The procedure for dismissal for disciplinary action. Dismissal for disciplinary offenses

If an employee violates labor discipline, and especially does it repeatedly, the employer can use termination as a last resort. employment contract. Dismissal for reasons can be applied to employees whose harm to the work process or the image of the enterprise is obvious. The rules for dismissing employees on disciplinary grounds are quite strict and their violation can be critical for the employer.

Is dismissal for disciplinary action permissible - article of the Labor Code of the Russian Federation and laws

Labor legislation standards imply mandatory adherence to labor discipline rules on the part of employees and employers. Considers issues related to this aspect in the legal field, mainly the Labor Code of the Russian Federation. Directly to the concept of labor discipline, as well as disciplinary liability Section VIII of the Labor Code of the Russian Federation is dedicated. However, issues of dismissal for disciplinary sanctions require the use of various standards of the Labor Code of the Russian Federation, including those directly devoted to dismissals. In general, the following standards influence the methods, methods and procedures for considering such punishments:

• Art. 77 Labor Code of the Russian Federation. This article defines general list possible reasons to fire workers.
• Art. 81 Labor Code of the Russian Federation. This article deals with situations in which the termination of relationships initiated by the employer is carried out. Dismissal for a disciplinary offense is one of these.
• Art. 127 Labor Code of the Russian Federation. It regulates the procedure for payments upon dismissal in all cases of dismissal without exception regarding vacation days unused during labor.
• Art. 140 of the Labor Code of the Russian Federation regulates wages in the event of dismissal of an employee.
• Art. 189-195 of the Labor Code of the Russian Federation regulate the concept of labor discipline and provide mechanisms for imposing disciplinary sanctions, their consequences and procedures in the event of disciplinary offenses committed by workers.
• Art. 261 of the Labor Code of the Russian Federation determines the procedure for employees, as well as employees caring for children who have not reached the age of 3 years.
• Art. 269 ​​of the Labor Code of the Russian Federation regulates the dismissal of minor employees.

Dismissal as a disciplinary measure for misconduct

Article 81 of the Labor Code of the Russian Federation provides for the possibility of dismissal as disciplinary action. Also, dismissal is considered as one of the types of methods of disciplinary action for the employer under the provisions of Article 192 of the Labor Code, where termination of an employment contract for violation of discipline is permissible. However, the main restrictions intended for use are still set out precisely in Art. 81 Labor Code of the Russian Federation.

Not everyone disciplinary violation or misconduct may be grounds for dismissal as a disciplinary measure. Directly for a single case of misconduct, termination of an employment contract is provided only in situations considered in paragraph 6 of Part 1 of Art. 81 Labor Code of the Russian Federation.

The grounds for this dismissal for a one-time action can only include gross misconduct. These include the following unlawful actions of an employee, which do not depend on the internal rules or regulations of the enterprise:

• This includes situations where a worker was absent from the workplace without a valid reason and did not perform work duties for four hours of one day or one shift in a row. That is, if an employee appeared at the workplace, even for a short moment, which made his time of absence shorter than the specified period, he cannot be dismissed on this basis. The presence of a valid reason allows the employee to avoid dismissal or subsequently be reinstated at work through a judicial procedure.
• Showing up at work while intoxicated. Dismissal in such a case is legal if it was carried out in full accordance with established procedures. In addition, there are many exceptions that allow an employee to challenge this dismissal. For example, employees cannot be fired for this reason without the proper evidence base, which most often can be a medical examination. But there is also the possibility of their dismissal without a medical certificate if there is evidence of intoxication. However, if intoxication was caused by the work environment - exposure to harmful substances, violation of safety regulations, the employee cannot be fired for it.
• Disclosure of secrets protected by law. If an employee, by virtue of his labor responsibilities, access to secrets protected in legally, for disclosing it, he can not only be brought to administrative or criminal liability, but also dismissed from work if there is evidence.
• Theft or theft of material assets at the place of work or during the performance of official duties. If an employee has committed theft - both of the property of employers and colleagues, clients, third parties or the state during work, he may be fired for this offense with certain restrictions. In particular, dismissal can only be made on the basis of a corresponding court decision recognizing the employee as a criminal or delinquent.
• In case of violation of labor protection requirements, which entailed or could entail risks of causing death or serious harm to the health of other persons during the performance of work duties. A specialized commission must establish the fact of such violations.

The employer must fully comply with the dismissal procedure, which is quite comprehensive. In some cases, disciplinary liability in the form of dismissal may be applied to an employee along with administrative or criminal liability. For reasons of any other one-time violations of discipline, an employee cannot be dismissed.

Dismissal in case of violation of discipline by an employee on the above points is not mandatory. This is only the right of the employer, and not his direct responsibility.

Disciplinary action in the form of dismissal for several offenses

In addition to the circumstances that make it possible to dismiss an employee for a one-time violation of the discipline established at the enterprise, labor legislation It also allows you to terminate employment contracts for other offenses, if they are committed repeatedly or if there have been disciplinary sanctions previously applied to the employee.

A disciplinary sanction against an employee is considered to exist within one year from the moment the offense was committed. After this period, the employee is considered to have no disciplinary sanctions and cannot be dismissed on grounds involving repeated violations of discipline. Also, the period of validity of the penalty can be reduced at the initiative of the employer.

Disciplinary violations that allow dismissal if there are other sanctions against the employee include all cases of failure by him to fulfill his job duties without good reasons for that. At the same time, the legislation does not relieve the employer from the need to carry out all procedural measures to present a penalty to the employee and appropriately formalize the dismissal.

Rules for dismissing an employee on disciplinary grounds

As mentioned above, the extent to which it will be possible to refute the dismissal and reinstate the employee with claims to the employer depends on how the dismissal procedure is carried out from a procedural point of view. Current rules Dismissal of an employee on disciplinary grounds provides for the following procedure:

1. Obtaining information about the commission of a disciplinary offense. Such information can be communicated to the employer in writing or orally other employees of the enterprise, clients, government officials or third parties. Also, the basis for a subsequent inspection and possible dismissal of an employee may be an entry in the complaint book and other sources of information.
2. Drawing up an order on the formation of a service commission. An internal commission to investigate disciplinary offenses is formed in the event of an employee violating labor safety rules, causing material damage to the employer, theft or secrets. In the case of other disciplinary offenses, its preparation is not necessary.
3. Collection of evidence. The employee’s violation of discipline, the presence of his guilt in the offense, intent and the cause-and-effect relationship between the violation and the employee’s guilty behavior must be documented. Evidence may include customer complaints, testimony of other employees, technical means on-site or off-site records and other evidence.
4. Requesting an explanatory note from the employee. The employee must be given the right to explain his or her misconduct. Notification of the request for an explanatory note should be provided to the employee against the preparation of a corresponding notification act signed by two witnesses. If the employee is not notified or an act of refusal to provide an explanatory note is not drawn up, the dismissal may be challenged in court.
5. Issuance of an order or other instruction regarding disciplinary action. After establishing the fact of a disciplinary sanction, the employer issues its own order to impose a disciplinary sanction on the employee. Information about this is recorded in regulatory documents entrepreneur.
6. Depending on the severity of the disciplinary offense, the number of violations of discipline and own desire, the employer may, on the basis of a disciplinary order, issue an order to dismiss the employee. The employee is familiarized with such an order by signing and drawing up an act, and dismissal is carried out on the day the penalty is applied.
7. After dismissal, even for a disciplinary offense, the employer is obliged to pay all previously unpaid wages employee. In addition, the employee must be given compensation for previously unused vacation days. Payments are made on the day of dismissal.
8. The employer issues the employee work book with a record of dismissal under Article 81 of the Labor Code of the Russian Federation indicating the paragraph and subparagraphs on disciplinary action.

Depending on the specific type collection it can be issued in various ways and have your own separate procedural features. Above, the basic algorithm of actions was outlined that can be followed by the employer, accounting department and HR employees.

Certain nuances of dismissal for a disciplinary violation and restrictions

Employers should be extremely attentive to the application of disciplinary sanctions and, even more so, to the dismissal of employees in connection with them. In particular, the legislation defines certain categories of employees who cannot be dismissed on these grounds.

First of all, these should include pregnant women - regardless of the specific offense committed, a pregnant woman cannot be fired for disciplinary violations, including gross ones. But workers with children under 3 years of age are not protected by law in this case - if there are disciplinary sanctions, they can be dismissed without restrictions, although it protects them from a number of other reasons for termination of the contract. The dismissal of minors is carried out with one limitation - the labor inspectorate or guardianship authorities must be notified about this.

An employee can challenge the said dismissal in several ways. First of all, he can challenge the disciplinary sanction itself - in this case, the challenge is carried out out of court by contacting the labor inspectorate. If the disciplinary sanction is considered unlawful, then the dismissal will also be considered unlawful. If the employee does not deny the disciplinary sanction or cannot challenge it, or if the employer does not recognize the demands of the labor inspectorate, then the employee or the supervisory authority has the right to go to court.

When reinstating an employee who was illegally dismissed for disciplinary action, the employer will have to compensate the employee for all days of forced absence, as well as pay compensation for moral damage - if requested by the employee and this requirement will be satisfied by the court. In addition, the employee may demand reinstatement in his position or change the entry made in the work book.

The forms of disciplinary sanctions that can be applied to employees of an enterprise or organization are defined in the Labor Code of the Russian Federation. This is a reprimand, reprimand and dismissal due to serious violations of discipline on the part of the employee. Dismissal for a disciplinary offense is considered legal if the formalities specified in the Labor Code of the Russian Federation are met.

The Labor Code of the Russian Federation establishes several forms of disciplinary sanctions applicable to employees:

1. A reprimand, that is, an authoritative condemnation of an employee’s actions in certain situations. The employee is obliged to explain to the employer the in writing reasons for your actions or inactions.
2. Comment. The employer points out an error in the person’s work, as well as the need to correct shortcomings.
3. Dismissal. Termination of employment relations due to serious violations of discipline by the employee.

The law allows only three forms of disciplinary action. The rest, such as fines, deductions from wages, deprivation of bonuses, are illegal, even if they are reflected in regulations of a local nature. Dismissal for disciplinary action is an extreme measure of influence on a person. In practice, a person commits actions that, in the opinion of the employer, are illegal. Thus, it is impossible to continue the working relationship with such an employee. As a result, the employee is dismissed from the company.

How many disciplinary offenses are required for dismissal?

The imposition of disciplinary sanctions is regulated by Art. 193. Labor Code of the Russian Federation. The employer has the right to apply only the previously described forms of disciplinary sanctions against the employee. This is a reprimand, reprimand and dismissal. In order to impose a penalty, it is necessary to confirm the fact of violation labor discipline. The algorithm of actions depends on what kind of work offense the person committed. It doesn’t matter how many offenses the employee has committed. One is enough to get fired. Although in practice, a person is fired after the second guilty act at work.

According to Article 81, paragraph 5 of the Labor Code of the Russian Federation, an agreement between an employer and an employee of an enterprise or organization can be terminated after repeated failure to fulfill work duties by the employee, if he has a disciplinary sanction. If we talk about the literal interpretation of this legal norm, it turns out that you can fire a person for a second offense if there is already an existing disciplinary sanction. But on judicial practice It is usually required that the employer provide evidence in court that shows not only that the person made a mistake, but also explains the severity of his action and the consequences for the company. In addition, the behavior of the employee preceding the offenses, how he previously related to his work duties (clause 53 of the Resolution of the Plenum Supreme Court RF dated March 17, 2004 N 2 (as amended on September 28, 2010).

If the court decides that the misconduct committed by the employee is insignificant for employers, it does not give rise to negative consequences, then dismissal is not recommended for a specific employee. For example, when considering a controversial issue of dismissal, the court may side with the plaintiff (employee) even if he has disciplinary sanctions. And the decision of the judicial authority may be due to the fact that the court did not take into account the person’s previous achievements at work, his previous behavior, etc.

Despite the fact that labor legislation does not define the exact number of disciplinary sanctions after which an employee can be dismissed, judicial practice shows that a few are quite enough to dismiss a person under clause 5, part 1, art. 81.

The list of disciplinary sanctions described in the Labor Code of the Russian Federation is open. This means that charters and regulations may establish other measures of influence for individual employees. For example, according to 79-FZ this is incomplete official compliance, exemption from a civil service position to be filled.

IMPORTANT: punishments not provided for by the Labor Code of the Russian Federation, as well as industry laws, are prohibited!!

Grounds for dismissal

An employee can be dismissed only if there are grounds. They are defined by law. Grounds for dismissal may include: disciplinary offenses employees who have already been punished for similar acts in reserve. In addition, such an employee has an outstanding penalty. You can also be fired for absenteeism, showing up at work in a state of alcohol or drugs, disclosing trade secrets, committing theft, or deliberately destroying the employer’s property.

It's also possible:

• dismissal of the head of a branch (organization), deputies or chief accountant for making a decision (unreasonable) that resulted in a violation of the safety of property, unlawful use of property, or other damage to the organization;
• dismissal of the head of the company (organization);
• dismissal of a teacher (another employee related to teaching) for repeated gross violation of the charter within 12 months educational institution;
• dismissal of a teaching employee for committing a repeated violation of the institution’s charter within 1 year.

• refusal of an employee to perform work that is dangerous to his life and health (Article 220, Part 7 of the Labor Code of the Russian Federation);
• a person's refusal to perform heavy tasks, hazardous work, not provided for by the employment contract (Article 220, Part 7 of the Labor Code of the Russian Federation);
• participation in strike actions (Article 414, Part 2 of the Labor Code of the Russian Federation).

IMPORTANT: One punishment is provided for one offense. When punishing an employee for unscrupulous performance of work, it is necessary to understand that job responsibilities must really be assigned to the person in strict accordance with the employment contract and job description. Otherwise, the employee has the right to appeal the imposition of a disciplinary sanction on him, saying that he was forced to perform duties not provided for in the contract or other act.

If evidence of the employee’s guilt is collected, a disciplinary sanction is imposed on him, for which an order is issued in free form. If a disciplinary sanction serves as a basis for dismissing a person, then another order is issued. This is the T-8 form.

Documents required by the employer for legal dismissal:

• employment history;
• medical book;
• copies of documents (issued by the employer upon request from the employee).

Upon dismissal, the employer issues an order to terminate the employment contract, a settlement note, a work book, and the employee’s personal card for the employee.

An order of form T-8 is a unified written document on the dismissal of an employee. It is issued on the basis of a written application from the employee if he wishes to stop labor Relations. Regarding dismissal for disciplinary sanctions, the order has certain features. As a basis for dismissal, it contains a reference to Art. 81, in particular, paragraph 6, and provide text about the employee’s repeated violation of discipline, failure to fulfill his duties, etc.

A work book is issued at the time of termination of the contractual relationship previously concluded with the employer. Exception from general rule constitutes a situation where the dismissed person did not work, but has the right to retain his average earnings. The work book is issued simultaneously with the completion of all payments to the employee. The personnel employee in the work book cites an article of the Labor Code of the Russian Federation as a basis for dismissal.

An employee’s medical record is a document necessary for those workers who deal with food, storage, and transportation. Without this document, a person will not be able to get a job in an organization whose work is related to serving the population. The document reflects information about the employee’s health status, ability to work, diseases, number and frequency of medical examinations.

Payments and compensation upon dismissal for disciplinary action

The employee has the right to count on payment of wages for the time actually worked in the month preceding dismissal, as well as compensation for unused vacation.

Appeal against dismissal

According to Article 193 of the Labor Code of the Russian Federation, an employee of an enterprise can appeal the imposition of a disciplinary sanction on him to the State Labor Inspectorate, to a trade union or to a court. If an employee decides to appeal a disciplinary sanction, he must file a claim in the district court at the place of registration of the employer. If the employer is an individual entrepreneur, then at his place of residence.

IMPORTANT: If an employee who is dismissed under Article 81, paragraph 5, part 1 does not challenge the disciplinary sanctions imposed on him by the employer before the dismissal order, but challenges a violation of the dismissal procedure, the judge does not check the legality and validity of the disciplinary sanctions.

If the applicant challenges disciplinary sanctions imposed on him before the dismissal order was issued, the court, in the process of verifying the plaintiff and his arguments, is obliged to analyze the validity of the employer’s actions. The plaintiff may file a statement of claim against the organization at its location or location of a branch or representative office.

Plaintiffs who have filed a claim with the court regarding the violation of their labor rights, under Article 333.36 of the Tax Code of the Russian Federation, are exempt from paying state duty.

The pre-trial procedure for resolving a controversial legal relationship between an employee and his management can be observed, but this rule cannot be called imperative. In practice, this means that a person has the right to immediately go to court, bypassing, for example, Labor Inspectorate. Although contacting this body can also be quite effective.

The State Labor Inspectorate has its own divisions in each specific city. This state-authorized body protects labor rights employees of an enterprise or institution. Upon making a decision on a correct case, inspectors may oblige the employer to reinstate the employee. If a person goes to court with a claim, then he writes a complaint to the State Labor Inspectorate. It is considered for one month, in exceptional cases the period can be increased to 3 months if the circumstances of the case so require.

The employee can also contact the Prosecutor's Office. This body protects the rights of citizens in general, not only in the labor sphere. But the prosecutor's office can help restore justice if there are real grounds for the person to be reinstated at work.

In the relationship between the employer and hired employees, the discipline established in the work collective, and helping the head of the company manage it, and the employees to be as focused, responsible and efficient as possible.

Attention

To achieve this goal, the employer, with the help of approved local regulations (LNA), prescribes in the organization certain rules behavior that is mandatory for all employees. Failure to comply or dishonest compliance with these rules is classified as a disciplinary offense, for which the manager has the right to issue a reprimand.

What is a reprimand?

One of the forms of penalties is a reprimand, which is expressed in official censure of an offense in writing - an order. The wording of this punishment can only sound like this - contrary to popular belief, no other types of reprimand, such as “severe reprimand”, “reprimand with entry”, etc. According to the current Russian legislation, they do not exist, and their use has been recognized as unlawful in judicial practice.

For your information

The very concept of a disciplinary offense in the form of a reprimand implies the failure or improper performance by an employee of the duties assigned to him in the employment contract, job description, as well as the employer’s personal identification number.

Violation of labor discipline will be considered: failure by an employee to fulfill his immediate duties, being late or absenteeism for work, committing theft or damage to property, appearing in a state of any kind of intoxication, providing false documents during employment, etc. Some of these violations are enshrined in federal labor legislation, others may be reflected in local regulations of the employer, and in order for these provisions to have legal force, the organization’s staff is familiarized with them against signature.

Labor Code of the Russian Federation

Issues of imposing and canceling disciplinary sanctions are regulated by Chapter 30 Labor Code RF (articles - Labor Code of the Russian Federation).

The competence of the head of the organization includes the right to apply to the employee one of the following approved by the Labor Code of the Russian Federation: penalties for committing labor misconduct (Article 192 of the Labor Code of the Russian Federation):

• make a remark;
• reprimand;
• terminate the contract with the negligent employee.

There are no criteria by which one violation of discipline can be condemned with a remark, and another with a reprimand; this issue is decided by the employer in each individual case individually, taking into account the nature of the act committed by the employee, as well as the severity of its consequences. as a measure of punishment can be carried out only on the grounds provided for in clauses 5, 6, 9 or 10 of the first part of Article 81 or clause 1 of Article 336 of the Labor Code of the Russian Federation.

IMPORTANT

The basis for “dismissal for reprimand” does not exist as such in the law; its use would be a grave mistake for the manager and could subsequently become a reason for legal proceedings.

How many reprimands are enough for dismissal?

This criterion is not established by law. But dismissal of an employee for a reprimand can only be carried out under the following conditions:

• the employee has failed to fulfill his duties repeatedly and already has existing disciplinary sanctions;
• The employee committed a single gross violation of discipline.

In the first case, the company management has the right to dismiss an employee when a new violation of discipline is recorded, if he has already been punished for those responsible labor actions, and it has not yet been extinguished.

Additional Information

Termination of an employment contract with an employee who has no disciplinary sanctions is permissible only on the grounds set out in clause 6, part 1, article 81 of the Labor Code of the Russian Federation. The list has been recognized by the courts as exhaustive and cannot have expanded interpretations.

Step-by-step instructions for dismissal for a reprimand

Defines a fairly clear procedure for issuing disciplinary sanctions. Failure to comply with the established procedure when terminating an employment contract as a penalty can be challenged by the employee in court with all the ensuing consequences for the employer. The procedure for dismissal for a reprimand involves the following legally significant steps:

1. Any disciplinary violation must be documented. Proof of this can be a report from immediate supervisor employee, statements of eyewitnesses of the event, results of a medical examination, audit reports indicating theft, etc.
2. The person guilty of violation of discipline must give an explanation of his offense in writing. The employer’s requirement to state the reasons for his behavior is also best formalized in an official letter registered through the office of the institution.
3. The employee is given 2 working days to provide explanations. If after the specified time they have not been provided, a corresponding act is drawn up.
4. Next, an order is issued to dismiss the employee under clause 5 of part 1 of Article 81 of the Labor Code of the Russian Federation - if he already has outstanding disciplinary penalties. When making a one-time gross violation official duties, the contract is terminated under clause 6 of part 1 of Article 81 of the Labor Code of the Russian Federation.
   Attention

   The issuance of such an order is possible only within 30 days from the moment when the commission of an offense was recorded; after this period, the use of disciplinary sanctions is prohibited. This period does not include the absence of an employee due to illness or vacation, as well as the time spent assessing the situation by the employee representative body. If these circumstances exist, the general period giving the head of the organization the right to apply penalties is limited to a period of 6 months. An exception is made for violations identified as a result of an audit, an audit, or an inspection of the organization's FCD - in this case, a penalty can be issued within 24 months.

5. The order is presented to the employee for review within 3 working days. If he refuses to sign, a corresponding act is drawn up.
6. The accounting department makes payments to the dismissed employee, and the personnel department records the dismissal in the work book.

Additional Information

If the contract is terminated for repeated violation of discipline, disciplinary sanctions for existing offenses must be confirmed. Their design is subject to the same requirements described above. The period from the application of these penalties to the dismissal of the employee cannot exceed 12 months.

Entry in the work book

When dismissing an employee for violations of discipline, the personnel service of the organization makes a corresponding entry in his work book. It should reflect:

• date of termination of the contract;
• formulation of the grounds for dismissal in accordance with the article of the Labor Code and indicating a link to it;
• number and date of the corresponding order.

Dismissal of a disabled person for a reprimand

Labor relations with employees with disabled status have their own characteristics and limitations. In these cases, the legislation imposes more stringent requirements on employers, and working disabled people of all groups are provided with a fairly extensive range of social guarantees and benefits aimed at preserving their health and protecting their rights in labor conflicts.

For your information

But as for termination of the contract for violation of official duties in the absence of valid reasons, in this case the law protects the interests of the employer - a disabled employee who is dishonest and irresponsible about his work can be dismissed for guilty labor actions on a general basis.

Dismissal of a disabled person for a reprimand is permissible subject to strict compliance with the following conditions:

• this employee has previously been subject to disciplinary sanctions;
• these collections are not repaid;
• The procedure for terminating a contract for misconduct was followed in accordance with the Labor Code of the Russian Federation.

In general, the procedure for dismissing a disabled person for a reprimand does not differ from general order termination of the contract for disciplinary violations.

Dismissal for reprimand while on sick leave

Article 193 of the Labor Code of the Russian Federation limits the period of possible application of penalties to a period of 30 days from the date of establishment of the disciplinary offense; the time of absence of the employee due to illness is excluded from it. This clause means that an employee cannot be fired during the period of his incapacity, but the monthly period established for applying a penalty is increased by the time the employee is on sick leave. It is possible to punish him for a reprimand upon expiration of the certificate of incapacity for work, but no later than 180 days from the date of the commission of the offense.

Dismissal for reprimand after maternity leave

By virtue of Article 261 of the Labor Code of the Russian Federation, it is expressly prohibited to apply disciplinary punishment in the form of dismissal to pregnant employees.

According to Article 193 of the Labor Code of the Russian Federation, penalties can be imposed no later than 30 days from the date of the violation of discipline, not counting the period of incapacity of the employee (this also includes maternity leave). At the same time, it is not permitted to apply disciplinary penalties later than 180 days from the date of commission of the labor offense.

For your information

Termination of a contract with an employee for repeated violation of discipline is permissible only if he has previously applied outstanding penalties. The period from the application of these penalties to the dismissal of the employee should not exceed 1 year.

Thus, the dismissal of a woman for a reprimand will not have legal grounds.

Nuances

If an employer decides to dismiss an employee, he must ensure that his actions are justified and evidence-based. First of all, when applying disciplinary punishments, it is necessary to strictly adhere to the procedure for issuing them, as outlined by the Labor Code of the Russian Federation. In addition, punishment can only be applied for failure by an employee to fulfill those duties that are established by federal legislation or reflected in the provisions of documents endorsed by him personally ( labor contract, job description, various LNAs operating in the organization).

Attention

Recording of disciplinary sanctions in the work record book is not permitted.

The list of cases of application of dismissal as a disciplinary sanction is clearly outlined by the Labor Code and is exhaustive. Incorrect application of this type of penalty can lead to an appeal in court and the employee’s reinstatement in his position and, accordingly, payment of compensation for forced absence. And payment for forced absenteeism is made from the day the dismissal order is issued: only from this time absenteeism is forced.

Let's consider the grounds for applying dismissal as a disciplinary sanction.

Clause 5 of Art. 81 of the Labor Code of the Russian Federation provides for termination of an employment contract for repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction.

To recognize such a dismissal as legal, the following circumstances must be met simultaneously:

1) the employee has a disciplinary sanction for the last working year, it has not been withdrawn or repaid;

2) the employee committed a disciplinary offense without good reason;

3) the employer requested from the employee written explanation reasons for the labor offense no later than one month from the date of discovery of the offense and six months from the date of its commission (two years for an audit)

4) if the employee is a member of a trade union, then the opinion of the trade union must be taken into account.

The dismissal order in this case must indicate as a basis the numbers and dates of orders on previously imposed disciplinary sanctions, the essence of the offense, the date and circumstances of its commission, consequences, absence of valid reasons, absence (presence) of an explanation from the employee.

Clause 6 of Art. 81 of the Labor Code of the Russian Federation provides for a single gross violation of labor duties by an employee as grounds for dismissal.

Clause 6 of Art. 81 of the Labor Code of the Russian Federation establishes the following grounds for dismissal.

1. Absenteeism (clause “a”) – absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as absence from the workplace without good reason for more than four hours in a row during a working day day (shift).

Paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 17, 2004 No. 2 states that dismissal on this basis can be made for the following violations:

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

b) absence from work without good reason, that is, absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);

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

d) unauthorized use of time off, as well as unauthorized going on vacation.

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

Employee illness;

Transport delay in case of an accident;

Accidents in the employee’s home, etc. circumstances.

2. Appearing at work in a state of alcohol, drug or other toxic intoxication (paragraph “b”).

An employee who appears at any time of the working day (shift) in a state of intoxication, the employer is obliged to suspend from work on that day (shift). The removal of an employee is formalized by order. If the employee was not suspended from work, evidence of this basis is a medical report, a report drawn up at that time, witness testimony and other evidence. In any case, it is necessary to draw up an act of committing an offense.

Let us note that, according to the law, it is possible to prove the fact that an employee is in a state of intoxication without a medical report, but in practice this is quite problematic.

3. Disclosure of secrets protected by law - state, commercial, official and other, which became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee (clause "c").

Here it is important to evaluate the following circumstances: does the organization have a trade secret protection regime, is the employee familiar with it, is the employee allowed access to information constituting a trade secret, etc. If at least one clause of the Federal Law “On Trade Secrets” is not observed, dismissal such a basis will be considered illegal.

4. Commitment at the place of work of theft (including small) of someone else’s property, its embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a relevant administrative resolution (paragraph “d”).

The key point here is the presence and entry into force of an act of an authorized state body - all internal documents (memos, inventory acts, etc.) have no force for dismissal on this basis.

5. Violation by an employee of labor protection requirements, if this violation entailed grave consequences or knowingly created a real threat of such consequences (paragraph “e”), if it was established by the commission or the labor protection commissioner.

Grave consequences include: an industrial accident, an accident, a catastrophe, the presence of which (or the presence of a known real threat of their occurrence) must be proven by the employer when considering the dispute in court.

The Labor Code also provides the following grounds for dismissal for a single gross violation of labor duties.

Committing guilty actions that give rise to loss of confidence in him on the part of the employer (clause 7 of article 81 of the Labor Code of the Russian Federation).

Only an employee directly servicing monetary or commodity assets can be dismissed on this basis, regardless of what type of material liability (limited or full) is assigned to him.

The employer must prove the mistrust of the employee (acts of calculation, weighting, shortage, etc.).

Commitment by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8 of Article 81 of the Labor Code of the Russian Federation).

Immoral is an offense that is contrary to generally accepted morality (appearing in in public places drunk, obscene language, fighting, degrading behavior, etc.). An offense can be committed not only at work, but also at home.

The employer will have to establish both the fact of the misconduct itself and the circumstances preventing labor activity of this employee as a result of such an offence.

Dismissal of the heads of an organization (branch, representative office), their deputies and chief accountants for their adoption of an unfounded decision, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9 of Article 81 of the Labor Code of the Russian Federation).

The unreasonableness of a decision is a subjective concept, so it is assessed by the employer. However, if the employee disagrees with this assessment and a labor dispute arises, it is the employer who will have to prove the employee’s guilt.

A one-time gross violation of their labor duties by heads of organizations (branch, representative office), their deputies, chief accountants (clause 10 of article 81 of the Labor Code of the Russian Federation).

The obligation to prove that such a violation actually occurred and was of a gross nature also lies with the employer.

In accordance with paragraph 49 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, failure to fulfill the labor duties assigned to these persons should, in particular, be regarded as a gross violation of labor duties by the head of an organization (branch, representative office) or his deputies. contract of duties which could result in harm to the health of workers or property damage to the organization.

Repeated gross violation of the charter of an educational institution by a teaching staff member within a year (clause 1 of Article 336 of the Labor Code of the Russian Federation).

Sports disqualification for a period of six months or more, as well as the use, including single use, of doping agents and (or) methods by athletes (Article 348.11 of the Labor Code of the Russian Federation).

When dismissing an employee for any of the above reasons, the terms and rules for applying disciplinary sanctions established by Articles 192 and 193 of the Labor Code of the Russian Federation must be observed.

The list of disciplinary sanctions that can be applied to employees is given in Art. 192 of the Labor Code of the Russian Federation (hereinafter “LC”). These are:

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

This list is closed and is not subject to broad interpretation. Other disciplinary sanctions may only be imposed federal laws, statutes and regulations on discipline individual categories workers (Article 192 of the Labor Code).

Explanations on the application of this type of penalty are contained in paragraphs. 33-53 Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as the “Plenum”).

In case of violation of the dismissal procedure, the employee may be reinstated in his position with payment of wages for the entire period of forced absence, and the employer faces the risk of administrative liability.

In this article, we will consider several examples of the application of dismissal on certain grounds of Article 81 of the Labor Code of the Russian Federation, supported by judicial practice.

Example #1

Example No. 1. Often in practice, an employer needs to resort to dismissing an employee for repeated failure to fulfill his work duties without good reason, if he has a disciplinary sanction (clause 5 of Article 81 of the Labor Code).

On this basis, there is an example from the practice of the St. Petersburg City Court: Cassation ruling dated August 1, 2011 No. 33-11608/2011 on declaring dismissal orders illegal.

From the case materials it follows that, by order general director LLC dated September 18, 2010, employee G., who had worked as the head of the duty administrator service since December 1, 2004, was reprimanded for failure to fulfill the official duties assigned to him by the employment contract and clause 3.8 of the job description, which was expressed in the fact that he did not ensured that the employee subordinate to him complied with the instructions of the company management to provide an explanation for the fact of penetration and theft in the business center.

By order of the same date, G. was reprimanded for failure to fulfill his job duties as provided for in the employment contract and clause 5.1.3 of the job description, which was expressed in the fact that he did not comply with the order of the general director to immediately arrive at the business center to ensure uninterrupted operation service of duty administrators in an enhanced mode, did not provide his replacement with an employee at the post, allowed the post in the business center to become inoperable and did not ensure the readiness of his subordinates to strengthen the security regime for the organization’s facilities.

Further, on September 20, 2010, the general director of the LLC issued an order to dismiss G. for violation of official duties, taking into account previously imposed disciplinary sanctions on the basis of clause 5 of Art. 81 of the Labor Code (repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction). G. went to court to protect his rights to recognize the dismissal order and orders to impose disciplinary sanctions as illegal, reinstatement at work, recovery of wages for the period of forced absence and compensation for moral damage.

By the court's decision, employee G.'s demands were partially satisfied. The court decided to recognize the order to dismiss the plaintiff as illegal and reinstate him in his position, to recover wages for the period of forced absence and compensation for moral damage in his favor. The rest of the claim was denied. The defendant (employer) is also charged a state duty to the state. It was refused only in terms of recognizing the order to impose a disciplinary sanction as illegal.

Checking the legality of imposing a disciplinary sanction on the plaintiff, the court, following the instructions of the Plenum, studied all the terms of misconduct and issued orders, and found out that the employer brought G. to disciplinary liability on September 20, 2010 for the offense charged to him on August 7, 2010, when the deadline for bringing the plaintiff disciplinary liability has already expired.

The court came to the conclusion that the materials of the case do not provide sufficient grounds for concluding that the seriousness of the offenses charged to the plaintiff was significant, requiring the application of an extreme disciplinary measure to him in the form of dismissal. The defendant did not provide evidence to the court that these violations led to significant consequences for the work process. The result was a negative court decision for the employer and additional costs.

Conclusion: Since dismissal for failure to fulfill job duties will be a disciplinary sanction, it must be carried out according to the rules provided for the imposition of disciplinary sanctions. These rules are enshrined in Article 193 of the Labor Code. Firstly, it is necessary to request from the employee a written explanation of the offense committed, and if he refuses to give an explanation, draw up a report about this in the presence of two or three witnesses. Then you need to issue a dismissal order and familiarize the employee with it against a signature on the day of dismissal (order form No. T-8 approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). If the employee refuses to sign the order, a report is drawn up. After issuing the order, you can make an entry about the dismissal in the employee’s work book and close his personal card, Form No. T-2.

Typical mistakes when dismissing someone for absenteeism or dereliction of duty are:

• the employee did not have a disciplinary sanction or it was imposed illegally or its validity period has expired; the terms and procedure for dismissal on guilty grounds were violated (Article 193 of the Labor Code of the Russian Federation);
• the preliminary consent of the Federal Labor Inspectorate and the Commission on Minors' Affairs for the dismissal of a minor employee was not obtained (Article 269 of the Labor Code of the Russian Federation).

Example No. 2

Using example No. 2, we will look at what practice exists today for dismissing employees under paragraphs. “d” clause 6 of article 81 of the Labor Code. The basis for termination of an employment contract at the initiative of the employer is the theft (including petty) of someone else’s property, embezzlement, intentional destruction or damage at the place of work, established by a court verdict that has entered into legal force or a resolution of a body authorized to apply administrative penalties (clause "d" clause 6 of Article 81 of the Labor Code). Dismissal is possible both in case of theft of the employer's property and property belonging to other employees or third parties.

The fact of theft (waste, destruction or damage) of property and the guilt of the employee must be established by a verdict or court order that has entered into legal force (subparagraph “d”, paragraph 6 of Article 81 of the Labor Code, paragraph 44 of the Plenum Resolution). Since the Labor Code speaks specifically about the commission of theft (embezzlement, destruction or damage), then the verdict (decision) must be made precisely on this fact. Therefore, if such a document establishes only the fact of an attempt on these actions, there are no grounds for dismissal under this paragraph.

From the materials of the Resolution of the Presidium of the Samara Regional Court dated August 5, 2004: citizen Ts. filed a lawsuit against AvtoVAZ OJSC for reinstatement and recovery of wages for the period of forced absence. The plaintiff indicated that he worked for the defendant as a forklift driver and was found guilty of committing a crime under Part 3 of Art. 30, paragraph “a”, part 2, art. 158 of the Criminal Code of the Russian Federation, and he was sentenced to one year of correctional labor with the withholding of 10% of monthly earnings to the state.

Since correctional labor is served at the main place of work, Ts. believed illegal dismissal him from work under sub. "d" clause 6 of Art. 81 of the Labor Code of the Russian Federation (committing theft of someone else’s property at the place of work) by order of May 22, 2003 by the decision of the Avtozavodsky District Court of Tolyatti Samara region dated July 10, 2003, Ts.’s claims were satisfied: it was decided to reinstate the plaintiff as of May 23, 2003 as a workshop forklift driver at AvtoVAZ OJSC and to recover wages in his favor for the period of forced absence. By the ruling of the judicial panel for civil cases of the Samara Regional Court dated September 17, 2003, the decision of the trial court was left unchanged.

Conclusion: Termination of the employment contract under paragraph “d”, paragraph 6 of Art. 81 of the Labor Code of the Russian Federation is one of the disciplinary measures, therefore the employer must comply with the procedure and conditions for applying disciplinary sanctions, incl. the timing of their application. It should be borne in mind that when dismissal on this basis, the month period for its application is calculated not from the day the misconduct was discovered, but from the day the court verdict entered into legal force or from the day the decision was made to impose an administrative penalty.

Example No. 3

As example No. 3, we present the grounds of paragraphs. 7, 8 tbsp. 81 of the Labor Code of the Russian Federation, provided by the legislator in order to prevent adverse consequences associated with the further performance by employees of their labor functions, when the employer has reason to believe that the employees, due to their personal and moral qualities, cannot or should not engage in this type of activity.

These may be employees:

• serving monetary or commodity values
• performing educational functions, that is, having a direct relationship with children.

On the first point, there is an explanation of the Plenum in the resolution of March 17, 2004, No. 63, this situation was explained as follows.

Commitment of guilty actions that give grounds for loss of confidence in employees directly servicing monetary or commodity assets (for example, cashiers, sellers, collectors, storekeepers, etc.) on the part of employers (due to calculation; weighing; failure to preserve property - shortage, use entrusted property for personal purposes, receiving payment for services without receiving the relevant documents, etc.) may be considered as grounds for applying disciplinary sanctions if these actions were committed while the employee was performing his job duties.

Regarding the second point, an employee performing educational functions may be dismissed for committing an immoral offense at the place of work and in connection with the performance of job duties, subject to the procedure for applying disciplinary sanctions.

An offense that contradicts generally accepted morality is immoral (appearing in public places while intoxicated, using obscene words, participation in a fight - that is, behavior that degrades human dignity, “unseemly” actions that discredit an employee) committed in the performance of work duties. This definition is an estimate. It is assumed that not all immoral offenses can be grounds for dismissal, but only those that make it possible to judge that the employee cannot further carry out labor functions of an educational nature. Only the employer will judge this, since the legislator does not establish any criteria. However, it is worth considering that these acts committed in everyday life cannot be recognized as a disciplinary offense.

Conclusion: Loss of trust in an employee must be based on reliable facts confirming the employee’s guilt in causing material damage, creating a threat to cause it, or committing other illegal actions. These should be acts of inventory, verification of financial and economic activities, test purchases, etc.

Example No. 4

Example No. 4 will show the imposition of disciplinary sanctions in the form of dismissal on management-level employees, namely: the adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which resulted in a violation of the safety of property, its unlawful use or other damage to the property of the organization , gives the employer the right to terminate the employment contract with the employee (clause 9 of article 81 of the Labor Code of the Russian Federation). However, an “unreasonable decision” is an evaluative concept, and since the law does not specify the criteria by which one can determine which decision was not justified, it is assessed by the employer (single-handed or collectively).

The Plenum in paragraph 48 explained that the unreasonableness of a decision is determined as follows: whether adverse consequences occurred precisely as a result of the decision made and whether they could have been avoided if another decision was made. This indicates the establishment of a direct connection between by decision and the coming material damage, which indicates the material composition of the offense and does not provide clarity in resolving this issue.

The Plenum does not take into account that the validity or otherwise of a decision may be subjective. These are evaluative concepts, and what meaning will be embedded in them depends on who will make the decisions or who will be interested in them. And this problem of “evaluative” concepts, unfortunately, can be seen in our legislation very, very often.

A mandatory condition for dismissal under clause 9 of Art. 81 of the Labor Code of the Russian Federation is also the presence of damage. The Labor Code of the Russian Federation reveals the concept of direct actual damage, which is the basis for bringing an employee to financial liability, which is understood as a real decrease in the employer’s available property, deterioration in the condition of the specified property (including the property of third parties located at the employer, if the employer is responsible for the safety this property), as well as the need for the employer to make expenses or excessive payments for the acquisition or restoration of property (Article 238 of the Labor Code of the Russian Federation).

If, as a result of an unjustified decision, the employer did not receive any income, then dismiss the employee under clause 9 of Art. 81 of the Labor Code of the Russian Federation is impossible.

Conclusion: In order to give an adequate assessment of the decision of a managerial employee, you can use the following criteria for the “unfoundedness” of the decision:

• the decision was made on the basis of incomplete, inaccurate, insufficient or incorrect data;
• when making a decision, not all data were properly assessed, a number of data were ignored (for example, increased risks (commercial, financial, etc.));
• data (including, for example, legal norms) were misinterpreted or misinterpreted;
• the decision was made on an emotional level, although a number of objective factors had to be taken into account when making it;
• consultations should have been held before a decision was made and preparatory activities(checks (for example, the creditworthiness of an organization), analytical studies, data collection, calculations (for example, commercial and financial risks), etc.); however, these activities are in violation established order were not carried out.

When assessing the decision of a managerial employee, we should not forget about the second meaning of “justification of the decision,” which is that the employee in respect of whom the employer intends to make a decision to dismiss under paragraph 9 of part one of Article 81 of the Labor Code of the Russian Federation must be given the opportunity to justify his solution.

Example No. 5

And finally, example No. 5. The head of an organization (branch, representative office) or his deputies may be dismissed in the event of a single gross violation of their labor duties in accordance with clause 10 of Art. 81 TK. The code does not explain what should be understood as a gross violation of labor duties by managers or their deputies. Therefore, the severity of the offense that may result in dismissal is determined at the discretion of the employer, who has the right to hire and fire these persons.

As an example, let us consider the Decision of the Moscow City Court dated September 26, 2011 in case No. 33-28491.

Citizen Ts. was appointed to the position of General Director of the State Unitary Enterprise of Moscow “Ekotekhproekt” on the basis of an employment contract for a period of 3 years.

By order of December 28, 2010, the plaintiff was dismissed on the basis of clause 10 of Art. 81 of the Labor Code of the Russian Federation for a single gross violation of labor duties by the head of the organization.

Ts. considers this dismissal illegal, since he did not commit a gross violation of labor duties; when dismissing the employer, the dismissal procedure was violated.

Having assessed the evidence in the case, the court of first instance came to the correct conclusion that the plaintiff’s dismissal was illegal under paragraph 10 of Art. 81 Labor Code of the Russian Federation.

At the same time, the court reasonably proceeded from the fact that dismissal on this basis cannot be carried out without indicating specific facts indicating the unlawful behavior of the manager and his guilt.

The date of dismissal was changed by the employer to March 28, 2011. However, the Labor Code of the Russian Federation does not provide the employer with the right to change the date of dismissal of an employee without his prior consent, after the employment relationship between the employer and the employee is terminated.

Thus, the procedure for dismissing the plaintiff by the employer was not followed in violation of the provisions of Art. 193 Labor Code of the Russian Federation.

Under such circumstances, the court decided to satisfy the plaintiff's demands in full.

Conclusion: Despite the fact that the above articles of the Labor Code provide a fairly large list of grounds on which a disciplinary sanction in the form of dismissal can be applied, this is a last resort. Employers should use it with caution and prepare all documents correctly. The practice of applying the Labor Code in Russia shows that the courts and the state labor inspectorate in such cases try to protect the rights of workers as much as possible.