Which of the following is a disciplinary sanction? Sequence of actions when using punishment in the form of dismissal

If an employee does not fulfill his duties or performs them improperly, his immediate superior can bring him to disciplinary liability by imposing a penalty. We will talk further about what exact penalty for what violation of labor discipline can be applied to an employee in 2019 under the Labor Code of the Russian Federation.

Types of labor penalties

Legislatively, the types of disciplinary sanctions applied by an employer to an employee are enshrined in Article 192 of the Labor Code of the Russian Federation.

They are divided into two types:

1. General (named in the Labor Code of the Russian Federation);
2. Special (listed in special regulations).

The table will help you understand in detail what types of disciplinary sanctions are provided for by the Labor Code of the Russian Federation, and what types are provided for by other acts.

* The charter should be understood as a normative act of federal significance approved by law. This point deserves attention, since the charter also refers to local acts of organizations. So, if the latter contradict federal acts in terms of imposing penalties, their provisions cannot be applied.

Types and procedure for imposing penalties under the Labor Code of the Russian Federation

If an employee’s work activity is not regulated by special acts (for example, the Federal Law “On the Prosecutor’s Office of the Russian Federation”, the Decree of the Government of the Russian Federation “Regulations on the discipline of railway transport workers of the Russian Federation”, etc.), then, according to the Labor Code of the Russian Federation, only the following types of punishments can be applied to him.

Comment

The imposition of a disciplinary sanction in the form of a reprimand is the most “popular” punishment applied by the employer. The legislation does not clearly define for what offense a certain penalty is imposed. The choice is at the discretion of the manager.

Most often, a reprimand is imposed for a violation of mild severity, that is, which:

1. is essentially a minor violation of labor discipline;
2. caused minor damage;
3. done for the first time.

An example of such an offense would be being late for work.

The decision to reprimand an employee must be documented. However, before this, the employer must demand an explanation from the violator. The latter must provide it within 2 days from the date of presentation of the request by the employer. Below is a sample order of disciplinary action in the form of a remark.

LLC "Neftetransservis"
ORDER No. 1100/64-3
Moscow December 15, 2018
About disciplinary action

Due to the absence of chief engineer A.P. Voikov from the workplace. December 14, 2018 from 09:00 to 10:00 without good reason.

I ORDER:

Announce a remark to the chief engineer Anatoly Vladimirovich Voikov.

Base:

• memo from the head of the department dated December 14, 2018;
• explanatory note from chief engineer Anatoly Vladimirovich Voikov dated December 14, 2018;
• certificate of absence from work dated December 14, 2018.

Head of the organization: Brazhsky I.G.

Head of department: Davydov O.I.

Head of Human Resources: Gerasimenko A.Yu.

The employee is familiar with the order: Voikov A.V.

The consequences of a reprimand for an employee are hardly noticeable: information about the reprimand is not entered in the work book or personal card, and such punishment in itself does not entail any serious negative consequences. However, at the same time, it serves as a warning: if another violation is committed during the year, the employee may face a reprimand or even dismissal.

note, that there is no oral remark as a separate penalty according to the Labor Code of the Russian Federation. There is only a “remark”, which is formalized by an appropriate order. According to Article 193 of the Labor Code of the Russian Federation, the order (instruction) of the employer to apply a disciplinary sanction is announced to the employee against signature. This means that the remark has its formal expression in the form of an official document, so it cannot be considered “oral”.

Rebuke

The imposition of a disciplinary sanction in the form of a reprimand is an intermediate measure of punishment, which is more “strict” in nature than a reprimand, but more “soft” in comparison with dismissal. If a remark is just a warning, then a reprimand is the “last” before dismissal.

It is declared in cases where:

1. The employee had already been disciplined for a year.
2. A violation of moderate severity was committed.
3. The offense resulted in material damage, but not on a large scale.

To issue a reprimand, it is not necessary that the employee already has one penalty on his record. It can be applied even if the employee has never been subject to disciplinary action.

An example of an offense for which a reprimand may be given is truancy. A sample order for a disciplinary sanction in the form of dismissal for absenteeism can be seen below (it is also a sample order for a reprimand). Although, at the same time, absenteeism is a sufficient reason for dismissing an employee, in practice such a measure is rarely used.

A reprimand is not much different from a reprimand: information about it is also not included in the labor report and, as such, it in itself bears consequences. However, for example, if you want to appeal the dismissal as a type of disciplinary punishment, and you have been reprimanded for a year before the dismissal, the court will take the position of the employer and leave its decision in force. At the same time, as judicial practice shows, if there are comments (rather than reprimands), the chances of challenging the dismissal are significantly higher. Also, a note about a reprimand is entered into the employee’s personal card, but in case of a reprimand, not.

Before issuing a reprimand, the employee is also required to provide an explanatory note, which he must provide within two days. Only after this the manager can document the penalty. A sample order for disciplinary action in the form of a reprimand is provided below.

LLC "Stroychermet"
ORDER No. 1800/65-2
Moscow December 14, 2019
About disciplinary action

Due to the absence from the workplace without good reason of the chief engineer Ignat Vasilievich Budko during the working day on December 13, 2019 from 9-00 to 18-00

I ORDER:

Reprimand chief engineer Budko Ignat Vasilievich.

Base:

• memo from the head of the department dated December 13, 2019;
• explanatory note from chief engineer Budko Ignat Vasilievich dated December 13, 2019;
• certificate of absence from work dated December 13, 2019;
• working hours schedule for 2019.

Head of the organization: Gromov I.G.

Head of department: Lupko O.I.

Head of Human Resources: Tarasenko A.Yu.

The employee is familiar with the order: Budko I.V.

Dismissal

Disciplinary action in the form of dismissal is an extreme measure of punishment for an employee.

It applies in the following cases:

1. Being disciplined twice or more in a year.
2. Absenteeism.
   Absence from work without good reason for more than 4 hours in a row is already considered absenteeism (if the employee has been absent all day, this is, of course, also absenteeism). The following are not considered absenteeism:
   • Absence by order of the employer on a day off or during vacation;
   • Absenteeism, in the case when the schedule provides for exceeding the normal working hours in accordance with Article 91 of the Labor Code of the Russian Federation;
   • Absenteeism in case of changes in the shift schedule, if the employee was not familiarized with it under signature;
   • Visiting the court on a subpoena, the police, the military registration and enlistment office, as well as detention, arrest or taking into custody;
   • Visit to the hospital to donate blood if the employee is a donor.
3. Appearing at work drunk, or under the influence of drugs or toxic substances.
   Even if the employee did not reach his workplace and did not start work, but at least entered the territory of the institution (for example, passed a checkpoint) during working hours in this form, this is already sufficient grounds for dismissing him.
4. Disclosure of secrets protected by law, which became known to the employee due to the performance of his job functions.
   This category of “secrets” also includes personal data of citizens.
5. Theft, embezzlement, intentional destruction or damage to property at work, if the fact of commission is established by a sentence or a judge’s order.
   The theft of not only the employer’s property, but also that of other employees, as well as third parties, is taken into account. These actions must be proven by a court decision.
6. Violation of labor protection requirements that resulted in serious consequences or created a threat of their occurrence, if this is proven by the commission/occupational safety commissioner.
7. Loss of employer confidence for those who work with money or goods (cashiers, salespeople, collectors, storekeepers).
   In this case, loss of trust occurs only as a result of the employee’s physical actions that violate the rules for handling the listed values. They can be counting, weighing, facts of shortage, use for personal purposes. They are established through inventory, test purchases, and inspections. The subjective opinion of the employer, without the employee admitting any violations and proven facts, cannot serve as a basis for dismissal.
8. Loss of trust of the employer as a result of failure to take action to resolve the conflict, if the employee is a party to it, provision of false information of a property nature about himself and his family members, if the need to provide it is provided for by federal legislation.
9. An immoral act committed by an employee performing educational functions.
   Only if it was committed at the place of work. Such an offense may include appearing drunk, fighting, or using obscene language. These actions, committed in everyday life or even in society, but not during the performance of one’s work duties, are not grounds for dismissing a teacher.
10. Making an unreasonable decision that caused damage to the organization’s property by the manager, his deputy, or accountant.
    That is, on this basis, only employees in management positions who have the right to make appropriate decisions and dispose of material assets can be dismissed. A decision that was made:
    • on an emotional level without taking into account objective factors;
    • based on incomplete or incorrect data;
    • when certain information is ignored;
    • in case of erroneous interpretation of information;
    • without proper preparation: consultations, analytical activities, data collection, calculations and research.
11. Gross violation by the manager or his deputy of his labor duties.
    Even a one-time violation can serve as grounds for dismissal, and it is considered gross if it could cause harm to the health of other employees or damage to the organization’s property.
12. Repeated violation of the charter of a general education organization within 1 year.
    Applies only to teachers.
13. Disqualification for 6 months or more.
    For athletes who have entered into an employment agreement (contract).
14. Single violation of anti-doping rules.
    For athletes carrying out their activities under an employment agreement (contract).

Example No. 1. Petrov S.G. I was systematically late for work by 30-40 minutes. After another such delay, the director of the enterprise called him to his office and announced that he was fired for repeated violations of labor discipline. Petrov S.G. wrote an explanatory note, signed the order to impose a disciplinary sanction, but went to court. He considered the director’s actions illegal, since he had not previously been subject to disciplinary action. The court declared the order illegal, since dismissal as a disciplinary sanction can be applied to an employee in the event of repeated (2 or more) violations of labor duties. Moreover, such violations must be documented, namely by an order from the manager to impose a disciplinary sanction. In this case, even though Petrov was late for work, he was never brought to justice in the prescribed manner, which means there were no grounds for dismissal.

Example No. 2. Petrov S.G. I was regularly 30-40 minutes late for work, but the last time I was 4 hours 15 minutes late because I was picking up my wife from the plane (the flight was delayed). Upon arrival at work, he was called to the directorate, where he was informed of his dismissal due to absenteeism. The employee wrote an explanatory note indicating the reason for absenteeism, but management considered it disrespectful. In this case, the manager’s actions are legal and justified, since absence from work for 4 hours or more is considered absenteeism. And in case of absenteeism, you can dismiss an employee, even if disciplinary sanctions have never been imposed on him before.

Dismissal as a punishment for labor misconduct is also formalized by order of the employer after receiving written explanations from the perpetrator no later than 2 days after the request was made. In this case, one order is issued, not two (imposition of penalties and dismissal - in one document). If the employee refuses to draw up an explanatory note, a report is drawn up with the appropriate note, where the violator must sign. If he refuses to do this, witnesses are invited to confirm this fact and sign the document.

Information about the imposition of this penalty is entered into:

1. Work book;
2. Private bussiness;
3. A register of persons dismissed due to loss of confidence, in cases where the dismissal occurs precisely on this basis.

The employer does not have the right to impose penalties in the form of dismissal on pregnant women, temporarily disabled women and employees on vacation. This is prohibited by law.

A minor can be dismissed only with the consent of the Rostrudinspektsiya and the Commission on Minors' Affairs (Article 269 of the Labor Code of the Russian Federation).

Employers should remember that dismissal should only be used if correcting the employee by imposing another penalty is not possible. Disciplinary liability of an employee in the form of dismissal is extremely rare in practice, and the courts and state labor inspectorate in such cases usually take the position of the employee.

Severe reprimand: is there such a penalty now under the Labor Code of the Russian Federation?

No, such a disciplinary sanction does not exist according to the provisions of the current Labor Code of the Russian Federation. The employer could impose a penalty in the form of a severe reprimand until 02/01/2002, while the Labor Code of the Russian Federation, approved by the Supreme Court of the RSFSR on 12/09/1971, was in force (it provided for a severe reprimand as a possible penalty).

In practice, there are often cases when an employer decides to impose a disciplinary sanction in the form of a severe reprimand, guided by the internal local acts of the organization. Such actions are illegal and can be appealed in court..

However, if a provision for a severe reprimand is contained in a federal legal regulation, then this type of penalty can be applied. For example, it is used by the military, prosecutors, firefighters and other categories of government employees.

Can the law impose penalties and deprive bonuses at the same time?

According to Article 193 of the Labor Code of the Russian Federation, only 1 disciplinary sanction can be imposed for 1 disciplinary offense. In this regard, in practice, disputes often arise: can an employer, for example, issue a reprimand and deprive a person of a monthly bonus, because in fact the employee is punished twice.

In fact, it can, and this is in no way contrary to the law. The fact is that deprivation of a bonus is not a disciplinary sanction. A bonus is an incentive for an employee who copes with his job responsibilities (Article 191 of the Labor Code of the Russian Federation). Therefore, if an employee cannot cope with them, and even violates labor discipline, why should he be paid monetary incentives? Although there are nuances here too.

The employer has the right to deprive an employee of bonuses only when the cases in which this is possible are listed in local regulations (Regulations on remuneration or bonuses, collective agreement, etc.).

Penalty period

The penalty may be imposed within one month from the date of:

1. Identification of violations by an employee by his immediate superior - for general cases.
2. The entry into force of a court verdict or a decision to impose an administrative penalty - for cases where dismissal is formalized as a disciplinary sanction (in case of theft, embezzlement, etc.).

The specified monthly period does not include:

• Staying on sick leave;
• Vacation time;
• The period required to take into account the opinion of the representative body of employees.

Penalty cannot be imposed later*:

1. 6 months from the date of commission of the offense is the general rule;
2. 2 years – in cases where it is necessary to conduct audits, checks of economic and financial activities and audits.

*the indicated periods do not include the period of criminal proceedings.

How long does the penalty last?

The Labor Code of the Russian Federation has established a single validity period for each type of penalty - 1 year.

If during this year the employee commits a new offense and the employer imposes another penalty on him, the period is “updated” from the moment the last order was issued and is 1 calendar year. After this expiration of this period, the employee is considered to have no disciplinary sanctions. In this case, the employer does not need to fill out any paperwork.

Is it possible to cancel a foreclosure early?

Early removal of a disciplinary sanction is possible in the following cases:

1. The employee himself should submit such a statement to the employer.
2. The trade union will send such a petition to the employer.
3. The initiative will come from the head of the department where the offending employee works.
4. The employer himself will decide to cancel the penalty early.

But in any case, the decision remains with the employer, that is, he has the right not to satisfy such requests. Early withdrawal is issued by order on behalf of the manager.

How to appeal a disciplinary sanction

Every employee has the right to appeal a disciplinary sanction. If he does not agree with the employer’s decision, he can contact:

1. State Labor Inspectorate.
2. Body for consideration of individual labor disputes.

Any punishment, including disciplinary punishment, must be reasoned, officially formalized and carried out in strict accordance with labor legislation. Otherwise, it is possible to appeal the order to impose a disciplinary sanction on the part of the employee. Let us further consider what types of disciplinary sanctions exist and how the imposition of punishment should be legally correct.

Disciplinary action under the Labor Code of the Russian Federation

Disciplinary action in labor relations is a punishment applied to an employee of an organization, regardless of his rank and status. A penalty may be imposed in the following cases:

• in case of failure to perform or poor performance of one’s official duties;
• in case of violation of the company's norms and rules prescribed in internal regulations:
  • violation of labor discipline,
  • presence at work under the influence of alcohol or drugs,
  • disclosure of trade secrets, etc.

These and other reasons for which punishment may follow are spelled out in the Labor Code (LC) of the Russian Federation, in Art. 81.

It is worth noting that a citizen’s ignorance of his official duties does not relieve him of responsibility for failure to fulfill them. All actions that an employee must carry out are specified in the employment contract concluded between him and the employer. Familiarization with this document is a priority when applying for employment.

Curious facts

Application of a disciplinary sanction is allowed no later than 1 month from the date of recording the offense, and does not take into account the time spent on sick leave, on vacation, as well as the period of time spent taking into account the opinion of the representative body of employees.

Disciplinary measures can be applied only if the employee’s guilt is proven and the fact of the violation is documented. For example, if an employee did not go to work for an unexcused reason, and his absenteeism record was not marked on his work time card, then it will not be possible to take any disciplinary measures against him.

A disciplinary violation can be recorded with the following documents:

• act. It is drawn up mainly in case of violations of a disciplinary nature. For example, if you are late for work, absenteeism, etc.;
• memorandum. It is drawn up by the manager of the employee who has committed a crime regarding non-fulfillment or poor performance of official duties, in case of violation of reporting, etc.;
• protocol of the commission's decision. This document is drawn up, for example, in the event of material damage to the company.

The employee has the right to appeal a disciplinary sanction with the help of the state labor inspectorate.

The validity period of a disciplinary sanction is one year and if during this time the employee does not receive a new disciplinary sanction, then he will be considered without a disciplinary sanction.

Terminology of disciplinary action as a legal act

Disciplinary action, like any procedural action, is strictly regulated by the Labor Code (LC) of the Russian Federation. Violation of the rules and procedures for imposing a penalty may lead to an appeal against its application and invalidation.

The disciplinary procedure implies that the case has a subject, an object, a subjective and an objective side:

• subject is an employee who has committed a disciplinary offense;
• object – norms and procedures established in a labor organization;
• the subjective side is the employee’s fault;
• the objective side is the relationship between the fault of the employee at fault and the consequences.

Types of disciplinary liability of employees

There are several types of disciplinary sanctions that are approved by the labor legislation of the Russian Federation (Article 192 of the Labor Code). Only these types can be used in labor relations, while others will be illegal.

Types of penalties:

• comment,
• rebuke,
• dismissal.

The list is modeled in order of increasing severity of punishment for violations. A reprimand is the mildest measure of influence and is issued orally. A reprimand is also given verbally, but has more serious consequences.

If an employee has several reprimands, he can be fired legally. Dismissal, as a disciplinary measure, is used in the case of repeated violations for which the employee was previously given a more lenient punishment.

Only one penalty can be applied for one violation. Let's give an example: an employee did not complete the work within the specified period. If the employer reprimands the employee for this, then he has no right to issue an additional reprimand.

Disciplinary liability is considered to be the employee’s obligation to bear penalties in accordance with labor legislation when committing unlawful actions.

Reasons for imposing a penalty

A penalty may be imposed by the employer on an employee if there are grounds for doing so. The reason for disciplinary action is the commission of a disciplinary offense (Article 189 of the Labor Code of the Russian Federation).

What exactly falls under the definition of violation of discipline:

• being late for work;
• absence from work without a valid reason (absenteeism);
• being at work under the influence of alcohol or drugs;
• violation of safety regulations;
• disclosure of trade secrets;
• failure to fulfill or poor quality performance of official duties prescribed in the employment contract;
• non-compliance with the norms and rules of the company’s internal regulations, etc.

Any violations committed by an employee that are not included in the list of possible reasons for imposing a disciplinary sanction cannot become the basis for the application of punishment. Only one disciplinary sanction may be imposed for one offense.

Disciplinary sanctions can be general or special. General ones are used in all work collectives, and special ones only in certain areas, for example, in the Armed Forces of the Russian Federation or in the public service.

Some facts

When an employee is released early from a penalty, the employer needs to support and formalize the order “to remove the penalty,” and the employee needs to read it and sign it. An organization can draw up an order form independently.

General disciplinary sanctions, according to Art. 192 Labor Code of the Russian Federation:

• comment,
• rebuke,
• dismissal.

A reprimand is the most gentle measure of influence, while dismissal is an extreme measure.

Time limits for imposing disciplinary sanctions under the Labor Code of the Russian Federation

The imposition of a penalty is possible only within a certain period of time after the violation has occurred. This period is equal to 1 calendar month from the date of recording the disciplinary offense committed, but no more than 6 months must pass from the date of its commission. It should be noted that this period does not include the time when the employee was on vacation, sick or absent from the workplace for other reasons.

If a violation is revealed during any inspection, then the statute of limitations is 24 months (Article 193 of the Labor Code of the Russian Federation).

The procedure for imposing a disciplinary sanction on an employee

There is a certain procedure for taking measures for a disciplinary violation (Article 193 of the Labor Code of the Russian Federation). A change or omission of any of the stages may make the imposition of a penalty unlawful and lead to its cancellation.

Stage No. 1: the employer receives a signal that an offense has been committed.

This signal must be given in written form. This could be an act, a report, a memorandum or a protocol of the commission’s decision after any inspection. Any of the listed documents must contain a description of the violation committed. The date the employer receives the signal is the date the case for imposing a disciplinary sanction is opened.

Interesting information

If there is a dispute, the employer's demand for explanations and the corresponding act on the absence of these explanations in writing are grounds for disciplinary action. However, if the employee provides an explanatory note within the deadlines, the penalty may be canceled.

Stage No. 2: presenting a written request to the employee for an explanation of the committed act.

After reading this requirement, the employee must sign.

Stage No. 3: the employee’s explanation of the event.

The form of presentation is an explanatory note. It must contain a description of the reasons that led to the violation. The reasons can be either respectful or disrespectful.

The assessment of the reasons for this criterion is the responsibility of the employer; he has the right to classify them at his own discretion. The Labor Code of the Russian Federation does not regulate the concept of “good reason”, therefore generally accepted grounds apply: illness, lack of material resources for work, carrying out instructions from superiors, etc.

The employee has the right not to write an explanatory note; in this case, after 2 days of waiting, the employer (or other responsible person) must draw up a special act about the lack of explanations on the part of the employee. This act must be signed by the employer (or the employer’s representative) and 2 witnesses.

Stage No. 4: imposition of disciplinary action.

If the employer recognizes the reason for the misconduct on the part of the employee as disrespectful, then he has the right to apply one of the disciplinary measures. Such a decision is formalized by issuing an order. This document should contain the following points:

• order number and date of issue;
• the basis for drawing up the document is the wording that a certain disciplinary measure has been applied to a specific employee (indicating his full name and position);
• an indication of the reason why the penalty was imposed;
• employer's signature.

The order is an important document for confirming the facts of imposition of penalties. Several such documents are a valid basis for the employer to take an extreme disciplinary measure - dismissal (Article 81 of the Labor Code of the Russian Federation).

If there are no other penalties within one year, and after that year, the penalty must be removed from the employee. If the employer wishes, it can be removed during this one year, as well as at the request of the employee, or at the request of a representative body or the employee’s manager.

Stage No. 5: familiarization of the employee with the issued order.

This must be done by HR department employees or the employer himself no later than 3 working days from the date of its publication. Familiarization with the order is confirmed by the employee’s handwritten signature. If a citizen refuses this procedure, then a special act is drawn up that records the refusal.

Alternative Disciplinary Measures

Disciplinary measures can be applied not only in labor collectives, but also in other structures. For example, in the ranks of the Armed Forces of the Russian Federation, in government agencies. The legal regulation of disciplinary sanctions in these structures is carried out accordingly by the Charter “On the Armed Forces of Russia” and the Federal Law (FL) “On Civil Servants”.

The list of disciplinary measures in the Armed Forces, in addition to the standard ones, also has a number of additional punishments:

• demotion in rank;
• disciplinary arrest;
• deprivation of leave;
• expulsion (if we are talking about military training, courses, educational institutions);
• assigning a job out of turn, etc.

Watch the video about the time limits for bringing an employee to disciplinary liability.

Consequences of imposition of a penalty

A penalty is an official warning to the employee about the inadmissibility of the offenses he has committed. Repeated violations lead to further penalties in the form of comments and reprimands. In such a case, the employer has the right to dismiss the employee on a legal basis with the appropriate wording.

If, despite the existing penalties, the employee has not committed such violations during the year, then the penalty imposed on him will be automatically removed.

Any questions you may have can be asked in the comments to the article.

For committing an offense in the workplace, disciplinary sanctions are imposed, the types of which differ from the penalties for committing them. They can only be imposed by the employer with whom the offending employee signed the contract.

The types of disciplinary action provided for are reprimand, dismissal and reprimand. The reasons for their use are listed in several paragraphs of the first part:

1) clause 5 - if the employee fails to fulfill his job duties more than once without good reason;

2) clause 6 - if the employee grossly violated his job duties once;

3) clause 7 - if such actions are committed that lead to loss of trust;

4) clause 8 - if the employee committed an act at the place of work that violated moral standards;

5) clause 9 - if the head of the organization, his deputy or chief accountant make a decision that leads to damage to the property of this organization, as well as in the case of unlawful use of property;

6) clause 10 - if the head of the organization or his deputies violate labor duties one-time, but very rudely.

The types of disciplinary sanctions provided for in Article 192 of the Labor Code do not end there. For certain categories of employees, the discipline charter or federal law may establish other punishments. However, they only apply to those employees who fall within their scope. And at the same time, it is a violation of the law when types of disciplinary sanctions are used that are not provided for by the Labor Code of the Russian Federation or the internal regulations of the organization on discipline.

The right to choose one or another punishment remains with the employer. He must take into account the gravity of the offense committed by the subordinate and the circumstances under which it was committed. In addition, taking into account all the conditions and reasons, the manager can limit himself to just making a comment or conducting a conversation.

If an employee, before committing an offense, has submitted to the department a statement of desire to terminate on his own initiative, the employer can apply a penalty to him before the end of the warning period. After it expires, he cannot punish the former employee.

When applying any type of disciplinary action, the manager must follow certain rules and procedures. If they are violated, the employee may file a claim in court, which, after considering the case, will recognize the application of the punishment as unlawful.

So, before applying a penalty, the employer must obtain a written explanation from the subordinate. If the employee does not provide it within two days, a special act is drawn up, which will serve as evidence of the manager’s compliance with the procedure for bringing the offender to justice in the event of

From the day an employee’s misconduct is discovered, a disciplinary sanction can be applied to him within a month, or within six months from the date of its commission. After this period, he can no longer be punished. This period does not include the time he was on vacation (except for days off) or on sick leave. Moreover, it does not matter who first learned about the misconduct: the employer himself or one of the employees. If the employee’s fault is related to the manager, the manager has the right to impose a penalty on him within two years from the date of the commission.

Only one disciplinary punishment is permissible for one disciplinary violation. However, if the measures taken by the employer did not lead to a change in the situation, he may use another penalty.

The same types of disciplinary sanctions apply to the leaders of organizations themselves. However, the specifics of their powers determine a special procedure for bringing these persons to justice and additional grounds for this.

Unfortunately, not every person is able to strictly follow instructions or adhere to labor discipline. Because of this, punctures happen. The administration punishes the employee. But not only ordinary workers, but also management sometimes have no idea what types of disciplinary sanctions exist and how to apply them correctly. This matter, by the way, is very complicated, replete with all sorts of nuances. Interesting? Let's figure it out so as not to get into trouble, not to suffer innocently, so to speak.

Why can they be punished?

A non-specialist needs to know that not only the administration has rights. The employee has them in full. Yes, not everyone studies the Labor Code, but it is there that the types of disciplinary action are recorded. These are not inventions of the leadership, but measures prescribed by law. They are used in strictly defined cases. All this is contained in Article 192 of the Labor Code of the Russian Federation. In particular, it says that an employee can be punished if he does not fulfill his duties. But not only. Some disciplinary measures are applied if a person did nothing at all, that is, was inactive, and these actions led to serious consequences.

Therefore, let us explain along the way, if they decide to punish you, then be sure to ask why you harmed the production so much. Let the administration respond to you in writing. Otherwise, we often believe that an employee has no rights and can be punished in any way he likes. However, this is not at all true. Types of disciplinary action are not only strictly defined in law. It also explains when and which one is used. Moreover, there is a procedure without which the punishment may be declared (by the court) incompetent.

Hypothetically, the administration will be obliged in this case to compensate for the damage to the person punished. In practice, this rarely happens. People go to court only in case of wrongful dismissal. Yes, and this doesn’t happen that often. The administration tries to comply with all the subtleties and nuances of the law so as not to pay compensation to the violator. And no one wants to go to court. To summarize: a worker can be punished when he has violated labor discipline. This concept is quite broad. Let's understand further.

Types of disciplinary action

We open, so as not to confuse anything, the Labor Code. We will analyze the issue using the example of Russian legislation. If you need to understand how workers are punished in other countries, then you should follow our scheme. Most countries have similar legislation containing similar information. Article 192 of the Labor Code of the Russian Federation states that an employee can be reprimanded or reprimanded.

The most severe punishment is dismissal. This applies to all workers. But for some categories of workers other types of punishment may be provided. They are determined by federal or local acts. By the way, the documents in accordance with which disciplinary measures are applied are a special matter, since they are divided into two categories: federal and local. The latter include charters or regulations on discipline adopted by the enterprise.

The employee must be familiarized with these documents upon hiring. Violators! Don't try to remember which pieces of paper you signed, just ask to see evidence that you know their contents. Namely, your signature on the document. It is an indicator that you are familiar with the rules adopted in this organization. If there is not one, then feel free to argue with the administration. Especially if they are trying to influence you with measures not provided for in the Labor Code. Otherwise, unfortunately, it will be more difficult to protect yourself. Federal laws are binding.

Why can they get fired?

Of course, losing a job is the worst punishment. And not only because you will have to look for a new place. In case of dismissal “under article”, a corresponding entry is made in the work book. And this is for life. Then try to explain in a different place that you are not to blame! The reasons that entail the imposition of a disciplinary sanction in the form of dismissal are also described in detail in the legislation. These include absenteeism, but not just one, but several. However, you cannot fire an employee immediately.

First you need to “educate” him. Namely, to apply another measure provided for by law. It is very difficult to fire a person just like that, without a reprimand. Another reason for severe punishment may be showing up at work while intoxicated. It may be alcoholic, toxic or narcotic in nature. It does not matter. Any intoxication is a violation of discipline. Anyone who divulges secrets can be fired. This applies only to those people who were warned about such a nuance when applying for a job. This “harmful” secret can be either state, commercial or official.

In any case, the employee is warned that the information should not be disclosed. They can still be fired if other people were injured due to the fault of the official. For example, an accident or incident occurred that resulted in injury, death, or loss of ability to work. By the way, people are also fired for theft if the person’s guilt is proven. And this is the job of law enforcement agencies. Leaders, of course, bear even greater responsibility. They may lose their position “under the article” for making unauthorized decisions.

Procedure for applying disciplinary sanctions

If you already have a feeling of your own defenselessness, then continue reading. The worker is not so powerless. After all, the entire process is documented with special documents. You can find out about them by looking at the procedure for applying disciplinary sanctions. It is described in detail in Article 193 of the Labor Code. In particular, the whole process is divided into several stages. First of all, the fact of misconduct must be reported to management. This is usually done in writing. For example, a person who does not have the right to punish himself writes a memo addressed to the manager. Most often, this “informer” is the immediate superior of the offender.

This is followed by a survey of witnesses, that is, information is collected about what happened with a survey of colleagues and colleagues. Before signing an order to impose a disciplinary sanction, the manager gets acquainted with the case materials. They also include the explanation of the offender himself. A person is given two working days to compile it. If he does not agree to tell in writing about the reasons for his misconduct, then it is necessary to draw up an appropriate act. The absence of an explanatory note does not exempt the offender from punishment. After collecting all the documents, the manager makes a decision on the type of penalty.

How is an employee’s explanation formatted?

One of the most important documents that also protects the rights of the worker himself is his own opinion regarding the fact of a violation. In practice, they try not to sign an order to impose a disciplinary sanction without this document. Although Article 193 of the Labor Code states that its absence does not exempt from liability. But the explanatory note itself can clarify the circumstances that justify the violator.

It is advisable for the employee to write it in his own hand, in free form. But some organizations have the practice of filling out a ready-made document form. It should contain the following points. The employee is asked to answer what the motives for his offense are, and whether he is aware of his guilt. If a person does not admit that he has committed a disciplinary violation, he is invited to express his version. That is, he must write who is to blame for what happened. This document must be completed correctly. It is addressed to the person participating in the process of imposing punishment. Usually this is the head of the organization or immediate superior.

In some cases, an explanatory note is written addressed to the head of the personnel department. There is another form of taking into account the opinion of the violator. In production, a special report may be drawn up on the fact of an offense. The employee must sign it personally. In addition, it is necessary to take into account the severity of the offense, the business and personal qualities of the specialist. But for the court, if the case comes to it, it is preferable to have an explanatory note written by hand. Otherwise, the administration will have to prove the constitutionality of the dismissal. That is, that the principles set out in the Basic Law were not violated in the process.

Correct execution of the order

In practice, foreclosures are often cancelled. The thing is that the order to impose a disciplinary sanction is often issued with gross violations. The first of these is the misinterpretation of the TC. It clearly states that a crime can only be punished once. If, for example, a person committed absenteeism and was reprimanded, then it would be unlawful to fire him for the same violation. But there are also exceptions. This is a continuation of the violation. Namely: the person was punished, but he did not change his attitude towards work, did not fulfill his duties. Then additional measures can be applied to it.

Naturally, this act must be proven and documented. Another mistake is failure to comply with the deadlines for applying punishment. They are like that. An order for disciplinary action must be issued within a month from the day the violation became known. This is recorded in a memo. Personnel services are required to ensure compliance with dates. This period does not include days when the offender was sick or on vacation (any kind). But time off does not affect this period.

They are not taken into account when disciplinary action is necessary. In addition, it is impossible to punish if six months have passed since the commission of the offense. An order for disciplinary action for violation of this rule is considered unlawful. For offenses that entail financial and material losses, this period is two years. The offender must be made aware of the order regarding his punishment. This is done within three days. The employee is required to sign it. In case of refusal, a corresponding act is drawn up. It is necessary to remember (everyone is a party to the process) that the terms of disciplinary action must not be violated under any circumstances. Otherwise, the act is declared invalid.

Removal of foreclosure

It is clear that punishment cannot last forever. The procedure for disciplinary action also contains the conditions for its removal. This is also an important issue for both the employer and the worker. The punishment can “hang” for a whole year. Only after this period has passed is the employee considered not to have a penalty. This is written in Article 194 of the Labor Code.

But there are also special conditions. The removal of a disciplinary sanction can be carried out earlier than the specified period. Indeed, why punish a good employee. After all, an offense can be committed accidentally or due to circumstances. If a person follows discipline and works well, then the administration has the right to petition to have the punishment lifted. In addition, such an initiative may come from the employee himself, his boss or a representative body.

Each case is documented with the appropriate document. If the initiative comes from management, then it is formalized in a memo from the personnel officer. Indeed, in most cases, it is this official who monitors the behavior of the punished person from the administration. The employee himself also has the right to write a statement addressed to the manager with a request to review the order of punishment. It must indicate that the person has realized his guilt and has completely corrected himself. His immediate supervisor also has the right to write a petition of similar content.

The document describes how the employee currently relates to his responsibilities, what indicators he has achieved, and so on. The petition (or presentation) is addressed to the official who signed the order to impose a penalty. A representative body operates in the same way. A presentation or petition is drawn up on his behalf. If a request to management to lift the penalty was voiced at a team meeting, then it is recorded in the minutes. This document is presented to the head of the organization for review. Based on his decision, an order to lift the disciplinary sanction is issued. In turn, the former offender is introduced to him (under his signature).

Continuing offense

Let's look at some special cases possible in production. As already mentioned, disciplinary action is applied only once. That is, a person cannot be punished a second time for the same violation. But the Labor Code contains special cases. This is a continuing offense. This is a violation that is still observed even after a penalty is imposed. Sometimes it is confused with a repeat offense. If, for example, a person was late, was punished, and after some time again did not come to work on time, then such a violation is not continuous. This is just a case of repeated violation.

In this case, a second disciplinary sanction cannot be applied. The Labor Code clearly prohibits this. But when an employee was punished for failing to submit reports on time, for example, but he did not even think of submitting them by the next appointed date, then the offense is ongoing. That is, despite the punishment, the person did not change his negative attitude towards fulfilling his job duties. In this case, properly documented, repeated punishment, including dismissal, is permitted.

About financial liability

Very often, both employees and some representatives of enterprise administrations misinterpret the provisions of the Labor Code regarding double punishment. The fact is that some violations lead to material or financial losses. The employer's right to recover the amount of losses is established by law. Naturally, the employee’s guilt must be proven and admitted by himself. Debt collection from the violator is carried out by issuing a document. It indicates what offense led to the losses, their size and methods of compensation.

However, debt collection is not a punishment. This is just a way for the person at fault to compensate for the employer's losses. This provision is enshrined in Article 248 (part six) of the Labor Code. It states that the perpetrator is obliged to compensate for material losses, regardless of what punishment he is subjected to. This means not only disciplinary action, but also administrative or criminal liability. The fact is that disciplinary punishment is an educational measure. It is used to eliminate misconduct. And financial liability is compensation for damage caused.

Typical mistakes in document preparation

Let's look at the issue from the employer's side. They often lose cases in court due to improper execution of the relevant papers. Every little detail is important. By the way, this information will also be useful for smart workers who are prone to being late or lazy. The personnel officer, on whose shoulders, as a rule, falls the unpleasant responsibility of collecting and preparing all the “papers”, needs to understand that any mistake can turn into an unlawful even well-deserved disciplinary sanction.

A sample of reports and explanatory notes, as well as an order, must be drawn up and agreed upon with a good lawyer. When preparing papers, special attention should be paid to the dates that have already been mentioned. The fact is that it is quite difficult to prove, for example, the wrongness of a punishment from the point of view of the production process. But finding a violation of the Labor Code in the papers is quite simple, which is what lawyers for offended employees usually do.

A report on the offense must be drawn up with dates and all kinds of details. It indicates the time and place of the offense. Which specific provision (clause) of which document is violated. Who recorded this crime? The supervisor should also be provided with other information relevant to the case. Eg:

• "To the director (full name) from the boss.... Memo. I would like to inform you that on such and such a date, at such and such a time, my subordinate (position, full name) was late for the start work for three hours. Due to the fact that the technological process could not be stopped, so-and-so was brought to work overtime. I request that disciplinary measures be applied to (full name) due to the fact that this violation is not isolated. He is systematically late for the start of work by 15-30 minutes. My verbal comments did not have the required effect. Signature, date."

If the dismissal of the violator is planned, it is advisable to attach the testimony of his colleagues to this document. They are also documented in memos. In the offender’s explanation and order, all terms and dates must correspond to those indicated in the original document. That is, if it says that the employee was two hours late, then each paper indicates exactly this period. Otherwise, the court will recognize the documents as incorrectly executed and the punishment as unlawful.

That is, failure or improper performance by an 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.

The application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted.

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

If the employee refuses to give the specified explanation, a corresponding act is drawn up.

An employee’s refusal to provide an explanation is not an obstacle to applying disciplinary action.

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

A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

For each disciplinary offense only one disciplinary action.

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication. If the employee refuses to sign the specified order (instruction), a corresponding act is drawn up.

A disciplinary sanction can be appealed by an employee to state 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 subject to a new disciplinary sanction, then he is considered to have no disciplinary sanction.

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

The employer is obliged to consider the application of the representative body of employees about 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 disciplinary action to the head of the organization and 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 liability 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 disciplinary action to the manager organization, the head of a structural unit of the organization, their deputies at the request of the representative body of workers is regulated by Art. 195, part 6 art. 370 Labor Code of the Russian Federation.

Trade union bodies, in particular the trade union committee of the organization, have the right to monitor compliance with labor legislation. If facts of violation of labor legislation, local legal acts containing labor law norms, concealment of industrial accidents, failure to comply with the terms of a collective agreement or agreement are discovered in an organization, the trade union committee has the right to demand that the employer punish the head of the organization, its division or their deputies who are guilty of this.

The employer, upon application by the representative body of employees, usually the trade union committee, initiates disciplinary proceedings. It is characterized by the same stages as when identifying violations of internal labor regulations by an employee, which were outlined above. If the guilt of managers or their deputies in violating labor law norms is established, then the employer is obliged to apply “disciplinary action up to and including dismissal” to them (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 the disciplinary proceedings. The response period is not defined in labor legislation. However, it must include the time that the legislator sets for applying a disciplinary sanction to the military commander. 3, 4 tbsp. 193 Labor Code of the Russian Federation. Usually this is one month, and based on the results of an audit, inspection of financial and economic activities or an audit - two goals from the date of the disciplinary offense. If, due to the circumstances specified 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 in the main case.

Procedure for applying disciplinary sanctions

Procedure for applying disciplinary action The Labor Code of the Russian Federation is not regulated in detail. This often leads to a 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. The current labor legislation mainly establishes the legal position of the employer. Analysis of disciplinary proceedings allows us to identify a certain set of rights of an employee who, in the opinion of the manager, violated the internal labor regulations. An employee is a full-fledged subject of legal relations within the disciplinary proceedings. He has the right to familiarize himself with all materials according to which he is accused of unlawful labor behavior, give his assessment of the content of the materials presented to him, and demand the provision of new materials. In complex disciplinary proceedings, an employee may request an audit, an inspection of financial and economic activities, or, if its results can resolve the issue of his guilt or innocence. The current legislation does not prohibit an employee from involving specialists or a representative of a trade union organization as consultants in disciplinary proceedings.

In this part, labor legislation still needs further improvement. Specification of disciplinary proceedings is possible in by-laws and local regulatory legal acts. This practice is typical, for example, for budgetary organizations. Ministries and departments develop and approve procedures for conducting performance reviews and applying disciplinary sanctions to state civil servants of their subordinate organizations. Such regulatory legal acts establish a detailed procedure for conducting official inspections and applying disciplinary sanctions to civil servants, the composition of the commission tasked with conducting the inspection, its powers and the processing of the inspection results. The by-laws of local regulatory legal acts specifically highlight a section that establishes the rights of the employee who is being inspected: to give oral and written explanations, submit petitions, get acquainted with documents during the inspection, appeal the decisions and actions of the commission that conducts the inspection.

A single disciplinary legal 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 and consist of certain parts. Thus, the employee’s right to submit petitions, get acquainted with documents, appeal the actions of the employer’s representative 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 review, and consider the complaint filed by him. These legal relations can arise and end at each stage 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.

Firstly, before applying a disciplinary sanction, the manager invites the employee to give a written explanation of the circumstances indicating that he has violated the internal regulations of the organization. If the employee refuses to provide the employer with an explanation in writing, a corresponding report is drawn up after two working days. This document must contain the following details: place and date of drawing up the document; last name, first name, patronymic, position of the compiler and employee, a brief description of the alleged violation of labor discipline; an offer to the employee to give an explanation and his refusal, actual or default; an explanation of what exactly the employee’s failure to fulfill his job duties was.

Secondly, the employer (his authorized representative - head of the personnel department, deputy director of personnel) will request from the employee’s immediate supervisor the necessary documents confirming the employee’s violation of labor discipline, and an opinion on the selection of a certain (necessary in the circumstances) disciplinary measure for the violator.

Thirdly, assessing the materials collected on the fact of violation of internal labor regulations, the employer makes a decision about the guilt of the employee, i.e., whether he has committed a disciplinary offense.

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

Fifthly, in accordance with Part 1 of Art. 192 of the Labor Code of the Russian Federation, the employer exercises his right to apply disciplinary action to a violator of internal labor regulations or limit himself to other means of educational influence. The effectiveness of disciplinary action largely depends on this stage of disciplinary proceedings. Reducing it only to punishment is unjustified from both theoretical and practical points of view. The educational role of this stage depends on the personality of the employee, on the level of his professional training, legal and moral culture. This is a rather complex and responsible process for the employer. Sometimes a conversation with the manager is enough to correct the offender, and in some cases the application of a disciplinary measure leads to confrontation and increased tension in the employer’s relationship not only with the employee, but also with the primary production team. For this stage, the pedagogical and 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 employer’s discretion, to leave the collected materials without movement. In practice, in the latter case, the employer does not issue any procedural act. The employer does the same if a minor violation of labor discipline is detected or there is insufficient material to establish it. 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 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 disciplinary measure and issues an appropriate order. An order (instruction) to apply a disciplinary measure is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the order (instruction) against signature, then the authorized representative of the employer draws up a corresponding 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 for the fact of violation of internal labor regulations.

Disciplinary proceedings are subject to certain procedural time limits: one month and six months. Disciplinary action is not applied if more than one month has passed from the date of discovery of the misconduct. The monthly period does not include the time the employee is ill, on vacation, or the time required to take into account the opinion of the representative body of employees, if required by 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 subject to disciplinary action. When conducting an audit, inspection of financial and economic activities or an audit, the period during which a disciplinary sanction may be imposed is increased to two years.

The specified time frame does not include the time of criminal proceedings (Part 4 of Article 193 of the Labor Code of the Russian Federation).

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 internal labor regulations can also be disciplined, since deprivation of a bonus is not considered a disciplinary sanction.

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

Removal of disciplinary action

From a legal point of view, disciplinary action is usually always a lasting condition, limited to a certain period within the 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 ceases, 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 can remove a disciplinary sanction from an employee either on its own initiative or at the request of his immediate supervisor or an elected representative body (trade committee). The initiative can also come from the violator of labor discipline himself. In accordance with Part 2 of Art. 194 of the Labor Code of the Russian Federation may make such a request to the head of the organization.

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