Is it possible to bring an employee to disciplinary liability? Order of disciplinary action

The process of labor relations is not always connected with work issues and production activities. In any work collective Situations may arise in which a violation of labor legislation or production discipline occurs. Such cases are necessarily regulated by law, and there is a wide base of court cases and legal practice for resolving such disputes and cases.

Normative base

Since questions disciplinary liability are important for both parties to the labor relationship (employee and employer) and often determine the future fate of the employee, the legislator has strictly regulated the process of resolving such disputes, as well as the actions of both parties in the presence of facts of violation.

The main act regulating labor Relations on the territory of our country is the Labor Codec c (but in which case an employee has the right to terminate an employment contract, you can read). In this matter, the imperative principle is used, that is, both parties to the conflict must adhere to strictly regulated rules when this type of responsibility occurs.

In turn, the Labor Code gives the concept of disciplinary responsibility. This is an event or fact of action or inaction in which an employee does not fulfill his job duties in accordance with the employment agreement (contract).

Grounds and conditions for bringing to responsibility

The basis for holding an employee accountable is the fact of violation labor regulations and failure by the employee to fulfill his direct duties established by the employment contract. The employee is obliged to comply with labor legislation, as well as internal labor standards, daily routines and labor discipline, if these do not contradict federal legislation. Based on this, in case of violation of any norms and the fact of objective proof of such violations, the employee will bear disciplinary liability. Read our article about which ones are considered in criminal law.

The basis most often is a misdemeanor, that is, an active intentional action of the employee, but there are also frequent cases of inaction in the event of a violation. The grounds under labor law include:

• failure by an employee to fulfill his direct regulated duties approved by the employment contract (Article 81). This ground also includes repeated violations labor discipline (this concept regulated by internal regulations of the enterprise). If these offenses are committed, the employee may be held liable for this type of liability. If a one-time offense is committed, the employer may not apply this type of punishment, but only an oral or written reprimand;
• gross violation of labor regulations. This concept includes several types of violations:
  • Absence of an employee without good reasons (illness, difficult life situation) during the working day for more than 4 hours in a row or throughout the whole day. This type Violations can be punished up to and including dismissal, but if the employee provides written evidence of the time off in good faith within a few days, the employer does not have the right to take any measures.
  • Also, if an employee appears during work hours in a state of intoxication, be it alcohol, toxic substances or drugs and their precursors, punishment must also be applied to the employee, and such punishment may lead to the dismissal of the employee .
  • It is also a serious offense to disclose any secret of the organization.(according to civil law, these include commercial, state, and official secrets). Due to the fact that the disclosure of confidential information can cause significant harm not only to a private company, but also to the state, the employer is obliged to resort to punitive measures against the employee.
• failure to comply with instructions labor inspection and, accordingly, violation of labor standards(occupational safety) entails both the imposition of a fine on the organization and organizational conclusions in relation to a specific employee. Committing a criminal or administrative offense during work or at the workplace related to the performance of official duties; It is also worth paying attention to which ones exist and what they are
• commission by an employee of actions discrediting his honor and dignity or immoral acts(this type of offense is common among civil servants, as well as among teachers educational institutions). These actions also attract sanctions from management;
• commission of illegal actions by an employee whose job contract involves working with money (valuables) in relation to these values ​​(embezzlement, loss of property).

You may also be interested in information about what types of

On the video there is a list of violations and prosecution:

Procedure for imposing disciplinary sanctions

When an action that meets the grounds for imposing this type of penalty occurs, the employer must adhere to the following algorithm of actions:

• after discovering a violation, the employer is obliged to request a written explanation of his actions from the offending employee, and also to stop this violation (if he appears in a state of intoxication, the employee must be sent for examination to a medical institution and not allowed to perform any work. It is also worth paying attention to );
• after receiving an explanation from the employee, it is necessary to form a special commission, which will include representatives of the organization’s board, human resources department, direct supervisors of the subordinate and representatives of the trade union. The commission, within 4 days, examines the case of violation of labor discipline and makes a decision to impose a penalty or withdraw all claims from the employee;
• if the employee does not agree with the decision of the commission, he has no choice but to appeal this decision through the judiciary. If the employee agrees with the commission’s decision on guilt, a penalty is immediately imposed on him.

The video shows how and when responsibility is imposed:

Statute of limitations for prosecution

An important issue is the application of penalties within a time frame. This type of penalty should not be applied to an employee after a month has passed from the date the offense was committed. However, if the offense is criminally punishable, or the employee was on vacation or sick leave at the time of the violation, this time is not counted towards the penalty period. What is tort liability in civil law, you can read

Bringing disciplinary action to an employee (announcement of a reprimand or reprimand): an approximate step-by-step procedure

TAKING DISCIPLINARY RESPONSIBILITY (ANNOUNCING A REMARK OR REMEDINATOR):
STEP-BY-STEP PROCEDURE

130 step-by-step instructions for HR work >>

2. Requesting a written explanation from the employee regarding non-performance or improper performance labor responsibilities.

The employer prepares a notice of the need to provide a written explanation for the misconduct. The notice is prepared in two copies (one for each party) and is registered in the manner established by the employer, for example, in the register of notifications and proposals to employees. The employer gives one copy of the notice to the employee. On the second copy of the notice (the employer’s copy), the employee writes that he has read the notice, received one copy of it, puts the date of receipt, and signs.

If the employee provides a written explanation, it is reviewed by the employer and registered in the manner prescribed by the employer in the appropriate registration register.

If after two working days stated explanation is not provided by the employee, then a corresponding act is drawn up. If the employer has established a procedure for registering acts in a special journal, then the signed act must be registered in such a journal.

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

3. Taking into account all the circumstances of the commission of disciplineserious offense:

The employee is guilty of committing an offense;

The severity of the offense;

The circumstances under which it was committed;

reasons for the employee’s misconduct;

Previous behavior of the employee;

Attitude to work.

If the employer decides not to take disciplinary action, the procedure is terminated.

If the employer decides to impose a disciplinary sanction in the form of a reprimand or reprimand, then we move on to the next step.

4. Checking the deadlines established for the application of disciplinary sanctions.

6. Registration of an order (instruction) on the application of a disciplinary sanction in the form of a reprimand or reprimand in the manner established by the employer, for example, in the appropriate log of orders (instructions).

7. Familiarization with the order (instruction) employee's signature.

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 (Part 6 of Article 193 of the Labor Code of the Russian Federation). The act is registered in the manner prescribed by the employer in the appropriate registration journal.

According to Part 4 of Art. 66 of the Labor Code of the Russian Federation information on penalties in work book are not made, except in cases where the disciplinary sanction is dismissal.

Journal of registration of acts. Sample form >>

If an employee refuses to receive a notification, read it, and put his signature, it is recommended to draw up an appropriate act, which is certified by the signatures of the originator and the employees present at the refusal, and send the notification to the employee’s home address by letter with a notification and a list of attachments. The act is registered in the manner prescribed by the employer in the appropriate registration journal.

What can a disciplinary sanction be imposed for? What procedure must be followed by the employer so that his actions are not challenged by the employee and additional money is paid to him? What will determine the level of detail and the number of documents collected by the employer?

Labor discipline- obligatory obedience for all employees to the rules of conduct determined in accordance with the Labor Code of the Russian Federation, other federal laws, collective agreement, agreements, local regulations, employment contract (Article 189 of the Labor Code of the Russian Federation). It would seem that everything is quite clear: the employer says what and how can be done in work time, the employee obeys. But as always and in everything, there are certain nuances. Labor legislation regulates only those . The employer cannot, however, .

ABOUT psychological aspect in establishing a punishment system, read the article “”

Disciplinary sanctions are applied when an employee fails to perform or improperly performs his duties (Article 192 of the Labor Code of the Russian Federation). In this case, these responsibilities must be recorded in the employment contract, job description or in local regulations employer. This means that before starting the procedure for holding an employee accountable, you need to make sure that he has been familiarized (by signature and date) with the document whose provisions he has violated. Here are examples of violations of labor discipline:

• failure to perform a labor function;
• failure to comply with the manager's instructions;
• violation of labor discipline (lateness, absence from the workplace without good reason, refusal to undergo a medical examination if it is mandatory for the employee, refusal to train in the basics of labor protection, being intoxicated at the workplace, etc.);
• committing guilty actions (theft, embezzlement, damage, etc.) in relation to the employer’s property, established by a court verdict that has entered into legal force (subparagraph “g”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation).

Example 1

Being late or absenteeism

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To determine how late a person was for work, you must first find out what time he was supposed to arrive. The work hours established in the organization (start and end) must be recorded in the Internal Labor Regulations. But if they forgot to familiarize a late employee with them under his signature, then bringing him to justice will be problematic.

Lateness is an employee arriving at work later than scheduled without good reason. If an employee was absent from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as for more than 4 hours in a row, then this will be called absenteeism.

There may also be questions regarding a number of prohibitions regulating the behavior of employees during work.

Example 2

Dress code violation

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The problem of the dress code and the possibility of penalties for violations of it have been discussed for quite some time, and most experts agree that the requirements for employee clothing are legal only for those positions for which it is obligatory to wear special clothing or a company uniform; for the rest, corporate requirements can only be worn recommendatory nature.

Example 3

Use of obscene language

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Oddly enough, it is quite difficult to fire an employee for using obscene language towards colleagues or even a manager. For example, the Irkutsk Regional Court (appeal ruling No. 33-9359/2013 dated November 18, 2013) declared illegal the order to declare a remark “for a disrespectful tone towards senior management and direct subordinates” and recovered moral damages from the organization for bringing the employee to disciplinary liability .

Disciplinary offense- failure or improper performance by an employee, through his fault, of the labor duties assigned to him (Article 192 of the Labor Code of the Russian Federation). The offense is quite complex:

• firstly, there must be some actions (or inaction) of the employee that are contrary to his obligations under employment contract;
• secondly, the employee’s actions must violate the rules established and recorded by current legislation (for example, absenteeism) or local regulations of the employer (for example, the requirement to work in special clothing);
• thirdly, they must be committed by a person who has an employment relationship with the organization;
• fourthly, the employee’s actions must be conscious (have direct intent to commit) or committed through negligence.

It is after establishing the presence of these components that a person can be brought to disciplinary liability. Additionally, to determine the proportionality of responsibility for an offense, the presence of aggravating and mitigating circumstances is also established.

Responsibility at its core is the obligation to endure the negative consequences of one’s actions. Disciplinary responsibility, accordingly, a special type of legal (statutory) liability applied to an employee in labor relations by an authorized representative of the employer. Holding accountable is the right of the employer, in the exercise of which he is obliged to comply established by law procedure.

Disciplinary action- these are the very negative consequences that an employee must endure for his illegal behavior. The legislator has quite strictly limited their types (Article 192 of the Labor Code of the Russian Federation):

• comment;
• rebuke;
• dismissal on appropriate grounds.

In addition, federal laws, charters and discipline regulations for individual categories employees may also be subject to other disciplinary sanctions. For example, an additional “warning of incomplete compliance with official duties” may be applied to civil servants.

Responsibility varies

Traditionally, disciplinary liability is usually divided into general, established by the Labor Code of the Russian Federation, and special, established by relevant legal acts (Charter on the discipline of maritime transport workers, Regulations on the discipline of railway transport workers, etc.).

At the household level, responsibility is usually divided into:

• on disciplinary(most often affecting the moral and psychological component of the individual) and
• monetary, that is, “hitting” the employee’s pocket, which should not be confused with material (Article 233 of the Code of the Russian Federation).

For more information on how monetary liability is applied, read the article “Crime and punishment: taking into account the psychological factor"

Article 192 of the Labor Code of the Russian Federation calls upon the employer when imposing a disciplinary sanction take into account the gravity of the offense committed and the circumstances of its commission. But both severity and assessment of circumstances are subjective categories.

Read about financial responsibility in the article “All about the financial responsibility of an employee"

Each employer representative looks at them from “his own bell tower.” For one boss, it is normal for his employees to communicate on personal topics during working hours, but for another, this is an unacceptable waste of working time.

Another example is smoking. Agree, a judge who smokes will probably react differently to the fact that an employee runs endlessly from his workplace to the smoking room than someone who is allergic to tobacco smoke.

If the employer solves the problem of determining the proportionality of the crime and punishment incorrectly, then during the trial the negligent employee can be reinstated at work, paying him the average salary for the period of suspension, and possibly also compensating for moral damages.

In this situation, it is difficult to give universal advice; each case requires an individual assessment, but in general, if the employee has not committed an offense for which the legislator has established dismissal as the upper limit of punishment, it can be recommended to be held accountable “increasingly”: reprimand - reprimand - dismissal .

The most severe punishment - dismissal - is possible on the grounds listed in Article 81 of the Labor Code of the Russian Federation, including relate:

• repeated failure to comply an employee without good reason labor duties if he has a disciplinary sanction(clause 5, part 1, article 81 of the Labor Code of the Russian Federation);
• single gross violation of labor duties by an employee(clause 6, part 1, article 81 of the Labor Code of the Russian Federation).

It is worth remembering that if a year has passed since the moment of prosecution (Article 194 of the Labor Code of the Russian Federation), then the penalty is considered “extinguished”; accordingly, it is worth returning to the minimum penalties.

When imposing a penalty, the employer in documents (memos, orders, acts) should not only reflect the circumstances of the offense, but also assess the attitude of the offending employee to work, negative consequences his actions for the employer, attach characteristics of colleagues.

Disciplinary procedure

The procedure for bringing an employee to disciplinary liability has several stages. Each of which must be properly executed.

IN small organizations quite often they neglect to follow the procedure, limiting themselves to it simplified version of “explanatory - order”, however, this approach is fraught with complications if the dispute extends beyond the walls of the organization. On the one hand, Art. 193 of the Labor Code of the Russian Federation requires the employer “before applying a disciplinary sanction” only to “request a written explanation from the employee.” But on the other hand, when assessing the legality of imposing a penalty, the court will study all the details of the case. In this situation, a lot will depend on how well the employer justified its position at the time the employee was held accountable. This can only be done through a full, properly documented investigation, especially if the employer’s goal was dismissal.

This short option is only acceptable if:

• the employee fully admits his guilt in a written explanation and
• the employer does not plan to use “draconian” measures, limiting himself to a remark or reprimand, which is not even entered in the work book.

“Expanded” chain of actions/documents in our opinion, it should look like this (for sample documents, see Examples 6-13):

1. Identification of misconduct - memo the person who identified it, in the name of the employer’s representative, authorized to make decisions on bringing to responsibility (this person is not always CEO). In some organizations, powers are not distributed on the principle of delegating to any of the deputies the right to sign all documents on personnel matters. There are situations when different types of misconduct, the initiative to bring to justice lies with different leaders, for example:
   • for misconduct related to the direct performance of job duties, only the immediate supervisor can initiate the procedure,
   • and for delays or violations of the regime - the head of the organization’s security service (data automated system recording the passage of employees becomes an additional basis).
2. Organization of an investigation into the misconduct - order to create a commission or an order from a responsible person to conduct an investigation.

   Let us note right away that the commission is not mandatory. One personnel officer can cope with coordinating the work of collecting documents and preparing a draft order. In this case, much depends both on the size of the organization and the frequency of holding employees accountable, as well as on the sophistication of the procedure.

   For example, in a large plant with “machine” accounting of working hours, the procedure for holding an employee accountable for being late for work may differ significantly from the same procedure in a small team:

   • in the first case, upon the daily printout of data from the program that controls the time employees pass the turnstiles at the entrance, the responsible person, after receiving the employee’s explanation, can immediately prepare a draft order for management to sign. Indeed, in such organizations, a process for evaluating the employee’s explanations is usually established, as well as a certain scale of punishments is drawn up, correlated with the time for which the employee was late;
   • in the second case, a situation may well arise when it will be necessary not only to obtain an explanation from the employee, but also to collect evidence of the very fact of being late. Then, since the event itself is extraordinary, assess the severity of the offense and only then bring to justice. It is advisable to document each of these steps.
3. To identify all the circumstances of the case, as well as the position of the “guilty” himself, it is necessary to familiarize himself with his explanation in in writing. After all, a person could really have good reasons or mitigating circumstances (for example, train traffic on the metro line on which the employee lives could have been unexpectedly blocked, and he had to travel “on transfers” (the employer may not know about this).

   Moreover, Art. 193 of the Labor Code of the Russian Federation obliges the employer to request a written explanation from the employee and allow the employee 2 working days to prepare it. Essentially, this is the time during which the employee can think and properly formulate his explanations, as well as collect evidence of his position (for example, a certificate of flooding from the Department of Deputies or a printout from the Internet about interruptions in transport services). Therefore, in our opinion, even the employee’s refusal to give an explanation on the day when the employer requests it does not stop this period. The employee may change his mind before the expiration of this period and still present his vision of the situation in writing, and the employer will be obliged to take it into account.

   Employee's refusal to explain is not an obstacle to applying a disciplinary sanction if it is recorded with the signatures of witnesses (this can be done in a separate act or provide a corresponding section directly in the request for explanations, which, if necessary, is filled out in the employer’s copy, see the mark with the number “2” in the Example 8). A recorded refusal to give a written explanation when holding an employee accountable may be regarded as an aggravating circumstance.

   Now let’s explain how the 2-day period is calculated, calculated in working days:

   Example 4

   Calculation of the time allotted for giving explanations

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   If an explanation was required on Thursday, April 14, then the first day of the deadline will be April 15 (Friday), and with a normal five-day work week with Saturday and Sunday days off, the second day will be Monday, April 18, until the end of the working day. After its completion or the next day, in the absence of a written explanation, it is considered not provided. It is better to immediately indicate in the request by what date explanations must be provided, this can eliminate misunderstandings (see the mark with the number “1” in Example 8).

4. If the circumstances of the case are investigated commission, then based on the results of its work an act is drawn up. Before preparing an order, in our opinion, it is highly desirable to have a final document that would contain:
   • the results of the investigation of the misconduct (with the attachment of the collected evidence),
   • recommendations on holding the employee to certain responsibility,
   • an explanation of why he should be brought to this level of responsibility.
5. Bringing disciplinary action to an employee - issuing an order, as well as familiarizing the violator with it within 3 working days under a personal signature (in case of refusal, this fact must be recorded in an act). Please note that a reprimand and reprimand were always formalized by order in free form, and dismissal was previously formalized using the unified form No. T-8. Now the document forms are approved by the head of the organization as part of the accounting policy.
6. If the most severe disciplinary sanction is applied to an employee - dismissal, then it reflected in the work book:

   But issuing a reprimand or reprimand in itself does not appear in the work book.

The described chain of actions (and documents) can be shortened, while complying with all the requirements of the Labor Code of the Russian Federation, by removing documents that deeply examine the circumstances of the case and the employee’s attitude to his work responsibilities. This middle option differs from the shortest “explanatory order” by the appearance of an act with the signatures of witnesses under the description of the fact of the violation. We will keep the numbering of actions as in the “long” chain, but in some cases we will adjust their content.

1. Identification of misconduct it is better to draw up not just a memorandum (usually from the immediate superior), but an act signed by at least 3 people: the originator and 2 witnesses(See Example 5). It is better to attract witnesses not from among the “administration”, but from among the colleagues of the offending employee; this should be done for greater persuasiveness if the case is considered by the labor inspectorate or court.

1. Next you need request written explanations(it is advisable to immediately provide a “stencil” in the form for witnesses to confirm the fact of refusal, if any, so as not to draw up a separate act for this case). This can be done in a separate document (shown in Example 8) or all in the same initial act (see mark “1” in Example 5). Accept and evaluate written explanations, if the “violator” provided them on time.

1. After this you can issue an order(it is implied that the executor who prepared it for signature has already investigated this case instead of the commission, which appears in the “detailed” chain of actions) and familiarize the employee with it.
2. If there is a dismissal, it still needs to be reflected in work book.

Example 5

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The legislator has set aside a certain period for the employer during which he can exercise his right to impose punishment. Disciplinary action is applied no later than 1 month from the date of discovery of the misconduct(Article 193 of the Labor Code of the Russian Federation). This period can be extended for the period of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the trade union (representative body of employees). However, if 6 months have passed since the date of the commission of the offense, and according to the results of the audit, inspection of financial and economic activities or audit - 2 or more years from the date of its commission, then the employee can no longer be punished.

For every disciplinary offense Only one disciplinary sanction can be applied (Article 193 of the Labor Code of the Russian Federation). Although within one incident there may be several such offenses (see numbers “1” and “2” in the act from Example 12).

If within a year from the date of application of the disciplinary sanction the employee is not subjected to a new disciplinary sanction, the original “burns out”, that is, the employee is considered to have no disciplinary sanction. The employer has the right, before the end of this period, on his own initiative, at the request of the employee himself, at his request immediate supervisor or a representative body of workers by order to lift a penalty from an employee. See Examples 14 and 15 for how this can be done.

Disciplinary responsibility is a special type of legal liability, its application is always associated with the performance of labor or official duties. A feature of disciplinary liability is the application of penalties that constitute its content, as a rule, by the subject of labor relations, namely the employer. In this connection, disciplinary liability is one of the manifestations of the employer’s power in relation to the employee who has entered into an employment contract with him.

Disciplinary liability consists of the application by an authorized representative of the employer to an employee who has committed a disciplinary offense of disciplinary sanctions established by law. Bringing disciplinary action against an employee who has committed a disciplinary offense is the right of an authorized representative of the employer. Whereas an employee who has committed a disciplinary offense is obliged to suffer the adverse consequences established by law. Consequently, the authorized representative of the employer has the right to release the employee from the obligation to suffer adverse consequences in connection with the disciplinary offense committed by him. In this case, the employee’s position improves compared to the law. Therefore, such an exemption should be recognized as meeting the requirements of labor legislation.

Thus, disciplinary liability can be defined as one of the types of legal liability, which consists in the right of an authorized representative of the employer to apply to an employee who has committed a disciplinary offense the disciplinary measures provided for by law and in the corresponding obligations of the employee who has committed a disciplinary offense, corresponding to this right, to undergo the established in the legislation has unfavorable consequences.

There are two types of disciplinary liability for employees. Firstly, the general disciplinary liability of employees. General disciplinary liability applies to all employees without exception. General disciplinary liability occurs according to the rules established in the Labor Code of the Russian Federation. The application of general disciplinary liability does not require proof of additional or special legally significant circumstances. In this connection, it is recognized as general disciplinary liability.

Secondly, we can distinguish special disciplinary liability of employees, which exists along with general disciplinary liability. In this case, special disciplinary liability is applied only in cases where general disciplinary liability cannot be applied. Disciplinary liability is introduced by special legislation, in particular by statutes and regulations on employee discipline. The application of disciplinary liability is always associated with proof of additional, that is, special, legally significant circumstances. There are several types of legally significant circumstances that must be proven when applying special disciplinary liability.

The first type of special legally significant circumstances that must be proven when applying special disciplinary liability is the assignment of an employee to special subjects who are subject to disciplinary liability according to special rules. For example, prosecutors and judges are subject to disciplinary liability according to special rules. At the same time, the general rules on disciplinary liability are applicable to them to the extent that they do not contradict the special legislation on bringing to responsibility of this type.

Secondly, as a type of special legally significant circumstances that must be proven when applying special disciplinary liability, we can highlight the performance by an employee of special labor duties directly related to the life and health of people. Such duties include performing work directly related to the movement of railway transport.

Thirdly, a circumstance, the proof of which allows us to draw a conclusion about the application of special disciplinary liability, is the presence of a special circle of persons or bodies vested with the right to impose disciplinary liability. For example, judges are subject to disciplinary liability by qualification boards upon the recommendation of the chairman of the relevant court. The President of the Russian Federation may bring heads of federal executive bodies to disciplinary liability.

Fourthly, a special type of circumstances, the proof of which allows us to draw a conclusion about the application of special disciplinary liability, is the presence of additional, that is, special, disciplinary sanctions applied to employees. For example, a special disciplinary sanction is deprivation of the driver’s right to drive a locomotive for a period of three months to one year with transfer with his consent to another job, release from a position related to the operational work of railways, with the provision of another job with the consent of the employee in the order of transfer work.

Fifthly, the circumstances, the proof of which allows us to draw a conclusion about the application of special disciplinary liability, should recognize the existence of additional opportunities for appealing disciplinary sanctions. In particular, in addition to the judicial one, there may be an extrajudicial procedure for appealing disciplinary sanctions, for example, to a higher authority or to a higher official. For example, the decision of the regional qualification board of judges on the application of special disciplinary liability can be appealed to the High Qualification Board of Judges of the Russian Federation, and then in court. Employees of government organizations can appeal a disciplinary sanction to a higher official.

Proof of each type of circumstances considered allows us to draw a conclusion about the application of special disciplinary liability to the employee. At the same time, when applying special disciplinary liability, circumstances that include various types can be proven. For example, judges are classified as special subjects of disciplinary liability and appeal against special disciplinary liability in a special manner. Although proof of one type of circumstance allows us to draw a conclusion about the application of special disciplinary liability.

Thus, general disciplinary liability differs from special liability in terms of proof of one or more types of circumstances considered. Proof of each of them may become the basis for recognizing special disciplinary liability. However, as a general rule, general disciplinary liability is applied along with special one. In this connection, special disciplinary liability is applied only in cases where there are no grounds for applying general disciplinary liability.

procedure for bringing to disciplinary liability

The main responsibilities of the employee are submission to the rules of conduct enshrined in the Labor Code of the Russian Federation, other laws, collective agreements, employment contracts, internal labor regulations, other local acts and conscientious performance of functional duties in accordance with the job description. Accordingly, failure to fulfill or improper performance of these duties serves as grounds for bringing the employee to disciplinary liability.

An employer can bring an employee to disciplinary liability only if he has created appropriate conditions for the employee to comply with labor discipline.

Thus, a prerequisite for disciplinary liability is the presence of the employee’s guilt. Consequently, it is impossible to raise the question of bringing to disciplinary liability an employee who refused to perform work in the event of a danger to his life and health due to violation of labor protection requirements; or from performing heavy work and work with harmful and dangerous working conditions not provided for by the employment contract; or refused to terminate his vacation early at the request of the employer.

To protect the employee, the law established a clear procedure for bringing to disciplinary liability and a closed list of types of disciplinary sanctions.

Before applying disciplinary action, the employer must obtain a written explanation from the employee. If the employee refuses to write, an act is drawn up in any form. Refusal to provide an explanation is not an obstacle to applying disciplinary action.

An order to impose a disciplinary sanction is issued signed by the manager. The employee must be familiarized with the order against signature within 3 days from the date of its publication. If the employee refuses to sign the specified order, a corresponding act is drawn up.

Disciplinary action is applied no later than one month from the date of discovery of the misconduct. The specified period begins to run from the day when the person to whom the employee is subordinate for work (service) became aware of the commission of an offense, regardless of whether he was vested with the right to impose disciplinary sanctions. This does not take into account the time the employee is ill, on vacation, or the time required to take into account the opinion of the representative body of employees. The absence of an employee from work for other reasons, including in connection with the use of days off, does not interrupt the specified period. To the holiday that interrupts the flow month period, you should include all vacations provided by the employer in accordance with current legislation, including annual (main and additional) vacations, vacations in connection with training educational institutions, leaves without pay.

In addition, 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, financial and economic activity or audit, no later than two years from the date of its commission. IN specified deadlines The time of criminal proceedings is not included.

For each disciplinary offense, only one disciplinary sanction can be applied. The Labor Code names the following as disciplinary measures:

Comment;

Rebuke;

Dismissal.

Only their employer can apply them to the employee, taking into account the severity of the offense committed, the circumstances under which it was committed, the employee’s previous behavior, and his attitude to work.

M.E. DZARASOV,
Ph.D. legal Sciences, Jr. scientific co-workers Sector of Labor Law and Social Security Law of the Institute of State and Law of the Russian Academy of Sciences

Types of disciplinary sanctions. The procedure for bringing an employee to disciplinary liability

Duration of disciplinary action

The purpose of legal norms is to ensure order in society. In the event that people in their behavior deviate from those contained in legal norms rules, there is a violation of law and order. The internal labor regulations of the organization are part of the general legal order, and they must also be observed.
Disciplinary liability is the employer’s reaction to the employee’s unlawful behavior, that is, to the disciplinary offense he has committed. However, it must be remembered that according to Part 2 of Art. 189 of the Labor Code of the Russian Federation, it is the employer who has the obligation to create the conditions necessary for employees to comply with labor discipline.

Labor discipline is obligatory for all employees to obey the rules of conduct determined in accordance with labor legislation, collective agreements, agreements, employment contracts, and local regulations of the organization. Part 1 art. 189 Labor Code of the Russian Federation

Grounds for bringing an employee to disciplinary liability. Disciplinary offense

The basis for bringing an employee to disciplinary liability is the commission of a disciplinary offense. The Labor Code of the Russian Federation understands a disciplinary offense as the failure or improper performance by an employee, through his fault, of the labor duties assigned to him (Part 1 of Article 192 of the Labor Code of the Russian Federation).
A disciplinary offense is characterized by the presence of such characteristics as subject, subjective side, object, objective side.
The subject of a disciplinary offense may be an employee who has an employment relationship with a specific employer.
The subjective side is the guilt on the part of the employee, which can be expressed in the form of direct or indirect intent, as well as negligence.
The object of a disciplinary offense is the internal labor regulations of the organization.
The objective side is the action (inaction) of the offender.
For correct application disciplinary action, it is necessary to have a clear understanding that labor law relates to work duties. The main responsibilities of the employee are set out in Art. 21 Labor Code of the Russian Federation. Thus, the employee is obliged:
- conscientiously fulfill his labor duties assigned to him by the employment contract;
- comply with the internal labor regulations of the organization;
- maintain labor discipline;
- fulfill established standards labor;
- 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.
The labor responsibilities of both the employee and the employer can also be enshrined in other regulations, collective agreements and agreements, and they are specified in employment contracts.
In paragraph 35 of the resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" it is emphasized that when considering a case on the reinstatement of a person dismissed under clause 5 of Article 81 of the Labor Code of the Russian Federation, or on challenging a disciplinary sanction, it should be taken into account that the failure of an employee to perform labor duties without good reason is failure to perform or improper performance through the fault of the employee labor duties assigned to him (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules and so on.).
The Supreme Court of the Russian Federation in this resolution draws attention to the fact that such violations include:
1. Absence of an employee without good reason from work or workplace.
At the same time, it is clarified that if the employment contract concluded with the employee or the employer’s local regulatory act (order, schedule, etc.) does not stipulate specific workplace this employee, then in the event of a dispute regarding the issue of where the employee is obliged to be when performing his job duties, one should proceed from the fact that, by virtue of Part 6 of Art. 209 of the Labor Code of the Russian Federation, a worker is the place where the 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.

As a general rule, applying disciplinary sanctions is the right, not the obligation of the employer.

2. Refusal by an employee to perform job duties without good reason due to a change in in the prescribed manner labor standards (Article 162 of the Labor Code of the Russian Federation), since by virtue of an employment contract, the employee is obliged to perform the labor function determined by this agreement and comply with the internal labor regulations in force in the organization (Article 56 of the Labor Code of the Russian Federation).
It should be borne in mind that refusal to continue work due to a change essential conditions an employment contract is not a violation of labor discipline, but serves as a basis for termination of the employment contract under clause 7 of Art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Art. 73 Labor Code of the Russian Federation.
3. Refusal or evasion without good reason from a medical examination of workers in certain professions, as well as an employee’s refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work (clause 35 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
Participation of workers in a strike cannot be considered as a violation of labor discipline, and accordingly, disciplinary measures cannot be applied to them in this case, except in cases where a court decision declares the strike illegal (Parts 1 and 2 of Article 414 of the Labor Code of the Russian Federation). If a strike is declared illegal, workers are obliged to stop it and begin work no later than the next day after delivery of a copy of the said court decision to the body leading the strike (Part 6 of Article 413 of the Labor Code of the Russian Federation). If employees do not start work in established by law terms, they may be subject to disciplinary action for violation of labor discipline (Part 1 of Article 417 of the Labor Code of the Russian Federation).
The employee, in the performance of his work duties, must submit to the disciplinary authority of the employer. Application of disciplinary action in accordance with Art. 22 and 192 of the Labor Code of the Russian Federation is the right of the employer; he is independent when making decisions. An exception to the rule is provided for in Art. 195 of the Labor Code of the Russian Federation, which states the employer’s obligation to apply disciplinary action to the head of the organization (or his deputies), up to and including dismissal, in cases where it is confirmed that the head of the organization (his deputies) violated laws and other regulatory legal acts on labor, the terms of the collective agreement, agreements specified in the application of the representative body of workers.

Types of disciplinary sanctions. The procedure for bringing an employee to disciplinary liability

The employer does not have the right to establish in local regulations and apply other types of disciplinary sanctions other than those listed in Art. 192 of the Labor Code of the Russian Federation, federal laws, charters and regulations on discipline

The employer has the right to apply the following disciplinary sanctions:
- remark;
- reprimand;
- dismissal for appropriate reasons.
Most employees can be subject to only those penalties that are determined by the Labor Code of the Russian Federation. In addition to the above disciplinary sanctions against separate groups employees may be subject to penalties provided for by federal laws, charters and discipline regulations. Labor legislation does not allow the use of disciplinary sanctions not provided for by federal laws, charters and discipline regulations.
The Labor Code of the Russian Federation does not directly indicate on what grounds dismissal should be considered a disciplinary sanction. Such grounds include, for example, paragraphs. 5, 6, 9 and 10 tbsp. 81 Labor Code of the Russian Federation.
It is necessary to pay attention to the following: Part 2 of Art. 77 of the Labor Code of the Russian Federation establishes that the grounds for termination of an employment contract can be established by the Labor Code of the Russian Federation and other federal laws. In fact, it turns out that in the regulations or charter on discipline, approved. By decree of the Government of the Russian Federation, additional grounds for dismissal cannot be specified other than those contained in the Labor Code of the Russian Federation and other federal laws.

The Presidium of the Supreme Court of the Russian Federation, by its resolution dated July 3, 2002 No. 256pv-01, recognized clause 18 of the Regulations on the discipline of railway transport workers of the Russian Federation, approved. by Decree of the Government of the Russian Federation dated 08/25/92 No. 621 (as amended by Decrees of the Government of the Russian Federation dated 12/25/93 No. 1341, dated 04/23/96 No. 526, dated 02/08/99 No. 134), illegal. It was recognized that the introduction by by-law of an additional basis for dismissal (for the employee committing gross violation discipline that created a threat to the safety of train traffic... the life and health of people or led to a violation of the safety of cargo...) contradicts the requirements of the legislation of the Russian Federation.

Labor discipline of workers whose work is directly related to the movement Vehicle, must be regulated by the Labor Code of the Russian Federation and regulations (statutes) on discipline approved by federal laws. To date, no such charter or regulation has been adopted. In accordance with Art. 423 of the Labor Code of the Russian Federation, previously approved charters and regulations on discipline are valid until the relevant federal laws are put into effect, which will approve new charters and regulations on discipline.
The procedure for bringing an employee to disciplinary liability is established by Art. 193 Labor Code of the Russian Federation. The employer, before applying any disciplinary sanction, must request a written explanation from him.

The employee’s refusal to provide an explanation is reflected in the report.
An employee’s refusal to provide an explanation is not an obstacle to applying disciplinary action. Parts 1 and 2 st. 193TKRF
The period for applying a disciplinary sanction (1 month) does not include the time the employee is ill, on vacation, or the time required to take into account the opinion of the representative body of employees. Part 3 art. 193 Labor Code of the Russian Federation

An employee can be brought to disciplinary liability no later than one month from the date of discovery of the offense .
When bringing an employee to disciplinary liability, you should remember:
- the month period for imposing a disciplinary sanction must be calculated from the date of discovery of the offense;
- the day of discovery of the offense from which the month period begins is considered the day when the person to whom the employee is subordinate for work (service) becomes aware of the commission of an offense regardless of whether it has the right to impose disciplinary sanctions;
- the one-month period for applying a disciplinary sanction does not include the time the employee is ill, on vacation, or the time required to comply with the procedure for taking into account the opinion of the representative body of employees (Part 3 of Article 193 of the Labor Code of the Russian Federation); the employee’s absence from work for other reasons, including in connection with the use of rest days (time off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the specified period;
- vacation that interrupts the flow 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, vacations without pay wages(clause 34 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
A disciplinary sanction cannot be applied to an employee 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 (Part 4 of Article 193 of the Labor Code of the Russian Federation).
Thus, the legislation clearly establishes the time limits within which an employee can be brought to disciplinary liability. Imposing disciplinary action after these deadlines is illegal.
For each disciplinary offense, the employer can apply only one disciplinary sanction (Part 5 of Article 193 of the Labor Code of the Russian Federation). Often, employers reprimand or reprimand and immediately fire the employee. This practice is unacceptable, since such dismissal will be declared illegal by the court. In this case, the employer imposes disciplinary sanctions twice for the same disciplinary offense.

Citizen I. contacted the State Labor Inspectorate with a complaint about illegal dismissal. During the audit, it was established that I. worked at Lions LLC as an accountant for 3 years. During this period, she was repeatedly brought to disciplinary liability for improper performance of her duties under the employment contract. When another violation was discovered, she was reprimanded, then she was fired under clause 5 of Art. 81 of the Labor Code of the Russian Federation for repeated failure to fulfill labor duties without good reason.

I. was reinstated at work because the employer applied two disciplinary sanctions for the same disciplinary offense. In addition, he violated the procedure for applying disciplinary sanctions against I. - she was not familiarized with any of the orders to bring her to disciplinary liability against signature.

The Labor Code stipulated that the body considering a labor dispute has the right to take into account the adequacy of the disciplinary sanction with the gravity of the offense committed, the circumstances under which it was committed, the employee’s previous work and behavior. Unfortunately, the Labor Code of the Russian Federation does not contain such a rule. However arbitrage practice when considering cases of reinstatement at work, it follows the path of taking into account these circumstances. It seems that when making a decision to bring an employee to disciplinary liability, these circumstances should still be taken into account, despite the fact that the Labor Code of the Russian Federation does not yet contain an obligation to take them into account

The employer's order (instruction) to apply a disciplinary sanction must be announced to the employee against signature within three working days from the date of issue. If the employee refuses to sign the specified order (instruction), then a corresponding act is drawn up (Part 6 of Article 193 of the Labor Code of the Russian Federation).
Paragraph 33 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 states that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the offense, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only upon expiration of the notice period for dismissal.
An employee can appeal a disciplinary sanction to the state labor inspectorate or bodies for consideration of individual labor disputes (Part 7 of Article 193 of the Labor Code of the Russian Federation). The bodies that consider individual labor disputes are labor dispute commissions and courts.
In accordance with Art. 391 of the Labor Code of the Russian Federation directly in the courts, individual labor disputes are considered based on applications from employees for reinstatement at work, regardless of the grounds for termination of the employment contract, or about changing the date and wording of the reason for dismissal. If an employee believes that a disciplinary measure such as dismissal has been unlawfully applied to him, then he should go directly to the court, bypassing the labor dispute commission. At the same time, if an employee is held accountable and sanctions such as a reprimand or reprimand are applied to him, the employee can appeal to both the court and the labor dispute commission.

Duration of disciplinary action

Part 1 of Art. 194 of the Labor Code of the Russian Federation establishes: if within a year from the date of application of a disciplinary sanction an employee is not subjected to a new disciplinary sanction, then he is considered to have no disciplinary sanction.

Before the expiration of the one-year period, the employer has the right to remove the penalty from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees (Part 2 of Article 194 of the Labor Code of the Russian Federation). At early withdrawal disciplinary action, it is necessary to issue an appropriate order (instruction).

Labor legislation establishes additional legal guarantees for certain groups of workers when their employer brings them to disciplinary liability.
Thus, the dismissal of workers who are members of a trade union under clause 5 of Art. 81 of the Labor Code of the Russian Federation, which also refers to disciplinary sanctions, is carried out taking into account the opinion of the elected trade union body this organization. The opinion of the trade union organization must be taken into account in the manner established by Art. 373 Labor Code of the Russian Federation.
Employee representatives participating in collective negotiations during the negotiation period cannot without the prior consent of the body that authorized them to represent, be subject to disciplinary action, as well as dismissed at the initiative of the employer, with the exception of cases of termination of the employment contract for committing an offense for which, in accordance with the Labor Code of the Russian Federation or other federal laws, dismissal from work is provided for (Part 3 of Article 39 of the Labor Code of the Russian Federation).
According to Art. 66 of the Labor Code of the Russian Federation, information about penalties is not entered into the work book, except in cases where the disciplinary sanction is dismissal.
The forms of orders to announce a reprimand or reprimand are not unified; when preparing them, you must follow general rules which are presented for registration of organizational and administrative documents.
In the event that a disciplinary sanction such as dismissal is applied to an employee, the order is drawn up according to the unified form No. T-8. This form was approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for labor accounting and its payment.”
In conclusion, we note that employers are primarily interested in complying with the requirements contained in the legislation when applying disciplinary sanctions. By following the rules set forth in regulatory legal acts, they save their money and time.