Scheme for bringing to disciplinary liability. Disciplinary sanctions: commandments for personnel officers. Common reasons for foreclosures

Attracting an employee to disciplinary liability(announcement of reprimand or reprimand): approximate step by step procedure

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

2. Requesting a written explanation from the employee regarding non-fulfillment or improper performance of job duties.

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

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

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

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

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

The employee is guilty of committing an offense;

The severity of the offense;

The circumstances under which it was committed;

reasons for the employee’s misconduct;

Previous behavior of the employee;

Attitude to work.

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

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

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

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

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

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up (Part 6 of Article 193 of the Labor Code of the Russian Federation). The act is registered in the manner prescribed by the employer in the appropriate registration journal.

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

The purpose of legal regulations is to ensure law and order in public life. If a person’s behavior does not comply with legally accepted rules, then we can talk about a violation of order.

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An integral part of generally accepted norms is the internal rules of labor conduct in the organization; they also require strict adherence to them.

The emergence of disciplinary liability becomes a consequence of the employer’s response to a violation of discipline committed by an employee, that is, his inappropriate behavior.

Reasons

The basis for disciplinary punishment of an employee is the commission of an act directed against discipline.

So violation disciplinary procedure appears if the hired worker, through his own fault, does not fulfill or fulfills inappropriate obligations imposed on him by the agreement concluded with the employer (Article 192 of the Labor Code of the Russian Federation,).

A disciplinary violation is characterized by such distinctive signs as:

In order to use a disciplinary sanction as expected, the employer must clearly represent what exactly is considered labor legislation to the employee's obligations under the agreement.

The procedure for bringing disciplinary liability to an employee

The procedure by which an employee can be subject to disciplinary punishment is determined by the Labor Code of the Russian Federation.

The procedure algorithm looks like this:

1. The employer will request from the person suspected of the violation a written explanation of the grounds that gave rise to the disciplinary offense. If two full days have passed since the request was made, and the employee has not provided an explanation and is evading it, then the employer creates an appropriate act. As Article 193 of the Labor Code states, disciplinary punishment is applicable even in the absence of an explanation from the worker.
2. The employer issues a special order (order) on the need to apply disciplinary punishment to the employee. This document must be presented to the employee against signature within three days from the date of issue, not counting the days when the employee was not present at the workplace. If the person guilty of the offense refuses to sign his/her acquaintance with the order, a document confirming the situation must be created.

Information about the imposition of disciplinary punishments is not included in the employee’s personal card or work record book. A separate exception is the only situation where the penalty is dismissal.

Deadlines

A person guilty of violating discipline may be subject to disciplinary punishment no later than within a month from the date the violation of established norms was discovered.

When punishing an employee with disciplinary measures, one should not forget that:

• the monthly period is counted from the moment the offense was discovered;
• the day the offense was disclosed is the day when the person who is the employee’s direct superior became aware of the commission, even if he does not have the right to determine disciplinary punishment;
• The period required by law does not include the time an employee is on vacation, due to illness or in accordance with the Labor Code, as well as the period required to comply with a procedure that requires coordination with the body acting on behalf of the employees. Days when the employee is not at work for other reasons are counted when calculating the due period;
• The vacation period that interrupts the monthly period includes all vacations provided to the employee by law.

Disciplinary punishment of an employee cannot be carried out later than six months from the date of the commission of the act, if it is discovered later than the specified period.

Based on the results of audit processes, audits or inspections of economic and financial activities organization, the statute of limitations is two years. The timeframe shown should not include the time required for criminal proceedings (Article 193 of the Labor Code,).

If a disciplinary punishment is imposed on an employee after the established deadline, then this action of the employer is considered illegal.

What measures can be taken

For committing a violation against discipline, the employer has the right to apply the following penalties:

• comment;
• rebuke;
• dismissal for proper reasons.

The general director has the right to choose a specific punishment. But in large organizations, especially with big amount branches, such actions are inappropriate. Therefore, the decision on the use of punishment is left to another person.

This is appointed in accordance with the order on the distribution of powers. The immediate superior of the offending employee has the right to propose a punishment that suits the situation in his opinion.

Punishments that are not predetermined cannot be applied federal legislation, the organization's regulations on discipline and charters.

For one violation of discipline, only one type of punishment can be applied to an employee (Article 193 of the Labor Code,).

If an employee is reprimanded or reprimanded, and then the punished person is forcibly dismissed, then the court will declare it illegal. In such a situation, there are two penalties for one offense.

The employer also has the right to apply disciplinary punishment to an employee even when the employee, even before committing a violation of discipline, submitted an application with a request to terminate the employment relationship on his personal initiative.

Termination of the employment agreement occurs only upon completion of the established notice period for dismissal.

If you disagree with the punishment used against him, the employee has the opportunity to appeal it by contacting the authorities involved in the analysis labor disputes individual nature or to the state labor inspectorate.

Dismissal as a disciplinary measure can only be used if there are arguments provided for by the relevant federal laws.

Since there is no precise definition of such grounds, they may include Article 81 of the Labor Code. There can be no other grounds for dismissal due to violation of discipline.

Head of the organization

A special procedure for bringing to responsibility of a disciplinary nature and additional grounds follow from the Labor Code for the head of the organization or the person replacing him. This is primarily due to the legal specifics of their position.

If a manager or his deputy violates the norms of labor legislation or the conditions adopted in accordance with a collective labor agreement, then a statement of the corresponding act is submitted to a higher authority on behalf of the body acting on behalf of the employees.

The direct employer of the organization's manager must review the submitted application and notify the submitting party of the results of the review.

Current labor legislation assumes that the sequence of bringing a manager to disciplinary punishment meets the general rules provided for all employees.

According to the Labor Code () - this is a fact of non-fulfillment or negligent performance by a citizen of his duties.

If this is proven and recorded, the employer can exercise its right to impose a penalty.

You cannot punish if:

• there are irremovable doubts about guilt;
• there were force majeure circumstances;
• the employer did not provide the necessary conditions;
• no explanation was requested;
• the misconduct is not a violation from a labor point of view.

Who's carrying it?

Disciplinary action can be imposed on any employee of the organization, no matter who he is.

Special procedures apply to managers. They are held accountable by the authorized body specified in the organization's charter, for example the Board of Directors (Part 3, Article 11 of Federal Law No. 208-FZ and Article 12 No. 14-FZ).

IN joint stock companies The body that brings disciplinary action is the supervisory board (also known as the Board of Directors); in an LLC, decisions are made either by the Board of Directors or by a meeting of participants.

Strictly speaking, a meeting of shareholders cannot punish a director for a disciplinary violation. But he may be deprived of his powers ahead of schedule.

The founder cannot be held to this type of obligation because he is not an employee of the organization.

In the Russian Federation, employees working under an employment contract are subject to disciplinary liability for violation labor discipline and (or) for failure to fulfill their duties from the age of 16 without the consent of the trade union.

Only bringing disciplinary action in the form of dismissal of an employee under 18 years of age is permitted with the consent of the relevant state inspection labor and commission on affairs of minors and protection of their rights.

Only after this the employer decides what punishment to apply, depending on the nature of the subordinate’s “flaw” and the degree of his compliance with the norms of the law.

The culprit may not agree with her and challenge the punishment by contacting Labor inspection or to the labor dispute commission (Article 382 of the Labor Code).

Article 382. Bodies for consideration of individual labor disputes

Individual labor disputes are considered by labor dispute commissions and courts.

IMPORTANT: The boss, when making a decision, cannot ignore the opinion of the trade union.

If within 1 year after the assignment of responsibility the employee has not committed any further offenses, then he is automatically considered to have no disciplinary sanctions. These are not included in the work book, with the exception of one case - if they are fired under the relevant article.

In what cases is a person subject to disciplinary liability?

Grounds for disciplinary action:

• memorandum;
• act of official or audit inspection, inventory;
• claims from counterparties;
• customer complaint;
• messages from citizens or organizations containing information indisputably indicating guilt;
• data from surveillance cameras, reading systems;
• results of a private detective investigation.

How to choose the type of punishment?

The employer does this based on labor legislation, as well as local standards of the organization. It should be remembered that there is no such violation that would be allowed to be punished twice. It often happens that the director reprimands the offending employee, and then kicks him out. This is illegal (Article 193 of the Labor Code).

Article 193. Procedure for applying disciplinary sanctions

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 required to take into account the opinion of the representative body of employees.

Disciplinary liability can be established and applied no later than six months from the date of the commission of the offense, and based on the results of the audit, financial verification -economic activity or audit - later than two years from the date of its commission. IN specified deadlines The time of criminal proceedings is not included.

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

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up.

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

Accompanying documents

Typically, the procedure for bringing an employee to disciplinary liability involves the following documents:

• report;
• order (instruction) to impose a disciplinary sanction;
• commission report on the fact of violation;
• act of refusal of the employee to sign familiarization with the order;
• explanatory letter;
• requirement to provide explanations.

A memo is drawn up addressed to the head of the company in order to notify him of a violation that may affect the functioning of the business. It is stored in the organization’s archives for three years. There is no strict form for it, but it must contain the following information:

• full name of the company;
• structural subdivision;
• to whom it is addressed, position;
• from whom, position;
• what the violation is;
• registration number;
• date, signature.

It is used in cases of dismissal for absenteeism, repeated failure to perform duties, or loss of trust.

The collection order contains:

• requisites;
• what exactly was done and by whom;
• time of detection of the offense;
• on the basis of what standards the penalty is applied;
• punishment (reprimand or reprimand);
• date, signature;
• seal of the organization.

The culprit, as well as the head of the unit and the head of the personnel department, must be familiar with it.

If an employee refuses to familiarize himself with the order, a corresponding note is made on the document itself. The head of the personnel service draws up a report in the presence of witnesses.

It states:

• details and positions of all persons involved;
• organization details;
• where and when the document was compiled;
• why the employee does not want to sign, what explains;
• order number;
• signatures.

This usually happens when an employee is fired or demoted.

The notice of request for explanations contains:

• the essence of the violation;
• proposal for explanation;
• employer details;
• registration number;
• information about the employee (including position);
• date, signature.

Act internal audit usually approved by the management of the company and carries:

• full name of the organization;
• on what basis the procedure was carried out;
• who was on the commission;
• what happened and who is to blame;
• proposed penalties;
• date, signatures.

When it comes to rewards or punishments (and in the personnel system in general), there are no trifles. Any detail that seems insignificant to the boss may be a reason for challenge in the labor commission or even legal proceedings.

Useful video

You can learn more about the procedure for bringing an employee to disciplinary liability by watching the video below:

The immediate basis for bringing an employee to disciplinary liability is this type of offense, which is called a disciplinary offense in labor law. The content of a disciplinary offense, like any other offense, presupposes the presence of a set of legal characteristics: subject, subjective side, object, objective side. In other words, the formal legal basis for bringing to disciplinary liability is the presence in the act of a legal violator of signs of a disciplinary offense.

The subject of a disciplinary offense is a person (employee) who is in an employment relationship with a specific employer and has violated labor discipline.

The object of a disciplinary offense is public relations, developing in the process of joint labor activity (internal labor regulations), regulated by norms labor law.

The objective side of a disciplinary offense is formed by an unlawful act (action or inaction), causing harm to the employer and the presence of a causal connection between the unlawful act and the resulting harm. Harmful consequences can manifest themselves in the form of real property damage and (or) organizational damage. Moreover, harm caused to the employer includes, among other things, damage to the property of third parties located at the employer, if the employer is responsible for the safety of this property. An example of property damage would be damage to equipment or loss of documents, as a result of which the employer will have to make additional financial expenses for the acquisition or restoration of property or will receive less money. More often, organizational damage occurs when labor order established by the employer (absenteeism, lateness for work, etc.).

The subjective side of a disciplinary offense is the guilt of the offender. Traditionally, there are two forms of guilt: intent and negligence.

Intention is a volitional action aimed at deliberately violating established labor rules. Carelessness as a form of guilt occurs in cases where the employee did not foresee the consequences of his misconduct, although he should have foreseen, or he foresaw such consequences, but frivolously hoped to prevent them.

The Labor Code of the Russian Federation contains a definition of the concept of “disciplinary offense”, which is understood as “non-fulfillment or improper performance by an employee through his fault of the labor duties assigned to him”, entailing the application of disciplinary measures (Part 1 of Article 192 of the Labor Code of the Russian Federation).

Within the meaning of this definition The main signs of a disciplinary offense can be listed:

• - actions or inaction of an employee that are defined by law as failure to perform or improper performance of job duties;
• - the presence of guilt is a mandatory sign of a disciplinary offense (responsibility arises exclusively for guilty actions or inaction);
• - the employee did not fulfill his job duties;
• - the presence of circumstances that make it possible to apply a disciplinary sanction.

First of all, failure to fulfill labor duties is not committing certain actions that the employee must carry out to complete the tasks assigned to him, that is, in fact, inaction. However, this can also be an active action, the commission of which is prohibited.

Moreover, the employee’s failure to comply without good reasons labor duties are both non-fulfillment and improper performance through the fault of the employee of the labor duties assigned to him.

As a rule, the criterion for improper performance of labor duties is the performance of duties not in full and beyond the deadlines (before or after) allotted for this, as a result of which the result of the actions does not correspond to the original purpose of the performance. At the same time, untimely execution job responsibilities involves not only lateness, delay, but also ahead of the allotted deadlines, for example, committing banking operations on translation Money before agreeing on actions, and so on.

Non-fulfillment or improper fulfillment of job duties by an employee without good reason includes, in particular, violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the manager, technical rules, etc.

Resolution of the Plenum of the Supreme Court Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2) clarifies that such violations include:

a) the absence of an employee from work or the workplace without good reason.”

The list of valid reasons for which an employee may be absent from work or the workplace is not established by law. In practice, the court may recognize a summons for good reasons law enforcement agencies or to court, undergoing a medical examination, transport failures, accidents, fires, floods, illness of the employee or his close relatives, and the like.

If there is a real possibility, the employee must document (for example, certificates from relevant organizations, summonses, etc.) to confirm the validity of the reasons that resulted in the impossibility of performing work duties.

b) 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 for this employer (Article 56 of the Labor Code of the Russian Federation).”

An employee’s refusal to continue work in connection with a change in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions is not a violation of labor discipline, but serves as a basis for termination of the employment contract under paragraph 7 of Article 77 of the Labor Code of the Russian Federation.

c) refusal or evasion without good reason from a medical examination of workers of certain professions, as well as the refusal of an employee 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."

Failure by an employee to use personal protective equipment, when this is a mandatory condition for admission to work, is also considered as a failure to fulfill his job duties and serves as the basis for applying disciplinary measures against him.

Particular attention should be paid to paragraph 36 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2, according to which an employee’s refusal, without good reason, to conclude a full-time agreement should also be considered a guilty violation of labor discipline. financial liability for the safety of material assets, if the performance of duties to maintain material assets constitutes the employee’s main job function. Such a refusal is recognized as a failure to fulfill labor duties if the employee, upon hiring, was notified by the employer of the main labor function of servicing material assets and, in accordance with current legislation, an agreement on full financial liability can be concluded with him.

Lists of positions and work replaced or performed by employees with whom the employer can enter into these contracts, as well as standard forms of these contracts are determined by Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85 “On approval of lists of positions and work replaced or performed by employees with by which the employer can enter into written agreements on full individual or collective (team) financial responsibility, as well as standard forms agreements on full financial liability."

After concluding an employment contract with an employee, it may be necessary to conclude an agreement on full financial responsibility with the employee. If an employee refuses to enter into an agreement on full financial responsibility in such a situation, the employer is obliged to offer him another job (Article 74 of the Labor Code of the Russian Federation), and in the absence of it or the employee refuses the proposed job, the employment contract is subject to termination in accordance with paragraph 7 of Article 77 of the Labor Code of the Russian Federation.

The need to conclude an agreement on full financial responsibility after the conclusion of an employment contract may arise due to the fact that after changes in the current legislation, the position held by the employee is included in the list of positions with which the employer can enter into agreements on full financial responsibility.

The presence of guilt is a prerequisite for bringing disciplinary action. Failure to perform or improper performance of labor duties is considered guilty if the employee acted intentionally or through negligence.

Failure to perform or improper performance of duties for reasons beyond the control of the employee (for example, due to absence of necessary materials, disability).

A disciplinary offense can only be recognized as such illegal actions (inaction) of an employee that are related to the performance of not just any duties, namely labor duties directly related to labor relations and performed within the workplace (Article 209 of the Labor Code of the Russian Federation) and working hours (Article 91 Labor Code of the Russian Federation). Therefore, for example, an employee’s refusal to carry out a public order or his violation cannot be considered a disciplinary offense. public order even at the place of work. Although liability for illegal actions may arise within the framework of another - criminal or administrative liability.

An employee may be subject to disciplinary liability for failure to perform or improper performance of any labor duties - as established by labor legislation and other regulations legal acts, containing labor law norms, and directly the employment contract, internal labor regulations, and other local regulations.

Most of the employees' appeals to the court, with claims against employers for bringing them to disciplinary liability, are due to the fact that they do not agree that they have committed a disciplinary offense or do not understand what their failure to fulfill their official duties consists of.

In order to prevent such labor disputes or facilitate the process of proof in court, the employer must comply with the following conditions:

• 1) the employee’s labor duties must be documented;
• 2) the employee must know about his job responsibilities, that is, he must be familiarized with them against signature. In accordance with Article 22 of the Labor Code of the Russian Federation, it is the employer’s responsibility to take actions to familiarize employees against signature with the adopted local regulations directly related to their labor activity.

Only after this, job duties become mandatory for the employee and their failure to perform or improper performance will be grounds for bringing him to disciplinary liability.

General labor responsibilities enshrined in the Labor Code of the Russian Federation, as a rule, are fixed in the internal labor regulations or other local regulations defining the labor schedule, and the specific labor responsibilities of an employee are fixed in the employment contract concluded with him, as well as in the job description, technical rules and so on.

It should be borne in mind that not every failure by an employee to comply with the employer’s requirements is a violation of labor discipline, but only in cases where such requirements are provided for by law. So, for example, it is impossible to bring to disciplinary liability an employee who refused to comply with the employer’s requirement to go to work before the end of the vacation, or an employee who suspended work in case of non-payment wages in the manner prescribed by Article 142 of the Labor Code of the Russian Federation.

Thus, we can draw the following conclusions:

• 1) Disciplinary liability is the employee’s obligation to answer for the disciplinary offense he has committed and to bear the penalties provided for by labor legislation.
• 2) By applying a penalty, an employee who has violated labor discipline is punished. However, the role of disciplinary liability as a means of ensuring labor discipline is not only to punish an employee who has committed a disciplinary offense, but also to prevent offenses in the future, including by other employees. In other words, along with the punitive function, disciplinary responsibility also performs a preventive (warning) function.
• 3) Disciplinary liability arises for the culpable failure or improper performance by the employee of labor duties, i.e. duties assigned to him by the employment contract and internal labor regulations. In this regard, an employee cannot be brought to disciplinary liability, for example, for refusing to carry out a public assignment, for violating the rules of conduct in public places, etc.

Bringing employees to disciplinary liability for committing disciplinary offenses in accordance with Article 22 of the Labor Code of the Russian Federation is right, and not the obligation of the employer, therefore, he is free to use it or not to use it. However, when using the right granted to him, the employer must be guided by the standards established by the Labor Code of the Russian Federation and other federal laws. In addition to legal ones, there are also social and ethical rules that a personnel officer, when applying disciplinary sanctions, must remember, know and follow as commandments.

Let's talk about them.

"Remember the essence"

According to part one of Article 192 of the Labor Code of the Russian Federation, disciplinary sanctions are applied for committing a disciplinary offense. The latter refers to the failure or improper performance by an employee, through his fault, of the labor duties assigned to him. In jurisprudence, a misdemeanor is not only a guilty act, but also an unlawful act of a person capable of delinquency (in this case, an employee).

What is meant by labor responsibilities? According to part two of Article 21 of the Labor Code of the Russian Federation, the employee is obliged to:

• conscientiously fulfill his labor duties assigned to him by the employment contract;
• comply with the internal labor regulations of the organization;
• observe 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.

This formulation of the norm gives grounds to conclude that disciplinary sanctions can only be applied for failure to perform or improper performance of those job duties that are associated with the performance of labor functions and are directly indicated in the employment contract, and all other obligations (for example, to observe labor discipline, fulfill labor protection requirements, etc.) remain outside the scope of part one of Article 192 of the Labor Code of the Russian Federation. These conclusions have no basis, since this norm implies the entire set of labor responsibilities of an employee assigned to him within the framework of labor relations, and not just the labor function. Most often, the employee’s duties listed in part two of Article 21 of the Code are fully reproduced in the text of the employment contract, and thus ambiguities are eliminated: for non-fulfillment or improper fulfillment of any of them, disciplinary sanctions may be applied to the employee.

Analyzing the essence of disciplinary action, one cannot ignore the following question. Cases of bringing an employee to disciplinary liability for actions not related to the performance of work duties still occur. Thus, employers often apply disciplinary sanctions for “inappropriate behavior that disgraces the honor of the work collective” after bringing an employee to administrative responsibility, for example, for petty hooliganism, other offenses not related to the employee’s work activity and committed by him outside working hours and outside the employer’s assignment .

Disciplinary action may be taken only for failure to perform or improper performance of labor duties, that is, duties conditioned by the existence of an employment relationship between employee and employer. Meanwhile, exceptions to this rule are possible, and they are provided for by federal laws in relation to certain categories of government employees. For exam- official duties, but also committing offenses that discredit the honor of a prosecutor.

In local regulations In organizations, disciplinary offenses for the purpose of determining the schemes for applying disciplinary sanctions are divided into two groups:

• non-fulfillment or improper fulfillment of duties stipulated by employment contracts, job and production (by profession) instructions;
• violation of labor discipline, that is, violation of the rules of conduct mandatory for all employees, determined in accordance with the Labor Code of the Russian Federation, federal laws, collective agreements, agreements, employment contracts, local regulations of the organization, as well as disobedience of employees to these rules.

As already noted, any differentiation of disciplinary sanctions depending on what occurs - failure to fulfill labor duties or their improper performance - is not provided for by law. At the same time, if it is established in local regulations, then it should be assumed that the criteria for the proper performance of duties are:

• proper way;
• due date;
• proper place;
• proper volume;
• proper subject;
• other.

One of the qualifying signs of a disciplinary offense is guilt the employee who committed it. In law, guilt is understood as a person’s mental attitude, in the form of intent or negligence, to his unlawful behavior and its consequences. Guilt in the form of intent means that a person foresaw the illegality of his behavior and the possibility of negative consequences, desired or allowed them and consciously, intentionally did not take measures to prevent them; in the form of negligence - a person foresaw the possibility of harmful consequences of his action or inaction, but frivolously counted on their prevention or did not foresee the possibility of such consequences, although he should and could have foreseen them. For the institution of disciplinary responsibility, the form of guilt is not of fundamental importance. However, the theory of law, as well as the codes of the Russian Federation, have not found a more successful definition of guilt, except by revealing the essence of its forms.

Before applying disciplinary action to an employee, it is necessary to establish the existence of guilt. The most common are disputes regarding lateness to work due to transport problems, bad weather conditions, which the employee is not able to foresee, even if he wishes. The courts have more than once found the application of disciplinary sanctions for absenteeism to be unlawful due to the fact that the employee was not to blame for his absence from the workplace for more than 4 hours in a row during the working day. In order for absence from work to fall under “truancy”, it must be due to unjustified reasons. Whether the reason given by the employee is valid is determined by the employer. However, the court’s point of view does not always coincide with the employer’s opinion. Thus, the administrative detention of an employee carried out on legally, was recognized by the court as a valid reason for the employee’s absence, and his dismissal for absenteeism was unlawful.

The list of circumstances, as well as the reasons for the employee’s absence from the workplace, giving the employer grounds for applying disciplinary sanctions, was determined by Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” (as amended . as of November 21, 2000). First of all, equated to absenteeism without a good reason :

a) abandonment of work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the contract, as well as before the expiration of the 2-week warning period;

b) abandonment of work without a good reason by a person who has entered into an employment contract for a certain period before the expiration of the contract;

c) the employee stays without good reason for more than 4 hours during the working day outside the territory of the enterprise, institution, organization or outside the territory of the facility, where he, in accordance with his job duties, must perform the assigned work;

d) unauthorized use of days off, as well as unauthorized departure on vacation (main, additional). It must be taken into account that the use of rest days by an employee is not considered absenteeism in the case where the employer, contrary to the law, refused to provide them, and the time the employee used such days did not depend on the discretion of the employer.

In addition, absenteeism is considered absenteeism due to the employee’s disagreement with a transfer made in compliance with the law.

The following are not considered absenteeism:

• employee failure to attend public events;
• employee’s avoidance of performing actions not related to work duties;
• the employee’s refusal to start work to which he was transferred in violation of the law;
• an employee being, without good reason, not at his workplace, but in the premises of another or the same workshop, department or on the territory of an enterprise or facility where he must perform labor functions;
• removal of an employee from work by the employer.

Disputes about the legality of applying disciplinary sanctions due to the employee’s innocence also occur in relation to other disciplinary offenses. IN judicial practice There were decisions when improper performance of official duties was not recognized as a disciplinary offense for the reason that the incorrect formulation of duties did not make it possible to determine how the employee should fulfill these duties, and therefore, the employee’s guilt could not be considered established.

Another category of controversy concerns periods application of disciplinary sanctions. So, the natural question is whether it is possible to bring an employee to disciplinary liability during the probationary period? After all, an employee is hired on the condition of a test in order to check his compliance with the assigned work? Here we should proceed from the fact that the legislation does not provide for any restrictions on the application of disciplinary sanctions during probationary period. Basically, disputes about dismissal under Article 71 of the Labor Code of the Russian Federation are based on the fact that violation of labor discipline, and primarily tardiness, is cited as an unsatisfactory test result. The position of the workers boils down to the fact that the test was assigned to them in order to check their business qualities, qualifications, and being late does not indicate that their knowledge and professional quality do not allow them to carry out the work assigned to them. To avoid such disputes, employers should not only keep records of all violations of labor discipline, but also promptly apply disciplinary sanctions.

"Don't invent"

Before the introduction of the Labor Code of the Russian Federation, every self-respecting employer market type invented new types of disciplinary sanctions. The Labor Code of the Russian Federation was ignored under the pretext that he did not comply modern conditions economic development.

We know nothing about punishment with canes in the nineties of the last century, but “salary reductions” took place at every step. It was designated by a capacious word - “fine”. Fines were introduced not only small and medium, but also large enterprises, who declared law-abidingness as the main corporate value. Often, deprivation of bonuses was prescribed in the internal labor regulations or personnel regulations in the “Disciplinary Liability” section. Transfers to a lower-paid job or a lower position were also considered an effective measure to combat failure to fulfill official duties, failure to comply with standards, and violation of labor discipline.

It cannot be said that all employers were so bloodthirsty. There was another category - loyal and progressive, who believed that the effect of persuasion, educational conversations and oral comments could be greater than that of punishment. Conversations and persuasion do not seem to be disciplinary sanctions subject to recording, but with their help they can also influence an employee who improperly performs his duties, ignores labor discipline, etc. However, in order for all these verbal “warnings” and “appearances” not to be forgotten, accounting was still required, as well as a description of the schemes for using each of them. So disciplinary sanctions were included in local regulations, imposed orally and not providing for detailed recording, and therefore, compliance with labor legislation.

The illusions of the early-mid-nineties of the last century that the new Labor Code of the Russian Federation should provide for European methods of dealing with negligent workers, allowing both free control of the amount of wages and a simplified dismissal procedure, dissipated as the state labor inspectorate issued orders. They finally disappeared after the introduction of the Labor Code of the Russian Federation, which directly prohibited employers from inventing new disciplinary sanctions.

So, let us turn once again to Article 192 of the Labor Code of the Russian Federation. According to its first part, the employer has the right to apply the following disciplinary sanctions:

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

Federal laws, charters and regulations on discipline for certain categories of employees may also provide for other disciplinary sanctions (part two of Article 192). The application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted (part three of Article 192).

If you - commercial organization, stop trying to find federal laws that complement the list of types of disciplinary sanctions. In relation to Article 192 of the Labor Code of the Russian Federation, among the federal laws that expand the list of types of disciplinary liability, or, in legal language, regulating the procedure for bringing to special disciplinary liability, the first should be called the federal law dated July 31, 1995 No. 119-FZ “On the fundamentals of the civil service of the Russian Federation” (as amended on November 7, 2000). Along with measures of general disciplinary liability (reprimand, reprimand, dismissal), its Article 14 provides for a warning about incomplete official compliance, as well as a still severe reprimand. In the Law of the Russian Federation “On the Prosecutor’s Office of the Russian Federation,” the list of disciplinary sanctions is supplemented by a reduction in class rank, deprivation badge“For impeccable service in the Prosecutor’s Office of the Russian Federation”, deprivation of the badge “Honorary Worker of the Prosecutor’s Office of the Russian Federation”. In fact, all of the listed special types of disciplinary sanctions are, to one degree or another, reproduced in other federal laws dealing with civil servants.

Considering that by introducing your own “Regulations on Discipline” you automatically apply to yourself the norm of part two of Article 192 of the Labor Code of the Russian Federation, you are committing nothing more than a legal error. It “stretches back” from the time of the Labor Code of the RSFSR, when the nature of such documents as charters and regulations on discipline was not defined. Part two of Article 130 of the Labor Code of the Russian Federation only provided that in some industries National economy Charters and regulations on discipline apply to certain categories of employees. The new owners of industry-forming enterprises used this norm in their own way and adopted charters and regulations in the form of local regulations. IN Labor Code The Russian Federation has filled this gap - it has been established that charters and regulations on discipline for certain categories of workers are approved by the Government of the Russian Federation in accordance with federal laws (part five of Article 189). Even now, no one prohibits an employer from adopting a local regulatory act that specifies the internal labor regulations regarding disciplinary liability and calling it a “regulation.” However, it will not fall under the provisions of parts two and three of Article 192 of the Labor Code of the Russian Federation, and therefore should only provide for penalties established by the Labor Code of the Russian Federation.

The disciplinary statutes and regulations provided for by this norm, in particular, include:

• Regulations on employee discipline railway transport(approved by Decree of the Government of the Russian Federation dated August 25, 1992 No. 621 (as amended on May 24, 2002);
• Charter on discipline of workers of the fishing fleet of the Russian Federation (approved by Decree of the Government of the Russian Federation of September 21, 2000 No. 708);
• Charter on employee discipline maritime transport(approved by Decree of the Government of the Russian Federation dated May 23, 2000 No. 395);
• Charter on discipline of employees of organizations with particularly hazardous production in the field of atomic energy use (approved by Decree of the Government of the Russian Federation of July 10, 1998 No. 744);
• Disciplinary charter of militarized mine rescue units in transport construction (approved by Decree of the Government of the Russian Federation of July 30, 1994 No. 879) and others.

The Disciplinary Charter stands somewhat apart customs service Russian Federation - it was approved not by the Government of the Russian Federation, but by the President of the Russian Federation (Decree No. 1396 of November 16, 1998).

To prevent inventions from continuing, let us pay attention to the following points.

1. Fines . In jurisprudence, a fine is understood as one of the types of liability, expressed in a sum of money, which is subject to recovery from the person who committed a crime or infraction and is assigned within the limits provided for by criminal law, legislation on administrative offenses, tax and customs legislation, and other branches of legislation. Bodies and their officials whose jurisdiction provides the authority to resolve legal disputes and resolve cases of offenses, assess the actions of subjects of law from the point of view of their legality or illegality are authorized to impose fines. The exception is civil law relations, in which a fine is understood as one of the types of penalties, that is, a sum of money established by law or contract that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of the obligation.

The employer’s desire to introduce a system of fines is often due not to the fact that the employee does not fulfill duties or production standards at all, but to the fact that the duties are performed improperly - not in full, untimely or formally, production does not meet the specified standards, etc. The indignation of employers that in most European countries wage reductions are legalized, but in Russia they are not, is not entirely justified. According to Article 8 of the ILO Convention on the Protection of Wages (01.07.1949 No. 95), deductions (deductions) from wages are permitted under the conditions and within the limits prescribed by national legislation or determined in a collective agreement or in a decision of an arbitration body. Russian labor legislation really limits the cases and grounds for deductions from wages. However, many employers still have not read the Labor Code of the Russian Federation to the end and have not discovered the norm contained in part three of Article 155. It directly establishes that in case of failure to fulfill labor standards (job duties) due to the fault of the employee, payment of the standardized part of the salary is made in accordance with with the amount of work performed. So far, this norm seems suitable only for material impact on workers and subject to labor rationing. In relation to employees whose job responsibilities are very difficult to account for, recommendations for its use have not yet been fully developed. In order for part three of Article 155 of the Labor Code of the Russian Federation to become working and its application to be legal, in job descriptions employees, production instructions workers need to determine a mechanism for recording the performance of duties, as well as fulfill the requirements of Article 163 of the Labor Code of the Russian Federation.

It is advisable to describe in detail the scheme for applying the third part of Article 155 of the Labor Code of the Russian Federation either in the internal labor regulations, or in the regulation on payment or other act, but at the same time not classify these actions of the employer as disciplinary sanctions, much less call them fines.

2. Deprivation of bonuses or “deprivation of bonuses”. This is a more legalized form of material influence on the employee. At the same time, it does not apply to disciplinary measures.

The Legal Department of the Ministry of Labor of Russia back in 2000, in its letter dated July 31, 2000 No. 985-11, explained that the legislation does not contain the concept of “deprivation” of a bonus; The legislation proceeds from the fact that failure to pay a bonus to a violator of labor discipline is not a disciplinary sanction. In each specific case, such issues are resolved in the manner established by the current regulations on bonuses in the organization. This legal position is also true in relation to the Labor Code of the Russian Federation. However, it is necessary to pay attention to the definition of the concept of “wages” contained in Article 129 of the Labor Code of the Russian Federation, from which it follows that wages are remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation and incentive payments; therefore, it also includes various types of bonuses. In order for a bonus to truly meet the criteria for an “incentive payment”, the regulations on bonuses or regulations on remuneration, or other local regulatory legal act regulating issues of remuneration, should define a list of grounds for its payment and describe the system for recording them. But it is not necessary to describe for which offenses the bonus is not paid - for legally significant reasons, the employer’s actions will be subject to disciplinary measures against the employee.

At the same time, in the provision on bonuses or other local regulations, it is possible to link the deprivation of a bonus or a reduction in its size with disciplinary sanctions (for example, “a bonus is not paid to employees who have disciplinary sanctions”). With this approach, it is advisable for the employer to determine periods of non-payment of the bonus (for example, specify that the condition for payment of the bonus is the absence of disciplinary sanctions by the employee during the period of work for which the bonus is accrued).

As for other forms of monetary pressure on employees for disciplinary offenses, invented for last years- deprivation of percentage allowances, allowances for the special nature of work, reduction travel expenses or vacation pay - they directly contradict the current legislation, and the employee’s first appeal to the state labor inspectorate or to the court will confirm this. The decision of the latter will already relate to the methods of monetary influence of the state on the employer.

By the way, despite accusations of Belarus of the old, Soviet type of government, its Labor Code is more specific regarding these issues. Article 198 of the Labor Code of the Republic of Belarus establishes that “the following may be applied to employees who have committed a disciplinary offense, regardless of the application of disciplinary measures: deprivation of bonuses, change in the time of provision labor leave and other measures"; “the types and procedure for applying these measures are determined by the internal labor regulations, collective agreement, agreement, and other local regulations.”

What conclusions can be drawn from the above?

Since neither payment of wages in accordance with the amount of work performed, nor deprivation of bonuses (deprivation of bonus, reduction in its size) are disciplinary measures, they:

a) can be applied simultaneously with disciplinary sanctions;

b) their use is not taken into account when dismissing an employee for repeated failure to fulfill job duties.

3. Warning, censure. Despite the fact that a warning as a legal means of influence refers to measures of administrative liability, the requirement for its compliance with the characteristics enshrined in the Code of Administrative Offenses of the Russian Federation is not as strict as in relation to a fine; especially if it is specified as a “warning about the application of disciplinary measures.” Along with the concept of “warning”, such a form of influence as “put on sight” is used. In fact, these are equivalent concepts - an employee who has committed an offense is warned that if he commits an offense again, he will be “put on notice”, “put under control”, etc. “Censure”, at its core, is a concept of the same kind. Blame is understood as a statement in which the speaker expresses a negative assessment of the employee’s action, his behavior, with the aim of causing a negative emotional reaction in the latter.

Such measures of influence, as a rule, are introduced in organizations whose management does not seek to “cut from the shoulder” and fire people for minor offenses. In case of a minor violation of labor discipline, for example, taking a smoke break before the lunch break, an educational conversation is held with the employee; the employee is warned that if a similar offense is committed again, he will be subject to disciplinary action in the manner prescribed by the Labor Code of the Russian Federation. At the same time, in local regulations these events are often called corporate disciplinary sanctions.

Do not neglect the law and call things by their proper names. Warning, reprimand, etc. can be considered disciplinary measures impact, but not to disciplinary measures responsibility and not to types of disciplinary penalties. In the theory of personnel management, disciplinary action is understood as instruments of both a positive influence on personnel (encouragement) and a negative one (sanctions, team reaction, etc.). Warning and censure are in the field of employee education, which does not have any legal consequences. Their main goal is to show the employee that he has shortcomings, to help overcome negative traits in behavior and communication with people, and to develop respect for the rules accepted in the organization.

The form of recording and recording such measures of influence on an employee can be either oral or written.

In general, warning, censure, etc. are a kind of analogue of the measures of social influence provided for by Article 138 of the previously in force Labor Code of the Russian Federation, according to which the administration has the right, instead of applying a disciplinary sanction, to refer the issue of violation of labor discipline to the consideration of the work collective, and the latter to apply such measures of social influence as a comradely remark, a public reprimand .

Provided that local regulations provide for the possibility of making a decision to issue a warning to an employee or to censure him by the work collective, all mechanisms must be spelled out in detail in these acts. If written records of such measures are kept, it is necessary to remember that in the case where, upon committing a disciplinary offense, the employer limited himself to censure and there is written confirmation of this, then the application of a disciplinary sanction for the same offense may be considered unlawful. To such a situation, the courts, by analogy, can apply the provision of paragraph 29 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes,” according to which, if the employer, instead of applying disciplinary action to the employee, penalties referred the issue of his violation of labor discipline to the consideration of the labor collective, by the decision of which social sanctions were applied to the employee, he does not have the right to subject the violator to disciplinary action for the same offense, since he did not take advantage of the right granted to him to bring the employee to disciplinary liability. Therefore, you should review your local regulations regarding the mechanism for applying disciplinary measures in conjunction with disciplinary sanctions. Remember that since the Labor Code of the Russian Federation does not contain norms regulating the procedure for applying measures of social influence, your local regulations will be carefully studied by the court and the state labor inspectorate.

"Remember the deadlines"

According to part three of Article 193 of the Labor Code of the Russian Federation, disciplinary sanction is applied no later than 1 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. Part four of the same article establishes that a disciplinary sanction cannot be applied 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.

With disciplinary action, you cannot be late. You must always remember about deadlines. It is with verification of compliance with established deadlines that state labor inspectorates and courts that consider disputes related to disciplinary action begin.

Let us analyze the above provisions of Article 193 of the Labor Code of the Russian Federation and determine from what moment the calculation of the monthly period begins. Based on the wording of part three of Article 193 of the Labor Code of the Russian Federation, the period is counted from the moment detection misconduct, it does not matter how it was discovered. For example, the mandatory detection of lateness to work by the employee’s immediate supervisor in the system of recording attendance at work checkpoint controversial. In this case, the employee’s attendance at work is recorded by a special employee who records the time of employees’ attendance and, accordingly, is the first person to detect a violation of labor discipline. The same can be said in relation to employees of the personnel department, who, by the regulations of the department and (or) job descriptions, may be vested with the authority to exercise control over discipline in various forms(workplace inspections, etc.). In this case, it will be these workers who will record the fact of violation of labor discipline.

But, at the same time, in most cases, the person who has the opportunity to detect a disciplinary offense is the employee’s immediate supervisor. Thus, the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” determined that the day of detection of the misconduct, from which the month period begins, is considered the day when the person in service the employee is subordinated, it became known about the commission of an offense, regardless of whether it is vested with the right to impose disciplinary sanctions or not.

Neither the Labor Code of the Russian Federation nor other acts of labor legislation contain an explanation of how to count the monthly period in the event of a long absence of an employee. In order for the deadlines established by part three of Article 193 of the Labor Code of the Russian Federation to be formally met, as well as to find out the reasons for the employee’s long absence from work, logically, the starting point should begin from the last, and not from the first, day of absenteeism. This legal position can be seen in court decisions. However, this is only possible if the misconduct ends, that is, the employee shows up for work. How to act in case of long-term absenteeism and fulfill the requirements of Article 193 of the Labor Code of the Russian Federation is explained in detail below.

By virtue of the law, the monthly period for applying a disciplinary sanction does not count only the time the employee is ill or on vacation; 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 educational institutions, short-term leaves without pay and others.

In addition, as established by part three of Article 193 of the Labor Code of the Russian Federation, the time required to take into account the opinion of the representative body of workers is not counted in the monthly period if we're talking about on the application of a disciplinary sanction in the form of dismissal against a member of a trade union.

How to record the fact of committing an offense? After all, before the employer issues an order (instruction) to apply a disciplinary sanction, a lot can change (the exact date of the offense, its essence, etc. will be forgotten). To record the date and substance of the disciplinary offense, the documents listed in the next section of this publication can be used.

When applying a disciplinary sanction in the form of dismissal under subparagraph “d” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation, the monthly period is calculated from the date of entry into force of the sentence that established the employee’s guilt in theft of someone else’s property, or the resolution of the competent authority to impose penalties on the employee for this offense administrative penalty. Regarding the last act - the resolution of the body authorized to draw up protocols on administrative offenses - there are several features that must be taken into account:

• the rule on the passage of a month from the date of entry into force of the decision of the competent authority applies only to such administrative offenses as theft of someone else's property, embezzlement, deliberate destruction of property or damage to property. It does not apply to other offenses;
• if the same offense, in accordance with local regulations, relates to disciplinary offenses, and in accordance with the Code of Administrative Offenses of the Russian Federation - to administrative offenses, and a case of an administrative offense is initiated, then the month period begins from the moment the offense is discovered, and the employer is not charged link the application of disciplinary sanctions with the decision to bring to administrative responsibility. For example, an inspection of a store conducted by officials of control and supervisory authorities revealed an offense such as failure to use a cash register when releasing goods to customers. A protocol on an administrative offense under Article 14.5 of the Code of Administrative Offenses of the Russian Federation was drawn up. However, this offense is also a disciplinary offense, since the obligation to use the cash register is assigned to the seller by his employment contract and production (by profession) instructions. If the employer waits for the decision of the control and supervisory authority, then he risks missing the month deadline established by Article 193 of the Labor Code of the Russian Federation, since the time frame for investigation and consideration of a case of an administrative offense established by Articles 28.7 and 29.6 of the Code of Administrative Offenses of the Russian Federation is equal to one and a half months and may be in the case the complexity of the cases under consideration has been extended for another 1 month. Since the moments of detection of administrative and disciplinary offenses coincide, in practice events will develop in such a way that during the investigation and consideration of the offense, the period for imposing a disciplinary sanction will expire before the decision to impose an administrative penalty is issued. When applying a disciplinary sanction in cases similar to the example described, it should be remembered that as a result of the investigation and consideration of an administrative offense, it may be established that the employee is not at fault, and then he will have grounds to go to court or the state labor inspectorate.

Part four of Article 193 of the Labor Code of the Russian Federation establishes that disciplinary sanction cannot be applied later than 6 months from the date committing misconduct, 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 if, 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. This follows from paragraph 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes.”

The six-month period from the date of commission of a disciplinary offense corresponds to the one-month period from the date of discovery of the misconduct as follows. If the offense was committed, for example, on April 1, and the employer discovered it on August 1, then until September 1, the employer can apply a disciplinary sanction to the employee. If the employer discovered it on September 1, then the penalty can be applied only until October 1. But if the offense was discovered on October 1, then the 6-month period from the date of its commission has expired, and, therefore, the employer cannot exercise its right to bring the employee to disciplinary liability. The exception is cases when the misconduct is discovered as a result of an audit, inspection of financial and economic activities or an audit. Then the period for applying a disciplinary sanction increases to 2 years from the date of commission of the offense. In this case, the monthly limitation provided for in part three of Article 193 of the Labor Code of the Russian Federation must still be taken into account.

"Be scrupulous"

Scrupulous recording of facts of disciplinary offenses is necessary. Firstly, in order not to forget about the exact date of their commission and essence, and secondly, in order to have a documentary basis for the head of the organization to issue an order (instruction) to apply a disciplinary sanction if the employee’s immediate supervisor is not vested with the authority on the application of disciplinary sanctions.

HR practice has developed two approaches to the preparation of documents confirming the commission of a disciplinary offense:

• in the event of non-fulfillment or improper fulfillment of labor duties stipulated by the employment contract, the employee’s immediate supervisor draws up a proposal to bring the employee to disciplinary liability;
• on the fact of violation of labor discipline, non-compliance with internal labor regulations, a report is drawn up.

The authority to apply disciplinary sanctions is delegated to managers structural divisions relatively small number of organizations. As a rule, these employees are given the right to submit representations to the head of the organization (deputy head of the organization for personnel) about bringing the employees subordinate to them to disciplinary liability. The expediency of preparing such a presentation is explained by the fact that only the employee’s immediate supervisor can determine whether the employee, for example, is properly performing his job duties. Practitioners proceed from the fact that to confirm the fact of non-fulfillment or improper performance of functions, it is not necessary to involve other employees, and therefore, it is inappropriate to draw up a report. As an example of presentation, the form given in the “PAPERS” section can be used. His immediate superior can also notify the head of the organization that an employee has committed a disciplinary offense by sending a memo. And only if he wants to protect himself from accusations of bias, and also distribute the burden of his responsibility to other employees, the fact of committing a disciplinary offense can be recorded using an act.

It is advisable to draw up an act in the event of detection of violations of labor discipline, identification of facts of non-compliance with internal labor regulations. Thus, if control over labor discipline is carried out by employees of the personnel department, and during workplace inspections they revealed facts of being late for work, leaving the workplace during the working day, absenteeism, appearing at work in a state of intoxication, etc., then such offenses it would be correct to reflect it in an act signed by several employees (approximate forms of acts, as well as examples of their completion, are given in the “PAPERS” section).

Scrupulousness is necessary not only when drawing up representations and acts, but also when taking into account all disciplinary sanctions imposed on the employee. Since labor legislation establishes a ban on entering information about disciplinary sanctions into work books, and the personal card does not provide columns for entering such information; the employer establishes the forms and methods for recording disciplinary sanctions independently. As a rule, an extract from the order (instruction) of the head of the organization on the application of a disciplinary sanction, as well as representations, acts and other documents that served as the basis for issuing the order, are filed in the employee’s personal file. Instructions for record keeping in an organization may stipulate that an order (instruction) to apply a disciplinary sanction is placed directly in the personal file or compiled into a separate file “Orders for personnel (personnel).”

Since for orders (instructions) on penalties, in comparison with other orders regarding personnel, more short term storage (5 years in total), practice has developed another way of entering information about the application of a disciplinary sanction to an employee into a personal file - by maintaining a sheet (sheet, card) of incentives and penalties, which is stored in the employee’s personal file throughout his entire work in the organization. Such a document was necessary for the personnel service to determine the possibility of rewarding the employee in accordance with part three of Article 137 of the Labor Code of the Russian Federation, which established that during the period of validity of the disciplinary sanction, incentive measures are not applied to the employee. The Labor Code of the Russian Federation does not contain a ban on rewarding employees who have disciplinary sanctions. Meanwhile, personnel services continue to keep records of penalties to determine the employee’s right to promotion, the degree of the next penalty imposed, taking into account the existing one, to timely remove disciplinary sanctions, etc. It would be more correct to call such a document a “sheet of penalties”, since to reflect information about incentives, the corresponding section is provided in the personal card (the list of penalties can be maintained in the form given in the “PAPERS” section).

Gazette of the Supreme Soviet of the USSR, No. 20(83), 07/05/1940.

"Listen to the explanation"

The employer is obliged to listen to the employee’s explanations before applying disciplinary collection. Moreover, by virtue of the first part of Article 193 Labor code RF, he must require explanations in writing.

The employee can present his explanations in various ways.

First of all - in the explanatory note . It is advisable that this document be drawn up by the employee in any form by hand. However, in a number of organizations, in order for the explanations to be coherent and logical, the practice is to use template forms in which the employee is asked to fill out columns (rows, cells) intended to answer the questions: what are the reasons (motives) for committing a disciplinary offense, does the employee consider himself guilty of the misconduct; if not, then who, in the employee’s opinion, should be subject to disciplinary action. The explanatory note is addressed either to the head of the organization, or his deputy for personnel, or the head of the personnel department, or the head of the structural unit that includes the employee. Who specifically should be defined in the local regulations of the organization.

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

According to part two of Article 193 of the Labor Code of the Russian Federation, an employee’s refusal to give an explanation is not an obstacle to the application of disciplinary action. 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 on refusal to give explanations. In the first case, after stating the essence of the offense and the signatures of the compiler and those present, a note is made that the employee refused to provide explanations, and the persons involved in drawing up the act once again put their signatures.

One of the most difficult situations in personnel practice is long absence. The employee does not show up for work and does not provide any information about himself or the reasons for his absence. The employer suffers losses - the work is not completed, it is impossible to fire the employee, since the reasons for the absence are unclear, and the staffing table does not allow hiring a new employee. In this case, the employer can be advised only one thing: to send a notification letter to the employee’s known place of residence or location, in which he is required to explain the reason for his long absence from work and warn that if within a certain period of time from does not receive a response, the employer will exercise its right to apply disciplinary sanctions, up to and including termination of the employment contract under subparagraph “b” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation. It should be noted here that when considering cases of reinstatement at work of those dismissed for long absence, the courts resolved this issue differently: there were cases of reinstatement, since the employee was absent for a long time due to temporary disability, and there was no opportunity to notify the employer, and cases of recognition as lawful dismissal for long absence of an employee who never showed up for work.

If there are doubts about the veracity of the information received from the employee as a result of his explanations, the HR department checks them. For example, a human resources inspector may call the employee's home health department and find out whether there was a plumbing malfunction that the employee cited as the reason for his tardiness. If an employee has submitted a certificate of temporary incapacity to work to justify the reason for his absenteeism, but there are doubts about its authenticity, a HR specialist can contact a special unit of the Federal Social Insurance Fund of Russia, which monitors the legality of issuing certificates of incapacity for work.

The reasons for the employee’s failure to fulfill his official duties, listed in the explanatory note, should be analyzed together with the employee’s immediate supervisor. In addition, it will be necessary to study the terms of the employment contract describing the employee’s job function and job responsibilities, the provisions of the job description and other documents relating to the employee’s job function.

"Don't overdo it"

According to part five of article 193 of the Labor Code of the Russian Federation For each disciplinary offense, only one disciplinary sanction can be applied .

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. If, for example, an employer reprimanded the employee for appearing at work on April 7, 2003 while intoxicated, and issued a corresponding order, then he does not have the right to apply a disciplinary offense to the same employee for the same disciplinary offense (that is, for appearing at work on April 7, 2003). year under the influence of alcohol) a second disciplinary sanction, for example, dismissing an employee under subparagraph “b” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation. Having reprimanded the employee, the employer exercised his right to choose the type of disciplinary sanction, and he has no right to change his decision.

Another thing is a continuing disciplinary offense, that is, an offense that continues over a long period of time. If, upon discovering a disciplinary offense, the employer applied a disciplinary sanction, but this disciplinary offense continues (it is this offense, and not the next one, even a similar one), then in accordance with the explanations of the Supreme Court of the Russian Federation (paragraph 32 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation when resolving labor disputes” (as amended on November 21, 2000), it is permissible to apply a new disciplinary sanction to an employee, including dismissal on appropriate grounds.

A continuing offense continues uninterrupted until it is stopped. The employer applies disciplinary action precisely for the purpose of suppressing behavior expressed in non-fulfillment or improper fulfillment of a specific job duty. If it is not fulfilled, that is, it was not possible to stop this disciplinary offense by bringing the employee to disciplinary liability, the employer has the right to apply a new disciplinary sanction for the same offense. For example, an employee was reprimanded for late preparation of reports for the first quarter. However, even after the disciplinary sanction was applied, the employee did not prepare reports within the time allotted to him by the employer. In this case, the employer did not stop the misconduct by applying a disciplinary sanction, and he has the right to exercise his right to apply a new disciplinary sanction. Naturally, everything said is lawful only if the employee is really guilty of committing an offense.

Repeated offense is another matter. This is understood as an offense committed again after a certain time has passed after the suppression of a similar offense. Let's take the same example. After being reprimanded for untimely preparation of reports for the first quarter, the employee prepared the reports within the time limits established by the order (instruction) on the application of disciplinary action. When preparing reports for the second quarter, the employee again violated the deadlines for preparing reports, that is, he committed a similar offense. In this case, the employer cannot use the above clarification of the Supreme Court of the Russian Federation.

As for repeated disciplinary offenses, for the application of paragraph 5 of Article 81 of the Labor Code of the Russian Federation, it is not of fundamental importance whether a similar offense was committed or another. By the way, employers need to be careful here. This provision provides that the basis for dismissal is only repeated failure to fulfill duties in conjunction with disciplinary action, but not repeated improper performance of job duties. This formulation already allows employees to defend their case in the courts, citing the fact that they only improperly fulfilled their duty, and therefore, there are no grounds for dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation.

The law does not prohibit an employer for the same offense bring the employee to both disciplinary and financial liability . If the purpose of the first is to suppress the misconduct, then the purpose of the second is to compensate for the damage caused to the employer, including as a result of the commission of the misconduct. This follows from part six of Article 248 of the Labor Code of the Russian Federation: “compensation for damage is made regardless of the employee being brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer.” When bringing an employee to disciplinary and financial liability at the same time, the employer must fulfill the requirements established by both Chapter 30 and Chapter 37 of the Labor Code of the Russian Federation.

In the same way, he is not bound by the prohibition on the use of such measures of material influence on an employee for failure to perform or improper performance of labor duties, such as deprivation of bonus or reduction in its size . If a disciplinary sanction was applied to an employee (for example, a reprimand) and if, in accordance with a local regulatory act of the organization (for example, a regulation on bonuses or regulations on wages), this is reflected in the amount of the bonus or its payment in general, then deboning or paying the bonus in a smaller amount cannot be considered a second disciplinary sanction (see the commandment “Thou shalt not invent”).

Suspension from work is not a disciplinary sanction. , carried out according to the rules established by Article 76 of the Labor Code of the Russian Federation. The employer has the right to apply a disciplinary sanction to an employee who, due to his (the employee’s) fault, has not completed the mandatory periodic medical checkup, and at the same time obliged to remove him from work. The same actions can (in relation to the application of disciplinary sanctions) and must be taken (in relation to removal) if the employee, through his own fault, has not undergone training and testing of knowledge and skills in the field of labor protection in the prescribed manner. The employer must suspend an employee who appears at work in a state of alcohol, drug or toxic intoxication; however, the suspension will not prevent him from bringing the employee to disciplinary liability.

"Don't exceed"

This refers to the powers that are often exceeded by both personnel department employees and heads of structural divisions, when, before issuing the corresponding order (instruction), they loudly and in the presence of the entire team announce a reprimand or reprimand, or that the employee is fired.

The right to apply disciplinary sanctions The employer is entitled to the first part of Article 22 of the Labor Code of the Russian Federation. According to part four of Article 20 of the Code of Rights and Responsibilities of the Employer in labor relations are carried out:

• an individual who is an employer;
• governing bodies legal entity(organizations) or their authorized persons in the manner established by laws, other regulatory legal acts, constituent documents of a legal entity (organization) and local regulations.

In organizations, the right to bring an employee to disciplinary liability is usually vested in sole executive body, that is, the head of the organization (CEO, director, president, etc.). This right is secured either in constituent documents, or in other local regulations of the organization (for example, in the regulations on general director, provisions on material and moral incentives for personnel), as well as in the employment contract with the head of the organization.

By order on the distribution of responsibilities, the head of the organization can delegate the authority to bring employees to disciplinary liability to his Deputy for Personnel or other official .

It is extremely rare that the authority to apply disciplinary sanctions is transferred to the heads of structural units. As a rule, in resolving issues of bringing to disciplinary liability line managers are given the main, but not decisive role - they are assigned the right to direct submissions on bringing subordinate employees to disciplinary liability, reports or office notes containing proposals to bring the employee to disciplinary liability.

The actions of HR department employees in the scheme for applying disciplinary sanctions must be strictly described in the organization’s local regulations (for example, in the regulations on material and moral incentives for personnel, regulations on the HR department, job descriptions of department specialists).

"Be fair"

Part three of Article 135 of the previously existing Labor Code of the RSFSR provided that when imposing a disciplinary sanction, the severity of the offense committed, the circumstances under which it was committed, previous work and the behavior of the employee should be taken into account.

Since the entry into force of the Labor Code of the Russian Federation, the right to choose the type of disciplinary sanction belongs entirely to the employer. At first glance, from the point of view of the law, he is not charged with clarifying the listed circumstances and facts.

But if today the Supreme Court of the Russian Federation had to give explanations on the application of Article 193 of the Labor Code of the Russian Federation, it would undoubtedly draw the attention of employers to the fact that the severity of the offense, the circumstances of its commission, the previous characteristics of the employee and his behavior should be taken into account when determining disciplinary measures for an employee, since all of them are key elements of the principles of validity and fairness of any type of legal liability.

At present, a draft federal law “On Amendments and Additions to Article 193 of the Labor Code of the Russian Federation” has already been prepared, which proposes to supplement Article 193 of the Code with the following part: “When imposing a disciplinary sanction, the compliance of the disciplinary sanction with the gravity of the offense committed, the circumstances in which it was completed, the previous work and the behavior of the employee” - that is, in fact, return the previously withdrawn norm. In the explanatory note to the bill, the non-inclusion of this legal norm in the Labor Code of the Russian Federation is called a technical omission. The developers of the bill proceed from the fact that earlier (during the period of the Labor Code of the Russian Federation) it forced the employer to make more objective decisions when bringing employees to disciplinary liability. According to the conclusion of the Labor and social policy of the State Duma of the Russian Federation on the draft federal law “On Amendments and Additions to Article 193 of the Labor Code of the Russian Federation”, the absence of a rule on the employer’s obligation to take into account a number of factors when applying disciplinary sanctions will lead to the fact that in practice an employee can, for example, be fired for minor violations labor discipline, although the application of such a disciplinary measure will not correspond to the degree of his guilt and take into account other significant circumstances. This will create a real possibility of abuse of rights. The bill received 29 legislative (representative) reviews and 50 reviews from the highest executive bodies of state power of the constituent entities of the Russian Federation.

The Legal Department of the State Duma Staff did not express any legal comments on the bill; The Federation Council Committee on Social Policy supported the concept of the bill.

The Government of the Russian Federation, on the contrary, considered the adoption of this bill inappropriate. The main argument for this position is the opinion that establishing a specific list of circumstances that must be taken into account when bringing an employee to disciplinary liability will narrow the range of issues examined by the employer when identifying the reasons that led to the commission of a disciplinary offense. As follows from the conclusion of the Committee on Labor and Social Policy of the State Duma of the Russian Federation on the bill, the opinion of the Government of the Russian Federation is based on a restrictive interpretation of the proposed norm as an exhaustive list of circumstances to be taken into account by the employer when imposing a disciplinary sanction. However, from explanatory note It follows that the concept of the bill is not to establish an exhaustive list of circumstances to be taken into account, but to the need to legally oblige the employer to make more objective decisions when bringing employees to disciplinary liability. When finalizing the bill for the second reading, amendments may be made to it in order to expand the specified list or make it open.

The official review of the Government of the Russian Federation rightly notes that before applying a disciplinary sanction, the employer must request an explanation from the employee in writing. Indeed, having received the employee’s explanations, the employer can find out the circumstances of the disciplinary offense, as well as the degree of guilt of the employee who committed it. But the employer’s obligation to take into account the circumstances clarified in this way is not established by the Labor Code of the Russian Federation.

In addition, it is stated that the severity of the offense committed, the circumstances under which it was committed, as well as the employee’s previous work and behavior, as well as other circumstances of the case, must be taken into account by state labor inspectorates or labor dispute resolution bodies when the employee appeals the imposed disciplinary sanction. It seems that this argument cannot be considered justified, since these bodies in their activities must be guided only by the law. The absence in the law of an indication of the need to take into account the above circumstances will not allow making decisions about the inadequacy of the penalty applied by the employer.

Taking into account the above, the Committee on Labor and Social Policy of the State Duma of the Russian Federation supported the draft federal law “On Amendments and Additions to Article 193 of the Labor Code of the Russian Federation” and recommended that the State Duma adopt it in the first reading.

Whether or not amendments will be made to the Labor Code of the Russian Federation obliging, when applying a disciplinary sanction, to take into account the severity of the offense committed, the circumstances in which it was committed, the previous work and behavior of the employee, the employer should remember fairness. And also that the court will still check whether the employer took into account these circumstances, and if not, it will strongly recommend that the employer reconsider its decision, especially if it resulted in dismissal (the court does not independently replace one disciplinary sanction with another, as well as dismissal with another sanction). has the right, since imposing a disciplinary sanction on an employee is the competence of the employer with whom the employee has an employment relationship (part two of paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” ).

"Do it according to the rules"

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

If a decision is made to apply such a disciplinary sanction as dismissal on the appropriate grounds, then the order (instruction) is drawn up according to the unified form No. T-8 - on termination of the employment contract with the employee. In this case, in the lines “grounds for dismissal” a link is given to the clause and article of the Labor Code of the Russian Federation, and in the line “Grounds” the documents are listed that document the fact of detection of a disciplinary offense (act, explanatory note, etc.).

Because the unified form If a general order (instruction) on the application of a disciplinary sanction in the form of a reprimand or reprimand is not approved at the federal level, then the employer independently determines its content. Such an order (instruction) should reflect:

• the essence of the disciplinary offense;
• time of commission and time of discovery of the disciplinary offense;
• type of penalty applied;
• documents confirming the commission of a disciplinary offense;
• documents containing the employee’s explanations.

The order (instruction) on the application of a disciplinary sanction can also provide a brief summary of the employee’s explanations.

One of the essential points in the preparation of this document is the approval of the project by the head of the legal service or the organization’s lawyer. The approval must be preceded by a check of the order (instruction) for compliance with the legislation of the applied disciplinary sanction and compliance with the deadlines for bringing to disciplinary liability. The head of the legal service or the organization’s lawyer must familiarize himself with all materials relating to the disciplinary offense, as well as the explanations of the employee for whom the order (instruction) to apply a disciplinary sanction is being prepared. Approximate form the order to apply a disciplinary sanction is given in the “PAPERS” section (page 55).

"Make no mistake"

When counting or summing up disciplinary sanctions, one cannot make mistakes.

Previously, the attention of employers was drawn to the fact that neither the deprivation of bonuses and lawful reduction of wages, nor reprimands and other inventions are considered disciplinary sanctions. Consequently, their summation is unlawful and unfounded. It is impossible to deprive a bonus (produced, of course, on legal grounds) as the first penalty and, if the employee commits one disciplinary offense during the year, apply paragraph 5 of Article 81 of the Labor Code of the Russian Federation.

What else needs to be paid attention to when summing up disciplinary sanctions is the “following” of disciplinary sanctions when transferring an employee. For example, an employee holding the position of quality control engineer was reprimanded for producing a defective batch of products. A month later, the employee was transferred to the position of head of the quality control department. In this position, he committed a disciplinary offense, which resulted in failure to provide department employees with OKC stamps. Can an employer apply a disciplinary sanction to him in the form of dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation? Answering this question, one should proceed from the essence of disciplinary responsibility: it is focused not on ensuring the fulfillment of a labor function within the framework of a specific and defined position, but on ensuring the employee’s diligence and conscientious attitude towards work in general. Transfer to another position, to another job with the same employer does not entail the cancellation of the disciplinary sanction. It does not matter that it was imposed for failure to perform or improper performance of labor duties in another position or other work.

When summing up disciplinary sanctions, you need to remember the following.

"Remember forgiveness"

In accordance with part one of Article 194 of the Labor Code of the Russian Federation, if within a year from the date of application of the disciplinary sanction the employee is not subject to a new disciplinary sanction, then he is considered without disciplinary action . Therefore, before determining whether another offense gives grounds to believe that there is a repeated failure to fulfill duties, you should review the orders for personnel (personnel) on the application of disciplinary sanctions, an extract from the order (instruction) on the application of a disciplinary sanction in the employee’s personal file, “sheet penalties" or another document recording penalties to determine whether the previously imposed disciplinary sanction has lost its force.

A disciplinary sanction can also be withdrawn from an employee. According to part two of Article 194 of the Labor Code of the Russian Federation, 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:

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. As a rule, the HR department is entrusted with monitoring the behavior of an employee after a disciplinary sanction has been imposed on him. In this case, he will be the initiator of the removal of the disciplinary sanction;

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, established himself with positive side, increased the quality and performance of his work. Why doesn’t he himself turn to the employer with a request to take into account his services to the organization and “forget” about the previously committed offense? He must put his request in writing 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. The initiative of the immediate manager is expressed in a document entitled “petition” or “representation”;

4) at the request of the representative body of workers. The representative body can express its opinion in the same form as the employee’s immediate supervisor, i.e. in a petition or submission.

A petition to lift a disciplinary sanction against an employee can also be voiced orally, for example, at a meeting of the labor collective. In this case, it is recorded in the minutes of the meeting and must be reviewed by the employer.

The final decision on whether or not to lift a disciplinary sanction based on a request from an employee or a petition from an immediate supervisor or a representative body of employees is made by the employer, or rather, the person whose administrative act applied it.

On the removal of 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 (an example of an order (instruction) on the removal of a disciplinary sanction is given in the “PAPERS” section (p. 56).

"Don't forbid"

According to Part 7 of Article 193 of the Labor Code of the Russian Federation, a disciplinary sanction can be appealed by an employee to state labor inspectorates or bodies for the consideration of individual labor disputes (the labor dispute commission and the court). Any restriction of an employee’s right to appeal through local regulations, individual acts (receipts from the employee that he will not complain, etc.) is void.

It was previously noted that, for example, a court considering a labor dispute about the illegality of dismissal for committing a disciplinary offense cannot replace dismissal with another type of penalty. However, having recognized the employer’s decision as unlawful, he thereby limits the latter to the terms of application of another disciplinary sanction. Thus, if a disciplinary sanction was applied by a person not authorized to bring the organization’s employees to disciplinary liability, and as a result of consideration of the case in court or in a labor dispute commission, or an inspection by the state labor inspectorate, it is canceled, then the employer risks missing the deadlines allotted by the Labor Code of the Russian Federation for the application of disciplinary sanctions.

In order for the procedure for bringing disciplinary liability to be manageable at the employer level, the latter should not prohibit employees from appealing the actions of their immediate supervisors. Such a prohibition in relation to jurisdictional bodies (courts, federal labor inspection) is illegal, and in relation to higher officials of the organization - it only limits the opportunity to resolve the dispute without leaving the organization.

From the history of disciplinary responsibility

Institute disciplinary responsibility V pre-revolutionary Russia included various measures disciplinary collection: “reprimands more or less severe”, “reprimands with entry into the service record” and “reprimands without entry into the service record”, “deduction from salary”, “deduction from service time of various periods”, “movement from highest position to a lower level”, “removal from position” and “dismissal from position”. It should be noted that in the vast majority of them they were linked to criminal liability, since they were provided for persons who were public service. As for free-hire workers, the employer established penalties independently for defects, failure to comply with production standards, tardiness and other violations, of which the least was a deduction from earnings, and the most common was dismissal.

Until 1863 (the reforms of Alexander II), corporal punishment was used not only against serfs, but also against employees, journeymen, apprentices. Their rights in Russian factories and factories were not regulated by any acts until 1886 (before the introduction of the decree “On the supervision of factory industry establishments and on the mutual relations of factory owners and workers”). However, cases of punishing workers with whips and rods occurred until the end of 1905. Only with the first Soviet decrees was corporal punishment finally abolished, and education through persuasion was proclaimed as the main method of dealing with discipline violators. Over time, the Soviet state reconsidered such a loyal attitude towards disciplinary offenses, and in 1940 (June 26) the Decree of the Presidium of the Supreme Soviet of the USSR “On the transition to an 8-hour working day, to a 7-day working day” was issued. working week and on the prohibition of unauthorized departure of workers and employees from enterprises and institutions.” This act established judicial (!) liability: “for absenteeism without a good reason, workers and employees of state, cooperative and public enterprises and institutions are put on trial and, upon the verdict of the people’s court, are punished by correctional labor at the place of work for up to 6 months with deduction of up to 25% from wages.” People's judges who considered such cases individually (without the participation of people's assessors) were ordered to resolve them within no more than 5 days and to carry out sentences in these cases immediately. In addition, directors of enterprises and heads of institutions were also brought to justice for failing to bring to trial those guilty of absenteeism without good reason. By the way, being more than 20 minutes late was then equivalent to absenteeism. Judicial liability in the form of correctional labor was abolished only in 1956.

By 1971, the Labor Code of the RSFSR provided for such types disciplinary penalties, How:

• comment;
• rebuke;
• severe reprimand;
• transfer to a lower-paid job for up to 3 months;
• dismissal (for appropriate reasons).

Transfer to a lower-paid job “lasted” as a disciplinary measure until 1992 (until amendments and additions were made to the Labor Code of the RSFSR by Law of the Russian Federation of September 25, 1992 No. 3543-I). Having ratified ILO Convention No. 105 on the Abolition of Forced Labor (Federal Law No. 35-FZ of March 23, 1998), Russia had to bring national legislation into line with the standards of the Convention. Transfer to a lower-paid job as a disciplinary measure, that is, for the purpose of maintaining labor discipline, meets the criteria for forced labor set out in the said Convention. There is not a word in the new Labor Code of the Russian Federation about transfer as a measure of disciplinary liability. Moreover, Article 4 of the Code directly establishes a ban on forced labor, that is, performing work under the threat of any punishment (forceful influence), including for the purpose of maintaining labor discipline. It should be noted here that, in accordance with certain charters and regulations on discipline, transfer to another, lower-paid job or another, lower position for a period of up to 3 months is still possible, but only with the consent of the employee.

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