The procedure for bringing disciplinary liability to an employee. Disciplinary sanctions: commandments for personnel officers. Lawyer Elena Ponomareva talks about disciplinary sanctions

Disciplinary action is complex, but in an effective way ensuring labor discipline. It is considered difficult because very often when an employee is dismissed for violation labor discipline he goes to court to demand reinstatement at work. So that the organization does not have to pay compensation for forced absence, reimburse moral injury and reinstate an employee, a number of rules for imposing disciplinary action must be followed. Let's figure it out: for what offenses an employer can impose a penalty, within what time frame it is necessary to apply disciplinary measures, what is the procedure for imposing a penalty.
Article 21 of the Labor Code of the Russian Federation establishes the main job responsibilities employee:
- conscientiously fulfill the labor duties assigned to him by the employment contract;
- comply with internal rules labor regulations;
- maintain labor discipline;
- comply with established labor standards;
- comply with labor protection and occupational safety requirements;
- treat with care the property of the employer, third parties located by the employer and other employees;
- immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, or the safety of property.
Job responsibilities are specified in the employment contract and job description. An employee can only be punished for failure to perform direct job duties and failure to comply with labor discipline. For example, a legal adviser is not obliged to send letters to counterparties with claims for payment, if this is not stipulated in the employment contract or job description. Attract him to disciplinary liability You cannot send letters for refusal, but, for example, for periodic delays you can.
It turns out that in order to impose a disciplinary sanction, the employer must determine whether the employee violated job duties or labor discipline. Everything is clear with job responsibilities, but what is meant by work discipline? This question is answered by Art. 189 of the Labor Code of the Russian Federation - labor discipline means obedience to the rules of conduct determined in accordance with the Labor Code of the Russian Federation, obligatory for all employees, and others federal laws, collective agreement, agreements, local regulations, employment contract. Typically, in organizations, the rules of behavior are enshrined in local regulations - internal labor regulations. They are in accordance with Art. 190 of the Labor Code of the Russian Federation must be developed and approved by the manager, taking into account the opinion of the representative body of workers in the manner established by Art. 372 Labor Code of the Russian Federation. If your organization does not have a representative body, then under the approval stamp or at the end of the document we recommend making the following entry: “A representative body of employees has not been created at the time of approval of the internal regulations.”
So, let’s list the circumstances that make it possible to qualify an employee’s misconduct as disciplinary:
- failure to carry out actions established job description, as well as committing actions not provided for by it, or violating local regulations of the organization (for example, if a dispute arises about the legality of applying a disciplinary sanction, the employer will need to prove that the employee committed actions prohibited by his job duties, or did not perform those actions that he should was performed in accordance with the employment contract or job description);
- the job duty was fulfilled improperly or not performed at all (for example, the job description of the office manager provides for the obligation to transfer correspondence to the director within an hour after receiving it, and the employee handed over the letters only at the end of the working day; if after cleaning the premises there was garbage left in baskets or spilled coffee, then the cleaning was inadequate);
- the employee’s behavior must be unlawful and related to the performance of job duties (for example, a disciplinary sanction cannot be imposed for violating the rules of behavior in public places or for refusing to leave the annual paid leave early due to production needs);
- the committed action or inaction must be guilty (a penalty cannot be imposed if the employee did not fulfill his labor duty or performed it improperly, for example, due to absence necessary materials, equipment or natural disaster).
If at least one of the above circumstances is absent, then the employee’s behavior is not a disciplinary offense.
In addition, paragraph 35 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2 indicates cases of employee behavior that can be considered a disciplinary offense:
- absence of an employee without good reasons at work or workplace (where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer (Part 6 of Article 209 of the Labor Code of the Russian Federation)) for more than four hours in a row;
- refusal of an employee, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure (Article 162 of the Labor Code of the Russian Federation), since due to employment contract the employee is obliged to perform the labor function defined by this agreement, to comply with the internal labor regulations in force in the organization (Article 56 of the Labor Code of the Russian Federation). It should be borne in mind that refusal to continue work in connection with changes in the terms of the employment contract is not a violation of labor discipline, but serves as a basis for termination of the employment contract under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation in compliance with the conditions of Art. 74 Labor Code of the Russian Federation;
- refusal or evasion without good reason from a medical examination of workers of certain professions, as well as an employee’s refusal to undergo medical examination work time special education and passing examinations on occupational health, safety and operating rules, if this is prerequisite permission to work;
- the employee’s refusal to enter into an agreement for full financial liability, if the performance of duties for the maintenance of material assets is the main job function of the employee, which was agreed upon when hiring.
But paragraph 19 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2 indicates that, by virtue of paragraph. 5 hours 1 tbsp. 219, part 7 art. 220 of the Labor Code of the Russian Federation, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except for cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful or hazardous conditions labor not provided for in the employment contract
For some categories of employees, the Labor Code of the Russian Federation stipulates its reasons for imposing disciplinary sanctions. In particular, teachers, teachers of educational institutions and educators of children's institutions are subject to dismissal by virtue of paragraph 1 of Art. 336 of the Labor Code of the Russian Federation, if the charter was grossly violated twice within a year educational institution or committed an immoral act at their place of work (clause 8 of Article 81 of the Labor Code of the Russian Federation).

Article 192 of the Labor Code of the Russian Federation establishes three measures of disciplinary liability: reprimand, reprimand, dismissal.
This list is exhaustive. Other types of sanctions can be applied only if they are established by federal laws, charters and regulations on discipline (Part 5 of Article 189 of the Labor Code of the Russian Federation) for certain categories of workers. For example, for employees maritime transport Decree of the Government of the Russian Federation dated May 23, 2000 N 395 approved the Charter on Discipline, according to which not only those established by Art. 192 of the Labor Code of the Russian Federation, disciplinary sanctions, but also a severe reprimand and a warning about incomplete official compliance.
It is common for employers to impose fines, for example, for being late. You should not violate labor laws and enshrine them in local regulations, since fines are applied only for administrative, tax or criminal offenses by the competent authorities. It is impossible to punish an employee for a disciplinary offense by depriving him of a bonus, since the list of disciplinary sanctions established in Art. 192 of the Labor Code of the Russian Federation is exhaustive. Deprivation of an employee's bonus is possible only in accordance with the employer's local regulations for failure to meet production standards, a decrease in the quality of products, etc.
When deciding whether to punish an employee, it is necessary to take into account the severity of the offense committed. If an employee has committed even several disciplinary offenses, this is not a reason to terminate the employment contract. However, paragraph 6 of Art. 81 of the Labor Code of the Russian Federation gives the employer the right to dismiss an employee even in case of a single gross violation of labor duties, namely for:
- absenteeism (that is, absence from the workplace without good reason during the entire working day (shift) for more than four hours in a row);
- the employee’s appearance at work or at his workplace in a state of alcohol, narcotic or other toxic intoxication;
- disclosure of state, commercial, official and other secrets protected by law, including personal data of another employee;
- committing theft of someone else's property, embezzlement, intentional destruction or damage at the place of work, established by a court verdict or a judge's decision that has entered into legal force;
- violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences.

The procedure for applying disciplinary sanctions is established by Art. 193 Labor Code of the Russian Federation. We recommend that you adhere to this procedure as precisely as possible, otherwise, even with a slight deviation, the state labor inspectorate or the court may declare the punishment illegal.
If it is discovered that an employee has violated labor duties or labor discipline, the employer must record it. This can be done in the form of an act (it must indicate the date and place of drawing up, information about the witnesses in whose presence the act was drawn up, a description of the violation committed, brief explanations of the violator and his signature), an official or memorandum.
According to Part 6 of Art. 193 of the Labor Code of the Russian Federation, an employer’s order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with by the indicated order(by order) against signature, then a corresponding act is drawn up.
Record of disciplinary action in work book is not entered, except in cases where the disciplinary sanction is dismissal by virtue of Part 4 of Art. 66 Labor Code of the Russian Federation.
It is very important to record employee misconduct in this way, because in the future, if it is necessary to apply an extreme disciplinary measure - dismissal under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation (repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction) - these documents will serve as good evidence of the employee’s repeated misconduct. By terminating the contract this basis, it is necessary to check the orders imposing disciplinary sanctions and find out whether the previously imposed penalty has lost its force.

Disciplinary action, including dismissal, can be applied only within a month from the date the misconduct was discovered, that is, from the day the immediate supervisor became aware of it.
Violation of this deadline may result in cancellation by the court or labor inspectorate order to impose a penalty. Therefore, when calculating the period for applying a penalty, it should be taken into account that it does not include the time:
- disability;
- stay on leave granted in accordance with labor legislation, including leave without pay wages, study leave, etc. (clause 34 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2);
- to take into account the opinion of the representative body of workers.
If the employee was absent for other reasons, these days are not included in the calculation period.
It should also be remembered that disciplinary sanction cannot be applied later than six months from the date of discovery of the offense (Part 4 of Article 193 of the Labor Code of the Russian Federation). This provision is designed for cases where a disciplinary offense was not detected within the month established by Part 3 of Art. 193 of the Labor Code of the Russian Federation to bring an employee to disciplinary liability.
If a violation is discovered as a result of an audit, inspection of financial and economic activities or an audit, a disciplinary sanction can be applied no later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

If within a year from the date of application of the disciplinary sanction the employee is not subjected to a new disciplinary sanction, then he is considered not to have had a disciplinary sanction on the basis of Art. 194 Labor Code of the Russian Federation.
The employer has the right to remove the penalty from the employee before the end of the year:
- on his own initiative (if the employer sees that the employee behaves impeccably, fulfills production standards, and other positive aspects in his work, then he can issue an order to lift the disciplinary sanction);
- at the request of the employee himself (if the employee improves the performance indicators of his work, has proven himself with positive side and realized his mistakes that led to the misconduct, he can apply to the management of the organization in writing with a request for early lifting of the disciplinary sanction);
- at the request of his immediate supervisor or a representative body of employees (such an initiative is usually expressed in the document “petition” or “representation”, although the issue of lifting the penalty can be voiced orally at a team meeting).
The decision to lift a disciplinary sanction is made by the manager and, if the decision is positive, he issues an order to lift the sanction.
As can be seen from the above, imposing a disciplinary sanction is a rather labor-intensive procedure that requires compliance with the letter of the law. Let us briefly formulate the main points of imposing a penalty, the observance of which will allow the employer to avoid labor conflicts and court proceedings.
1. Only one disciplinary sanction may be imposed for one disciplinary offense. For example, it is impossible to reprimand an employee for appearing at the workplace while intoxicated and then terminate the employment contract under paragraphs. "b" clause 6, part 1, art. 81 Labor Code of the Russian Federation.
2. Before applying a penalty, it is necessary to request written explanations from the employee. If an explanation is requested after the issuance of an order to impose a disciplinary sanction, then the sanction was carried out unlawfully.
3. Disciplinary sanctions are applied no later than one month from the date of discovery of the misconduct. It should be remembered that an employee cannot be brought to disciplinary liability 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.
4. The order to impose a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication. Non-compliance given period may become a basis for appealing the employer's decision.
5. If a disciplinary sanction is challenged by an employee in court, the employer must prove the facts of the offense and compliance with the procedure for imposing penalties provided for in Art. 193 Labor Code of the Russian Federation.
6. The evidence provided by the employer must not contradict each other. For example, if an employee is late, this fact must be reflected not only in the act or memo. The time sheet must show the actual number of hours present at work.

The conditions for bringing to disciplinary liability can be identified based on the signs of a disciplinary offense, therefore bringing to disciplinary liability is allowed if there is:

a) harm caused to labor discipline;

b) illegality;

d) a cause-and-effect relationship between unlawful behavior and harm caused to labor discipline.

The harm caused cannot always be expressed in the presence of material damage. The harm is caused to the very order in the organization, i.e., labor discipline, and may consist in the emergence of negative motivation among other workers.

Unlawfulness lies in the fact that the employee, as a result of his action or inaction, did not fulfill his job duties or violated the internal labor regulations.

Guilt is expressed in the mental attitude of the labor discipline violator towards his illegal behavior. Guilt can be expressed in the form of either direct or indirect intent, or in the form of negligence. The form of guilt affects the type of disciplinary action that is imposed on the employee. If the offense is careless, a reprimand may be issued. If there is direct intent, the employee can be fired immediately, for example, for absenteeism.

Causation shows whether the work discipline would have been harmed if the employee had acted differently. The presence of illegality in the employee’s actions is justified by the employer. The order to impose disciplinary liability should indicate what exactly the illegality is, i.e. what legal norms were violated.

An employee’s refusal to transfer to another job, an employee’s refusal to interrupt another vacation and go to work, or refusal of an employer’s unlawful demands is not a violation of labor discipline. The employee's ignorance of his job responsibilities and releases him from responsibility. If an employee’s job description changes during the period of his work, then he must be familiarized with these changes against signature.

The grounds for exemption from disciplinary liability are:

1. Force majeure - for example, an employee was late for work due to large snow drifts on the road or flooding.

2. The presence of extreme necessity or necessary defense - for example, an employee did not show up for work due to the fact that he provided assistance to a citizen injured in a traffic accident, and thereby prevented the death of the victim.

3. In the absence of one of the conditions for bringing to disciplinary liability (for example, illegality), an employee cannot be brought to disciplinary liability for failure to fulfill an obligation not provided for by his employment contract.

4. Failure by the employer to fulfill obligations to create proper working conditions for employees.

The employer does not have the right to change the procedure for bringing to responsibility provided for in Art. 193 of the Labor Code of the Russian Federation, but it can be specified and clarified in the internal labor regulations.

For each disciplinary offense, only one disciplinary sanction can be applied.

Before applying disciplinary action, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

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

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees.

A disciplinary sanction cannot be applied later than (i months from the date of the 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. The specified periods do not include the time of criminal proceedings.

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance, not counting the time of absence

employee at work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then draw up a corresponding act.

A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for considering individual labor disputes.

The day the misconduct was discovered is determined directly from the manager’s report or from the testimony of witnesses.

The day the offense was committed is determined by documents, such as time sheets and witness statements.

A disciplinary sanction is considered lawfully imposed if all the conditions for bringing to responsibility and the procedure for bringing to responsibility have been met.

By general rule A disciplinary sanction is valid for 12 months from the date of its imposition. If the employee committed a new disciplinary offense and was brought to disciplinary liability, then the period of validity of the first penalty is extended until the end of the second disciplinary penalty.

The penalty can be lifted automatically or by order of the employer. The penalty is lifted automatically upon dismissal of the employee and upon expiration of the penalty period. Automatic withdrawal does not require the issuance of an order or instruction in this regard.

The employer, before the expiration of a year from the date of application of the disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.

The employer is obliged to consider the application of the representative body of employees about the violation by the head of the organization, the manager structural unit organizations, their deputies labor legislation and other acts containing norms labor law, the terms of the collective agreement, agreement and report the results of its consideration to the representative body of workers.

If the fact of violation is confirmed, the employer is obliged to apply disciplinary action to the head of the organization, the head of the structural unit of the organization, and their deputies, up to and including dismissal.

Disciplinary action in the form of a reprimand or reprimand are not entered into the work book. The procedure for appealing disciplinary sanctions is general. That is, if an employee is reprimanded or reprimanded, then the pre-trial procedure for resolving the dispute must be followed: if the organization has a labor dispute commission, the dispute will be considered by this commission.

If the CCC is not created, or does not consider the application within 10 days, or makes a decision with which the employee does not agree, then the employee can appeal the penalty in court. If a disciplinary sanction in the form of dismissal is imposed, the employee has the right to immediately go to court.

M.E. DZARASOV,
Ph.D. legal Sciences, Jr. scientific co-workers sector of labor law and law social security Institute of State and Law of the Russian Academy of Sciences

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

Duration of disciplinary action

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

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

Grounds for bringing an employee to disciplinary liability. Disciplinary offense

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

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

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

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

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

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

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

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

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

An employee can be brought to disciplinary liability no later than one month from the date of discovery of the offense .
When bringing an employee to disciplinary liability, you should remember:
- the month period for imposing a disciplinary sanction must be calculated from the date of discovery of the offense;
- the day of discovery of the offense from which the month period begins is considered the day when the person to whom the employee is subordinate for work (service) becomes aware of the commission of an offense regardless of whether it has the right to impose disciplinary sanctions;
- the one-month period for applying a disciplinary sanction does not include the time the employee is ill, on vacation, or the time required to comply with the procedure for taking into account the opinion of the representative body of employees (Part 3 of Article 193 of the Labor Code of the Russian Federation); the employee’s absence from work for other reasons, including in connection with the use of rest days (time off), regardless of their duration (for example, when shift method organization of work) does not interrupt the specified period;
- vacation that interrupts the flow of a month should include all vacations provided by the employer in accordance with current legislation, including annual (main and additional) vacations, vacations in connection with training in educational institutions, leaves without pay (clause 34 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
A disciplinary sanction cannot be applied to an employee later than 6 months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than 2 years from the date of its commission. The specified time frame does not include the time of criminal proceedings (Part 4 of Article 193 of the Labor Code of the Russian Federation).
Thus, the legislation clearly establishes the time limits within which an employee can be brought to disciplinary liability. Imposing disciplinary action after these deadlines is illegal.
For each disciplinary offense, the employer can apply only one disciplinary sanction (Part 5 of Article 193 of the Labor Code of the Russian Federation). Often, employers reprimand or reprimand and immediately fire the employee. This practice is unacceptable, since such dismissal will be declared illegal by the court. In this case, the employer imposes disciplinary sanctions twice for the same disciplinary offense.

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

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

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

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

Duration of disciplinary action

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

Before the expiration of the one-year period, the employer has the right to remove the penalty from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees (Part 2 of Article 194 of the Labor Code of the Russian Federation). If a disciplinary sanction is lifted early, a corresponding order (instruction) must be issued.

Labor legislation establishes additional legal guarantees for certain groups of workers when their employer brings them to disciplinary liability.
Thus, the dismissal of workers who are members of a trade union under clause 5 of Art. 81 of the Labor Code of the Russian Federation, which also refers to disciplinary sanctions, is carried out taking into account the opinion of the elected trade union body this organization. Taking into account opinions trade union organization must be carried out in the manner established by Art. 373 Labor Code of the Russian Federation.
Employee representatives participating in collective negotiations during the negotiation period cannot without the prior consent of the body that authorized them to represent, be subject to disciplinary action, as well as dismissed at the initiative of the employer, with the exception of cases of termination of the employment contract for committing an offense for which, in accordance with the Labor Code of the Russian Federation or other federal laws, dismissal from work is provided for (Part 3 of Article 39 of the Labor Code of the Russian Federation).
According to Art. 66 of the Labor Code of the Russian Federation, information about penalties is not entered into the work book, except in cases where the disciplinary sanction is dismissal.
The forms of orders to announce a reprimand or reprimand are not unified; when preparing them, it is necessary to be guided by the general rules that are presented for the preparation of organizational and administrative documents.
In the event that a disciplinary sanction such as dismissal is applied to an employee, the order is drawn up according to the unified form No. T-8. This form was approved by the Decree of the State Statistics Committee of Russia dated 01/05/04 No. 1 “On approval unified forms primary accounting documentation for labor accounting and payment."
In conclusion, we note that employers are primarily interested in complying with the requirements contained in the legislation when applying disciplinary sanctions. By following the rules set forth in regulatory legal acts, they save their money and time.

Posted On 01/12/2018

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

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

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

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

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

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

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

In addition, disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, financial and economic activity or audit, no later than two years from the date of its commission. The specified time frame does not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction can be applied. As a disciplinary measure Labor Code calls:

Comment;

Rebuke;

Dismissal.

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

For certain categories of employees, federal laws, charters and regulations on disciplinary liability may establish other types of disciplinary sanctions. For example, measures such as a warning about incomplete professional compliance, as well as the confiscation of diplomas from captains and officers for a period of up to three years with the transfer, with the consent of the employee, to another job for the same period, taking into account the profession, may be applied to employees of the fishing fleet of the Russian Federation. (Resolution of the Government of the Russian Federation No. 708 of September 21, 2000).

Disciplinary measures, with the exception of dismissal, are temporary. If within a year from the date of application of the disciplinary sanction the employee is not subject to a new penalty, he is considered to have no disciplinary sanction.

If an employee is a member of a trade union and the employer wants to fire him under clause 5 of Art. 81 of the Labor Code of the Russian Federation (repeated failure by an employee to fulfill labor duties without good reason, if he has a disciplinary sanction (not withdrawn)), then he can do this no later than one month from the date of receiving the reasoned opinion of the elected trade union body and taking it into account, the possibility of interruption or suspension of this period is not provided for by law. Temporary incapacity for work of an employee, his stay in annual leave and other circumstances do not affect the duration of the specified period.

And the dismissal on this basis of heads (deputies) of elected trade union collegial bodies of the organization, its structural divisions (not lower than shop units and equivalent to them), not relieved from their main work, is allowed, in addition to compliance general order dismissal only with the prior consent of a higher elected trade union body.

It is also important to know that the employer has the right to apply disciplinary action to the employee even when the employee, before committing the offense, filed an application to terminate the employment contract on his own initiative, since the employment relationship in this case is terminated only upon expiration of the notice period for dismissal.

Dismissal of an employee for repeated failure to fulfill labor duties without good reason, as well as for a single gross violation of labor duties by the employee; for committing guilty actions giving grounds for loss of trust, or committing an immoral offense, if guilty actions giving grounds for loss of trust, or an immoral offense were committed by the employee at the place of work or in connection with the performance of his job duties; dismissal of the head of an organization (branch, representative office), his deputies or chief accountant for making an unfounded decision that resulted in a violation of the safety of property, its unlawful use or other damage to the organization’s property; dismissal of the head of an organization (branch, representative office) or his deputies for a single gross violation of labor duties (clauses 5 - 10 of Article 81 of the Labor Code of the Russian Federation) is a disciplinary measure. Therefore, dismissal on the specified grounds is permitted only in compliance with the above procedure.

In any case, the employee has the right to appeal a disciplinary sanction to the state labor inspectorate, the labor dispute commission or the court.

The Labor Code of the Russian Federation does not limit the period for filing a complaint with the state labor inspectorate. An employee has the right to file a complaint with the labor dispute commission within three months from the day he learned or should have learned about a violation of his rights.

The conditions for bringing to disciplinary liability can be distinguished based on the signs of a disciplinary offense, therefore, bringing to disciplinary liability is allowed if there is:

a) harm caused to labor discipline;

b) illegality;

d) a cause-and-effect relationship between unlawful behavior and harm caused to labor discipline.

Unlawfulness lies in the fact that the employee, as a result of his action or inaction, did not fulfill his job duties or violated the internal labor regulations.

Causation shows whether the work discipline would have been harmed if the employee had acted differently.

Request for disciplinary action

The presence of illegality in the employee’s actions is justified by the employer. The order to impose disciplinary liability should indicate what exactly the illegality is, i.e. what legal norms were violated.

An employee’s refusal to transfer to another job, an employee’s refusal to interrupt another vacation and go to work, or refusal of an employer’s unlawful demands is not a violation of labor discipline. Ignorance by an employee of his job duties and s exempts him from responsibility. If an employee’s job description changes during the period of his work, then he must be familiarized with these changes upon signature.

The grounds for exemption from disciplinary liability are:

1. Force majeure - for example, an employee was late for work due to large snow drifts on the road or flooding.

4. Failure by the employer to fulfill obligations to create proper working conditions for employees.

For each disciplinary offense, only one disciplinary sanction can be applied.

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

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time of absence

employee at work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then draw up a corresponding act.

A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

The day the misconduct was discovered is determined directly from the manager’s report or from the testimony of witnesses.

The day the offense was committed is determined by documents, such as time sheets and witness statements.

A disciplinary sanction is considered lawfully imposed if all the conditions for bringing to responsibility and the procedure for bringing to responsibility have been met.

As a general rule, a disciplinary sanction is valid for 12 months from the date of its imposition. If the employee committed a new disciplinary offense and was brought to disciplinary liability, then the period of validity of the first penalty is extended until the end of the second disciplinary penalty.

The employer is obliged to consider the application of the representative body of workers about the violation by the head of the organization, the head of the structural unit of the organization, their deputies of labor legislation and other acts containing labor law, the terms of the collective agreement, agreement and report the results of its consideration to the representative body of workers.

Disciplinary sanctions in the form of reprimands and reprimands are not recorded in the work record book.

The procedure for appealing disciplinary sanctions is general. That is, if an employee is reprimanded or reprimanded, then the pre-trial procedure for resolving the dispute must be followed: if the organization has a labor dispute commission, the dispute will be considered by this commission.

A disciplinary sanction can also be appealed by an employee to the State Labor Inspectorate.

Topic 14 OCCUPATIONAL SAFETY

Concept of labor protection

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The Supreme Court recognized such demands of the prosecutor, set out in the submission, as illegal. He noted: Bringing employees to disciplinary liability is the right, not the obligation of the employer. The RF Armed Forces have come to similar conclusions more than once, for example at the beginning of March last year.

The dispute considered in December was related to the fact that the prosecutor made a proposal to eliminate violations of the legislation on personal data. The prosecutor, among other things, demanded from the chairman of the board of the employing organization:

Consider bringing the guilty officials to disciplinary liability;

Send copies of punishment orders along with the response to the submission.

The Supreme Court considered such demands illegal.

Disciplinary action

For failure to comply, the employer should not face administrative liability.

If they are nevertheless brought to justice, we believe that this decision can be challenged, guided by the approach of the RF Armed Forces.

Let us remind you that for legal entities, deliberate failure to comply with the legal requirements of the prosecutor entails a fine of 50 thousand to 100 thousand rubles. or administrative suspension of activities for up to 90 days.

Resolution of the Armed Forces of the Russian Federation dated December 16, 2016 N 78-AD16-38

The review was prepared by specialists from the Consultant Plus company

The prosecutor's office submitted a proposal to the chairman of the HOA board to eliminate violations of the legislation on personal data.

The submission contained demands:

1) consider the submission with the participation of a representative of the district prosecutor’s office, take specific measures to eliminate the identified violations federal legislation, the reasons and conditions that contributed to them, as well as to prevent similar violations in the future;

2) agree on the time and place of consideration of the submission;

3) in accordance with the established procedure, consider the issue of bringing to disciplinary liability the guilty officials who committed violations of the requirements of federal legislation;

4) about the results measures taken notify the district prosecutor's office in writing within the one month period established by law, attaching copies of punishment orders.

The chairman did not comply with these requirements, for which he was fined under Art. 17.7 Code of Administrative Offenses of the Russian Federation for 2000 rubles.

The application to the court did not help to cancel the fine. The judges agreed that chairman of the HOA committed a deliberate failure to comply with the requirements of the prosecutor, which entails prosecution.

The Supreme Court of the Russian Federation also upheld the fine, but made one important clarification: the 3rd and 4th points of the prosecutor’s office’s submission contradict the law.

Application of disciplinary measures to an employee is the exclusive prerogative of the employer (Part.

Disciplinary liability: procedure for attraction, types of penalties.

1 tbsp. 192 of the Labor Code of the Russian Federation). The employer has the right, but not the obligation, to take disciplinary action against the employee.

DECISION of the Supreme Court of the Russian Federation dated December 16, 2016 No. 78-AD16-38

The document is included in the ATP “Consultant Plus”

Editor's note:

The Supreme Court has already made such decisions several times, recognizing prosecutors’ demands to bring officials to disciplinary liability as illegal:

Head of the Department of Internal Affairs of Russia (Resolution of the Armed Forces of the Russian Federation dated March 16, 2016 No. 47-AD16-1);
directors management company(Resolution of the Supreme Court of the Russian Federation dated March 3, 2016 No. 46-AD16-2);
Deputy Chairman of the regional court (Resolution of the Supreme Court of the Russian Federation dated July 17, 2015 No. 59-AD15-2).

The prosecutor's office believes that it has the right to do this, since according to paragraph 2 of Art. 22 of the Law on the Prosecutor's Office, the prosecutor or his deputy, on the grounds established by law, initiates proceedings for an administrative offense, requires the prosecution of persons who have violated the law to other established by law responsibility, warns against breaking the law.

However, according to the RF Armed Forces, this paragraph does not apply to disciplinary liability under the Labor Code of the Russian Federation, since the code establishes a separate procedure for its application.

Bringing an employee to disciplinary liability is expressed in the application of a disciplinary sanction to him. An important guarantee is that the possibility of imposing disciplinary action is limited by strict deadlines. This does not allow the employer to “keep” the employee in constant “fear” of punishment being applied to him.

According to Art. 193 of the Labor Code of the Russian Federation, disciplinary sanction is applied no later than:

1. one month from the date of discovery of the offense, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees.

2. 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 2 years from the date of its commission; the specified time frame does not include the time of criminal proceedings.

Naturally, this rule can be applied to an employee who continues to work in the organization. If the fact of committing a disciplinary offense is established after the employee’s dismissal, there can be no question of disciplinary liability.

At the same time, the employer has the right to apply a disciplinary sanction to the employee even when, before committing this offense, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the notice period for dismissal.

The employer is obliged to listen to the employee’s explanations before applying disciplinary action. Moreover, by virtue of Part 1 of Art. 193 of the Labor Code of the Russian Federation, he must require explanations in writing.

The employee can present his explanations in various ways.

First of all - in explanatory note, compiled by the employee, usually in any form by hand.

The second option for obtaining explanations is to record the employee’s explanations in the act drawn up upon the commission of a disciplinary offense, by having the employee certify the explanations with his signature.

According to Part 2 of Art. 193 of the Labor Code of the Russian Federation, an employee’s refusal to give an explanation is not an obstacle to applying a disciplinary sanction. However, it does not at all follow from this that if an employee refuses to explain the reasons for his behavior, then the employer can safely apply disciplinary action. The refusal must be recorded - either in an act drawn up upon the commission of a disciplinary offense, or in a separate act of refusal to give explanations.

According to Part 5 of Art. 193 of the Labor Code of the Russian Federation, only one disciplinary sanction can be applied for each disciplinary offense. Therefore, for example, reprimanding and dismissing an employee for the same disciplinary offense will be illegal.

It is unacceptable for an employee to be subject to one disciplinary sanction (for example, a reprimand) for committing one disciplinary offense, and then another for the same offense.

Another thing is a continuing disciplinary offense, i.e. misconduct that continues over a long period of time. If, having discovered a disciplinary offense, the employer applied a disciplinary sanction, but this disciplinary offense continues (this particular offense, and not the next one, even a similar one), then it is permissible to apply a new disciplinary sanction to the employee, incl. and dismissal for appropriate reasons.

The employer's decision to apply a disciplinary sanction to an employee must be expressed in an order (instruction) of the employer. Within 3 working (not calendar!) days from the date of publication due to the requirements of Part 6 of Art. 193 of the Labor Code of the Russian Federation, it must be announced to the employee against receipt.

Deprivation of bonuses and lawful reduction of wages, reprimands and other “inventions” of the employer do not apply to disciplinary sanctions.

According to part 7 of Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction can be appealed by an employee in state inspections labor or bodies for consideration of individual labor disputes (commission on labor disputes and court). If bringing an employee to disciplinary liability is considered unlawful, the employee is considered not to have been subject to disciplinary action.

In accordance with Part 1 of Art. 194 Labor Code of the Russian Federation, If within 1 year from the date of application of the disciplinary sanction the employee is not subject to a new disciplinary sanction, then he is considered to have no disciplinary sanction.

A disciplinary sanction can also be withdrawn from an employee. According to Part 2 of Art. 194 of the Labor Code of the Russian Federation, before the expiration of 1 year from the date of application of a disciplinary sanction, the employer has the right to remove it from the employee:

1) on your own initiative.

The employer, based on his own observations of the employee, can issue an order (instruction) to lift a disciplinary sanction for the employee’s impeccable behavior, high performance labor and other positive characteristics.

2) at the request of the employee himself.

The employee, realizing his negative behavior, made every effort to correct the consequences of a previously committed disciplinary offense, proved himself on the positive side, and increased the quality and performance of his work. Therefore, he has the right to present his request to lift the imposed penalty in the form of an application addressed to the head of the organization or the person whose administrative act imposed the disciplinary sanction.

3) at the request of the employee’s immediate supervisor.

4) at the request of the representative body of workers.

To remove a disciplinary sanction, the employer must issue a corresponding order (instruction), on the basis of which the relevant information is entered into the personnel records documents.

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