A disciplinary sanction may be lifted early. How to formalize the removal of a disciplinary sanction. Drawing up an order to impose a penalty

Any of us can make a mistake in the execution of our labor responsibilities. And often you have to pay for these mistakes by imposing disciplinary action. In accordance with Part 1 of Article 194 Labor Code RF, if the employee is not subject to a new disciplinary sanction, then he is considered to have no disciplinary sanction. But waiting a whole year is quite a long time; it is obvious that the disciplinary sanction may be lifted early.

From this article you will learn:

1. Legal basis for early removal of a disciplinary sanction.
2. The procedure for removing a disciplinary sanction ahead of schedule.

Early lifting of a disciplinary sanction - legal basis

The possibility of early removal of a disciplinary sanction is established by part 2 of article 194 of the Labor Code of the Russian Federation. An employer has the right to lift a disciplinary sanction from an employee:

• on their own initiative;
• at the request of the employee himself;
• at the request of the employee’s immediate supervisor;
• at the request of the workers' representative body.

The procedure for early removal of a disciplinary sanction

From Part 2 of Article 194 of the Labor Code of the Russian Federation, it follows that the early removal of a disciplinary sanction is preceded by either the employer’s own initiative, or the initiative of the employee, or the initiative of third, authorized persons. With the initiative of the employer himself, everything is quite simple: he made a decision and lifted the disciplinary sanction by his administrative act. The initiative of other persons must be formalized in the form of a petition, the form of which is not established by labor legislation. We believe that this can be any written document (an official or memorandum, a petition, etc.) containing a request to lift a disciplinary sanction and justifying this request.

A petition for early lifting of a disciplinary sanction is submitted to the employer and must contain the following information:

• employee information;
• information about his involvement in disciplinary liability;
• a request for early removal of a disciplinary sanction;
• arguments indicating that the employee deserves early removal of the penalty.

For example:

Service memo

By order of the head of the education department dated August 31, 2017 No. 31, specialist Ivanov Ivan Sergeevich was brought to disciplinary liability for violating the deadlines for submitting reporting documentation. For improper execution job responsibilities Ivanov I.S. was reprimanded.

At the end of the third quarter of 2017, specialist Ivanov I.S. all reporting documentation was submitted to the concerned authorities ahead of schedule and without comments. During the period of application of the disciplinary sanction by Ivanov I.S. internal rules labor regulations were not violated, complaints from colleagues and other persons against Ivanov I.S. not received.

I believe that specialist Ivanov I.S. completely reconsidered his attitude to the performance of labor duties and is no longer a violator of labor discipline. Based on the above, I ask you to consider the possibility of early lifting of the disciplinary sanction against Ivanov I.S.

Department head

If the employer considers it possible to remove the disciplinary sanction from the employee early, he will issue an order to this effect. Unified form there is no order to remove a disciplinary order, so it can be written arbitrarily on the organization’s letterhead. The order must indicate:

• what disciplinary sanction is lifted;
• grounds for lifting a disciplinary sanction.

For example:

On the lifting of a disciplinary sanction

In connection with the conscientious performance of his official duties by specialist Ivan Sergeevich Ivanov, the early transfer of reporting information for the third quarter of 2017,

I ORDER:

From October 20, 2017, remove the disciplinary sanction in the form of a reprimand applied by order No. 31 of August 31, 2017.

Reason: memo from the head of the department.

Summarizing
Everyone knows the catchphrase that he who does nothing makes no mistakes. But if the employee is able to admit and correct his mistakes, then it is advisable for the employer to practice early removal of the disciplinary sanction. This will be an additional way to stimulate employees, because the removal of a previously imposed penalty is nothing more than encouragement.

The punishment imposed on the employee can be repaid or removed early. The penalty can be repaid only if the employee does not have new disciplinary sanctions within a year. In the article we will consider the early removal of a disciplinary penalty, and also provide a sample order for the early removal of a penalty from an employee.

Disciplinary action

For an employee’s misconduct related to violation of labor regulations, one of the types of disciplinary sanctions may be applied to him: a reprimand, reprimand or dismissal. Such a list is provided for by labor legislation (Article 192 of the Labor Code of the Russian Federation), it is closed and cannot be changed by the decision of the employer. It is important to understand that the employer does not have the right to fine an employee, even if he commits a particularly serious offense.

Important! The employer does not have the right to impose fines in the organization for any misconduct.

However, this prohibition should not be confused with the employer’s right to deprive an employee of a bonus. Depriving an employee of a bonus is a measure of influence on the employee from the material side, allowing to stimulate the work of employees. If an employee commits an offense, the employer has the right not only to apply one of the possible penalties to him, but to deprive him of his bonus.

Dismissal is a last resort and cannot be applied to an employee who has committed a minor offense. An employee can be dismissed only if there are compelling reasons, for example, for absenteeism, disclosure of trade secrets or other repeated misconduct.

Removal of disciplinary action

A disciplinary sanction may be paid or it may be withdrawn. It is generally accepted that after the penalty is paid off, the employee no longer has any misconduct. This is possible if, after being brought to justice, the employee has no new charges within a year (Article 194 of the Labor Code of the Russian Federation).

Important! Only the manager can make a decision to lift a penalty from an employee ahead of schedule.

A disciplinary sanction may be lifted before the due date. The employer can decide on this. It can be influenced by the employee, or the head of the department in which the employee works, or a representative body chosen by the team. To do this, they submit a written request to the manager. It could be:

• Application – drawn up and submitted personally by the employee;
• Service memo – prepared by the employee’s immediate supervisor;
• The petition is trade union committee or other employee representative body.

Here's a sample memo, sent by the immediate supervisor of the punished employee to the general director.

How is foreclosure removed?

Removal of a disciplinary sanction occurs as follows:

• Having received a request from the employee or his representatives, the manager makes a decision to lift the penalty ahead of schedule. The manager’s decision is reflected in the form of a resolution on the employee’s request;
• An order to remove the penalty is issued. The employer develops the order form independently;

If an employee has more than one penalty, then several penalties can be lifted in this way at once. Let us clarify once again that only the manager can remove a disciplinary sanction ahead of schedule. He decides to remove only one penalty early, or several at once. Labor legislation does not establish any restrictions in this case.

However, some regulations regulating the collection procedure establish additional conditions. For example, there are restrictions for state drug control officers on the number of penalties lifted. If an employee has more than one penalty, then a decision on early withdrawal can be made only for one of them.

Reasons for lifting a disciplinary sanction

An order to lift a penalty before its expiration date must be issued no later than 1 year from the date the penalty was established. The reasons for this may be the following:

• An employee who has received a penalty for a long time does not violate the organization’s labor discipline rules or labor legislation;
• The manager made the decision to lift the penalty independently;
• It has been proven that the penalty was imposed illegally;
• An employee who has a penalty contributed to production growth in the organization;
• And etc.

Appeal against collection

If a disciplinary sanction was imposed on an employee illegally, it can be appealed. To do this, the employee can file a complaint with one of the authorities: the labor inspectorate, the labor dispute commission or the court.

Order to remove foreclosure

An order to remove the penalty is issued in any form. The order must contain the following information:

• The grounds that led to the imposition of a penalty on the employee;
• The grounds that led the manager to remove the penalty early;
• Information about the employee, including his position and department;
• The date from which the order comes into force;
• Persons responsible for executing the order.

The manager’s decision can only be influenced, but he can only accept it on his own initiative. Only if the penalty was imposed on the employee illegally, the decision to remove it is not made by the manager.

For violation of labor discipline, a type of penalty such as a reprimand may be applied to the main circle of employees. The use of a reprimand requires the employer to strictly comply general order application of disciplinary sanctions, established by law. There must be grounds for applying a reprimand; therefore, it is necessary to find out valid reasons that exclude the employee’s guilt. The article talks about the bodies that have the right to apply disciplinary sanctions, the timing and procedure for applying and appealing a reprimand and its removal.

Reprimand as a type of disciplinary sanction

One type of legal liability is disciplinary liability. In the sphere of the use of hired labor, it consists of the obligation of an employee who has committed a disciplinary offense to report to the employer for his unlawful and guilty actions and to bear disciplinary sanctions provided for by labor law.

By committing a disciplinary offense we mean the failure or improper performance by an employee, through his fault, of the duties assigned to him by law, a collective agreement, an employment contract or internal labor regulations, unless criminal liability is provided for these acts.

Disciplinary liability, like any other legal liability, is of a compulsory nature. It consists in the fact that in relation to an employee who has committed a disciplinary offense, the employer may apply coercive measures, a compulsory sanction, which entails certain negative consequences for the violator.

Note. It is the right, not the obligation of the employer to bring an employee to disciplinary liability. Instead of a disciplinary sanction, the employer, in accordance with Article 152, may apply other measures of influence to the violator of labor discipline, in particular, refer the issue of violation of labor discipline to the consideration of the labor collective or its body.

Disciplinary measures applied to some employees who perform their labor duties in bad faith are specified in Article 147 of the Labor Code. Thus, for violation of labor discipline, only one of the following penalties can be applied to an employee:

• rebuke;
• dismissal.

Legislation, charters and discipline regulations may provide for other disciplinary sanctions for certain categories of employees. The right to choose a penalty for violation of labor discipline belongs to the employer and not necessarily in the sequence specified in Article 147 of the Labor Code. However, in accordance with part three of Article 149 of the Labor Code, when choosing the type of penalty, the employer must take into account the severity of the offense committed and the damage caused by it, the circumstances under which the offense was committed, and the employee’s previous work.

A reprimand is a disciplinary measure of a personal non-property nature. This penalty consists of a negative assessment and condemnation of the employee’s behavior in the work collective. Such moral condemnation is intended to encourage the employee to continue to conscientiously perform his work duties. After all, the employee must be aware that in the event of a violation of labor discipline and subsequent receipt of a reprimand, the employer may apply to him a more severe penalty provided for by law, in particular dismissal.

Thus, rebuke- a measure of disciplinary action of a moral and psychological nature, containing a negative assessment of the employee’s specific actions and having an evaluative, preventive and motivational effect on him.

The application of a disciplinary sanction to an employee - a reprimand - entails other negative consequences of a moral and material nature for him:

• during the period of validity of the reprimand as a disciplinary sanction, incentive measures in accordance with part three of Article 151 of the Labor Code to the employee do not apply;
• when reprimanding an employee, the relevant bonus provisions may provide deprivation of such employee's bonuses, other incentive payments or reduction in their size;
• whether an employee has an outstanding reprimand is taken into account when determining his level of qualifications and labor productivity in the event of a preferential right to remain at work when the number or staff of employees is reduced due to changes in the organization of production and labor;
• a reprimand is a prerequisite for dismissal under paragraph 3 of Article 40 of the Labor Code.

Applying a reprimand in the established manner to a violator of labor discipline and bringing this to the attention of the entire enterprise staff to a certain extent has a moral impact on other workers, develops in their minds a feeling of the inevitability of punishment for a disciplinary offense committed and encourages them to prevent violations of labor discipline. Thus, a reprimand as a disciplinary sanction, among other things, performs educational and preventive (warning) functions.

A reprimand, unlike other types of disciplinary action, in particular dismissal, is the most universal. It can apply to any category of workers. It also applies to those employees who are subject to charters, regulations and other acts of legislation on discipline. A reprimand can be applied for any disciplinary offense committed by employees, even if for such an offense the legislation gives the employer the right to apply a more severe disciplinary sanction, including disciplinary dismissal, in particular, for the employee committing absenteeism, appearing at work in a state of intoxication, gross violation by the head of the enterprise of his labor duties, etc.

Note. The legislation does not limit the number of reprimands applied to the same employee for violations of labor discipline, provided that the requirements of part two of Article 149 of the Labor Code are met, which stipulates that only one disciplinary sanction can be applied for each violation of labor discipline.

At the same time, the use of a reprimand requires the employer to strictly comply with the general procedure for applying disciplinary sanctions established by law.

Grounds for applying a reprimand

The basis for applying a reprimand is the employee’s commission of an unlawful guilty act (action or inaction), which is recognized as a disciplinary offense. The illegality of an employee’s behavior lies in his violation of his labor duties, established by the norms of labor law, for example: Labor Code, internal regulations, charters, regulations, job descriptions, employment agreement (contract), collective agreement, as well as in violation or failure to comply with lawful orders and instructions employer.

Of particular importance when determining an employee’s act as a disciplinary offense is the presence of the employee’s guilt in committing this act, which means a certain mental attitude of the person towards his illegal actions and their harmful consequences. Guilt can be either intent or negligence.

Characteristic signs of intent:

• awareness by the employee of the social harmfulness of his behavior;
• predicting the negative consequences of such behavior;
• the desire for harmful consequences to occur as a result of one’s behavior or the conscious assumption of them.

Depending on the nature of a person’s volitional attitude towards the socially harmful consequences of their act, they determine two types of intent:

• straight- when an employee, foreseeing the socially harmful consequences of his action or inaction, desires their occurrence;
• side- when an employee, foreseeing the socially harmful consequences of his action or inaction, does not directly desire them, but consciously allows them to occur.

Carelessness characterized by the fact that the employee who committed a disciplinary offense foresaw the possibility of harmful consequences of his behavior, but frivolously counted on their aversion or did not foresee the possibility of such consequences, although he should have and could have foreseen them. IN labor law guilt as negligence is seen mainly as negligence.

Consequently, regardless of the form of guilt, its obligatory element is the person’s awareness of the wrongfulness of his act. The form of guilt affects the severity of the offense committed. Thus, a disciplinary offense committed through negligence is considered less serious than one committed intentionally. And the type of disciplinary action should depend on this, in turn.

For the most part, disciplinary offenses are recognized as acts that are associated with the failure or improper performance by an employee of his duties without good reasons. Consequently, the presence of good reasons in this case indicates the absence of the employee’s guilt.

Valid reasons excluding the employee’s guilt

Valid reasons excluding the employee’s guilt may be life circumstances. But not all life circumstances can be recognized by the employer as valid reasons. Then, if a labor dispute arises, the presence or absence of valid reasons, and therefore the presence or absence of the employee’s guilt, is determined by the body considering the dispute.

An employee cannot be found guilty if he performs his work improperly as a result of insufficient qualifications, illness or lack of appropriate conditions for its performance. The presence of valid reasons is recognized in the case of proven incapacity for work of the employee, even if it was not confirmed by a certificate of incapacity for work, since the law does not oblige the employee, if he is ill, to turn to official medicine. However, the absence of a certificate of incapacity for work will deprive the employee of the right to receive benefits for temporary loss of ability to work.

Respectful can also be considered reasons of a family or other nature when the employee’s actions were aimed at eliminating the threat of causing him or other persons damage that significantly exceeds the damage caused to the employer by the employee’s failure to perform or improper performance of his work duties under such circumstances, since there is reason to believe that in such circumstances the employee acted in a state of extreme necessity. For example, as a result of taking measures to eliminate damage to the water supply system, which threatens to flood the apartment of an employee and his neighbors, or to provide urgent medical care the employee did not arrive at work on time for relatives or other persons.

If the reason for the employee’s failure to perform or improper performance of his or her job duties is negative impact of natural disasters or other force majeure, then such reasons are also considered valid. For example, as a result of heavy fog, ice, etc. or a vehicle malfunction that occurred unpredictably, the driver of the vehicle did not deliver the cargo on time. It is impossible to hold an employee accountable for failure to comply with a clearly illegal order of the administration, as well as for refusal to perform work not provided for in the employment contract. However, an employee who carried out a clearly unlawful order or instruction of the relevant official, and thereby caused damage to the employer or created a threat to cause such damage, for acts committed for the purpose of fulfilling of this order or orders subject to disciplinary liability on a general basis, unless criminal liability is provided for such acts. But if the employee did not realize and could not realize the illegal nature of such an order or instruction, he cannot be brought to disciplinary liability. In this case, only the official who gave the unlawful order or instruction should be held accountable.

An unlawful action or inaction of an employee committed under the direct influence of physical or mental coercion, as a result of which the employee could not control his actions. Physical coercion means the use of violence against an employee in order to force him to commit illegal actions or to commit an illegal non-commitment. certain actions against his will. Mental coercion means influencing the psyche of an employee in order to force him, against his will, to commit illegal actions or illegal inactions. For example, a security worker, as a result of a threat from a criminal to use a weapon, did not fulfill his job duty to ensure the safety of material or monetary values.

If an employee is held financially liable for material damage caused to the employer by the employee as a result of violation of the labor duties assigned to him, disciplinary measures can also be applied to the employee, unless criminal liability is provided for this. But it is necessary to pay attention that in such circumstances, in contrast to material liability, the employee is brought to disciplinary liability not for the damage caused by him, but for failure to perform or improper performance of his work duties, i.e., his commission of unlawful guilty acts, as a result of which he was caused material damage to the employer.

In accordance with part four of Article 130 of the Labor Code, workers cannot be held financially liable for damage falling into the category of normal production and economic risk, as well as for those not received by the enterprise, institution, organization ( Further- enterprise) profits and for damage caused by an employee who was in a state of emergency. However, it should be noted that the norm of part four of Article 130 of the Labor Code exempts an employee in the cases specified in this norm only from material liability, but not always from disciplinary liability.

Of course, an employee cannot be brought to disciplinary liability, as well as financial liability, if he acted in a state of extreme necessity or his actions are classified as a normal production and economic risk, since such actions are not illegal. But if, as a result of non-fulfillment or improper performance by an employee of his labor duties, the enterprise has lost the opportunity to receive the planned profits, then such an employee can be brought to disciplinary liability for committing relevant guilty and unlawful acts that led to such material damage, although he is held financially liable for this damage cannot be attracted in accordance with part four of Article 130 of the Labor Code. For example, as a result of non-fulfillment or improper fulfillment by an employee of his work duties without good reason, the conclusion or implementation of an already concluded business contract for a significant amount was disrupted, as a result of which the owner did not receive the planned profits.

Note. In labor law, the principle of the presumption of innocence applies. Thus, an employee cannot be brought to disciplinary liability until the employer has proven his guilt, and the employee is not obliged to prove his innocence. The principle of the presumption of innocence in labor law follows from the content of Article 138 of the Labor Code, which provides for the employer’s obligation to establish the existence of conditions, including the employee’s guilt, in order to bring such an employee to financial responsibility.

Disciplinary offense failure to fulfill labor duties is recognized. An employee cannot be brought to disciplinary liability if he has not violated his labor duties.

Failure to perform public or other assignments not related to the performance of a labor function, cannot lead to disciplinary action. Violation of labor discipline, as a rule, is considered such provided that it occurred in work time. For employees working irregular working hours, the entire period of stay at the workplace is considered working time.

For disciplinary liability, it is not necessary to cause material or other damage to the owner as a result of a disciplinary offense, since the very fact of committing a disciplinary offense is harmful.

It is worth noting that a reprimand as a type of disciplinary liability can only be applied to an employee, i.e. a person who is in an employment legal relationship with the owner of the enterprise or an authorized body or individual on the basis of concluding an employment contract, regardless of its type and duration, in particular , during the test period established for the employee in order to verify his suitability for the assigned work.

Note. A person working at an enterprise or for an individual on the basis of concluding a civil law contract cannot be brought to disciplinary liability, since in civil legal relations the principle of parity of the parties applies and there is no subordination. Such a person, for failure to fulfill or improper performance of his duties stipulated by the agreement concluded with him, may bear civil liability provided for by this agreement and civil legislation.

Bodies applying disciplinary sanctions

In accordance with the first part of Article 147 1 of the Labor Code, the right to apply a disciplinary sanction, in particular, a reprimand, is granted to the body that is granted the right to hire (elect, approve and appoint) this employee. At an enterprise, the right to hire and fire employees is granted to the manager in accordance with the charter of the enterprise and the employment agreement (contract) concluded with him. This means that the head of an enterprise always has the right to take disciplinary action against any employee of this enterprise who has committed a disciplinary offense.

Deputy managers may have the right to hire or dismiss employees, and therefore to apply disciplinary sanctions to them, provided that such a right is enshrined in the charter of the enterprise or delegated by the corresponding order of the manager. If an official who, in the absence of the head of the enterprise, performs his duties according to the relevant order or his own functional responsibilities, is vested with the right to hire and dismiss workers, it also has the right to bring them to disciplinary liability.

Heads of separate structural divisions of an enterprise (branches, directorates, representative offices), in accordance with the regulations on this division or a separate order of the head of the enterprise, may be vested with the authority to independently hire and dismiss employees of this structural unit, and therefore they have the right to apply disciplinary sanctions to such employees.

To the managers of the enterprise as to employees The body that, in accordance with the law and the charter, hires the manager has the right to apply penalties. It could be:

• a ministry or other body that manages state or municipal property;
• owner of a private enterprise;
• meeting of participants of a business company, etc.

Disciplinary sanctions can also be applied by employers - individuals to the employees with whom they have concluded employment contract.

For employees who bear disciplinary liability under the charters, regulations and other acts of legislation on discipline, disciplinary action, in particular, a reprimand, in accordance with part two of Article 147 1 of the Labor Code, can also be imposed by higher authorities, in relation to bodies that are granted the right to hire (election, approval and appointment to a position) of this employee.

The application of this type of disciplinary sanction, such as a reprimand (as opposed to dismissal), to the general circle of employees is carried out without the consent of the elected body of the primary trade union organization(trade union representative). At the same time, in accordance with part two of Article 252 of the Labor Code, bringing to disciplinary liability (regardless of the type) workers who are members of elected trade union bodies is allowed only with the prior consent of the elected trade union body of which they are members.

Terms of application of a reprimand

In accordance with part one of Article 148 of the Labor Code, a reprimand is applied immediately after the discovery of an offense, but no later than one month from the date of its detection, not counting the time the employee is released from work due to temporary disability or being on vacation. It is necessary to note that this provision provides for the calculation of the one-month period for applying a disciplinary sanction from the day the misconduct as such is identified. Consequently, the identification of a misdeed means not only the identification of a fact (a certain act), but also the identification of the employee who committed these acts, the illegality of these acts, the guilt of the employee, the presence of harmful consequences, the causal relationship between the offense and the harmful consequences. Therefore, the day the disciplinary offense was discovered may not always coincide with the day it was committed or the day the fact was discovered. The day the offense is discovered may come significantly later than the day it was committed, as well as the day the fact was discovered. For example, damage to the owner’s property occurred on January 10, the fact of such damage was identified on January 15, and the employee who, as a result of guilty, illegal actions, damaged this property was identified on January 20.

Features of determining the period of application of a reprimand in some cases

In our opinion, the norm of part one of Article 148 of the Labor Code is not specific enough, and this creates certain difficulties in its practical application. In particular, from the content of this norm it is not entirely clear what kind of offense we're talking about and who should identify it. Indeed, in practice, it often happens that it is not the employer, but the relevant state control bodies that identify the commission of offenses (administrative, financial, etc.) by employees (officials) of enterprises, which at the same time are recognized as disciplinary offenses if they are committed in working hours and are recognized as non-fulfillment or improper performance by such employees of their labor duties. This could be a violation of safety rules, fire safety, sanitary and epidemiological rules, traffic rules, evasion of paying legally required payments to the budget and social insurance funds, theft of the employer's property, etc. Then, if such an employee is involved, among other things, and to disciplinary liability, difficulties arise in determining the day from which the month period during which a disciplinary sanction can be applied will be counted.

These issues are not directly regulated by law, but in some cases there is a certain arbitrage practice. In particular, when a disciplinary sanction is applied to an employee based on the results of an audit by the control and audit department ( Further- KRU). For example, an accountant of an enterprise carried out a certain financial transaction in October 2012, and in January 2013, during an audit of the control department, it was determined that this operation was carried out in violation financial discipline. The head of the enterprise was familiarized with the KRU inspection report, which noted the fact of violation of financial discipline by the accountant, on February 15, 2013. The day of discovery of the misconduct, i.e. the day from which the month period must be counted, during which a reprimand can be applied to the accountant, in this case the courts recognize the day the head of the enterprise familiarizes himself with the inspection report or the delivery of such an act to the head, i.e. February 15 2013.

By analogy with the procedure for determining the timing of applying a disciplinary sanction to an employee - dismissal in accordance with paragraph 8 of Article 40 of the Labor Code (clause 26) in the case of bringing the employee to administrative responsibility for any other administrative offense committed by him, which is also a disciplinary offense, of this employee the employer may bring to disciplinary liability no later than one month from the date of adoption of the decision to impose an administrative penalty or a measure of public sanctions for committing an administrative offense, without taking into account the time the employee was released from work due to temporary disability or being on vacation.

In contrast to the legislation providing for financial liability of employees, which does not limit the period for holding materially liable from the day the employee causes material damage to the employer, part two of Article 148 of the Labor Code stipulates that disciplinary sanction cannot be applied later than six months from the day the offense was committed. Therefore, if an employee commits guilty, unlawful acts related to the performance of his labor duties, as a result of which material damage was caused to the employer, such an employee for these acts after the expiration of six months from the date of their commission cannot be brought to disciplinary liability, but in accordance with part three Article 233 of the Labor Code, the employer may go to court regarding the recovery of material damage from the employee within one year from the date of discovery of the damage caused by the employee, regardless of the day it was caused.

At the same time, you should pay attention to paragraph three of paragraph 29 of the Model Internal Labor Regulations for workers and employees of enterprises, institutions, organizations approved ( Further- Model internal labor regulations), which states: “A disciplinary sanction cannot be applied later than six months from the date of the commission of the offense. IN specified deadlines The time of execution in a criminal case is not included.” Taking this into account, we can conclude that if a criminal case was initiated against an employee for violation of labor discipline before the end of the six-month period from the date the employee committed the offense, and subsequently this case was closed on the grounds provided for by the norms of criminal procedure legislation, this employee can be prosecuted to disciplinary liability, provided that his actions contain signs of a disciplinary offense and provided that the period from the day he committed an offense until the day a criminal case was initiated against him and from the day this case was closed until the day a disciplinary sanction was applied to this employee totals not more than six months. But if a criminal case was initiated after six months from the date the employee committed the offense, then after the closure of such a case, this employee can no longer be brought to disciplinary liability.

However, the norm of paragraph three of paragraph 29 of the Model Internal Labor Regulations, which have the force of subordinate legislation normative act, in terms of failure to include the time of proceedings in a criminal case within six months from the date of commission of the offense, it contradicts the norm of part two of Article 148 of the Labor Code, which is a norm of law, and a norm of direct effect, and which does not provide for any exceptions. Therefore, there is every reason to believe that a disciplinary sanction cannot be imposed later than six months from the date of the commission of the offense under any circumstances.

Procedure for applying a reprimand

Before deciding to reprimand an employee, the employer must conduct an investigation and collect sufficient evidence that would indicate that the employee has committed a disciplinary offense. Such The following documents can serve as evidence:

• reports from other employees;
• written statements of witnesses;
• notifications government agencies exercising control and supervision over compliance with legislation, in particular in the field of the use of hired labor;
• expert opinions;
• written explanations from the violators themselves, etc.

If the employer identifies a violation of labor discipline by an employee, which has signs of an act provided for by the Criminal Code of Ukraine as a crime, the employer must notify law enforcement agencies about this in the prescribed manner.

Part one of Article 149 of the Labor Code stipulates that before applying a disciplinary sanction from a violator of labor discipline, the employer requires a written explanation. This is a mandatory procedure. If it is not complied with, the body that will consider the labor dispute will have grounds to cancel the employer’s order to impose a disciplinary sanction on the violator. The refusal of a labor discipline violator to provide a written explanation is not an obstacle to applying disciplinary action against him.

If the violator of labor discipline refuses to provide a written explanation, a corresponding act is drawn up in a free form, which, as a rule, indicates the circumstances of the violation, the last name, first name and patronymic of the person who committed it, where, when and under what circumstances it was committed, and what consequences it had. It is also noted that the violator was asked to provide a written explanation, but he refused to do so. The act is signed by the official who drew up this act, and by at least two other employees (other persons) who are witnesses to the violation and the refusal of the violator to give the specified explanation. In this way, both the fact that a specific employee committed a disciplinary offense and the fact of refusal to provide them with a written explanation are recorded.

If the fact of a disciplinary offense is confirmed by other evidence, in particular, explanations of other witnesses and relevant documents, and it is only required to record the fact of the offender’s refusal to provide a written explanation regarding his commission of this offense, then an act of such refusal is drawn up, which is signed by the persons who are witnesses to the refusal ( Annex 1).

It is worth noting that for each violation of labor discipline, only one disciplinary sanction can be applied. That is, it is impossible, for example, to reprimand an employee for absenteeism and fire him from work. However, financial liability for damage caused to the enterprise or an administrative penalty is not another disciplinary sanction. For example, driver vehicle an enterprise that committed a traffic accident, as a result of which material damage was caused to the enterprise, was brought to administrative liability by traffic police officers for violating traffic rules, and by the employer - in accordance with financial liability. But this is not an obstacle to applying a disciplinary sanction to this driver - a reprimand.

A reprimand is announced in an order (instruction) ( appendix 2) and is communicated to the employee against signature. The order must contain a link to the relevant document that the employee violated. Such documents can be: internal regulations of the enterprise, employment agreement (contract), collective agreement, job description, instructions on labor protection, etc. After all, it is possible that what the employee is held accountable for is not included in his job duties at all, or the employee, on receipt, was not familiarized with the document, the clause or section of which he violated. If the employee was not notified against receipt of a reprimand, then he will have reason to believe that such a disciplinary sanction was not applied to him. And this, if a dispute arises in the future on issues related to the application of this disciplinary sanction, will be taken into account when making a decision by the body that will consider the dispute. For example, if a dispute arises regarding the future dismissal of this employee under paragraph 3 of Article 40 of the Labor Code (systematic failure by the employee, without good reason, to fulfill the duties assigned to him by the employment contract or internal labor regulations, if disciplinary or public sanctions were previously applied to the employee).

If the employee refuses to sign that he has read the order, then a corresponding act is drawn up. In addition, in this act it can be noted that, for example, the manager (or other official) read the order out loud in the presence of the violator of labor discipline, who is being reprimanded. The employee’s refusal to familiarize himself with the order of reprimand or to certify this fact with his signature does not cancel the disciplinary sanction. But if a dispute arises, such a refusal must be proven by the employer, and the document drawn up about this will serve as evidence of the refusal.

Note. A reprimand given orally has no legal force. Therefore, if a reprimand is announced in this way, no legal consequences arise for the employee, although he may be subject to moral influence.

Information about a reprimand, as opposed to an incentive, are not included in the work book. However, in order to keep records of the application of disciplinary sanctions, a corresponding entry is made about this in section 2.2 “Disciplinary sanctions” of the appendix to the personal personnel record sheet.

Appeal and removal of reprimand

The legislation (Article 150 of the Labor Code) provides for the possibility of an employee appealing a disciplinary sanction imposed on him.

Unlike disciplinary dismissal, which is appealed exclusively in court within a month from the date of delivery of a copy of the dismissal order or from the date of issue work book, the reprimand can be appealed to the labor dispute commission or to the district (city) court in accordance with Articles 225, 233 of the Labor Code within three months from the day when the employee learned or should have learned about the violation of his rights. Such a day should be considered the day the employee familiarizes himself with the order (instruction) reprimanding him, regardless of the day this order was issued.

A reprimand applied by the employer in violation of the established procedure (for example, violation of the terms of application, the violator was not offered to give a written explanation, etc.), but not appealed by the employee in the prescribed manner and within the established time frame without good reason, may have legal consequences for this employee , if it was announced in the order (instruction).

Article 151 of the Labor Code provides for the procedure for removing a reprimand. If during a year from the date of imposition of a disciplinary sanction - a reprimand, the employee will not be subject to a new disciplinary sanction; he is considered to have not had a disciplinary sanction. The day of imposition of this disciplinary sanction is considered the day of issuance of the order (instruction) to bring the employee to disciplinary liability.

Note. At the end of a year from the date of its imposition, a reprimand automatically expires. Thus, in this case there is no need to issue a special order (instruction) to recognize an employee who has not had a disciplinary sanction. However, if within a year from the date of application of the disciplinary sanction the employee is subjected to a new sanction, the previous sanction will be considered one that remains in force and can be taken into account upon dismissal for the employee’s systematic failure to fulfill his labor duties (Clause 3, Article 40 of the Labor Code).

If the employee has not committed a new violation of labor discipline and, moreover, has proven himself to be a conscientious worker, the reprimand can be withdrawn before the end of one year. Initiator of early removal of reprimand, as a rule, there may be the head of the department in which the employee who has a penalty, a team or other team works. Such an initiative can be formalized as a presentation, petition, memorandum of an official, decision general meeting the corresponding workforce, etc. ( Appendix 3). Since the legislation does not directly provide for who such an initiator can be, it can be the employee himself, who has the right to contact the employer with a corresponding application for early removal of the reprimand, indicating in this application suitable arguments about the possibility of early removal of the disciplinary sanction.

On the early removal of a reprimand from an employee, an order (instruction) is issued by the manager who hired him and applied the penalty, which motivates the decision made ( appendix 4). The interested person gets acquainted with the order. It is advisable that the early removal of a reprimand from an employee is reported to the labor collective of which the employee is a member.

Separate laws, regulations and charters on discipline may establish a different procedure for appealing and removing disciplinary sanctions.

Note. A reprimand given to an employee is valid within the framework of one employment contract concluded with this employee. Thus, if an employee has concluded several employment contracts with the same employer (for example, in addition to his main job, he also has a part-time job) and he is reprimanded for non-fulfillment or improper performance of labor duties under one contract, then the effect of this reprimand cannot extend to for legal relations under other contracts. If an employee who was reprimanded was dismissed from work before his dismissal, and then over time was again employed by the same employer, having concluded a new employment contract with him, then this employee will be considered not to have had a disciplinary sanction. When transferring an employee who has been reprimanded to another job (in another position or profession) at the same enterprise, the reprimand will remain in force until it is removed in the prescribed manner, since when an employee is transferred to another job, only his labor function, and the contract itself remains valid.

Article provided to our portal
editorial staff of the magazine

31.08.2019

If the norms established by internal regulations are violated, a working citizen may be held accountable.

As a result, a disciplinary sanction is imposed on him for a certain period of validity.

After the end of this period, and if the employer wishes, before this moment, the punishment is removed from the employee.

Deadlines according to the Labor Code of the Russian Federation

In the process of conducting labor relations Various situations arise. For almost every violation, the manager has the right to take disciplinary action against the employee.

The specific type - reprimand, reprimand or dismissal - is determined depending on the severity of the case.

The removal of the penalty from the employee occurs after one year, this is the standard period of validity of the punishment under the Labor Code of the Russian Federation. This rule is relevant provided that within 12 months from the date of the announcement of the penalty, the employee has not committed repeated violations.

The most radical method of holding an employee accountable is dismissal.

Upon termination of the employment relationship, the penalty is not removed from the violator. Only a reprimand and reprimand can be removed.

In some situations, the employer may release a specialist from punishment early. The procedure for carrying out such actions is regulated by Article 194 of the Labor Code of the Russian Federation.

A penalty can be announced only within a month from the moment a violation of the company’s internal regulations is discovered.

If unlawful actions of an employee were discovered during an audit, this period is increased to 2 years.

Thus, the imposed disciplinary sanction is considered lifted after one year automatically or early if there are grounds for it.

The procedure for early cancellation of punishment

Early removal of a penalty implies release from punishment within a period of less than 12 months from the date of application of the preventive measure for the violation.

The initiative in this case can come from the following participants in labor relations:

• employee;
• head of a structural unit;
• employer;
• team;
• trade union specialists.

In operation Labor Legislation there is no reflection of the moment of early withdrawal of foreclosure.

After considering the citizen’s appeal, the authorized bodies make a decision on the basis of which the worker’s request is granted, or he is refused.

How to remove a reprimand from an employee?

A reprimand is a measure of punishment for an employee, the severity of which is between a reprimand and dismissal.

When announcing such a penalty, the employee should be extremely careful and try to avoid such violations of discipline, because such repeated violations can lead to dismissal.

The period of validity of the reprimand is 12 months. After this period, the disciplinary sanction is canceled automatically.

Legal acts do not establish a clear technology for removing a reprimand. Despite this, this procedure is usually carried out by performing sequential actions:

• Step 1. Submitting an application.

This is relevant if the initiative to lift the penalty does not come from the manager. No documentation will be provided for automatic cancellation.

• Step 2. Submitting an order.

The paper is drawn up on the condition that the employer does not mind lifting the penalty from the offending employee.

• Step 3. Making adjustments to the employee’s personal card.

The fact of the announcement and removal of a reprimand is necessarily recorded in a card drawn up in the T-2 form.

If the decision to withdraw is made by the employer independently, only the corresponding order is issued.

Each document must be drawn up in accordance with established rules:

Petition

The document is drawn up in free form; there is no standardized form for its execution.

The petition consists of several parts:

• a cap;
• preamble;
• main part.

The header reflects standard information - information about the employer, company name, initials and position of the compiler.

After this, information about the employee for whom the documentation is being prepared is indicated.

It is important to describe the type of disciplinary action and the violation for which it was declared.

The main part must reflect the request itself and the circumstances in connection with which it is required to exempt the employee from punishment.

For example, for success at work, unquestioning execution of the manager’s orders, etc.

The petition is signed by its originator, who also sets the date for execution of the document. The paper can be drawn up on behalf of the team. In this case, all colleagues of the offender must leave their signatures and initials.

Download a sample petition for early removal of a foreclosure -.

Order

It is drawn up regardless of who initiated the cancellation of the foreclosure. Like the previous document, the order is drawn up in any form, taking into account the requirements of the company’s document flow.

The manager must have the following information at his disposal:

• information about the enterprise;
• serial number and date of issue of the order;
• information about the offender - initials, position;
• grounds for early removal of foreclosure;
• the essence of the order;
• employer's signature.

A disciplinary sanction is lifted automatically if several conditions are met:

• a year has passed since the announcement of the reprimand;
• During the period of the reprimand, the employee did not commit repeated violations.

Download a sample order to lift a penalty early by a court decision, at the initiative of the employer -

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