Disciplinary responsibility- this is a legal liability arising for violation of labor discipline and expressed in the imposition of a disciplinary sanction on an employee who has committed a disciplinary offense.

Thus, the employer has the right to apply a disciplinary sanction only if the employee commits a disciplinary offence.

A disciplinary offense is a failure to perform or improper performance by an employee of his labor duties.

Labor legislation provides for three types of disciplinary sanctions:

remark (the smallest strict disciplinary sanction);

Special disciplinary liability is established by charters and regulations on discipline for certain categories of employees in certain sectors of the economy (transport, communications, etc.), approved by federal laws.

The establishment of special disciplinary liability is due, firstly, to the specifics of the labor functions performed by these employees, and secondly, to the especially serious consequences that may occur as a result of non-fulfillment or improper fulfillment of their labor duties.

Special disciplinary responsibility implies a broader concept of a disciplinary offense and provides for a number of additional penalties.

For example, in accordance with the Law on the State Civil Service, for committing a disciplinary offense, a civil servant may also be subject to such disciplinary sanctions as a warning about incomplete official compliance and dismissal from a substituted position. civil service.

Disciplinary and administrative responsibility

Disciplinary and administrative responsibility also differ in the types of penalties applied.

Types of administrative penalties are provided for by the Code of Administrative Offenses and cannot be applied for committing a disciplinary offense (for example, a fine, disqualification, etc.).

At the same time, for the commission of an administrative offense, it is impossible to apply the penalties established by the Labor Code for the commission of a disciplinary offense.

At the same time, it does not matter where the administrative offense was committed - on the territory of the organization with which the employee has an employment relationship, or elsewhere.

The procedure for applying a disciplinary sanction

Before a disciplinary sanction is applied, the employer is obliged to demand a written explanation from the employee.

If, after two working days, the employee does not provide an explanation, the employer draws up an act of failure to provide written explanations.

At the same time, the employee’s failure to provide an explanation cannot be a basis for not applying a disciplinary sanction (part 1 of article 193 of the Labor Code of the Russian Federation).

On the basis of the submitted explanation of the employee or the act of not providing written explanations, the employer approves the order to apply a disciplinary sanction.

The order to apply a disciplinary sanction is submitted to the employee against signature within three working days from the date of its approval, not counting the time the employee is absent from work.

If the employee refuses to familiarize himself with the specified order (instruction) against signature, the employer draws up an act of refusal to familiarize (part 6 of article 193 of the Labor Code of the Russian Federation).

Time limit for disciplinary action

The employer may apply a disciplinary sanction within a month from the date of discovery of the misconduct.

A disciplinary sanction may not be applied later than six months from the day the offense was committed.

Bringing to disciplinary responsibility the head of the organization and his deputies

The Labor Code provides for additional grounds and a special procedure for bringing to disciplinary responsibility for the head of the organization and his deputies (Article 195).

This is due primarily to the peculiarity of their legal status.

The head of the organization, on the one hand, is an employee, and on the other, the sole executive body legal entity.

He acts on behalf of and in the interests of the employer, is his representative, including in relation to the employees of the organization.

Deputy heads of the organization perform certain duties of the representative of the employer (his functions) by authorization of the head.

One of the main obligations of the employer is to comply with laws and other regulatory legal acts, local regulations, the terms of the collective agreement, agreement (Article 22 of the Labor Code).

The state of labor discipline in the organization largely depends on the observance of this particular obligation by the employer.

In this regard, the Labor Code has established special norms aimed at ensuring the fulfillment of this obligation, and additional guarantees for their implementation.

Among them, in particular, fixed part 1 of Art. 195 of the Labor Code, the obligation of the employer to consider the statement of the representative body of employees about the violation by the head of the organization, the head of the structural unit of the organization, their deputies of labor legislation and other acts containing labor law, the terms of the collective agreement, agreement and report the results of the consideration to the representative body of employees.

Having received the application of the representative body of employees, the employer is obliged to verify the facts set forth in it.

If the facts of violations of labor legislation and other acts containing labor law norms, the terms of the collective agreement, agreements are confirmed, the employer is obliged to apply a disciplinary sanction to the head of the organization, the head of the structural unit of the organization, their deputies.

At the same time, he has the right to determine the measure of disciplinary action against these employees.

This can be any disciplinary sanction provided for by the Labor Code, including dismissal (part 2 of article 195 of the Labor Code).




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That is, non-performance or improper performance by the employee through his fault of the labor duties assigned to him, the employer has the right to apply the following types of 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 types of disciplinary sanctions.

It is not allowed to apply disciplinary sanctions that are not provided for by federal laws, charters and regulations on discipline.

Before applying a disciplinary sanction, the employer must request from the employee.

If the employee refuses to give the specified explanation, an appropriate act is drawn up.

The employee's refusal to give an explanation is not an obstacle to the application of a disciplinary sanction.

A disciplinary sanction 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.

A disciplinary sanction may not be applied later than six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the day it was committed. The above time limits do not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary action.

The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against receipt within three working days from the date of its issuance. If the employee refuses to sign the specified order (instruction), an appropriate act is drawn up.

A disciplinary sanction may be appealed by an employee to state labor inspectorates or bodies for the consideration of individual labor disputes.

If within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have a disciplinary sanction.

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

The employer is obliged to consider the application of the representative body of employees about the violation by the head of the organization, his deputies of laws and other regulatory legal acts on labor, the terms of the collective agreement, agreement and report the results of the consideration to the representative body of employees.

If the facts of violations are confirmed, the employer is obliged to apply a disciplinary sanction to the head of the organization, his deputies, up to and including dismissal.

With special labor discipline, the procedure, terms of application and types of disciplinary sanctions may be different.

Bringing to disciplinary responsibility the head of the organization, the head of the structural unit of the organization, their deputies at the request of the representative body of employees

Bringing the manager to disciplinary responsibility organization, the head of the structural unit of the organization, their deputies at the request of the representative body of employees is regulated by Art. 195, part 6 of Art. 370 of the Labor Code of the Russian Federation.

Trade union bodies, in particular the trade union committee of an organization, are empowered to exercise control over the observance of labor legislation. In case of detection of facts of violation in the organization of labor legislation, local legal acts containing labor law norms, concealment of accidents at work, non-fulfillment of the terms of the collective agreement, agreement, the trade union committee has the right to demand from the employer to punish the head of the organization, its division or their deputies guilty of this.

The employer, on the fact of the application of the representative body of workers, usually the trade union committee, initiates disciplinary proceedings. It is characterized by the same stages as when a violation of the internal labor regulations by an employee is detected, which were outlined above. If the guilt of managers or their deputies in violation of labor law is established, then the employer is obliged to apply to them "disciplinary action up to and including dismissal" (part 2 of article 195 of the Labor Code of the Russian Federation).

The employer informs the applicant (trade union committee) about the results of disciplinary proceedings. The response time is not defined in the labor law. However, it should take into account the time that the legislator establishes for the application of a disciplinary sanction h. 3, 4 art. 193 of the Labor Code of the Russian Federation. Usually this is one month, and according to the results of an audit, audit of financial and economic activities or an audit - two goals from the day the disciplinary offense was committed. If, due to the circumstances indicated in the statement of the trade union committee, a criminal case has been initiated against the head or his deputy, then the period for reporting to the trade union bodies is extended for the duration of the proceedings on the main case.

The procedure for applying disciplinary sanctions

The procedure for applying a disciplinary sanction in the Labor Code of the Russian Federation is not regulated in detail. This often leads to violation of the labor rights and freedoms of the employee.

Disciplinary Proceedings as a Legal Relationship

Disciplinary proceedings are always a legal relationship, the main subjects of which are the employer and the employee. The content of a legal relationship is considered to be the rights and obligations of its parties. In the current labor legislation, the legal status of the employer is mainly fixed. An analysis of disciplinary proceedings makes it possible to identify a certain set of rights of an employee who, in the opinion of the manager, violated the rules of internal labor regulations. An employee is a full-fledged subject of a legal relationship within the limits of disciplinary proceedings. He has the right to get acquainted with all the materials, according to which he is accused of unlawful labor behavior, to give his assessment of the content of the materials presented to him, to demand the provision of new materials. In complex disciplinary proceedings, an employee may require an audit, an audit of financial and economic activities, or if, based on its results, it is possible to resolve the issue of his guilt or innocence. The current legislation does not prohibit an employee from involving specialists, a representative of a trade union organization in disciplinary proceedings as consultants.

In this part of the labor legislation still needs further improvement. Specification of disciplinary proceedings is possible in by-laws, local regulatory legal acts. This practice is typical, for example, for budgetary organizations. Ministries and departments develop and approve the procedure for conducting an internal audit and applying disciplinary sanctions to civil servants of their subordinate organizations. Such normative legal acts establish a detailed procedure for conducting internal audits and applying disciplinary sanctions to civil servants, the composition of the commission entrusted with conducting the audit, its powers and formalizing the results of the audit. In the by-laws of the local regulatory legal acts, a section is specially allocated that sets out the rights of the employee in respect of whom the audit is being carried out: to give oral and written explanations, make petitions, get acquainted with the documents during the audit, appeal against decisions and actions of the commission that conducts the audit.

A single disciplinary relationship can be classified as a complex legal relationship. It consists of a number of elements characteristic of each stage. Elementary legal relations are discrete, that is, they are interrupted in time, they consist of certain parts. So, the right of the employee to file petitions, get acquainted with the documents, appeal against the actions of the representative of the employer or the commission conducting the inspection, corresponds to the corresponding obligation of the employer to consider a specific petition, provide the employee with the necessary documents for familiarization, consider the complaint filed by him. These legal relations may arise and terminate at each of the stages of disciplinary proceedings. This does not exclude its systemic nature, the unity of rights and obligations of participants in disciplinary proceedings.

Stages of disciplinary proceedings

Disciplinary proceedings include several stages.

First, before applying a disciplinary sanction, the head invites the employee to give a written explanation of the circumstances indicating a violation of the internal regulations of the organization. If the employee refuses to provide the employer with an explanation in writing, after two working days an appropriate act is drawn up. This document must contain the following details: place and date of the document; surname, name, patronymic, position of the compiler and employee, short description alleged violation of labor discipline; an offer to the employee to give an explanation and his refusal, actual or by default; an explanation of what exactly was manifested by the employee's failure to fulfill his labor duties.

Secondly, the employer (his authorized representative - the head of the personnel department, deputy director for personnel) will require from the immediate supervisor of the employee the necessary documents confirming the violation by the employee of labor discipline, one hundred opinion on the election of a violator of a certain (necessary in the circumstances) disciplinary sanction.

Thirdly, evaluating the materials collected on the fact of violation of the internal labor regulations, the employer decides on the guilt of the employee, that is, on the commission of a disciplinary offense by him.

Fourthly, before imposing a disciplinary sanction, the employer takes into account the severity of the offense committed, the circumstances extenuating the employee's guilt.

Fifth, in accordance with Part 1 of Art. 192 of the Labor Code of the Russian Federation, the employer exercises his right to apply a disciplinary sanction to the violator of the internal labor regulations or limit himself to other means of educational influence. The effectiveness of a disciplinary sanction largely depends on this stage of disciplinary proceedings. To reduce it only to punishment, punishment is unjustified both from a theoretical and practical point of view. The educational role of this stage also depends on the personality of the employee, on the level of his professional training, legal and moral culture. This is a rather complicated and responsible process for the employer. Sometimes a manager’s conversation is enough to correct the violator, and in some cases, the application of a disciplinary sanction leads to confrontation, an increase in tension in the employer’s relationship not only with the employee, but also with the primary production team. For this stage, the pedagogical, psychological preparation of the leader as a manager is very important.

This stage ends with the adoption of an appropriate decision to punish the employee or, at the discretion of the employer, to leave the collected materials without movement. In practice, in the latter case, no procedural act is issued by the employer. Similarly, the employer acts if a slight violation of labor discipline or insufficiency of materials for its establishment is revealed. In the latter case, the employee's right to protection of "his labor rights and freedoms" (Article 2 of the Labor Code of the Russian Federation) is obviously violated, since the employee cannot protect his good name, honor and dignity. You can only appeal against the relevant order of the employer, and not the negative opinion created during the investigation about the possible dishonesty of the employee.

Sixthly, the employer chooses a measure of disciplinary action, issues an appropriate order. An order (instruction) on the application of a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the order (instruction) against signature, then the authorized representative of the employer draws up an appropriate act (part 6 of article 193 of the Labor Code of the Russian Federation). The details of the act are similar to those set out for the act of refusal to give an explanation on the fact of violation of the internal labor regulations.

Disciplinary proceedings are characterized by certain procedural time limits: one month and six months. A disciplinary sanction shall not be applied if more than one month has passed from the day the misconduct was discovered. The monthly period does not include the time of illness of the employee, his being on vacation, as well as the time required to take into account the opinion of the representative body of employees, if it is required in accordance with the law (part 2 of article 82 of the Labor Code of the Russian Federation).

After the expiration of the six-month period, the employee cannot be held disciplinary liable. When conducting an audit, audit of financial and economic activities or an audit, the period during which a disciplinary sanction is allowed is increased to two years.

The indicated time limits do not include the time of proceedings in a criminal case (part 4 of article 193 of the Labor Code of the Russian Federation).

Disciplinary proceedings are characterized by the rule that only one disciplinary sanction can be applied to an employee for the same disciplinary offense.

This does not exclude the application of administrative or criminal measures to the employee. A violator of the internal labor schedule can also be punished, since the deprivation of a bonus is not considered a disciplinary sanction.

Along with the above mandatory stages of disciplinary proceedings, it is also possible optional 1) appeal against a disciplinary sanction to the bodies for the consideration of individual labor disputes; 2) termination of disciplinary proceedings as a result of its review by the competent authorities, for example, by a higher manager.

Removal of a disciplinary sanction

Disciplinary action from a legal point of view is usually always a lasting condition, limited to a certain period within the framework of an employment relationship. If within a year from the date of application of the disciplinary sanction, the employee has not committed a new violation of the internal labor regulations, then his state of punishment is terminated, and the violator in accordance with Part 1 of Art. 194 of the Labor Code of the Russian Federation "is considered not to have a disciplinary sanction."

Before the expiration of one year, the employer may remove a disciplinary sanction from the employee both on his own initiative and at the request of his immediate supervisor or an elected representative body (trade union committee). The initiative may also come from the violator of labor discipline himself. He, in accordance with Part 2 of Art. 194 of the Labor Code of the Russian Federation may apply with such a request to the head of the organization.

The state of punishment indicates a continuing systematic educational impact, which can be effective in organizing proper accounting of violators of the internal labor regulations and monitoring their labor behavior. At medium and large enterprises, the employer can assign these duties to the direct supervisors of the labor process, who keep special logs of violations and violators of internal labor regulations in production teams subordinate to them.

Bringing employees to disciplinary responsibility for committing disciplinary offenses in accordance with Article 22 of the Labor Code of the Russian Federation is law, and not the obligation of the employer, therefore, he is free to use or not use it. However, using the right granted to him, the employer must be guided by the norms 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 the personnel officer, when applying disciplinary sanctions, must remember, know and follow, like commandments.

Let's talk about them.

"Remember the essence"

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

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

• conscientiously fulfill their 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 the requirements for labor protection and ensuring labor safety;
• take care of the property of the employer and other employees;
• immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the property of the employer.

This wording of the norm gives grounds to conclude that disciplinary sanctions can only be applied for non-performance or improper performance of those labor duties that are related with the performance of a labor function and are directly specified in the employment contract, and all other duties (for example, observe labor discipline, comply with labor protection requirements, etc.) remain outside the scope of part one of Article 192 of the Labor Code of the Russian Federation. These conclusions are unfounded, since the specified norm implies the entire set of labor duties of the employee assigned to him within the framework of labor relations, and not just the labor function. Most often, the duties of the employee listed in the second part of Article 21 of the Code are fully reproduced in the text of the employment contract, and thereby ambiguities are eliminated: for failure to perform or improper performance of any of them, disciplinary sanctions may be applied to the employee.

Analyzing the essence of a disciplinary sanction, one cannot ignore the following question. Cases of bringing an employee to disciplinary liability for acts not related to the performance of labor duties still take place. Thus, employers often apply disciplinary sanctions for “unworthy behavior that dishonors the honor of the labor collective” in the wake of 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 task .

Disciplinary action may be taken only for non-fulfillment or improper fulfillment of labor duties, that is, duties due to the existence of labor relations 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 civil servants. For example, in accordance with Article 41.7 of the Law of the Russian Federation of January 17, 1992 No. 2202-I “On the Prosecutor’s Office of the Russian Federation” (as amended on October 5, 2002), the basis for imposing disciplinary sanctions on prosecutors is not only the failure to perform or improper performance of their official duties, but also the commission of offenses discrediting the honor of a prosecutor's worker.

In the local regulations of organizations, disciplinary offenses are divided into two groups in order to determine the schemes for applying disciplinary sanctions:

• failure to perform or improper performance of duties stipulated by employment contracts, official and production (by profession) instructions;
• violation of labor discipline, that is, a violation of the rules of conduct that are mandatory for all employees, defined in accordance with the Labor Code of the Russian Federation, federal laws, a collective agreement, agreements, an employment contract, local regulations of the organization, as well as non-compliance of employees with these rules.

As already noted, any differentiation of disciplinary sanctions depending on what takes place - non-fulfillment of labor duties or their improper fulfillment - 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 made it. Guilt in law is understood as the mental attitude of a person in the form of intent or negligence to his unlawful behavior and its consequences. Guilt in the form of intent means that the person foresaw the unlawfulness of his behavior and the possibility of negative consequences, wished or allowed them and consciously, deliberately 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 of no 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 a disciplinary sanction can be applied to an employee, it is necessary to establish the presence of guilt. The most common are disputes regarding being late to work due to traffic problems, bad weather conditions that the employee is not able to foresee, even if he wants to. The courts have repeatedly recognized the application of disciplinary sanctions for absenteeism as unlawful due to the fact that there was no fault of the employee in his absence from the workplace for more than 4 hours in a row during the working day. For absenteeism to qualify as absenteeism, it must be due to bad reasons. Whether the reason given by the employee is valid is determined by the employer. However, the point of view of the court does not always coincide with the opinion of the employer. Thus, the administrative detention of an employee, carried out on legal grounds, was recognized by the court as a good reason for the absence of an employee, and his dismissal for absenteeism was unlawful.

The list of circumstances, as well as the reasons for the absence of an employee at the workplace, giving the employer grounds for applying disciplinary sanctions, was determined by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. . as of November 21, 2000). Primarily, absenteeism without good reason is equated :

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

b) leaving work without a valid reason by a person who has concluded an employment contract for a certain period, before the expiration of the contract;

c) the presence of an employee without valid reasons 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 labor duties, must perform the assigned work;

d) unauthorized use of days off, as well as unauthorized leave on vacation (basic, additional). At the same time, it should be taken into account that the use of rest days by an employee is not absenteeism in the case when 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 the transfer, made in compliance with the law.

Not considered absenteeism:

• absenteeism of the employee at social events;
• evasion of the employee from performing actions not related to labor duties;
• the refusal of the employee to start work to which he was transferred in violation of the law;
• the presence of an employee, 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 innocence of the employee also take place 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 wording of duties did not allow determining how the employee should perform 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 question is natural, is it possible to bring an employee to disciplinary responsibility during the probationary period? After all, the employee is just hired with the condition of a test in order to check his compliance with the assigned work? Here it should be assumed that the legislation does not provide for any restrictions on the application of disciplinary sanctions during the probationary period. Basically, disputes about dismissal under Article 71 of the Labor Code of the Russian Federation are based on the fact that a violation of labor discipline is called an unsatisfactory test result, and first of all, being late. The position of the employees is that the test was assigned to them in order to test their business qualities, qualifications, and being late does not indicate that their knowledge and professional qualities do not allow them to perform the work assigned to them. To avoid such disputes, employers should not only keep a record of all violations of labor discipline, but also apply disciplinary sanctions in a timely manner.

"Don't Invent"

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

We do not know anything about punishment with rods in the nineties of the last century, but the “reduction of salaries” took place at every turn. It was denoted by a capacious word - "fine". Fines were introduced not only by small and medium-sized, but also by large enterprises, which declared law-abidingness as the main corporate value. Often, bonus deductions were prescribed in the internal labor regulations or the staff regulation in the section "Disciplinary responsibility". Transfers to a lower-paid job or a lower position were also considered an effective measure to combat non-performance of official duties, non-compliance with norms, 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 remarks could be greater than that of punishment. Conversations and persuasions, it seems, are not disciplinary sanctions to be fixed, but with their help it is also possible to influence an employee who improperly performs his duties, ignores labor discipline, etc. However, in order for all these oral "warnings", "stating" 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, which were issued orally and did not provide for detailed fixation, and, consequently, compliance with labor laws.

The illusions of the early to 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 disposal of wages and a simplified dismissal procedure, dissipated as the state labor inspectorate issued instructions. They finally disappeared after the introduction of the Labor Code of the Russian Federation, which directly prohibited employers from inventing new disciplinary sanctions.

So, once again we turn 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 allowed (Part three of Article 192).

If you are a commercial organization, stop trying to find federal laws that supplement the list of types of disciplinary actions. With regard to Article 192 of the Labor Code of the Russian Federation, among the federal laws expanding the list of types of disciplinary liability, or, in legal terms, regulating the procedure for bringing to special disciplinary liability, the first should be called Federal Law No. Federation” (as amended on 07.11.2000). Along with measures of general disciplinary responsibility (remark, reprimand, dismissal), its article 14 provides for a warning about incomplete service 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 demotion in class rank, deprivation of the 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 enumerated special types of disciplinary sanctions are to some extent reproduced in other federal laws on civil servants.

Considering that by introducing your own “Regulations on Discipline” you automatically extend the norm of part two of Article 192 of the Labor Code of the Russian Federation to yourself, you are committing nothing more than a legal mistake. It has been "stretching" since 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 sectors of the national economy for certain categories of workers there are charters and regulations on discipline. 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. This gap is filled in the Labor Code of the Russian Federation - it is established that the 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 forbids the employer to adopt a local normative act specifying the internal labor regulations in terms of disciplinary liability and calling it a “regulation”. However, it will not be subject to parts two and three of Article 192 of the Labor Code of the Russian Federation, and therefore, it should only provide for penalties established by the Labor Code of the Russian Federation.

Among the disciplinary statutes and provisions provided for by this norm, in particular, include:

• Regulations on employee discipline railway transport(approved by Decree of the Government of the Russian Federation of August 25, 1992 No. 621 (as amended on May 24, 2002);
• Charter on the discipline of workers of the fishing fleet of the Russian Federation (approved by the Decree of the Government of the Russian Federation of September 21, 2000 No. 708);
• Charter on the discipline of maritime transport workers (approved by Decree of the Government of the Russian Federation of May 23, 2000 No. 395);
• Charter on the discipline of employees of organizations with especially hazardous production in the field of the use of atomic energy (approved by Decree of the Government of the Russian Federation of 10.07.1998 No. 744);
• The disciplinary charter of paramilitary 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 of the Customs Service of the Russian Federation stands somewhat apart - 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).

So that inventions do not continue, we pay attention to the following points.

1. Penalties . In jurisprudence, a fine is understood as one of the types of liability expressed in a monetary amount that is subject to recovery from a person who has committed a crime or offense and is imposed within the limits provided for by criminal law, legislation on administrative offenses, tax and customs legislation, other branches of legislation. The authorities and their officials are authorized to impose fines, the jurisdiction of which provides for the authority to resolve legal disputes and resolve cases of offenses, assess the acts of subjects of law in terms of their legality or illegality. The exception is civil law relations, in which a fine is understood as one of the types of forfeit, that is, a sum of money established by law or contract, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of an obligation.

The desire of the employer to introduce a system of fines is often due not to the fact that the employee does not fulfill duties or performance standards at all, but to the fact that duties are performed improperly - not in full, untimely or formally, performance does not meet specified standards, etc. The indignation of employers that in most European countries the reduction of wages is legalized, but not in Russia, not entirely justified. According to Article 8 of the ILO Convention on the Protection of Wages (dated July 1, 1949 No. 95), deductions (deductions) from wages are allowed to be made 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 does limit 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 the third part of Article 155. It directly establishes that in case of non-fulfillment of labor standards (official duties) due to the fault of the employee, payment of the normalized part of wages is made in accordance with the amount of work done. So far, this norm seems suitable only for the material impact on workers and subject to labor rationing. For employees whose job responsibilities are very difficult to account for, recommendations for its application have not yet been fully developed. In order for part three of Article 155 of the Labor Code of the Russian Federation to become a working one, and its application to be lawful, in job descriptions for employees, production instructions for workers, it is necessary to determine the mechanism for accounting for the performance of duties, and also to comply with the requirements of Article 163 of the Labor Code of the Russian Federation.

It is advisable to describe in detail the scheme for applying part three 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 do not attribute these actions of the employer to disciplinary sanctions, and even more so do not call them fines.

2. Deprivation of bonuses or "deprivation of bonuses." This is a more legalized form of material impact on the employee. However, it does not apply to disciplinary measures.

Back in 2000, the Legal Department of the Ministry of Labor of Russia, 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 non-payment of a bonus to a violator of labor discipline is not a disciplinary sanction. In each specific case, such issues are resolved in the manner prescribed by the current regulation 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 “wage”, 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, various kinds of bonuses are included in it. In order for the bonus to really meet the criteria for “incentive payment”, in the regulation on bonuses or the regulation on remuneration, in another local regulatory legal act regulating remuneration issues, a list of grounds for its payment should be defined and a system of their accounting should be described. But to paint for what misconduct the bonus is not paid should not be - according to legally significant signs, the actions of the employer will be subject to disciplinary measures against the employee.

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

As for other forms of monetary impact on employees for disciplinary offenses invented in recent years - deprivation of interest allowances, allowances for the special nature of work, reduction of travel expenses or vacation pay - they directly contradict the current legislation, and the very first appeal of an employee to the state labor inspectorate or the court will confirm it. The decision of the latter will already relate to the methods of the state's monetary impact on the employer.

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

What conclusions can be drawn from the above?

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

a) may be applied simultaneously with disciplinary sanctions;

b) their application is not taken into account when an employee is dismissed for repeated non-performance of labor duties.

3. Warning, reprimand. Despite the fact that a warning as a legal means of influence refers to measures of administrative responsibility, the requirement for compliance with its features, 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 "disciplinary warning". Along with the concept of "warning", such a form of influence as "put in sight" is used. In fact, these are equivalent concepts - an employee who has committed a misconduct is warned that if he commits a misconduct again, he will be “put in sight”, “put under control”, etc. "Censure", at its core, is a concept of the same kind. A censure is a statement in which the speaker expresses a negative assessment of the employee's act, his behavior, in order to cause a negative emotional reaction in the latter.

Such measures of influence, as a rule, are introduced in organizations whose management does not seek to "chop off the shoulder" and dismiss them for minor infractions. In case of a frivolous violation of labor discipline, for example, a smoke break before lunch break, an educational conversation is held with the employee; the employee is warned that if he commits a similar misconduct again, he will be subject to disciplinary liability in the manner prescribed by the Labor Code of the Russian Federation. At the same time, in local regulations, these activities are often referred to as corporate disciplinary actions.

Do not neglect the law and call a spade a spade. Warning, censure, etc. can be considered disciplinary action. impact but not to disciplinary measures responsibility and not to the types of disciplinary penalties. In the theory of personnel management, disciplinary influence is understood as tools of both positive influence on personnel (encouragement) and negative influence (penalties, team reaction, etc.). Warning and censure lie in the field of education of employees, which has no 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, to form respect for the rules adopted in the organization.

The form of fixing and recording such measures of influence on the employee can be both oral and written.

In general, warning, censure, etc. are a kind of analogue of the measures of public influence provided for by Article 138 of the previously existing 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 public influence as a comradely remark, a public reprimand .

Provided that local regulations provide for the possibility of making a decision on issuing a warning to the employee, on his reprimand by the work team, these acts must detail all the mechanisms. If a written record of such measures is kept, it must be remembered that in the case when, upon the commission of a disciplinary offense, the employer limited himself to a censure and there is written confirmation of this, then the application of a disciplinary sanction for the same offense may be recognized as unlawful. To such a situation, by analogy, the courts can apply the provision of paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 No. 16 “On Certain 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 penalty referred the issue of his violation of labor discipline to the consideration of the labor collective, by the decision of which social measures 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 use the right granted to him to bring the employee to disciplinary responsibility. Therefore, it is necessary to revise your local regulations with regard to the mechanism for applying disciplinary measures in conjunction with disciplinary sanctions. Remember that, since the Labor Code of the Russian Federation does not contain rules governing the application of public influence measures, your local regulations will be carefully studied by the court, the state labor inspectorate.

"Remember Deadlines"

According to the third part of Article 193 of the Labor Code of the Russian Federation, a disciplinary sanction is applied no later than 1 month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, and 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 the misconduct, and based on the results of an audit, audit of financial and economic activities or an audit, later than 2 years from the date of its commission; the specified time does not include the time of criminal proceedings.

You cannot be late with the application of disciplinary sanctions. Deadlines must always be remembered. It is with the verification of compliance with the established deadlines that state labor inspectorates and courts begin to consider disputes related to disciplinary liability.

Let us analyze the above norms 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 the third part of Article 193 of the Labor Code of the Russian Federation, the period is counted from the moment detection offense, it does not matter how it was discovered. For example, the obligation to detect lateness to work by the immediate supervisor of the employee in the system of recording the attendance of work at the checkpoint is debatable. In this case, the record of the employee's attendance at work is kept by a special employee who records the time of the employees' arrival and, accordingly, is the first person who detects a violation of labor discipline. The same can be said about the employees of the personnel department, who, by the regulation of the department and (or) job descriptions, can be empowered to exercise control over discipline in various forms (checking jobs, etc.). In this case, it is 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 immediate supervisor of the employee. Thus, the resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 No. 16 “On Some Issues of the Application of Legislation by the Courts of the Russian Federation in the Resolution of Labor Disputes” determines that the day when a misconduct is discovered, from which the month period begins, is considered the day when the person to whom the employee is subordinate, it became known about the misconduct, regardless of whether it is endowed 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 absenteeism of an employee. In order to formally meet the deadlines established by part three of Article 193 of the Labor Code of the Russian Federation, as well as to find out the reasons for the employee’s long absence from work, logically, the starting point should come from the last, and not from the first day of absenteeism. This legal position can also be traced in court decisions. At the same time, this is possible only in the event of the end of the misconduct, that is, the employee's appearance at work. How to proceed in the event of a long 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, only the time of illness of the employee or his stay on vacation is not included in the monthly period for the application of a disciplinary sanction; absence from work for other reasons, including in connection with the use of rest days (days off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the course of the specified period. Vacation interrupting the course of a month should include all vacations provided by the employer in accordance with applicable law, including annual (basic and additional) vacations, vacations in connection with training in educational institutions, short-term leave 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 included in the monthly period when it comes to applying a disciplinary sanction in the form of dismissal against a member of a trade union.

How to record the fact of committing a misdemeanor? Indeed, before the issuance of an order (instruction) of the employer on the application of a disciplinary sanction, much can change (the exact date of the offense, its essence, etc. will be forgotten). The documents listed in the next section of this publication can be used to fix the date and substance of a disciplinary offense.

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, a monthly period is calculated from the date of entry into force of the verdict, which establishes the employee's guilt in stealing other people's property, or the decision of the competent authority to impose on the employee for this offense administrative penalty. With regard to the last act - the decision 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 flow 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 another'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 refers to disciplinary offenses, and in accordance with the Code of Administrative Offenses of the Russian Federation - to administrative offenses, and an administrative offense case is initiated, then the month period begins from the moment the offense is discovered, and the employer is not charged link the application of a disciplinary sanction to the decision to bring to administrative responsibility. For example, an inspection of the store, conducted by officials of the control and supervisory authorities, revealed such an offense as the failure to use a cash register when selling goods to customers. A protocol was drawn up on an administrative offense under Article 14.5 of the Code of Administrative Offenses of the Russian Federation. However, this offense is also a disciplinary offense, since the obligation to use a cash register is assigned to the seller by his employment contract, production (by profession) instruction. If the employer waits for the decision of the control and supervisory authority, then he risks missing the monthly period established by Article 193 of the Labor Code of the Russian Federation, since the terms for investigating and considering an administrative offense case established by Articles 28.7 and 29.6 of the Code of Administrative Offenses of the Russian Federation are equal to one and a half months and may be in case the complexity of the cases under consideration was 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 in the process of investigating and considering a misconduct, the period for imposing a disciplinary sanction will expire before a decision is made to impose an administrative penalty. 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 guilty, and then he will have grounds for going to court, the state labor inspectorate.

Part four of Article 193 of the Labor Code of the Russian Federation establishes that a disciplinary sanction cannot be applied later than 6 months from the date of committing misconduct, and based on the results of an audit, audit of financial and economic activities or an audit - later than 2 years from the date of its commission; the specified time 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 dismissal of the employee, there can be no talk 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 misconduct, 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 term of notice of dismissal. This follows from paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 No. 16 “On Certain Issues of the Application of Legislation by the Courts of the Russian Federation in Resolving Labor Disputes”.

The six-month period from the day the disciplinary offense was committed corresponds to the one-month period from the day the misconduct was discovered as follows. If the misconduct 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 misconduct was discovered on October 1, then the 6-month period from the date of its commission has expired, and, therefore, the employer cannot exercise his right to bring the employee to disciplinary responsibility. The exception is cases when the misconduct is detected as a result of an audit, audit of financial and economic activities or an audit. Then the term for applying a disciplinary sanction is increased to 2 years from the date of the misconduct. At the same time, the one-month limitation provided for by part three of Article 193 of the Labor Code of the Russian Federation must still be taken into account.

"Be Meticulous"

Scrupulous fixation of the facts of committing disciplinary offenses is necessary. Firstly, in order not to forget about the exact date of their commission and nature, 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 immediate supervisor of the employee is not empowered on the application of disciplinary sanctions.

Personnel practice has developed two approaches to the execution of documents confirming the fact of committing a disciplinary offense:

• on the fact of non-fulfillment or improper fulfillment of labor duties stipulated by the employment contract, the immediate supervisor of the employee draws up a submission on bringing the employee to disciplinary responsibility;
• on the fact of violation of labor discipline, non-compliance with the rules of internal labor regulations, an act is drawn up.

The authority to apply disciplinary sanctions is delegated to the heads of structural divisions by a relatively small number of organizations. As a rule, these employees are entitled to send representations to the head of the organization (deputy head of the organization for personnel) on bringing their subordinate employees to disciplinary responsibility. The expediency of preparing such a presentation is explained by the fact that only the immediate supervisor of the employee can determine whether the employee properly performs, for example, his job duties. Practitioners proceed from the fact that in order to confirm the fact of non-performance or improper performance of functions, it is not necessary to involve other employees, and therefore it is not advisable to draw up an act. As an example of representation, the form given in the section "PAPERS" can be used. Notify the head of the organization about the commission of a disciplinary offense by an employee, his immediate supervisor can also by sending a memorandum. And only if he wants to protect himself from accusations of bias, as well as distribute the burden of his responsibility to other employees, the fact of committing a disciplinary offense can be fixed with the help of an act.

It is desirable to draw up an act in case of detection of violations of labor discipline, detection of facts of non-compliance with the rules of internal labor regulations. So, if control over labor discipline is carried out by employees of the personnel department, and during inspections of workplaces, 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 misconduct it will be correct to reflect in the act signed by several employees (exemplary forms of acts, as well as samples 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 the labor legislation establishes a ban on entering information about disciplinary sanctions in 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, is filed in the employee’s personal file. The instruction on office work in the organization may provide that the order (instruction) on the application of a disciplinary sanction is directly placed in a personal file or compiled into a separate file “Orders for personnel ( personnel)».

Since for orders (orders) on penalties, in comparison with other orders for personnel, more short term storage (only 5 years), practice has developed a different way of entering information on the application of a disciplinary sanction to an employee in a personal file - by maintaining a sheet (sheet, card) of rewards and penalties, which is stored in the employee’s personal file throughout his work in the organization. Such a document was necessary for the personnel service to determine the possibility of encouraging 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 were not applied to the employee. The Labor Code of the Russian Federation does not contain a ban on encouraging 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, for the timely removal of disciplinary sanctions, etc. It would be more correct to call such a document a “penalty sheet”, 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 explanations"

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

The employee can state his explanations in various ways.

First of all - in an explanatory note . It is desirable 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, it is practiced to use template forms in which the employee is asked to fill in columns (lines, cells) designed to answer the questions: what are the reasons (motives) for committing a disciplinary offense, does the employee consider himself guilty of misconduct, if not, then who, in the opinion of the employee, should be brought to disciplinary responsibility. An explanatory note is addressed either to the head of the organization, or to his deputy for personnel, or to the head of the personnel department, or to the head of the structural unit in whose staff the employee is included. To whom specifically - should be determined in the local regulations of the organization.

The second option for obtaining explanations is fixing the employee's explanations in an act drawn up on the fact of committing a disciplinary offense , by certifying the explanations by the employee with his signature.

According to the second part of Article 193 of the Labor Code of the Russian Federation, the employee's refusal to give an explanation is not an obstacle to the application of a disciplinary sanction. However, it does not at all follow from this that if the employee refused to explain the reasons for his behavior, then the employer can safely apply a disciplinary sanction. Rejection must be recorded- either in an act drawn up on the fact of committing a disciplinary offense, or in a separate act on refusal to give explanations. In the first case, after setting out the essence of the misconduct and the signatures of the originator and those present, a note is made that the employee refused to provide explanations, and the persons participating in the preparation of the act put their signatures again.

One of the most difficult situations in personnel practice is a long absenteeism. The employee does not appear at work, does not provide any information either about himself or about the reasons for his absence. The employer suffers losses - the work is not done, it is impossible to dismiss the employee, because the reasons for the absence are unclear, and the staffing table does not allow hiring a new employee. In this case, the employer can only be advised one thing: to send a letter with a notification to the employee’s known place of residence or location, in which they demand an explanation from him about the reason for the long absence from work and warn that if, within a certain period of time, from he does not receive a response, then the employer will exercise his right to apply a disciplinary sanction, up to 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 on the reinstatement of those dismissed for a long absence from work, the courts resolved this issue in different ways: there were also 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 a long absenteeism of an employee who did not appear at work.

If there are doubts about the veracity of the information received from the employee as a result of his explanations, the personnel department checks them. For example, a human resources inspector may call the DEZ at the employee's place of residence and find out if there was a malfunction in the plumbing equipment, which the employee called the reason for his delay. If an employee, in support of the reason for his absenteeism, presented a certificate of temporary disability, but there are doubts about its authenticity, a specialist in the personnel department can contact a special division of the FSS of Russia that monitors the legality of issuing certificates of disability.

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

"Don't overdo it"

According to part five of Article 193 of the Labor Code of the Russian Federation only one disciplinary sanction may be applied for each disciplinary offense .

A situation is unacceptable when an employee is first subjected to one disciplinary sanction for committing one disciplinary offense, for example, a reprimand, and then another for the same offense. If, for example, an employer for the appearance of an employee at work on April 7, 2003 in a state of intoxication reprimanded the employee and issued an appropriate order, then he is not entitled to apply to the same employee for the same disciplinary offense (that is, for appearing at work on April 7, 2003 years in a state of intoxication) the second disciplinary sanction, for example, to dismiss the employee under subparagraph "b" of paragraph 6 of Article 81 of the Labor Code of the Russian Federation. By reprimanding 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 for a long period of time. If, having discovered a disciplinary offense, the employer applied a disciplinary sanction, but this disciplinary offense continues (this particular offense, and not the next one, even if it is similar), 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 of December 22, 1992 No. 16 “On Certain Issues of the Application by the Courts of the Russian Federation of the Legislation in the Resolution of Labor Disputes” (as amended on November 21, 2000), a new disciplinary sanction may be applied to an employee, including dismissal on the appropriate grounds.

A continuing offense continues uninterrupted until it is stopped. The employer applies a disciplinary sanction just for the purpose of suppressing behavior that is expressed in non-performance or improper performance of a specific job duty. If this is not fulfilled, that is, it was not possible to stop this disciplinary offense by bringing the employee to disciplinary responsibility, the employer has the right to apply a new disciplinary sanction for the same offense. For example, an employee was given a notice for late preparation of reports for the first quarter. However, even after the application of the disciplinary sanction, 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, all of the above is only valid if the employee is really guilty of committing a misdemeanor.

Another thing is re-offending. Under such is understood a misdemeanor committed repeatedly after a certain time after the suppression of a similar misconduct. Let's take the same example. After announcing a remark to him for the late preparation of reports for the first quarter, the employee prepared 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 misconduct. 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 does not matter in principle whether a similar offense has been committed or another. By the way, here employers need to be careful. The named norm provides that the basis for dismissal is only repeated failure to perform duties in conjunction with a disciplinary sanction, but not repeated improper performance of labor duties. This wording already now allows employees to defend their case in courts, referring to the fact that they only improperly performed 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 legislation does not prohibit the employer for the same offense to bring the employee to both disciplinary and material liability . If the purpose of the first is to stop the misconduct, then the purpose of the second is to compensate for the damage caused to the employer, including as a result of the misconduct. This follows from the sixth part of Article 248 of the Labor Code of the Russian Federation: “damage is compensated regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.” When bringing an employee to disciplinary and financial liability at the same time, the employer must comply with the requirements established by both Chapter 30 and Chapter 37 of the Labor Code of the Russian Federation.

In the same way, it is not bound by a ban on the use of such a measure of material influence on an employee for failure to perform or improper performance of labor duties, as deprivation of the bonus or reduction of its size . If a disciplinary sanction was applied to the employee (for example, a remark) and if, in accordance with the local regulatory act of the organization (for example, the provision on bonuses or the regulation on remuneration), this affects the amount of the bonus or its payment as a whole, then the deduction or payment of the bonus in a smaller amount cannot be considered as a second disciplinary sanction (see the commandment "Do not invent").

It is not a disciplinary sanction and suspension from work produced 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 (employee's) fault, did not undergo a mandatory periodic medical examination in accordance with the established procedure, and at the same time is obliged to remove him from work. The same actions can (in relation to the application of a disciplinary sanction) and are obliged (in relation to suspension) to be taken 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 remove the employee who appeared at work in a state of alcoholic, narcotic or toxic intoxication; however, the suspension will not prevent him from bringing the employee to disciplinary responsibility.

"Do not exceed"

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

The right to apply disciplinary sanctions to employees, the employer is endowed with the first part of Article 22 of the Labor Code of the Russian Federation. According to the fourth part of Article 20 of the Code, the rights and obligations of the employer in labor relations are carried out:

• an individual who is an employer;
• management bodies of a legal entity (organization) or persons authorized by them in the manner prescribed 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 responsibility is usually vested in sole executive body, that is, the head of the organization (general director, director, president, etc.). This right is enshrined either in the constituent documents or in other local regulations of the organization (for example, in the regulation on CEO, regulations on material and moral incentives for personnel), as well as in an employment contract with the head of the organization.

By order on the distribution of duties, the head of the organization may transfer the authority to bring employees to disciplinary responsibility to his deputy for personnel or another official .

It is extremely rare that the authority to apply disciplinary sanctions is transferred to the heads of structural divisions. As a rule, in resolving issues of bringing to disciplinary responsibility, line managers are given the main, but not decisive role - they are assigned the right to direct ideas about bringing subordinate employees to disciplinary responsibility, memorandums or memos containing proposals to bring the employee to disciplinary responsibility.

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

"Be Fair"

Part three of Article 135 of the earlier 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, the previous work and 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 clarifications 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 misconduct, the circumstances of its commission, the previous characteristics of the employee and his behavior should be taken into account when determining a measure of disciplinary responsibility 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 severity of the offense committed, the circumstances under which it is done, the previous work and the behavior of the employee "- that is, in fact, to return the previously withdrawn norm. In the explanatory note to the draft law, 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 responsibility. According to the conclusion of the Committee on 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 obligation of the employer to take into account a number of factors when applying disciplinary sanctions will lead to the fact that in practice the employee may be, for example, dismissed for minor violations of 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 the right. The draft law received 29 legislative (representative) and 50 higher opinions executive bodies state power subjects of the Russian Federation.

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

On the contrary, the Government of the Russian Federation considered the adoption of this bill inexpedient. As the main argument for such a position, the opinion is given that the establishment of a specific list of circumstances that must be taken into account when bringing an employee to disciplinary responsibility will narrow the range of issues investigated by the employer when determining the reasons that led to the commission of a disciplinary offense. As follows from the opinion of the Committee on Labor and Social Policy of the State Duma of the Russian Federation on the draft law, 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, it follows from the explanatory note that the concept of the draft law is not to establish an exhaustive list of circumstances to be taken into account, but in the need to legally oblige the employer to make more objective decisions when bringing employees to disciplinary responsibility. When finalizing the draft law for the second reading, amendments may be made to it in order to expand the specified list or make it open.

In the official response of the Government of the Russian Federation, it is rightly noted that before applying a disciplinary sanction, the employer must request an explanation from the employee in writing. Indeed, having received the employee's explanation, 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 obligation of the employer 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 indicated that the severity of the misconduct committed, the circumstances under which it was committed, as well as the previous work and behavior of the employee, as well as other circumstances of the case, should be taken into account by state labor inspectorates or labor dispute authorities when appealing against the imposed disciplinary sanction by the employee. It seems that this argument cannot be considered justified either, since these bodies in their activities should 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 on the inconsistency of the penalty applied by the employer.

In view of 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 additions 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 under which it was committed, the previous work and behavior of the employee, the employer should remember about justice. And also that the court will still check whether the employer took into account the indicated circumstances, and if not, it will strongly recommend that the employer reconsider its decision, especially if it resulted in dismissal (itself to replace one disciplinary sanction with another, as well as dismissal by another disciplinary measure, the court does not has the right, since the imposition of 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 Certain Issues of Application by the Courts of the Russian Federation of Legislation in Resolving Labor Disputes” ).

"Finish by the rules"

The decision of the employer to apply a disciplinary sanction to the employee must be expressed in order (instruction) of the employer . Within three working (and 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 an appropriate basis, then the order (instruction) is drawn up in accordance with the unified form No. T-8 - on the termination of the employment contract with the employee. In this case, in the lines "grounds for dismissal" a reference is made to the clause and article of the Labor Code of the Russian Federation, and in the line "Basic" the documents are listed that document the fact of detection of a disciplinary offense (act, explanatory note, etc.).

Since the unified form of a general order (instruction) on the application of a disciplinary sanction in the form of a remark or reprimand on federal level not approved, 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 a disciplinary offense;
• the type of penalty applied;
• documents confirming the commission of a disciplinary offense;
• documents containing explanations of the employee.

In the order (instruction) on the application of a disciplinary sanction, you can also provide a summary of the employee's explanations.

One of the essential points in the execution of this document is the endorsement of the project by the head of the legal service or the lawyer of the organization. The sighting should be preceded by a check of the order (instruction) for compliance with the legislation of the applied disciplinary sanction, compliance with the deadlines for bringing to disciplinary responsibility. The head of the legal service or the lawyer of the organization must familiarize himself with all the materials relating to the disciplinary offense, as well as the explanations of the employee for whom the order (instruction) on the application of a disciplinary sanction is being prepared. An approximate form of an order to apply a disciplinary sanction is given in the "PAPERS" section (p. 55).

"Make no mistake"

When counting or summing up disciplinary sanctions, one cannot be mistaken.

Previously, the attention of employers was drawn to the fact that neither the deprivation of bonuses and the legitimate reduction of wages, nor censures and other inventions are disciplinary sanctions. Therefore, their summation is illegal and unreasonable. It is impossible to deprive the bonus (produced, of course, legally) as the first penalty and, when an employee commits one disciplinary offense during the year, apply paragraph 5 of Article 81 of the Labor Code of the Russian Federation.

Another thing to pay 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 an engineer in the quality control department 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, expressed in the failure to provide the employees of the department with OKC stamps. Can the 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 performance of the labor function within the framework of a specific and specific position, but on ensuring the diligence and conscientious attitude of the employee to work in general. Transfer to another position, to another job with the same employer does not entail the cancellation of a 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 a disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered without disciplinary action . Therefore, before determining whether another misconduct gives grounds to believe that there is a repeated failure to perform duties, one should look at the orders for personnel (personnel) on the application of disciplinary sanctions, an extract from the order (order) on the application of a disciplinary sanction in the employee’s personal file, “sheet Penalties” or another record of penalties to determine whether the previously imposed disciplinary sanction has not become invalid.

A disciplinary sanction can also be removed from an employee. According to the second part 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 their own initiative. The employer, based on his own observations of the employee, may issue an order (instruction) to lift a disciplinary sanction for the employee's impeccable behavior, high performance and other positive characteristics. As a rule, the personnel department is entrusted with monitoring the behavior of an employee after a disciplinary sanction has been imposed on him. He will in this case act as 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, proved himself on the positive side, increased the quality and performance of his work. Why shouldn't he himself turn to the employer with a request to take into account the merits to the organization and “forget” about the previously committed misconduct? He must state his request in writing in the form of an application addressed to the head of the organization or the person whose administrative act imposed a disciplinary sanction;

3) at the request of the immediate supervisor of the employee. The direct supervisor's initiative is expressed in a document entitled "petition" or "representation";

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

A petition for the removal of a disciplinary sanction from 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 considered by the employer.

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

The employer must issue an appropriate order (instruction) on the removal of a disciplinary sanction, on the basis of which the relevant information is entered into the personnel records documents (an exemplary order (instruction) on the removal of a disciplinary sanction is given in the "PAPERS" section (p. 56).

"Do not 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 considering individual labor disputes (labor dispute commission and court). Any restriction of the employee's right to appeal through local regulations, individual acts (employee's receipts that he will not complain, etc.) is void.

It has already been noted earlier that, for example, a court considering a labor dispute on the unlawfulness of dismissal for committing a disciplinary offense cannot replace dismissal with another type of penalty. However, having recognized the decision of the employer as unlawful, he thereby limits the latter to the terms for applying another disciplinary sanction. So, if a disciplinary sanction was applied by a person who was not authorized to bring employees of the organization to disciplinary responsibility, and as a result of the consideration of the case in court or in the commission on labor disputes, the inspection of the state labor inspectorate, it will be canceled, then the employer risks missing the deadlines allotted by the Labor Code Russian Federation for the application of disciplinary sanctions.

In order for the disciplinary procedure to be manageable at the employer level, the latter should not prohibit employees from appealing against the actions of their immediate supervisors. Such a ban in relation to jurisdictional bodies (court, federal labor inspectorate) is illegal, and in relation to higher officials of the organization, it only limits the ability to resolve the dispute without going beyond the organization.

From the history of disciplinary responsibility

Institute disciplinary responsibility in pre-revolutionary Russia included various measures disciplinary penalties: “remarks more or less severe”, “reprimands with inclusion in the service record” and “reprimands without inclusion in the service record”, “deduction from salary”, “deduction from the time of service of various periods”, “moving from a higher position to a lower one” , "removal from office" and "dismissal from office". It should be noted that the vast majority of them were associated with criminal liability, as provided for in relation to persons in the public service. As for free-hired workers, for marriage, failure to meet production standards, lateness and other violations, the employer established penalties on his own, of which the smallest was a deduction from earnings, and the most common was dismissal.

Until 1863 (the reforms of Alexander II), corporal punishment was applied not only to serfs, but also to hired workers, apprentices, and apprentices. Their rights in Russian factories and factories were not regulated by any acts until 1886 (until the introduction of the decree “On Supervision of Factory Industry Establishments and on Mutual Relations between Manufacturers and Workers”). However, cases of punishment of workers with whips and rods took place until the end of 1905. It was only with the first Soviet decrees that corporal punishment was finally abolished, and education by persuasion was proclaimed as the main method of dealing with violators of discipline. Over time, the Soviet state revised 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, a 7-day working week and the prohibition of unauthorized departure of workers and employees from enterprises and institutions. This act established judicial (!) liability: “for absenteeism without a valid reason, workers and employees of state, cooperative and public enterprises and institutions are brought to justice and, by the verdict of the people's court, are punished with corrective labor labor at the place of work for up to 6 months with deduction from wages fees up to 25%. The people's judges, who considered such cases alone (without the participation of people's assessors), were instructed to resolve them within no more than 5 days and to carry out the sentences in these cases immediately. In addition, directors of enterprises and heads of institutions were also brought to justice for evading prosecution of persons guilty of absenteeism without good reason. By the way, being late for more than 20 minutes was also equated to absenteeism. Judicial liability in the form of corrective 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).

The transfer to a lower-paid job "lasted" among the measures of disciplinary responsibility 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 in line with the norms of the Convention. Transfer to a lower-paid job as a disciplinary sanction, that is, in order to maintain labor discipline, meets the criteria for forced labor set forth in the said Convention. In the new Labor Code of the Russian Federation, there is not a word about transfer as a measure of disciplinary responsibility. Moreover, Article 4 of the Code directly prohibits forced labor, that is, the performance of work under the threat of any punishment (violent influence), including in order to maintain labor discipline. It should be noted here that, in accordance with separate charters and regulations on discipline, transfer to another, lower-paid job or another, lower position for up to 3 months is still possible, but only with the consent of the employee.

1 -1

According to the conclusion of an employment contract, the employee not only acquires a certain list of rights, but also bears a number of obligations, for example, to conscientiously fulfill his labor duties assigned to him by the employment contract; observe the rules of internal labor regulations; observe labor discipline, etc. Failure to perform or improper performance by an employee through his fault of the labor duties assigned to him is a disciplinary offense (), for which a disciplinary sanction is imposed. Consider their types and features of application.

For the commission of a disciplinary offense, the employer has the right to impose a disciplinary sanction. However, it is necessary to take into account the gravity of the offense committed and the circumstances under which it was committed. Therefore, you should carefully consider the procedure for imposing a disciplinary sanction, because. the consequence of inaccurate or incorrect execution of documents justifying the application of a disciplinary sanction, as a rule, is the emergence of a labor dispute.

In cases where the employee sees a violation of his labor rights in the actions of the employer, he has the right to apply to the state labor inspectorate without any time limit. And for the resolution of individual labor disputes - to the commission on labor disputes and (or) to the court within the time limits established by law (Articles 386 and 392 of the Labor Code of the Russian Federation).

The article provides for a simple procedure for applying disciplinary sanctions for such violations. At the same time, not all employers manage to avoid mistakes and violations in the procedure established by law. Moreover, in most cases, employers do not take into account the fact that the main criteria for the legality of imposing a disciplinary sanction are the sequence of actions of the employer and the availability in full of all documents confirming the fact of a disciplinary act, as well as indicating the legitimacy of the employer's actions when applying this sanction.

Types of disciplinary sanctions and features of application

The current legislation, namely, regulates what for committing a disciplinary offense, i.e. non-performance or improper performance by the employee due to his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

1) remark;

2) reprimand;

3) dismissal on appropriate grounds.

In accordance with Art. 192 of the Labor Code of the Russian Federation, this list is not exhaustive, because Federal laws, charters and regulations on discipline for certain categories of employees may provide for other disciplinary sanctions.

For example, Federal Law No. 79-FZ of July 27, 2004 "On the State Civil Service of the Russian Federation" for committing a disciplinary offense, that is, for failure to perform or improper performance by a civil servant through his fault of his official duties, may be issued a warning of incomplete official compliance.

The legislation clearly defines that it is not allowed to apply disciplinary sanctions that are not provided for by federal laws, charters and regulations on discipline. From which it follows that there are two types of disciplinary responsibility: general, provided for by the Labor Code of the Russian Federation, and special, which employees bear in accordance with the charters and regulations on discipline.

Therefore, organizations cannot establish any additional disciplinary sanctions on their own (the provided list is exhaustive), however, in practice, referring to Art. 192 of the Labor Code of the Russian Federation, employees are often given a disciplinary sanction: "severe reprimand" or "reprimand with a warning", although such categories of the Labor Code of the Russian Federation are not provided, as well as the application of various fines, deprivation of allowances and surcharges. Similarly, it will be illegal, for example, to transfer an employee as a disciplinary sanction to a lower-paid position.

For each disciplinary offense, only one disciplinary sanction may be applied (Article 193 of the Labor Code of the Russian Federation).

In addition, when imposing a disciplinary sanction, the gravity of the offense committed and the circumstances under which it was committed must be taken into account. However, as practice shows, the measures of disciplinary action applied by employers do not always objectively correlate with the committed act. As a result, when resolving labor disputes, the court recognizes the groundlessness of the decision taken by the employer.

Keep in mind that when considering cases, the courts are guided by the fact that the employer needs to provide evidence indicating not only that the employee committed a disciplinary offense, but also that the severity of this offense and the circumstances in which it was committed were taken into account when imposing a penalty. committed (part 5 of article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee and his attitude to work.

If, when considering the reinstatement case, the court comes to the conclusion that the misconduct really took place, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied (paragraph 53 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application courts of the Russian Federation of the Labor Code of the Russian Federation", hereinafter referred to as Resolution No. 2).

Arbitrage practice.Thus, the court, resolving the dispute on reinstatement, came to the conclusion that the measure of disciplinary action applied to the plaintiff does not correspond to the severity of the misconduct, which is assumed by the defendant, is unfair and unreasonable. At the same time, the court considered that the defendant did not provide evidence that the disciplinary sanction in the form of dismissal was commensurate with the gravity of the offense committed, in the defendant's opinion. By the decision of the court, the plaintiff was reinstated at work, the average earnings for the time of forced absenteeism and the amount of compensation for non-pecuniary damage were recovered from the defendant in her favor (decision of the Dzerzhinsky District Court of Perm dated January 22, 2014 in case No. 2-133-14).

When applying a disciplinary sanction by the employer, the level of guilt of the employee should also be taken into account, including: whether they suffered any harm, what external factors prompted the employee to a certain act, whether there was intent in his actions. It is equally important to take into account general characteristics employee: experience, achievements, personal and business qualities, professionalism, state of health.

In any case, the decision to impose a disciplinary sanction, provided for by the Labor Code of the Russian Federation, is made by the employer, who has the right to do so specified by law, and not the obligation. Therefore, in some cases it is quite appropriate to confine ourselves to a verbal warning, a personal conversation, etc.

It should also be understood that disciplinary sanctions may be imposed by managers and other officials vested with appropriate powers on the basis of documents (the charter of the organization, local regulations, etc.).

The special liability provided for by the statutes and statutes on discipline applies to all workers who are subject to them. At the same time, direct employers themselves do not have the right to make any additions and changes to them. The difference between these regulations is the presence of more stringent penalties for certain categories of employees. As an example, we can cite Decree of the President of the Russian Federation of November 10, 2007 N 1495 "On approval of the general military charters of the Armed Forces of the Russian Federation", namely, the Charter of the internal service, the Disciplinary Charter and the Charter of the garrison and guard services of the Armed Forces of the Russian Federation.

The sequence of actions when applying disciplinary sanctions

The procedure for applying disciplinary sanctions is regulated by Art. 193 of the Labor Code of the Russian Federation, which states that before applying a disciplinary sanction, the employer must require a written explanation from the employee. But a written explanation, as a rule, is provided upon the fact of any circumstances, therefore, despite the fact that the Labor Code of the Russian Federation does not contain a requirement to document the fact of a violation, this must be done, because. from the day the misconduct is discovered, the period allotted to the employer for the application of a disciplinary sanction begins to run.

The fact of a disciplinary offense of an employee can be recorded by drawing up an official or memorandum of the official to whom the employee is subordinate, regardless of whether this person is vested with the right to impose penalties or not. Of course, in the best case, it is better to familiarize the employee with it under a personal signature, thereby further reinforcing the legality of their actions.

Also, the fact of a disciplinary offense can be recorded in the form:

Act (absence from the workplace, refusal to pass medical examination etc.);

Conclusions of the commission (based on the results of an internal investigation).

If an employee is requested to provide a written explanation orally, then a situation may arise when the employee begins to deny that the employer has fulfilled his obligation under Art. 193 of the Labor Code of the Russian Federation, and indeed requested a written explanation. Therefore, it is recommended to demand an explanation of the circumstances of the violation committed by the employee in writing. To provide a written explanation to the employee, the legislation of the Russian Federation provides two working days.

Some employers make the mistake of issuing a disciplinary order on the day a written explanation is requested, which should not be done, because. this action of the employer can be challenged by the employee in court.

The Labor Code of the Russian Federation does not provide for any special requirements for an employee’s explanation, with the exception of the written form and deadlines for submission, therefore it can be drawn up arbitrarily in the form of an explanatory note addressed to the employer.

Please note that this is a right and not an obligation of the employee. The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. Rather, such a rule is provided in order to give him the opportunity to state his own view of the event, to explain the reasons for the disciplinary offense, to bring reasoned facts in his defense. This is one of the guarantees that the imposition of a penalty will be lawful.

If, after two working days, an explanation is not provided by the employee, then with the firm intention to apply a disciplinary sanction to the employee, an act should be drawn up on the employee’s refusal to give an explanation, with which the employee must be familiarized with a personal signature (in case of refusal to familiarize, a corresponding note is made in this same document).

Paragraph 23 of Resolution No. 2 clarifies that when considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

Therefore, when imposing a disciplinary sanction, it is necessary to check the following circumstances:

Whether a disciplinary offense is the basis for imposing a disciplinary sanction;

Are there really no good reasons for non-performance or improper performance of labor duties;

Are the guilty illegal actions (inaction) of the employee related to the performance of his labor duties;

Are certain labor duties provided for by any local regulatory act or other document and is the employee familiarized with it under a personal signature;

Is the measure of disciplinary sanction applied to the employee provided for by the legislation of the Russian Federation;

Whether the terms and procedure for imposing a disciplinary sanction were observed;

Does the official signing the order (instruction) on bringing to disciplinary responsibility have the right to apply a disciplinary sanction against the employee;

Whether the previous behavior of the employee, his attitude to work is taken into account.

Only if all of the above conditions are met, the application of a disciplinary sanction can be lawful.

Terms of application of disciplinary action

An order (instruction) of the employer is issued on the application of a disciplinary sanction, which contains information about a specific disciplinary offense of the employee. The employee must be familiarized with this order (instruction) under a personal signature. Refusal to sign should be recorded in the relevant act.

According to Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction may be applied to an employee no later than one month from the date of his discovery. The day when a misconduct is discovered, from which the term for applying a disciplinary sanction is calculated, is the day when the immediate supervisor of the employee became aware of the committed misconduct, which is confirmed by the relevant document (service or memorandum, act, conclusion of the commission, etc.).

The specified period for the application of a disciplinary sanction does not include the period when the employee was absent from work due to illness or was on vacation (regular, educational, paid or without pay - clause 34 of Resolution No. 2), as well as the time required for taking into account the opinion of the representative body of employees. Here we are talking about the reasoned opinion of the representative body of employees when terminating the employment contract. Absence from work for other reasons does not interrupt the course of the specified period.

With a long absenteeism, when it is not known for certain the reason for the absence of the employee and he may not know about the imposition of a penalty, it is advisable to start calculating the monthly period from the last day of absenteeism, from the day preceding the appearance of the employee at work.

In any case, the application of a disciplinary sanction after six months from the date of the misconduct is not allowed, and based on the results of an audit, audit of financial and economic activities or an audit - after two years from the date of its commission (Article 193 of the Labor Code of the Russian Federation). The above time limits do not include the time of criminal proceedings.

The application of a new disciplinary sanction to an employee, including dismissal, is also permissible if the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction. At the same time, it must be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the misconduct, he submitted 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 term of notice of dismissal (paragraph 33 of Resolution No. 2).

In practice, employers often apply disciplinary sanctions to employees when the period for their application has already expired, thereby allowing a violation of the legislation of the Russian Federation, which leads to the recognition of a disciplinary sanction as illegal.

Arbitrage practice.The employee filed a lawsuit against the employer to declare illegal the order to impose a disciplinary sanction on her in the form of a reprimand and cancel it.

The court came to the conclusion that the employee was brought to disciplinary responsibility in violation of the monthly period established by law. Evidence of the suspension of this period on the grounds indicatedPart 3 Art. 193The Labor Code of the Russian Federation was not included in the case file and they were not presented to the court. The court reacted critically to the arguments of the defendant that he had observed the six-month period for holding the plaintiff liable, since the provisionsPart 4 Art. 193The Labor Code of the Russian Federation is applied in cases where a disciplinary offense could not be detected within a month established by Part 3 of Art. 193 of the Labor Code of the Russian Federation to bring the employee to disciplinary responsibility.

In this regard, the court decided to declare illegal and cancel the order to impose a disciplinary sanction on the employee in the form of a reprimand, to recover in favor of the employee cash in compensation for non-pecuniary damage (decision of the Lermontov City Court of the Stavropol Territory of Lermontov dated February 9, 2012 in case No. 2-19/2012).

Please note: information about penalties is not entered in the work book, except in cases where dismissal is a disciplinary sanction (Article 66 of the Labor Code of the Russian Federation).

The concept of disciplinary offense

We think it would not be superfluous to explain what a disciplinary offense is, since practice shows that employers often interpret it erroneously. So, a disciplinary offense is a guilty unlawful non-performance or improper performance by an employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, internal labor regulations, job descriptions, regulations, provisions, technical rules, other local regulations, orders, other organizational and administrative documents of the employer, etc.).

Only such non-fulfillment or improper fulfillment of labor duties is considered guilty when the employee's act is intentional or negligent. Failure to perform or improper performance of duties for reasons beyond the control of the employee (for example, due to lack of necessary materials, disability, insufficient qualifications) cannot be considered as a disciplinary offense. For example, the legislation of the Russian Federation does not provide for the right of the employer to prematurely recall him from vacation without the consent of the employee, therefore the employee’s refusal (regardless of the reason) to comply with the employer’s order to return to work before the end of the vacation cannot be considered a violation of labor discipline (clause 37 of Resolution No. 2) .

Only such unlawful actions (inaction) of an employee that are directly related to the performance of his labor duties can be recognized as a disciplinary offense. So, the employee's refusal to fulfill a public assignment or his violation of the rules of conduct in public places cannot be considered a disciplinary offense.

The violations of labor discipline that are disciplinary offenses, paragraph 35 of Resolution No. 2, include, among other things:

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

At the same time, it must be borne in mind that if the specific workplace of this employee is not specified in the employment contract concluded with the employee, or the local regulatory act of the employer, then in the event of a dispute over the question of where the employee should be in the performance of his labor duties, should proceed from the fact that by virtue of h. 6 Article. 209 of the Labor Code of the Russian Federation, a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer;

Arbitrage practice.The director of the institution explained that the employee was not at the workplace, which is his office, at the time specified in the dismissal order.

Taking into account the provisions of the employee's job description submitted to the court by the defendant, the court accepted the plaintiff's explanation that the office was not his only workplace. The absence for some time of an employee in the workplace, which is not the only one for him, is not absenteeism. The possibility of an employee being in other premises of the employing organization, as well as outside the territory of the institution, may be due to his official duties.

Thus, the court concluded that it was necessary to recognize the dismissal order as illegal and satisfy the employee's demand for reinstatement (decision of the Leninsky District Court of Kostroma dated May 26, 2010 in case No. 2-568/2010).

b) refusal of an employee without good reason to perform labor duties in connection with a change in the established procedure for labor standards (Article 162 of the Labor Code of the Russian Federation), t.to. by virtue of an employment contract, the employee is obliged to perform the labor function determined by this contract, to comply with the internal labor regulations in force in the organization (Article 56 of the Labor Code of the Russian Federation).

At the same time, it should be borne in mind that the refusal to continue work in connection with a change in the terms of the employment contract determined by the parties is not a violation of labor discipline, but serves as the basis for terminating the employment contract under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for by Art. 74 of the Labor Code of the Russian Federation;

Arbitrage practice.For refusing to work on a shift schedule with other groups of children and in another building, after applying disciplinary sanctions in the form of a remark and a reprimand, the educator of the MDOU was dismissed from work on the basis provided forp. 5 h. 1 art. 81TK RF.

The court concluded that disciplinary sanctions, including dismissal from work, were illegal and should be cancelled. By a court decision, the educator's claim against the MDOU for the abolition of a disciplinary sanction, reinstatement, payment for forced absenteeism and compensation for non-pecuniary damage was satisfied in full (decision of the Ust-Kulomsky District Court of the Republic of Komi dated December 2, 2011 in case N 2-467 / 2011).

c) refusal or evasion, without good reason, of a medical examination of workers in certain professions, as well as refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work.

Also, a violation of labor discipline should be considered the refusal of an employee, without good reason, to conclude an agreement on full liability for the safety of material assets, if the fulfillment of duties for servicing material assets constitutes for the employee his main labor function, which is agreed upon when hiring, and in accordance with by the current legislation, an agreement on full liability can be concluded with him (paragraph 36 of Resolution No. 2).

Please note that the application of a disciplinary sanction can be recognized as legal in cases of non-performance or improper performance by an employee of labor duties only when he was familiarized with each of the local acts establishing the relevant duties under his personal signature, t.to. This requirement is provided for in Art. 22 of the Labor Code of the Russian Federation.

Therefore, the courts often cancel the disciplinary sanctions of employers due to the lack of familiarization of the employee with the document that he violated.

Arbitrage practice.During the meeting, the court found that when applying for a job, the employee signed only an employment contract and an agreement on full liability. The job description was approved only in 2012, and a disciplinary sanction was imposed for disciplinary offenses committed by an employee in 2011.

The court concluded that when applying a disciplinary sanction in the form of a reprimand, the employer could not be guided by the job description, since the employee was not familiar with it when concluding the employment contract, and his job duties were not established. Referring toletterRostrud dated 09.08.2007 N 3042-6-0, the court indicated that the job description is not just a formal document, but an act that defines the tasks, qualification requirements, functions, rights, duties and responsibilities of the employee.

By a court decision, bringing an employee to disciplinary liability was declared illegal (definitionSamara Regional Court dated July 30, 2012 in case No. 33-6996).

Dismissal as a measure of disciplinary action

The most severe, extreme measure of disciplinary action is dismissal. So, in cases of application of a disciplinary sanction in the form of dismissal by employees, the actions of the employer are often disputed if:

There were good reasons for being absent from work during working hours;

The employee is not familiarized under a personal signature with the order of dismissal or other local acts employer;

The procedure provided for in Art. 193 of the Labor Code of the Russian Federation, including the violation of the terms for bringing an employee to disciplinary responsibility;

The employee was fired for a violation for which he had already received a disciplinary sanction (note that only one disciplinary sanction can be applied for each disciplinary offense, i.e. you cannot simultaneously reprimand and dismiss the employee for one violation).

For example, let's take a closer look at one of the grounds for dismissal of employees related to disciplinary sanctions. So, upon dismissal for repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation), the following conditions must be met:

The employee, without good reason, allowed non-performance or improper performance of his labor duties;

For non-fulfillment of labor duties earlier (no later than the calendar year) a disciplinary sanction has already taken place (an order has been issued);

At the time of repeated non-fulfillment by him without good reason of labor duties, the previous disciplinary sanction was not removed or extinguished;

The employer took into account the previous behavior of the employee, his previous work, attitude to work, the circumstances and consequences of the misconduct.

Employers often make the mistake of believing that a previous disciplinary sanction alone is sufficient for the subsequent dismissal of an employee.

Arbitrage practice.The court found that the employee was dismissed from his position forp. 5 h. 1 art. 81Labor Code of the Russian Federation for repeated failure to fulfill his labor duties without a good reason. At the same time, the employer does not indicate in the order for which particular violation of labor duties the disciplinary sanction in the form of dismissal was applied (which labor duties were again not fulfilled). The named order contains only references to previously applied disciplinary sanctions.

As a result, the court concluded that the employee was disciplined in the form of dismissal for the same actions for which he had previously been disciplined. And since the employer did not prove what new disciplinary offense (committed after a disciplinary sanction was applied to the employee) served as the basis for the dismissal of the plaintiff, the employer had no grounds for terminating the employment contract with him onp. 5 h. 1 art. 81TK RF.

Employer's argument about his right to dismiss an employee forp. 5 h. 1 art. 81The Labor Code of the Russian Federation, in the presence of two disciplinary sanctions, without waiting for him to commit a new disciplinary offense, is erroneous, based on an incorrect interpretation of the norm of paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. According to the meaning of this norm, for the dismissal of an employee on this basis, there must be a reason in the form of a disciplinary offense committed by the employee after the application of a disciplinary sanction to him.

In the present case, the employer dismissed the employee for the same offenses for which disciplinary sanctions had already been applied to him in the form of comments and reprimands. Under such circumstances, the dismissal of an employee on this basis could not be recognized as legal, and he was subject to reinstatement (decision of the Meshchansky District Court of Moscow dated January 16, 2013 in case No. 2-512/2013).

Thus, if mistakes made by the employer are identified, the state labor inspectorate can bring the employer to administrative responsibility, and by decision of the court, the employee can be reinstated at work, and the average earnings for the period of forced absenteeism, as well as the amount compensation for moral damage. Therefore, when deciding to impose a disciplinary sanction on an employee, all the conditions provided for by law should be observed and the established procedure should be strictly followed.

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