Involved in disciplinary action. Disciplinary sanctions: commandments for personnel officers. How to assert your own rights

Not guilty until proven otherwise. If the employer’s position in the final report of the internal audit turns out to be insufficiently reasoned, the court may subsequently side with the employee. Legally accurate and paperwork-wise preparation of documents at different stages of the investigation will help you make an informed decision and calmly defend the interests of the company in the future.

An official investigation (internal audit) is a serious procedure. It is not used to prove minor violations. Often it is enough to have a preventive conversation with a corporate troublemaker. If there are suspicions that an employee has caused significant material damage to the organization or used his official powers for personal gain, then it is worth taking strict measures. The fact of absenteeism is also confirmed by the results official investigation.

In addition, disciplinary violations, which a special commission will undertake to verify, include evasion of a medical examination (for workers of certain professions) and passage to work time special education and passing exams on labor protection, safety precautions and operating rules, as well as refusal to enter into an agreement on full financial liability if this is the main one labor function employee.

Russian legislation does not contain the concept of an official investigation as such. It can be considered part of disciplinary proceedings, which describes in detail the procedure for bringing to responsibility for a disciplinary offense. An internal investigation in a particular organization is regulated by internal rules labor regulations and internal regulations(instructions, regulations).

It is important to know that conducting an internal investigation is an internal event. The employer can summon the perpetrator, eyewitnesses of the incident and other employees for “interrogation,” but only within the framework of his organization, department, institution, etc. Since the procedure is voluntary, employees have the right to refuse to participate. Employees cannot be forced to undergo a polygraph test or searches and personal searches must be carried out without their consent. If an official matter requires an expert opinion, it is allowed to involve third parties (auditors, appraisers, medical workers, engineers, etc.) on a contractual basis. The law also allows for sending to government bodies etc. organizations requests necessary for investigation.

Where does an internal investigation begin?

The main task of the employer when conducting an internal investigation is to prove the fact of a disciplinary offense, to establish the employee’s guilt and its degree, the nature and extent of the harm caused. Additionally, the reasons and motives for committing a disciplinary offense, mitigating and/or aggravating circumstances, and the employer’s ability to eliminate and prevent such violations are determined. labor discipline, measures to bring individuals to justice.

Before starting the official procedure, it is necessary to ensure that the fact of the misconduct is documented. It is this document that serves as the basis for subsequent verification. This may be a memo from the head of a unit, department and/or immediate superior. As a rule, it is drawn up in paper form (see Sample 1), but can also be issued in the form of an electronic document.

The memo must be accepted for execution and registered. From the moment when the incoming number according to the internal document flow log and the date of acceptance are placed on it, the countdown begins for the investigation. Besides memo, the basis for verification may be:

• statement from the employee himself;
• counterparty claim or consumer complaint;
• act of discovery of a shortage of goods;
• auditor's conclusion, inventory report;
• written and oral appeals from citizens, representatives of organizations containing information about the employee committing an offense, etc.

One of these documents is enough to launch an internal investigation procedure. The starting shot for him is an order from the manager to conduct an inspection or from another authorized person responsible for making personnel decisions.

Who is involved in the internal investigation?

Usually internal audit handled by the security service and/or internal audit department. IN small companies These functions are often taken over by the personnel department. As mentioned above, third-party specialists (lawyers, accountants, etc.) can also be involved in an internal investigation. The investigation must involve the immediate supervisor of the employee in respect of whom it is being conducted. At the same time, it is important to know that for the objectivity of the audit, the immediate superior cannot be a member special commission. This requirement also applies to the managers of the organization who make decisions on imposing disciplinary sanctions. Thus, the commission may include security and personnel officers, as well as trade union organization. As a rule, it consists of at least three people, headed by the head of the security service.

Time frame for the investigation

One month is the amount of time allotted by law for investigating violations of labor discipline. It is counted from the date of the decision (issuance of an order) to conduct an inspection. If the investigation is carried out on the basis of an internal memo from an employee, the inspection must be completed no later than one month from the date of filing the document (Article 193 of the Labor Code of the Russian Federation). This period does not include the employee’s illness, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees, which in total cannot exceed six months. A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. These time limits do not include the time of criminal proceedings.

Conducting an internal investigation

After the commission has been formed by order of the head, the investigation into the circumstances of the violation begins. The employee is asked for a written explanation. It is recommended to send a notice to the employee’s place of residence - by registered mail with a description of the attachment or telegram (see Sample 2).

Two days are counted from the date of receipt of the notice, during which the employee must give a written explanation. Failure to respond after this time is regarded as a refusal to cooperate with the investigation. A corresponding act is drawn up regarding the fact of refusal (see Sample 3).

The forms of these documents are not established, but it is advisable that they be signed by all members of the commission. An employee can draw up an explanatory note in free form in compliance with general requirements office work. In the explanatory note, the employee sets out his version of what happened, explains the circumstances and indicates the reasons for the offense (see Sample 4).

An explanatory note is a mandatory, but not always the only investigation document. The commission may require copies or originals of other documents confirming the guilt or innocence of the employee. All received documents are numbered and filed. In the final inspection document they are presented as attachments.

Absence from work

If the employee does not go to work, then for each day of absence a report on the person’s absence from the workplace is drawn up. Indirect evidence can be attached to the act, such as the fact that the employee’s signature is missing in the logbook for recording the arrival and departure of employees, information in electronic system personnel access control, reports from colleagues and immediate superiors, etc. The requirement to report to work and provide an explanation for absenteeism is sent by registered mail with a list of attachments or by telegram to the employee’s place of residence if he did not appear at the workplace for two days in a row. It is recommended to count the waiting period for a response from the date of receipt of the letter or telegram. The employee may send his explanations in writing. If there is confirmation that the correspondence was not received by the addressee, the employer has the right to contact the police or send inquiries to hospitals. It is important to remember that if the reasons for failure to appear for work in court are recognized as valid, the employee will be reinstated and the employer will suffer losses in the form of monetary compensation the employee for the entire period of his absence from work.

Causing material damage

According to Federal law 06.12.2011 No. 402-FZ “On Accounting”, an inventory is mandatory when facts of theft, abuse or damage to property are detected. The inventory is carried out by the commission on the basis of an order from the head of the organization. Establishing the causes and size material damage mandatory before making a decision on compensation for damages by specific employees. In this case, the amount of damage is determined by actual losses based on market prices prevailing in the area on the day it was caused (Article 246 of the Labor Code of the Russian Federation). But it cannot be lower than the value of the property according to data accounting minus depreciation charges. As a rule, to determine the size, employers invite independent appraisers or take data from the book value of the property.

Abuse of power

In order to identify the fact of abuse of power, an audit is carried out or independent auditors are involved. Their services may be needed to establish, for example, the validity of the release of goods, the transfer of property for rent at reduced prices, etc. For joint stock company and limited liability companies, the decision on the audit is made general meeting participants (shareholders) legal entity in order to confirm the accuracy of accounting documentation, financial statements and the state of current affairs of the organization.

How to formalize the results of an internal investigation

The result of the internal investigation is a written conclusion or act (see Sample 5), drawn up on the basis of the collected materials. The conclusion consists of three parts: introductory, descriptive and conclusive:

• Introductory part contains the fact of violation of labor discipline, the date of the violation, the period of the investigation and the composition of the commission.
• Descriptive part details the evidence from the investigation.
• The operative part– this is a summary: who exactly is guilty and of what exactly, does this employee have similar outstanding penalties.

At the end there is a list of appendices to the final act of the commission:

• memos on the discovery of a disciplinary offense, acts of absence of an employee, other documents that are the basis for an investigation;
• targeted demand to provide explanations, documents confirming the direction (delivery) of this request, an explanatory note from the employee (or an act of refusal to submit it);
• reports, official and explanatory notes officials and eyewitnesses of the incident;
• inventory act;
• auditor's report; opinions of independent experts, as well as testimony of special technical means, etc.

The document along with attachments must be signed by all members of the commission. In office work, the final act is assigned a serial number and the date of its preparation is indicated. This marks the end of the investigation. The document is approved by the head of the organization and certified by a seal.

Responsibility for disciplinary offenses

The decision to involve an employee in disciplinary liability is at the discretion of the employer. It must be accepted by the head of the organization within three days from the end of the investigation. Some employers limit themselves to mild measures of influence: holding conversations, expressing reproach, etc. The Labor Code of the Russian Federation provides for three types of punishment: reprimand, reprimand and dismissal on appropriate grounds. Other penalties cannot be applied to the employee, with the exception of employees who are subject to special statutes and regulations on labor discipline (Part 5 of Article 189 of the Labor Code of the Russian Federation).

The heads of the organization or its structural unit or their deputies for violation labor legislation and other acts containing norms labor law, terms of the collective agreement, agreement. If the fact of a violation was confirmed during the inspection, the official must be subject to disciplinary action up to and including dismissal (Article 195 of the Labor Code of the Russian Federation).

The decision on a disciplinary sanction is formalized by an order (see Sample 6), which identifies the guilty officials, the penalties imposed and the grounds for the decision.

For each disciplinary offense, only one disciplinary sanction can be applied. To record official investigations and their results in paper or in electronic format a Journal of Internal Investigations is maintained (see Sample 7). It is advisable to store all investigation materials filed in separate files or in one file and place them in chronological order.

In accordance with Art. 193 of the Labor Code of the Russian Federation, the employee must be familiarized with the order to apply a disciplinary sanction within three working days of the day of its publication, not counting the time of his absence from work. In case of refusal of the employee, a corresponding act is drawn up. Art. 248 of the Labor Code of the Russian Federation establishes that an order to recover from the financially responsible person the amount of damage caused is issued no later than one month from the moment the employer finally establishes its amount.

ATTENTION! It is advisable that the employee familiarize himself with the entire package of documents before signature. This may prevent the employee from filing a claim in the future, since he knew in advance the employer's reasoned position.

If, during an internal investigation, signs of a crime were discovered (for example, an employee used official authority for personal gain), it is necessary to name them and make proposals to the head of the organization to consider initiating a criminal case.

T.V. Voitsekhovich

Before holding an employee accountable for a violation labor standards the employer issues an order to conduct an internal investigation. This local act the head of the organization begins to check the circumstances that may become the basis for bringing the employee to disciplinary action. Or .

The procedure for applying disciplinary sanctions is established by Art. 193 of the Labor Code of the Russian Federation. And the procedure for collecting material damage is Art. 247 and 248. Based on the results of the inspection, an official investigation report is issued ().

Example of an order to conduct an internal investigation

Limited Liability Company "Egoist"

Order No. 142 on conducting an internal investigation

05/11/2022 Kaliningrad

In connection with the inventory carried out by Egoist LLC and the established fact of a shortage of valuables in warehouse No. 1,

I order:

1. Conduct an internal investigation into the shortage of valuables in accordance with May 4, 2022 in order to establish the conditions, causes, circumstances responsible for causing damage to persons and other facts.
2. Create a commission to conduct an internal investigation to establish the causes and circumstances of the shortage in warehouse No. 1 of inventory items in the following composition: chairman of the commission: head of the personnel department Viktor Orkhovich Pyrov, members of the commission: head of the security service Pavel Sergeevich Dimitrov, Chief Accountant Ivleva Inna Romanovna.
3. The commission should conduct an internal investigation by 06/01/2022. Responsible: chairman of the commission.
4. I entrust myself with control over the execution of this order.

CEO Arkhipova Arkhipova S.T.

The following have been familiarized with the order:

Chief Accountant Ivleva Ivleva I.R.

Head of HR Department Pyrov Pyrov V.O.

Director of security Dimitrov Dimitrov P.S.

Grounds for issuing an order to conduct an internal investigation

The reasons for issuing the order underlie the reasons for conducting the inspection. Has the fact of violation of labor discipline or causing material damage become significant for the employer? Does he intend to take disciplinary action? Does he need to establish the fact and extent of the damage?

Often the document includes such a column as the basis. That is, some document that became the basis for the verification. This could be a memorandum, an inventory act, etc.

The head of the organization must remember that the order to conduct an internal investigation, the procedure and the final Act itself often become the subject of. All labor law standards must be observed. And, in fact, the order can also become evidence in the case.

Contents of the order for internal investigation

The form of the order for an internal investigation is not established by law or other acts of the authorities. Each employer develops its own form. Which he applies if necessary.

• name of the organization (IP)
• document name: “order”, number, date and place of preparation
• the basis for the investigation is a shortage, violation of labor protection, consumer complaint, etc.
• order to conduct an investigation. It is very convenient to immediately create a Commission of Investigation, otherwise you will have to issue a separate order
• set a deadline for completing the inspection and responsible persons
• signature of the manager (authorized by a power of attorney from a legal entity)

An order to conduct an internal investigation may include a “grounds” column and agreement with the employees concerned. By the way, if an inspection is ordered against a specific employee, he must be familiar with the order to conduct an internal investigation.

Order to create a commission and conduct an official investigation into theft in the workplace

Samples on the topic: Order. Work

<1>According to Art. 248 of the Labor Code of the Russian Federation, an order to recover from the guilty employee the amount of damage caused, not exceeding the average monthly earnings, is made by order of the employer no later than one month from the date the employer finally determines the amount of damage caused by the employee.

Order

A selection of the most important documents upon request Order to conduct an internal investigation ( regulations, forms, articles, expert consultations and much more).

Articles, comments, answers to questions. Order to conduct an internal investigation

(Vakhrusheva Yu.)

Document forms. Order to conduct an internal investigation

Form: Order to create a commission to conduct an internal investigation. Loss of trust (filling sample)

Order to create a commission to conduct an internal investigation. Loss of trust (filling sample) (Prepared by ConsultantPlus specialists)

The form was prepared using legal acts as of January 21..

The form is designed for the HR Guide. " Disciplinary action. Reprimand, reprimand, dismissal."

investigations. Loss of trust

(filling sample)

Limited Liability Company "Art-ex"

(LLC "Art-ex")

On the creation of a commission to conduct an internal investigation

In connection with the inventory carried out and the fact of shortage of inventory items identified

I ORDER

1. Create a commission to conduct an internal investigation to establish the reasons for the shortage of inventory items in the warehouse, consisting of:

Chairman of the commission - head of the logistics department D.A. Naganova

Commission members:

Head of the Personnel Department - Yu.A. Kuprina

Head of the duty service - A.E. Potapova

Accountant - E.P. Vasilyeva.

2. Commissions due by 10.03. conduct an investigation into the fact of a shortage of inventory items in the warehouse. Responsible: Chairman of the Commission D.A. Naganov.

3. I reserve control over the execution of the order.

General Director Kharitonov M.B. Kharitonov

The following have been familiarized with the order:

head of logistics

department Naganov D.A. Naganov

An official investigation

If an incident occurs at an enterprise, then in addition to recovering material damage from the guilty employee, it is necessary to conduct an inventory and an internal investigation. It is necessary to avoid unpleasant consequences in the future and to insure against similar cases.

An inventory is needed to assess the damage caused, an internal investigation is needed to identify the causes of its occurrence. The investigation is carried out in stages and at the end an official investigation report is drawn up.

Creation of a commission

Sample order to conduct an internal investigation

It should consist of those employees who are not involved in the incident. Typically, it includes specialists and management representatives. There should be a place in it for a lawyer, an accountant, the head of the human resources department, the head of the security service, and so on.

A commission chairman is appointed to conduct the investigation, and a secretary is appointed to maintain documentation.

After an order to conduct an internal investigation is issued, all members of the commission must familiarize themselves with it and sign.

Collection of information

To establish the degree of guilt of the employee, the connection between the incident and his behavior, the commission must collect and analyze all the data. To do this, she must interview witnesses, summarize documents, and review all evidence.

Employee's explanation

The commission, in accordance with the Labor Code, must request a written explanation from the employee in connection with the incident. The secretary draws up a request, which the employee must sign. If he refuses to do this, this fact must be recorded.

If the employee refuses to give written explanations or evades fulfilling his duties, then a report must be drawn up in which the witnesses sign.

Commission meeting

After all the information has been collected and summarized, the commission meets and answers the questions:

Drawing up an act

Sample act

After completion of all discussions, the commission draws up an act, from the text of which it should be clear:

All materials are filed in the “Case” folder, numbered, and an inventory of documents is compiled.

The act is certified by the signatures of all members of the commission and the culprit. If an employee refuses to sign the document, eyewitnesses must attest to this with their signatures.

The employee has the right to review all investigation materials and appeal them (Article 247 of the Labor Code of the Russian Federation).

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On conducting an internal investigation

FEDERAL MINING AND INDUSTRIAL

RUSSIA SUPERVISION

On conducting an internal investigation

Based on materials presented by the Chief Federal Inspector for the Penza Region of the Office of the Plenipotentiary Representative of the President Russian Federation in Privolzhsky federal district Fomin V.V. (letter dated 04/22/2003 N A53-21/384), and audit acts of the Control and Audit Department of the Ministry of Finance of the Russian Federation in the Penza region (acts dated 05/22/2003 and 05/29/2003)

I order:

1. Create a commission to conduct an internal investigation consisting of:

Zhulina S.A. - Head of the Department of Chemical and Petrochemical Productions of the Directorate for Supervision of the Chemical, Petrochemical and Oil Refining Industries (Chairman of the Commission);

Komisarov V.Ya. - Chief Specialist Department of Lifting Structures of the Office for Boiler Inspection and Supervision of Lifting Structures;

Timakov M.V. - chief specialist of the control and audit department of the Financial and Economic Department.

2. The Department of the Middle Volga District (Sokolov I.A.) conduct an internal official investigation and submit, by August 15, 2003, the necessary explanations and documents for the work of the commission.

3. The commission will conduct an internal investigation and submit to the management of Gosgortekhnadzor of Russia, before 09/05/2003, an act and proposals for eliminating violations in the Office of the Middle Volga District of Gosgortekhnadzor of Russia.

4. Control over the implementation of this order is entrusted to the Deputy Head of the State Mining and Technical Supervision of Russia A.I. Subbotin.

When any violations are detected at an enterprise, it may be necessary to find out the various circumstances of the violation and identify the perpetrators. This procedure is called an internal investigation and is regulated by labor law.

The concept of "internal investigation"

An official investigation is a unique set of measures used to collect, analyze and verify information about misconduct in order to identify the employee’s guilt, and sometimes to identify the guilty person if this is not immediately known.

According to Art. 21–22 of the Labor Code of the Russian Federation, when signing an employment contract, the parties acquire rights and obligations. The employer has the right to hold the employee accountable for violations. But first it is necessary to establish that it was he who committed the offense and that his guilt is truly present.

Common violations subject to investigation:

Failure to perform a labor function;

Violation job responsibilities according to instructions;

Causing material damage.

This list is not closed; in practice, any other situation may arise in which an internal investigation will be required.

When a violation has revealed the fact of a crime, for example, theft, upon completion of the official investigation, the manager can additionally report it to law enforcement agencies.

The verification and study of materials is accompanied by the preparation of special documentation so that the employer subsequently has the opportunity to defend his case.

Internal investigation under the Labor Code: algorithm

Procedure for carrying out an investigation:

1. Creation of a commission and issuance of an order. Usually the commission consists of at least 3 people: for example, a lawyer, an economist and a personnel worker.

2. Direct work of the commission with studying all sides of the case, collecting evidence, interviewing witnesses, etc.

3. If the guilty employee is known, he writes an explanatory note.

4. Preparation of an investigation report and its signing by all participants in the proceedings.

During the investigation, mandatory points are established, without which recovery of damages is impossible:

• whether actual damage was caused and in what amount,
• existence of financial liability under Article 239 of the Labor Code of the Russian Federation,
• the presence of guilty actions or inaction of the employee,
• the presence of a connection between the actions (inaction) of the employee and the consequences that occur.

In fact, an internal investigation is a direct procedure for studying case materials that prove the guilt of the offender.

Order to conduct an internal investigation: sample

There is no standard sample order for an internal investigation against an employee. It can be compiled in a convenient form. It must include the following mandatory items:

Name of the company and its legal form;

Brief description – “conducting an internal investigation”;

Description of the circumstances that require an internal investigation at the enterprise;

Composition of the commission;

Investigation period;

Manager's signature;

An order to conduct an internal investigation is printed on letterhead companies. All interested parties must familiarize themselves with it and sign it.

Sample order for internal investigation

Act on conducting an internal investigation: sample

Regulatory acts do not establish a specific sample of an official investigation report. However, it must contain the required information:

Name, date and place of document preparation;

Composition of the commission;

Information about the person about whom the inspection was carried out;

Designation of the purpose of the investigation;

Circumstances identified during the inspection;

A decision about the guilt or innocence of the employee.

Additionally, the official investigation report contains an inventory of documentary evidence requested and received during the investigation. At the end of the document, the signatures of the commission, the guilty person and the date of his familiarization with the act are placed.

A properly conducted investigation will allow the organization to protect its rights in the event of the possible appeal of the employee guilty of misconduct to a higher authority.

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