconduct (even if one month has not yet passed since the discovery). A longer period is set for a misconduct, which is revealed as a result of an audit, audit, audit of financial and economic activities. For such misconduct, the employee can be disciplined within two years from the date of the misconduct.

It is important to note that these terms (6 months and 2 years) do not include the time of criminal proceedings.

The procedure for imposing a disciplinary sanction

After the discovery of a disciplinary offense, making sure that the deadlines for bringing to responsibility have not expired, the employer is obliged to demand a written explanation from the employee regarding the misconduct. The employee must provide such within two working days. If the employee does not do this, then an act is drawn up.

It is very important to write this document. The employee's refusal (direct or tacit) to provide explanations after the act is drawn up will not prevent the imposition of a penalty. What exactly the form of the act should be, the law does not say. But, apparently, it should be a commission document.

The Labor Code prohibits the application of several penalties for one offense. Only one penalty applies for each misdemeanor.

The imposition of a disciplinary sanction must be formalized by order. The order must be submitted for familiarization by the employee within three working days from the date of its issuance. If the employee does not want to sign the order, then an act is also drawn up about this.

In order for the work of the organization to bring the expected results, it is necessary to maintain production discipline in it. If an employee does not comply with it, and is not punished for this, then something like a chain reaction can occur. Others will also behave in the same way.

What measures can be applied to negligent employees?

For starters, an educational conversation might suffice. If it did not bring the desired result, then it is possible to apply more serious measures that can force the employee to keep himself within the limits of what is permitted. There are different ones for this. The grounds and varieties of which the legislation outlined in Art. 192 of the Labor Code of the Russian Federation.

Comment

In addition, as long as the unrecovered penalty “lies” on the employee, he is deprived of incentive payments and other “praise” measures, even if he deserves them. Removal of the reprimand occurs in the same order as the remarks.

The essence of this punishment is obvious from its name. - this is the last penalty in the history of the employee in this organization. It is not subject to removal, it is imposed for a single gross violation or systematic misconduct.

Certain groups of workers, for example, employees of customs, prosecutors, internal affairs bodies, military personnel, may be subject to other measures provided for by the legislation regulating their activities.

What can be levied for?

The grounds for punishing an employee with “discipline” are misconduct committed by him. It can be:

• failure to perform or improper performance of the labor functions assigned to him, for example, ignoring the instructions of the management, non-compliance with the necessary instructions, violation of technology;
• non-compliance with the work schedule, for example, being late, legally unjustified absences from work;
• violation of discipline, for example, appearing on the employer's premises in a state of intoxication, ignoring the requirements for passing the necessary examinations or training;
• commission of unlawful guilty acts, for example, property crimes (theft, damage, misappropriation).

Foreclosure procedure

1. First of all, the violation committed must be documented, for example, in the memorandum of the person who identified it or in the inventory report, which revealed a shortage.
2. The second prerequisite is the demand for an explanation from the employee about the causes and circumstances of his misconduct. A delay in its provision is permissible for two days, if during this period the employee has not deigned to explain himself, then an act of refusal to give explanations is drawn up about this. It is desirable to request an explanation in writing, against signature, in order to confirm the timeliness of the request in the event of an appeal against the penalty through the court.

If an explanation is provided, then on its basis the employer can assess the situation and decide whether to apply the penalty or not.

If it is decided to apply punishment, then the explanation in which the employee admits to the misconduct can be used as confirmation of his guilt.

The third stage is the decision on the choice of the type of penalty and publication. The order must be issued within a month from the date of detection of the violation, no later than six months from the date of its commission. It sets out: the source from which the violation became known, the circumstances of the misconduct, the norms violated by him, information obtained from the employee's explanations and during the verification of the report about the violation committed by him, the type of penalty.

The employee gets acquainted with the order against signature. If a refusal to familiarize or sign is made, then it is recorded by the relevant act, and the order is announced aloud.

These rules apply when any penalty is imposed.

Of key importance in determining the legality of the application of disciplinary measures is the actual guilt of the employee in committing violations. If he did not have the opportunity to do otherwise, for example, he could not fulfill his labor duties due to his lack of necessary equipment or raw material either left workplace, due to insurmountable circumstances, for example, an emergency, then he cannot be punished for this.

Imposing a penalty on a guilty employee is the right of the employer, and not his duty. If, due to the circumstances, he decides not to take such measures, this will not be considered a violation of the law. Therefore, the employee always has the opportunity to avoid such harsh measures by promising to improve.

Examples

Dismissal for absenteeism

Engineer Andreev V.I. was absent from the workplace on May 23, 2016 from the beginning of the working day (09:00) for 5 hours. When he arrived at work, he refused to explain the reason for his absence.

Absence from the workplace for such a long time is considered absenteeism, for which the employer has the right to terminate relations with Andreev.

In confirmation of the fact of committing a violation of the labor schedule, an Act of absence from the workplace must be drawn up. It should be compiled by the head or representative of the personnel department.

The act must contain:

• place, date and time of its compilation;
• the name and position of the compiler;
• list of persons present (positions, full name);
• description of the recorded violation (for example, by me, full name, position, in the presence (list of witnesses), this act was drawn up stating that engineer Andreev V.I. was absent from work on May 23, 2016 from 09:00 to 2:00 pm;
• signatures of the originator, persons present, offender.

If the employee refuses to sign, an appropriate entry must be made at the bottom of the act and the signatures of witnesses must be put.

The following may also serve as evidence of misconduct:

• memorandum of the employee who recorded the absence of Andreev;
• explanations of the offender's colleagues;
• explanations of the security guards standing at the checkpoint about what time Andreev came to work;
• data from the turnstile at the entrance to the enterprise (if any).

Prior to imposing a penalty, a written notice must be sent to the employee asking for an explanation of the substance of the proceedings. Based on this explanation, the issue of his dismissal will be decided.

If the employee within two days did not provide an explanation or documents confirming the validity of his absence. An act is drawn up about his refusal to give an explanation, which sets out the essence of what is happening and puts the signatures of witnesses

Then the head of the organization issues an order to impose a disciplinary sanction in the form of dismissal. The order must contain short description what happened, a reference to the documents confirming the assumption of the violation and to the paragraph of the article of the Labor Code of the Russian Federation, on the basis of which the dismissal is carried out. The employee must be familiarized with the order against signature.

Further, an entry is made in the work book about the dismissal on the basis specified in the order and a link to the order. The wording of the reason for dismissal must strictly comply with the Labor Code of the Russian Federation, for example: “The employment contract was terminated due to a single gross violation by the employee of his labor duties - absenteeism, paragraphs. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation.

Remark for non-compliance with the technical regulations of work

During the re-checking of rejected parts, a specially created commission at the foundry found a part rejected by an employee of the technical quality control department (QC) E.I. Larionova, as evidenced by the entry in the check log and part passport.

During the inspection of this part, it was found that the defect on the basis of which the part was rejected, according to the criteria established by the technical regulations of the Quality Control Department, is subject to correction and is not a basis for sending the part to marriage. The term of work of the employee is 1 year, she is familiarized with all the instructions and regulations against signature. Before starting work, she underwent special training at the enterprise. There were no prior violations on her part.

Consideration positive reference Larionova and the short period of her work. However, the fact that the employee was familiarized with all the necessary documentation and underwent training indicates her irresponsible attitude to the performance of her duties. In this connection, a remark can be made to her.

This charge must be applied in the following order:

1. sending to the head of the QCD a memorandum on the detected violation and a copy of the act drawn up as a result of the re-check of the marriage;
2. carrying out by this official of the verification of the received message and providing the head of the enterprise with the materials of this verification and copies of logs confirming the fact that Larionova was familiarized with the necessary documentation and documents evidencing the training she completed and its results;
3. requesting an explanation from Larionova about the reasons and circumstances for her marriage of the discovered part;
4. issuance of a punishment order;
5. acquaintance Larionova with the order.

The procedure for requesting an explanation, familiarization with the order and the list of documents confirming the violation will be similar to the previous example.

In addition, the information provided by the head of the Quality Control Department is attached to the audit materials.

Reprimand for being late

Sales consultant of the store "Iris" Fadeeva T.V. for her part, she was late for work by 40 minutes, about which an act of absence from the workplace was drawn up.

As the reason for her being late, she explained that she had overslept. Two weeks before, Fadeeva had already been late for 1.5 hours, on the same basis for which she was reprimanded. Fadeeva was acquainted with her work schedule against signature when applying for a job.

Given the disrespectfulness of Fadeyeva's lateness and the fact of a repeated violation, she may be reprimanded.

This should happen as follows - based on:

• an act drawn up on the fact of a violation;
• information about the previous collection;
• explanations of Fadeeva's colleagues, confirming the fact of her being late;
• explanations of the employee herself;
• a document confirming the fact that Fadeeva got acquainted with her work schedule,
  the head of the organization must issue an order to impose a penalty on Fadeeva.

The order must be entered in the book of orders and brought to the attention of Fadeeva against signature. In addition, the employee should be informed that if such a violation occurs again, then the management will have grounds for her dismissal due to repeated violations of labor discipline.

The examples describe acts that cannot be found not guilty, but even in such situations, the penalty can be canceled by the court if the leader violates the procedure for its application. This practice is quite common. Therefore, all formalities must be strictly observed.

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

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

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

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

Types of disciplinary sanctions and features of application

The current legislation, namely, regulates what for committing a disciplinary offense, i.e. non-performance or improper performance by the employee due to 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 on appropriate grounds.

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

For example, the Federal Law of July 27, 2004 N 79-FZ "On the State Civil Service Russian Federation"for the commission of a disciplinary offense, that is, for non-performance or improper performance by a civil servant through his fault of the duties assigned to him, a warning of incomplete official compliance may be issued.

The legislation clearly defines that it is not allowed to apply disciplinary sanctions that are not provided for by federal laws, charters and regulations on discipline. From which it follows that there are two types of disciplinary responsibility: general, provided for by the Labor Code of the Russian Federation, and special, which employees bear in accordance with the charters and regulations on discipline.

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

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

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

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

If, when considering the reinstatement case, the court comes to the conclusion that the misconduct really took place, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied (paragraph 53 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application courts of the Russian Federation Labor Code Russian Federation", hereinafter referred to as Resolution No. 2).

Arbitrage practice.So, the court, resolving the dispute on reinstatement, came to the conclusion that the measure of disciplinary action applied to the plaintiff does not correspond to the severity of the misconduct, which is assumed by the defendant, is unfair and unreasonable. At the same time, the court considered that the defendant did not provide evidence that the disciplinary sanction in the form of dismissal was commensurate with the gravity of the offense committed, in the defendant's opinion. By the decision of the court, the plaintiff was reinstated at work, the average earnings for the time of forced absenteeism and the amount of compensation for non-pecuniary damage were recovered from the defendant in her favor (decision of the Dzerzhinsky District Court of Perm dated January 22, 2014 in case No. 2-133-14).

When applying a disciplinary sanction by the employer, the level of guilt of the employee should also be taken into account, including: whether they suffered any harm, what external factors prompted the employee to a certain act, whether there was intent in his actions. It is equally important to take into account general characteristics employee: experience, achievements, personal and business qualities, professionalism, state of health.

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

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

The special liability provided for by the statutes and statutes on discipline applies to all workers who are subject to them. At the same time, direct employers themselves do not have the right to make any additions and changes to them. The difference between these regulations is the presence of more stringent penalties for certain categories of employees. As an example, we can cite Decree of the President of the Russian Federation of November 10, 2007 N 1495 "On approval of the general military charters of the Armed Forces of the Russian Federation", namely, the Charter of the internal service, the Disciplinary Charter and the Charter of the garrison and guard services of the Armed Forces of the Russian Federation.

The sequence of actions when applying disciplinary sanctions

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

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

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

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

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

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

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

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

Please note that this is a right and not an obligation of the employee. The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. Rather, such a rule is provided in order to enable him to state own view on the event, explain the reasons for the disciplinary offense, bring reasoned facts in his defense. This is one of the guarantees that the imposition of a penalty will be lawful.

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

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

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

Whether a disciplinary offense is the basis for imposing a disciplinary sanction;

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

Are the guilty illegal actions (inaction) of the employee related to the performance of his labor duties;

Are certain labor duties provided for by any local regulatory act or other document and is the employee familiarized with it under a personal signature;

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

Whether the terms and procedure for imposing a disciplinary sanction were observed;

Does it executive signing the order (instruction) on bringing to disciplinary responsibility, the right to apply a disciplinary sanction in relation to the employee;

Whether the previous behavior of the employee, his attitude to work is taken into account.

Only if all of the above conditions are met, the application of a disciplinary sanction can be lawful.

Terms of application of disciplinary action

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

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

The specified period for the application of a disciplinary sanction does not include the period when the employee was absent from work due to illness or was on vacation (regular, educational, paid or without saving wages- paragraph 34 of Resolution No. 2), as well as the time required to take into account the opinion of the representative body of employees. Here we are talking on the reasoned opinion of the representative body of employees upon termination of the employment contract. Absence from work for other reasons does not interrupt the course of the specified period.

With a long absenteeism, when it is not known for certain about the reason for the absence of the employee and he may not know about the imposition of a penalty, it is advisable to start calculating the monthly period from last day absenteeism, from the day preceding the appearance of the employee at work.

In any case, the application of a disciplinary sanction after six months from the date of the misconduct is not allowed, and based on the results of an audit, audit of financial and economic activities or an audit - after two years from the date of its commission (Article 193 of the Labor Code of the Russian Federation). The above time limits do not include the time of criminal proceedings.

The application to the employee of a new disciplinary sanction, including dismissal, is also permissible if the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction. At the same time, it must be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the misconduct, he filed an application for termination of the employment contract on his own initiative, since labor relations in this case terminate only after the expiration of the notice of dismissal (clause 33 of Resolution No. 2).

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

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

The court came to the conclusion that the employee was brought to disciplinary responsibility in violation of the monthly period established by law. Suspension evidence this period on the grounds statedPart 3 Art. 193The Labor Code of the Russian Federation was not included in the case file and they were not presented to the court. The court reacted critically to the arguments of the defendant that he had observed the six-month period for holding the plaintiff liable, since the provisionsPart 4 Art. 193The Labor Code of the Russian Federation is applied in cases where a disciplinary offense could not be detected within a month established by Part 3 of Art. 193 of the Labor Code of the Russian Federation to bring the employee to disciplinary responsibility.

In this regard, the court decided to declare illegal and cancel the order to impose a disciplinary sanction on the employee in the form of a reprimand, to recover funds in favor of the employee on account of non-pecuniary damage (decision of the Lermontov City Court of the Stavropol Territory of Lermontov dated February 9, 2012 in case No. 2-19/2012).

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

The concept of disciplinary offense

We think it would not be superfluous to explain what a disciplinary offense is, since practice shows that employers often interpret it erroneously. So, a disciplinary offense is a guilty illegal non-performance or improper performance by an employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, internal labor regulations, job descriptions, regulations, regulations, technical rules, other local regulations, orders, other organizational and administrative documents of the employer, etc.).

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

Only such unlawful actions (inaction) of an employee that are directly related to the performance of his labor duties can be recognized as a disciplinary offense. So, the employee's refusal to fulfill a public assignment or his violation of the rules of conduct in public places cannot be considered a disciplinary offense.

The violations of labor discipline that are disciplinary offenses, paragraph 35 of Resolution No. 2, include, among other things:

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

At the same time, it must be borne in mind that if the specific workplace of this employee is not specified in the employment contract concluded with the employee, or the local regulatory act of the employer, then in the event of a dispute over the question of where the employee should be in the performance of his labor duties, should proceed from the fact that by virtue of h. 6 Article. 209 of the Labor Code of the Russian Federation, a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer;

Arbitrage practice.The director of the institution explained that the employee was not at the workplace, which is his office, at the time specified in the dismissal order.

Taking into account the provisions of the employee's job description submitted to the court by the defendant, the court accepted the plaintiff's explanation that the office was not his only workplace. The absence for some time of an employee in the workplace, which is not the only one for him, is not absenteeism. The possibility of an employee being in other premises of the employing organization, as well as outside the territory of the institution, may be due to his official duties.

Thus, the court concluded that it was necessary to recognize the dismissal order as illegal and satisfy the employee's demand for reinstatement (decision of the Leninsky District Court of Kostroma dated May 26, 2010 in case No. 2-568/2010).

b) refusal of the employee without good reason to perform work duties in connection with a change in in due course labor standards (Article 162 of the Labor Code of the Russian Federation), because by virtue of an employment contract, the employee is obliged to perform the labor function determined by this contract, to comply with the internal labor regulations in force in the organization (Article 56 of the Labor Code of the Russian Federation).

At the same time, it should be borne in mind that the refusal to continue work in connection with a change in the terms of the employment contract determined by the parties is not a violation of labor discipline, but serves as the basis for terminating the employment contract under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for by Art. 74 of the Labor Code of the Russian Federation;

Arbitrage practice.The teacher of the MDOU for refusing to work on a shift schedule with other groups of children and in another building, after applying disciplinary sanctions in the form of a remark and a reprimand, was dismissed from work on the basis provided forp. 5 h. 1 art. 81TK RF.

The court concluded that disciplinary sanctions, including dismissal from work, were illegal and should be cancelled. By a court decision, the claim of the educator against the MDOU for the abolition of the disciplinary sanction, reinstatement, payment for forced absenteeism and compensation for non-pecuniary damage was satisfied in full (decision of the Ust-Kulomsky District Court of the Komi Republic dated December 2, 2011 in case No. 2-467 / 2011).

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

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

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

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

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

The court concluded that when applying a disciplinary sanction in the form of a reprimand, the employer could not be guided by the job description, since the employee was not familiar with it when concluding the employment contract, and his job duties were not established. Referring toletterRostrud dated 09.08.2007 N 3042-6-0, the court indicated that the job description is not just a formal document, but an act that defines the tasks, qualification requirements, functions, rights, duties and responsibilities of the employee.

By a court decision, bringing an employee to disciplinary liability was declared illegal (definitionSamara Regional Court dated July 30, 2012 in case No. 33-6996).

Dismissal as a measure of disciplinary action

The most severe, extreme measure of disciplinary action is dismissal. So, in cases of application of a disciplinary sanction in the form of dismissal by employees, the actions of the employer are often disputed if:

There were good reasons for being absent from work during working hours;

The employee is not familiarized under a personal signature with the order of dismissal or other local acts of the employer;

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

The employee was fired for a violation for which he had already received a disciplinary sanction (note that only one disciplinary sanction can be applied for each disciplinary offense, i.e. you cannot simultaneously reprimand and dismiss the employee for one violation).

For example, let's take a closer look at one of the grounds for dismissal of employees related to disciplinary sanctions. So, upon dismissal for repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation), the following conditions must be met:

The employee, without good reason, allowed non-performance or improper performance of his labor duties;

For non-fulfillment of labor duties earlier (no later than the calendar year) a disciplinary sanction has already taken place (an order has been issued);

At the time of repeated non-fulfillment by him without good reason of labor duties, the previous disciplinary sanction was not removed or extinguished;

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

Employers often make the mistake of believing that a previous disciplinary sanction alone is sufficient for the subsequent dismissal of an employee.

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

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

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

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

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

The procedure for imposing a disciplinary sanction begins directly with the investigation of the incident itself and ends with a fine, reprimand, or even dismissal. In some cases, all three types of punishment are applied if the offense was too serious. These are the most common varieties. But it should be noted that they are not the only ones. Depending on the situation, a decision may be made to apply a different type of punishment. It must not be against the law.

The concept of disciplinary action

In order to better understand the problem, you need to clearly understand what it is. The types and procedure for imposing a disciplinary sanction will be discussed in more detail below, and in this paragraph we should dwell on the concept itself from the point of view of legal relations. Thus, the main subjects are directly the employee and his employer. They act on the basis of the duties and rights that they have in accordance with the law and concluded agreements. So, in the Labor Code of the Russian Federation there is only an indication of what the employer can do, but if you study this document in detail, you can also find information about what is available or not available to the employee. For example, he has the right to find out the progress of the check, its results, get acquainted with the documents, and so on. Among other things, he can also express his opinion, attitude, or even evaluate the actions of the inspectors, the data provided and other similar factors. In addition, if necessary, the employee has the right to demand additional inspections, audits, involve third-party specialists, trade unions and other persons who may in any way affect the final result of the investigation.

Violations

There are a huge number of misdemeanors, the result of which is the beginning of proceedings and an official investigation. The procedure for imposing a disciplinary sanction implies that the employee must first be accused of something and prove the fact that he is responsible for the situation. Most minor, relatively minor episodes are resolved privately. It is enough just to talk with a potential culprit, point out to him the inadmissibility of such actions, threaten him with possible consequences, and so on. Usually, this is more than enough to ensure that situations do not recur in the future (or this happens as rarely as possible). However, in another case, when the actions (or inaction) of an employee caused serious financial loss, there was a threat to the life or health of other people, and so on, there really will be a need to conduct an internal investigation.

Types of penalties

The labor code contains a fairly limited list of punishments for the culprit. Nevertheless, there is a proviso that it can be changed or supplemented at the request of the employer, if applicable to the current situation. The procedure for imposing a disciplinary sanction on an employee suggests that you first need to choose what exactly the fine will be. This may indeed be a “ruble” punishment, that is, the employee will be obliged to compensate for all the expenses of the company that it has incurred due to his misconduct. In another, less serious case, only a written reprimand can be dispensed with. But if, as a result of a misconduct, the situation absolutely got out of control, led to victims, significant losses, and so on, the dismissal of the culprit may follow.

Procedure

The first thing a potential culprit can do is write an explanation of what happened from their point of view. In some cases, the position of the employee will absolutely not agree with what the prosecution says. In principle, he is not obliged to do this, but without an explanatory commission, which will understand the problem, it will not be able to take into account another point of view. So, if the employee does not want to write anything, he is given another two days, after which a special document is drawn up, in which this fact is recorded. Further, the procedure for imposing a disciplinary sanction under the Labor Code of the Russian Federation assumes that all evidence and evidence of actual guilt is collected. If everything is collected, the commission makes a decision taking into account all the information received. Be sure to take into account any factors that, one way or another, can mitigate the fault of the employee. The next stage is the most difficult. The employer has the right to punish the culprit to the fullest extent or simply have an educational conversation with him. What to choose - it's up to him. It is necessary to focus on the relationships that have developed in the team, the identity of the culprit, its importance for the enterprise, the number of violations in the past, and many other factors. Punishing harshly right away may not always be beneficial. Sometimes it is quite enough to simply explain the degree of guilt and stipulate the conditions for further cooperation. In another situation, a really serious punishment may be required - up to and including dismissal. It is issued in a separate order.

Documenting

As you can see from the previous paragraph, there are several basic papers that must be drawn up in the process of an internal investigation and the subsequent imposition of punishment. The first one is explanatory. Nowhere is it indicated in what specific form it will be drawn up, but they usually write to whom it is addressed, from whom, state the very essence, date and sign. But if the offer to describe one's point of view is refused, then a special act is already drawn up. It should contain information about where and when the paper was drawn up, who compiled it, with respect to whom, a description of the reason, and the process of refusing to write explanations is recorded. All further documents practically do not have any requirements for registration. The only exception is the direct order to impose a punishment. It is drawn up in a standard form for such documents and is offered for signature to the culprit. He may refuse to sign the order, but in this case another act is drawn up, similar to that described above.

Timing

The procedure for imposing a disciplinary sanction has a certain time limit. An employee cannot be punished if more than a month has passed since the misconduct. It should be remembered that this period does not include holidays, sick leave, and the like. That is, you can not commit a misdemeanor and not get punished. In addition, if the trial process has already begun, it must be completed within six months, otherwise it is again impossible to punish. But if, according to the results, an audit was required, then the time during which punishment can be imposed increases to two years. It should be noted separately. It is not included in the list of punishments, so even without the trial itself, you can deprive the potential culprit of such payments.

Cancel

In many cases, the procedure for imposing a disciplinary sanction on an employee and appealing it implies a certain period of the punishment. Most often this is a one-time action such as a monetary fine. But sometimes, especially in large enterprises, there may be other types of long-term penalties. The simplest example is the deprivation of certain allowances (if it is permitted by law) for an indefinite period. In this case, 1 year is always considered. Thus, after the term of punishment is over, the employee, his immediate supervisor or other interested party may request that the penalty be waived. This can be done earlier if the perpetrator really atoned for his actions that led to the recovery.

Features for the military

The army has its own orders, somewhat different from those used in a normal situation. For example, the procedure for imposing a disciplinary sanction on a serviceman does not imply an explanation of the perpetrator of the incident. In addition, the very severity of the punishment may directly depend on the rank of the military officer who committed the offense. If the problem arose when a citizen serving in the army is on combat duty, this can be an aggravating factor.

The military does not have many reasons that can be considered valid. The timing also differs. In most cases, the punishment follows immediately after the offense or the next day. The maximum period is 10 days. Over the next decade, the perpetrator can file a complaint if he does not believe that the punishment is fair. If at the time of the incident the soldier is on duty, then the penalty is assigned the next day after the change of outfit. The military, whose fault is drinking alcoholic beverages, are punished only after they sober up. Separately, it should be noted that the higher command can both cancel the penalty and toughen it, if such a need arises.

Civil servants

For this category of workers, almost the same rules apply as for ordinary employees of private companies. But the procedure for imposing a disciplinary sanction on a civil servant also implies deviations. The main one can be considered that, in addition to the Labor Code of the Russian Federation, when punishing the culprit, it can also be used. This does not apply to all civil servants, but this factor must be taken into account. Among other things, the main document is also different. In the case of an employee of a private company, the base is But for civil servants, such a concept does not exist. In their case, a special service discipline is applied. It is governed by laws and regulations.

Law enforcement agencies

The procedure for imposing a disciplinary sanction on a police officer is established by a special Regulation on the service in. If you delve into the essence of the problem, it becomes clear that there are not so many main differences from the Labor Code of the Russian Federation. One of them is a more extensive list of possible punishments. If in a normal situation with an employee of a private company, a fine, reprimand or dismissal acts as a penalty, then in the police this list is a little more extensive. The culprit may be demoted in rank or rank. He may be deprived of a badge or issued a warning that the employee does not fully correspond to the place he occupies. In addition to the usual reprimand, there is such a thing as a "strict reprimand". As the most extreme measure, the procedure for imposing a disciplinary sanction in the Ministry of Internal Affairs involves dismissal from the bodies. It should be noted that in most cases a written explanation from the perpetrator is not required.

Outcome

The Labor Code of the Russian Federation is taken as the basis for all options for investigation and punishment. Even when the problem concerns military personnel, the Ministry of Internal Affairs or civil servants, this document is still the basic one. The existing differences, although significant, are not global, and the general procedure for imposing a disciplinary sanction still implies several basic steps: committing an offense, establishing guilt, punishment and rehabilitation.

A disciplinary sanction is a punishment imposed on an employee in connection with the improper performance of his labor duties. Punishments for disciplinary offenses are enshrined in Chapter 30 of the Labor Code of the Russian Federation and may take the form of: 1) remarks; 2) reprimand; 3) dismissal on the appropriate basis (for example,). It is also worth noting that in some cases, other types of disciplinary sanctions may be provided for certain categories of employees, which are regulated by federal laws, charters and.

Article 192 of the Labor Code of the Russian Federation states that when imposing a disciplinary sanction on an employee, the employer must correlate it with the severity of the misconduct committed, as well as take into account the circumstances in which it was committed, however, the practice of applying disciplinary sanctions is often far from the letter of the law and, as a rule, is subjective . If one employer calmly treats the so-called "office tea parties", then another may consider them a serious violation of labor discipline, which will entail a reprimand.

It is worth noting that paragraph 53 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" brought some clarity at this point. It states that when considering cases of controversial disciplinary action and decisions on reinstatement, the courts must make lawful and reasoned decisions, based on the consideration of all existing circumstances related to the case under consideration. In this regard, the employer is obliged to prove that he complies with the disciplinary sanction applied to the employee. general principles legal, and therefore disciplinary, responsibility, such as justice, equality, proportionality, legality, guilt, humanism. Of course, before applying a disciplinary sanction, the employer does not always deal in detail with each of the above principles. Consequently, the employee is more likely to recognize the groundlessness of the employer's decision.

Analysis judicial practice shows that the disciplinary measures applied to employees very often do not correspond to the misconduct committed. For example, in the ruling of the Judicial Collegium for Civil Cases of the Primorsky Regional Court No. 33-1886, it was recognized that the employer, when applying a disciplinary sanction to an employee, did not take into account the severity of the misconduct committed. Such a violation on the part of the employer is very common, since in order to determine the severity of the misconduct committed to the application of one of the possible types of disciplinary action, it is necessary to conduct a thorough analysis of the specific situation, and not make a decision based mostly on emotions and mood. Of course, with the qualification of some disciplinary offenses it is easier, for their commission the Labor Code of the Russian Federation establishes a specific sanction (for example, an employee can be fired for absenteeism), in other cases, one of the criteria for determining the severity of an offense can be such a factor as the onset of adverse consequences (affecting both on production and on the team) having a causal relationship with the misconduct.

An important role in determining the disciplinary punishment is also played by the circumstances under which the offense was committed, and the determination of the employee's guilt. To do this, it would be correct to take into account the external factors that prompted the employee to take a certain action (behavior of colleagues, accident prevention, actions force majeure etc.), and his intent and attitude to what happened. Consideration should also be given to the previous work and behavior of the worker; his attitude to work; personal qualities and state of health (determination of the IC in civil cases of the Omsk Regional Court dated July 21, 2004 No. 33-2493, decision of the Ryazan Regional Court dated December 6, 2006 No. 33-1801).

The procedure for applying a disciplinary sanction

It is necessary to apply disciplinary action to an employee competently. Special attention should be shown when imposing a disciplinary sanction in the form of dismissal. If the rules are not followed:

An employee can be reinstated at work through a court or with the help of a labor inspectorate;

The employee may recover from the employer the average earnings for forced absenteeism and (or) compensation for moral damage;

The reputation of the director, personnel and legal service of the company may be damaged;

Reduced labor discipline in the company;

You will have to bear the costs of a lawyer (lawyer, other representative);

Lose time on litigation, inspection by the labor inspectorate or representatives of the prosecutor's office, which may be initiated by the offended employee;

Pay a fine or incur other expenses in case of violations of labor laws.

Pay attention to the algorithm of actions in the following cases:

Application of a disciplinary sanction in the form of an announcement of a remark and a reprimand;

Application of disciplinary action in the form of dismissal for absenteeism;

Dismissal for repeated failure to perform labor duties without good reason, if the employee already has a disciplinary sanction in accordance with paragraph 5 of part 1 of Article 81 of the Labor Code.

Only if all the conditions are met and the documents are properly executed, can we talk about the legality of the dismissal. Otherwise, there may be negative consequences, which we discussed above.

The main difficulties in the application of disciplinary action

Difficulties in the application of disciplinary sanctions in most cases are associated with incorrect paperwork, as well as with incorrect or inconsistent actions of the employer. Below we consider what violations are most common when imposing disciplinary sanctions. Let's start with an explanation of how important it is to familiarize the employee with his job responsibilities.

The employee must be familiarized with his job responsibilities.

As we noted at the beginning of the article, an employee may be punished for failure to perform or improper performance of the labor duties assigned to him. However, often in the company labor duties are not assigned to the employee properly. For example, some obligation is agreed upon by the parties, but is not fixed in any document - neither in the contract, nor in the internal labor regulations, nor in the job description. in order to avoid difficulties in the future, it is recommended to job descriptions indicate what duties the employee should perform in the absence of a colleague.

Sometimes the employer establishes the duties of an employee in a document that cannot be recognized as valid for this employee. For example, it exists, but the employee is not familiar with it against signature. It is impossible to punish an employee for performing official duties that are not properly established.

Pay attention to the design of local regulations

One of the local acts of the organization are the rules of internal labor regulations. If the document is drawn up incorrectly, in the future the employer may have difficulties with the application of disciplinary sanctions.

According to Article 190 of the Labor Code, the internal labor regulations of the organization are approved by the employer, taking into account the opinion of the representative body of employees. Who represents the interests of workers? This may be a trade union organization (Article 29 of the Labor Code of the Russian Federation). Another option is that employees have the right to choose their representative (representative body) at the general meeting. This is stated in article 31 of the Labor Code.

In practice, there is often a situation where the same people are the founders of several companies. In this case, they often make a mistake: they develop universal rules of internal order. That is, the rules do not indicate the specific name of the organization, they are introduced to all new employees, regardless of which company they get a job with. This can lead to a problem, namely: it will be impossible to punish employees for breaking the rules. Therefore, it is necessary to ensure that local documents such as internal regulations are drawn up for each firm and employees of each employer are familiar with them.

Documents required for the application of a disciplinary sanction

Violations are often found by reviewing disciplinary orders and related documents. Common Mistake- the absence of an explanatory note of the employee subjected to disciplinary action.

Recall that, according to Article 193 of the Labor Code, before applying a disciplinary sanction, the employer must demand a written explanation from the employee. If, after two working days, the specified explanation is not provided by the employee, then an appropriate act is drawn up (part 1 of article 193 of the Labor Code of the Russian Federation). If the named norm is violated, the application of a disciplinary sanction is illegal.

Deadlines for imposing disciplinary action

Sometimes during inspections it is found that the statutory deadlines for bringing to disciplinary responsibility have been violated. Recall that a disciplinary sanction is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was sick, on vacation, as well as the time necessary to take into account the opinion of the representative body of employees. A disciplinary sanction may not be applied later than six months from the date of commission of the misconduct, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the date of its commission. The indicated time limits do not include the time of proceedings in a criminal case (part 4 of article 193 of the Labor Code of the Russian Federation).

The inspector will check the dates of employee misconduct reports, explanatory notes, disciplinary orders, timesheets, and other documents and will be able to determine whether the statutory deadlines have been met. Carry out the same check before the arrival of controllers and, if you find a violation, cancel the illegal order for disciplinary action.

Check whether the orders for the application of disciplinary sanctions are painted by employees and what dates appear. According to part 6 of article 193 of the Labor Code, the employer's order to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, an appropriate act is drawn up.

The main mistakes in the application of disciplinary action in the form of dismissal

One of the types of disciplinary action is the dismissal of an employee. Sometimes when assigning this type of punishment, employers make the following mistakes:

Any mandatory documents are missing or incorrectly drawn up: explanatory notes, acts, orders, etc. The employee is not familiarized with the orders against signature, or he is familiarized with the orders later than the deadline;

Dismissal of an employee at the initiative of the employer during the period of his temporary incapacity for work and during his vacation. This violates the requirement of Article 81 of the Labor Code (with the exception of cases of dismissal in connection with the liquidation of the organization or the termination of the activity of an individual entrepreneur);

Upon dismissal, the employee was not issued, but according to Article 84.1 of the Labor Code of the Russian Federation, it must be issued on the day of dismissal;

Illegal dismissal of pregnant workers. Article 261 of the Labor Code prohibits the dismissal of pregnant women at the initiative of the employer, except in cases of liquidation of the organization or termination of the activity of an individual entrepreneur;

The monetary (or part of it), salary and other amounts due to the employee upon dismissal were not paid;

When dismissing for repeated failure to perform labor duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation), it was not taken into account that for the first of two violations, a disciplinary sanction was not officially applied to the employee, that is, an order was not issued to announce a remark or reprimand. And its presence, according to Article 81 of the Labor Code, is mandatory. Without it, the court and the inspector will not consider the dismissal legal, even if reports, explanatory notes, etc., have been drawn up on the fact of the violation;

When dismissed for repeated failure to perform labor duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation) or absenteeism (subparagraph “a”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation), it is not taken into account that the employee’s misconduct had a good reason;

For one violation, two penalties were applied to the employee, for example, orders were issued for reprimand and dismissal. Application of two penalties for one violation is unacceptable.

Mistakes in the preparation of documents for dismissal can lead not only to a fine, but also to the reinstatement of illegally dismissed employees. Therefore, if you find that these errors have been made, you need to try to correct them. For example, if laid-off workers are not issued with work books or have not been paid any of the amounts due, contact them immediately, invite them to receive documents or send a notification by mail to collect the work book or agree to send it by mail.

Errors in imposing a disciplinary sanction in the form of a fine

Sometimes the manager signs an order for disciplinary action in the form of deprivation of the bonus. For example, if an employee was late, allowed a marriage, or did not fulfill the plan. It's illegal. Indeed, in Article 192 of the Labor Code, the list of disciplinary sanctions does not include deprivation of the bonus. Therefore, the company is not entitled to apply such a penalty to the employee. The bonus can not be paid (if there are legal grounds), but it is impossible to write that the deprivation of the bonus is a disciplinary sanction.

In order not to legally pay a bonus to an employee, it is necessary that the company has a document that clearly defines the bonus criteria and the cases when bonuses are paid and when not.