Disciplinary sanctions: commandments for personnel officers. Disciplinary sanctions: commandments for a personnel officer How to properly bring an employee to disciplinary liability

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

a) harm caused to labor discipline;

b) illegality;

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

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

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

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

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

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

The grounds for exemption from disciplinary liability are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bringing an employee to disciplinary liability: scheme

The procedure for bringing employees to disciplinary liability is regulated by Art. 193 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation). The details are disclosed on our website in the articles:

• At what age does disciplinary responsibility begin? .

The general scheme of the procedure for bringing an employee to disciplinary liability is as follows:

• identification by the employer of the fact that an employee has committed a disciplinary offense (what is this, you will learn from the articles Disciplinary offense - concept and list, Elements of a disciplinary offense, What can be applied for each disciplinary offense?);
• the employer's request from the relevant employee for a written explanation of the reasons and circumstances under which the disciplinary offense was committed;
• the employee submits a written explanation within 2 days (we will discuss the nuances of refusing this below);
• the employer’s decision whether to apply disciplinary measures and the choice of a specific measure;
• issuance by the employer of an order to apply a disciplinary sanction.

IMPORTANT! The day of detection of a disciplinary offense is considered the day when this offense was identified by the person to whom the employee is subordinate at work/service (clause 34 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, hereinafter referred to as PPVS No. 2).

Certificate of refusal to give explanations: sample

As we have already indicated above, a mandatory procedure for bringing an employee to disciplinary liability is the employer’s requirement for the employee to provide a written explanation. Ignoring this instruction by the employer allows the court to recognize the employer’s order to apply disciplinary measures against the employee as illegal (for example, the appeal ruling of the Moscow City Court dated August 24, 2016 in case No. 33-27314/2016).

But the law does not oblige the employee to give such explanations. In any case, if the worker refuses to give an explanation, the employer draws up a special act after the 2 days allotted for the employee by law to give written comments (paragraph 1 of Article 193 of the Labor Code of the Russian Federation).

A unified model of such an act has not been approved, and the employer can draw it up in any form indicating all significant attributes. The structure of such an act is usually as follows:

• Name, serial number and date of the document: “Act on the employee’s refusal to provide written explanations No. ... dated …”.
• Description of the event recorded by the act. In our case, it is the fact of the employee’s refusal (full name, position) to provide written explanations regarding the disciplinary offense committed by him in response to the employer’s demand for this. It is also recommended to indicate the details of the written document that contained these requirements.
• Reasons for refusing to give explanations if the employee has voiced the reasons why he does not want / cannot give appropriate comments regarding the misconduct committed.
• The composition of the commission, in whose presence the fact of refusal to give explanations was recorded.

You can download a sample of this document from the link: Act on refusal to give explanations - sample.

Bringing to disciplinary liability under the Labor Code of the Russian Federation: notification of giving an explanation for a disciplinary sanction

Although the Labor Code of the Russian Federation obliges the employer, before applying disciplinary measures, to request an explanation from the relevant employee in any case, the very method of presenting such a requirement and its form are not explained by law.

Analysis of judicial practice allows us to draw the following general conclusions on this issue:

• It is recommended that this requirement be submitted in writing. For example, courts critically evaluate the arguments of employers who requested explanations from employees by telephone (for example, the appeal ruling of the Moscow City Court dated October 20, 2016 in case No. 33-42003/2016).
• The requirement to provide explanations must be of an official nature. For example, correspondence by mobile phone although it contained such a requirement in writing, it corresponded to the form of interpersonal communication, and not the form of interaction between employer and employee (see the decision of the Vyborg City Court of the Leningrad Region dated November 11, 2014 in case No. 2-3521/2014).
• The requirement to provide an explanation must contain a description of the disciplinary offense, allowing it to be unambiguously determined. For example, if an employee is asked to explain the reason for his absence from the workplace, then indicating the date and time of his absence and workplace in the request will be fundamental (for example, the decision of the Abzelilovsky District Court of the Republic of Bashkortostan dated February 12, 2014 in case No. 2-155/2014).

There is no unified/standard sample of this requirement. To compile such a document, you can use, for example, our template: Notice of giving an explanation - sample.

How to hold an employee accountable: types of disciplinary sanctions

So, how to bring an employee to disciplinary liability? Labor legislation establishes an exhaustive list of types of disciplinary sanctions that can be applied by an employer to an employee. These include (Article 192 of the Labor Code of the Russian Federation):

• comment;
• rebuke;
• dismissal.

Other types of disciplinary sanctions may also be applied, but only in cases where this is expressly permitted by special laws. For example, for railway transport workers (clause 15 of the regulation “On discipline ...”, approved by Decree of the Government of the Russian Federation dated August 25, 1992 No. 621), employees of the prosecutor’s office (clause 1 of article 41.7 of the law “On the Prosecutor’s Office of the Russian Federation” dated 17.01. 1992 No. 2202-I), etc.

At the same time, the procedure for choosing a specific type of disciplinary sanction is not defined by law and is left to the discretion of the employer.

The law enforcer explains that when choosing a disciplinary measure for an employee who has committed a disciplinary offense, the employer must take into account (clause 53 of PPVS No. 2):

• the severity of the offense committed;
• the circumstances under which it was committed;
• the employee's previous behavior and attitude towards work.

In addition, the court (if an employee challenges the imposed disciplinary measure) may also accept other circumstances that have weight in a particular case. For example:

• the fact that this employer, under similar conditions, applied more lenient penalties to other employees who committed a similar disciplinary offense (decision of the Ezhvinsky District Court of Syktyvkar, Komi Republic dated June 30, 2017 in case No. 2-801/17);
• presence of dependents (decision of the Vilyuisky District Court of the Republic of Sakha (Yakutia) dated June 27, 2016 in case No. 2-244/2016), etc.

Order on application of disciplinary sanction

The publication of an administrative document on the application of appropriate disciplinary measures to an employee who has committed a disciplinary offense is a mandatory stage of the entire procedure for imposing such a penalty (Article 193 of the Labor Code of the Russian Federation).

The employee must be familiarized with this order against signature within 3 working days from the date of publication of the administrative document. If the employee refuses to familiarize himself, an appropriate report about this is drawn up. A unified/standard form of such an act, as well as requirements for its content, have not been approved, so the employer can draw it up independently.

You can find out how to draw up an order to apply such a penalty, as well as download a sample of it, using our other article on this topic - Order to impose disciplinary liability. We also recommend that you consider such an order using the example of issuing a remark: Order of disciplinary action in the form of a remark.

The procedure for imposing and removing disciplinary liability: who has this authority

The employer has the right to apply disciplinary measures to employees. At the same time, it is not specified which specific entity/body/unit has this authority.

In this situation, you should be guided by the organization’s local documentation or the provisions of the relevant industry law.

For example, taking into account the fact that an order to impose a disciplinary sanction is usually issued by the head of an enterprise, the right to impose a disciplinary penalty belongs to him (although the organization’s charter or regulations on a unit may also grant such a right to the head of a unit).

IMPORTANT! The employer can cancel a disciplinary sanction before the expiration of the period established by law for its automatic cancellation (Article 194 of the Labor Code of the Russian Federation).

Read more about this in the articles:

• Petition to lift a disciplinary sanction - sample.

At the same time, the disciplinary sanction can be appealed by the employee to the court and the state labor inspectorate. The powers of the GIT are enshrined in law (paragraph 2 of article 356, paragraph 6 of article 357 of the Labor Code of the Russian Federation), confirmed judicial practice(Review of judicial practice of the RF Armed Forces for the first quarter of 2011, approved by the Presidium of the RF Armed Forces on June 1, 2011). More information about this procedure can be found in the articles:

• The procedure for appealing and lifting a disciplinary sanction;

So, the procedure for imposing disciplinary liability on an employee includes the following steps:

• identification by the employer of the fact of committing a disciplinary offense;
• a request by the employer from the relevant employee for a written explanation;
• submission by the employee of a written explanatory statement within 2 days;
• the employer's decision to apply/not apply disciplinary measures;
• issuing an order to employers to apply the appropriate disciplinary measure.

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

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

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

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

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

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

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

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

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

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

Moreover, failure by an employee to perform labor duties without good reason is both non-fulfillment and improper performance through the fault of the employee of the labor duties assigned to him.

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

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

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

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

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

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

b) refusal of an employee, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure (Article 162 of the Labor Code of the Russian Federation), since 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 of this employer (Article 56 of the Labor Code of the Russian Federation).”

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

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

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

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

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

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

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

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

Failure to perform or improper performance of duties for reasons beyond the control of the employee (for example, due to lack of necessary materials, disability) cannot be considered as misconduct.

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

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

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

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

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

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

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

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

Thus, we can draw the following conclusions:

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

What can a disciplinary sanction be imposed for? What procedure must be followed by the employer so that his actions are not challenged by the employee and additional money is paid to him? What will determine the level of detail and the number of documents collected by the employer?

Labor discipline- obligatory for all employees to comply with the rules of conduct defined in accordance with the Labor Code of the Russian Federation, other federal laws, collective agreements, agreements, local regulations, and employment contracts (Article 189 of the Labor Code of the Russian Federation). It would seem that everything is quite clear: the employer says what and how can be done during working hours, the employee obeys. But as always and in everything, there are certain nuances. Labor legislation regulates only those. The employer cannot, however, .

Read about the psychological aspect in establishing a punishment system in the article “”

Disciplinary sanctions are applied when an employee fails to perform or improperly performs his duties (Article 192 of the Labor Code of the Russian Federation). In this case, these responsibilities must be recorded in the employment contract, job description or in the local regulations of the employer. This means that before starting the procedure for holding an employee accountable, you need to make sure that he has been familiarized (by signing and indicating the date) with the document whose provisions he has violated. Here are examples of violations of labor discipline:

• failure to perform a labor function;
• failure to comply with the manager's instructions;
• violation of labor discipline (lateness, absence from the workplace without good reason, refusal to undergo a medical examination if it is mandatory for the employee, refusal to train in the basics of labor protection, being intoxicated at the workplace, etc.);
• committing guilty actions (theft, embezzlement, damage, etc.) in relation to the employer’s property, established by a court verdict that has entered into legal force (subparagraph “g”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation).

Example 1

Being late or absenteeism

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To determine how late a person was for work, you must first find out what time he was supposed to arrive. The work hours established in the organization (start and end) must be recorded in the Internal Labor Regulations. But if they forgot to familiarize a late employee with them under his signature, then bringing him to justice will be problematic.

Lateness is an employee arriving at work later than scheduled without good reason. If the employee was absent from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as for more than 4 hours in a row, then this will be called absenteeism.

There may also be questions regarding a number of prohibitions regulating the behavior of employees during work.

Example 2

Dress code violation

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The problem of the dress code and the possibility of penalties for violations of it have been discussed for quite some time, and most experts agree that the requirements for employee clothing are legal only for those positions for which it is mandatory to wear work clothes or a company uniform; for the rest, corporate requirements can only be worn recommendatory nature.

Example 3

Use of obscene language

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Oddly enough, it is quite difficult to fire an employee for using obscene language towards colleagues or even a manager. For example, the Irkutsk Regional Court (appeal ruling No. 33-9359/2013 dated November 18, 2013) declared illegal the order to declare a remark “for a disrespectful tone towards senior management and direct subordinates” and recovered moral damages from the organization for bringing the employee to disciplinary liability .

Disciplinary offense– failure or improper performance by an employee, through his fault, of the labor duties assigned to him (Article 192 of the Labor Code of the Russian Federation). The offense is quite complex:

• firstly, there must be some actions (or inaction) of the employee that are contrary to his obligations under the employment contract;
• secondly, the employee’s actions must violate the rules established and recorded by current legislation (for example, absenteeism) or local regulations of the employer (for example, the requirement to work in special clothing);
• thirdly, they must be committed by a person who has an employment relationship with the organization;
• fourthly, the employee’s actions must be conscious (have direct intent to commit) or committed through negligence.

It is after establishing the presence of these components that a person can be brought to disciplinary liability. Additionally, to determine the proportionality of responsibility for an offense, the presence of aggravating and mitigating circumstances is also established.

Responsibility at its core is the obligation to endure the negative consequences of one’s actions. Disciplinary responsibility, accordingly, a special type of legal (statutory) liability applied to an employee in labor relations by an authorized representative of the employer. Holding liable is the right of the employer, in the exercise of which he is obliged to comply with the procedure established by law.

Disciplinary action- these are the very negative consequences that an employee must endure for his illegal behavior. The legislator has quite strictly limited their types (Article 192 of the Labor Code of the Russian Federation):

• comment;
• rebuke;
• dismissal on appropriate grounds.

In addition, federal laws, charters and regulations on discipline for certain categories of employees may also provide for other disciplinary sanctions. For example, an additional “warning of incomplete compliance with official duties” may be applied to civil servants.

Responsibility varies

Traditionally, disciplinary liability is usually divided into general, established by the Labor Code of the Russian Federation, and special, established by relevant legal acts (Charter on the discipline of maritime transport workers, Regulations on the discipline of railway transport workers, etc.).

At the household level, responsibility is usually divided into:

• on disciplinary(most often affecting the moral and psychological component of the individual) and
• monetary, that is, “hitting” the employee’s pocket, which should not be confused with material (Article 233 of the Code of the Russian Federation).

For more information on how monetary liability is applied, read the article “Crime and punishment: taking into account the psychological factor"

Article 192 of the Labor Code of the Russian Federation calls upon the employer when imposing a disciplinary sanction take into account the gravity of the offense committed and the circumstances of its commission. But both severity and assessment of circumstances are subjective categories.

Read about financial responsibility in the article “All about the financial responsibility of an employee"

Each employer representative looks at them from “his own bell tower.” For one boss, it is normal for his employees to communicate on personal topics during working hours, but for another, this is an unacceptable waste of working time.

Another example is smoking. Agree, a judge who smokes will probably react differently to the fact that an employee runs endlessly from his workplace to the smoking room than someone who is allergic to tobacco smoke.

If the employer solves the problem of determining the proportionality of the crime and punishment incorrectly, then during the trial the negligent employee can be reinstated at work, paying him the average wages during the period of suspension from work, and possibly also to compensate for moral damage.

In this situation, it is difficult to give universal advice, each case requires an individual assessment, but in general, if the employee has not committed an offense for which the legislator has established dismissal as the upper limit of punishment, it can be recommended to be held accountable “increasingly”: reprimand - reprimand - dismissal .

The most severe punishment - dismissal - is possible on the grounds listed in Article 81 of the Labor Code of the Russian Federation, including relate:

• repeated failure to comply an employee without good reason labor duties if he has a disciplinary sanction(clause 5, part 1, article 81 of the Labor Code of the Russian Federation);
• single gross violation of labor duties by an employee(clause 6, part 1, article 81 of the Labor Code of the Russian Federation).

It is worth remembering that if a year has passed since the moment of prosecution (Article 194 of the Labor Code of the Russian Federation), then the penalty is considered “extinguished”; accordingly, it is worth returning to the minimum penalties.

When imposing a penalty, the employer in documents (memos, orders, acts) should not only reflect the circumstances of the offense, but also assess the attitude of the offending employee to work, the negative consequences of his action for the employer, and attach characteristics of colleagues.

Disciplinary procedure

The procedure for bringing an employee to disciplinary liability has several stages. Each of which must be properly executed.

In small organizations, compliance with the procedure is often neglected, limiting itself to simplified version of “explanatory - order”, however, this approach is fraught with complications if the dispute extends beyond the walls of the organization. On the one hand, Art. 193 of the Labor Code of the Russian Federation requires the employer “before applying a disciplinary sanction” only to “request a written explanation from the employee.” But on the other hand, when assessing the legality of imposing a penalty, the court will study all the details of the case. In this situation, a lot will depend on how well the employer justified its position at the time the employee was held accountable. This can only be done through a full, properly documented investigation, especially if the employer’s goal was dismissal.

This short option is only acceptable if:

• the employee fully admits his guilt in a written explanation and
• the employer does not plan to use “draconian” measures, limiting himself to a remark or reprimand, which is not even entered in the work book.

“Expanded” chain of actions/documents in our opinion, it should look like this (for sample documents, see Examples 6–13):

1. Identification of misconduct - memo the person who identified it, in the name of the employer’s representative, authorized to make decisions on bringing to responsibility (this person is not always CEO). In some organizations, powers are not distributed on the principle of delegating to any of the deputies the right to sign all documents on personnel matters. There are situations when, for different types of misconduct, the initiative to bring to justice lies with different managers, for example:
   • for misconduct related to the direct performance of job duties, only the immediate supervisor can initiate the procedure,
   • and for delays or violations of the regime - the head of the organization’s security service (data automated system recording the passage of employees becomes an additional basis).
2. Organization of an investigation into a violation - order to create a commission or an order from a responsible person to conduct an investigation.

   Let us note right away that the commission is not mandatory. One personnel officer can cope with coordinating the work of collecting documents and preparing a draft order. In this case, much depends both on the size of the organization and the frequency of holding employees accountable, as well as on the sophistication of the procedure.

   For example, in a large plant with “machine” recording of working hours, the procedure for holding an employee accountable for being late for work may differ significantly from the same procedure in a small team:

   • in the first case, based on the daily printout of data from a program that controls the time employees pass the turnstiles at the entrance, responsible person After receiving an explanation, the employee can immediately prepare a draft order for management to sign. Indeed, in such organizations, a process for evaluating the employee’s explanations is usually established, as well as a certain scale of punishments has been drawn up, correlated with the time for which the employee was late;
   • in the second case, a situation may well arise when it will be necessary not only to obtain an explanation from the employee, but also to collect evidence of the very fact of being late. Then, since the event itself is extraordinary, assess the severity of the offense and only then bring to justice. It is advisable to document each of these steps.
3. To identify all the circumstances of the case, as well as the position of the “guilty” himself, it is necessary to familiarize himself with his explanation in writing. After all, a person could really have good reasons or mitigating circumstances (for example, train traffic on the metro line on which the employee lives could be unexpectedly blocked, and he had to travel “on transfers” (the employer may not know about this).

   Moreover, Art. 193 of the Labor Code of the Russian Federation obliges the employer to request a written explanation from the employee and allow the employee 2 working days to prepare it. Essentially, this is the time during which the employee can think and properly formulate his explanations, as well as collect evidence of his position (for example, a certificate of flooding from the Department of Deputies or a printout from the Internet about interruptions in transport services). Therefore, in our opinion, even the employee’s refusal to give an explanation on the day when the employer requests it does not stop this period. The employee may change his mind before the expiration of this period and still present his vision of the situation in writing, and the employer will be obliged to take it into account.

   Employee's refusal to explain is not an obstacle to applying a disciplinary sanction if it is recorded with the signatures of witnesses (this can be done in a separate act or provide a corresponding section directly in the request for explanations, which, if necessary, is filled out in the employer’s copy, see the mark with the number “2” in the Example 8). A recorded refusal to give a written explanation when holding an employee accountable may be regarded as an aggravating circumstance.

   Now let’s explain how the 2-day period is calculated, calculated in working days:

   Example 4

   Calculation of the time allotted for giving explanations

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   If an explanation was required on Thursday, April 14, then the first day of the deadline will be April 15 (Friday), and with a regular five-day work week with Saturday and Sunday days off, the second day will be Monday, April 18, until the end of the working day. After its completion or the next day, in the absence of a written explanation, it is considered not provided. It is better to immediately indicate in the request by what date explanations must be provided, this can eliminate misunderstandings (see the mark with the number “1” in Example 8).

4. If the circumstances of the case are investigated commission, then based on the results of its work an act is drawn up. Before preparing an order, in our opinion, it is highly desirable to have a final document that would contain:
   • the results of the investigation of the offense (with the attachment of the collected evidence),
   • recommendations on holding the employee to certain responsibility,
   • an explanation of why he should be brought to this level of responsibility.
5. Bringing disciplinary action to an employee - issuing an order, as well as familiarizing the violator with it within 3 working days under a personal signature (in case of refusal, this fact must be recorded in an act). Please note that a reprimand and reprimand were always formalized by order in free form, and dismissal was previously formalized using the unified form No. T-8. Now the document forms are approved by the head of the organization as part of the accounting policy.
6. If the most severe disciplinary sanction is applied to an employee - dismissal, then it reflected in the work book:

   But issuing a reprimand or reprimand in itself does not appear in the work book.

The described chain of actions (and documents) can be shortened, while complying with all the requirements of the Labor Code of the Russian Federation, by removing documents that deeply examine the circumstances of the case and the employee’s attitude to his work responsibilities. This middle option differs from the shortest “explanatory order” by the appearance of an act with the signatures of witnesses under the description of the fact of the violation. We will keep the numbering of actions as in the “long” chain, but in some cases we will adjust their content.

1. Identification of misconduct it is better to draw up not just a memorandum (usually from the immediate superior), but an act signed by at least 3 people: the originator and 2 witnesses(See Example 5). It is better to attract witnesses not from among the “administration”, but from among the colleagues of the offending employee; this should be done for greater persuasiveness if the case is considered by the labor inspectorate or court.

1. Next you need request written explanations(it is advisable to immediately provide a “stencil” in the form for witnesses to confirm the fact of refusal, if any, so as not to draw up a separate act for this case). This can be done in a separate document (shown in Example 8) or all in the same initial act (see mark “1” in Example 5). Accept and evaluate written explanations, if the “violator” provided them on time.

1. After this you can issue an order(it is implied that the executor who prepared it for signature has already investigated this case instead of the commission, which appears in the “detailed” chain of actions) and introduce the employee to it.
2. If there is a dismissal, it still needs to be reflected in work book.

Example 5

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The legislator has set aside a certain period for the employer during which he can exercise his right to impose punishment. Disciplinary action is applied no later than 1 month from the date of discovery of the misconduct(Article 193 of the Labor Code of the Russian Federation). This period can be extended for the period of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the trade union (representative body of employees). However, if 6 months have passed since the date of the commission of the offense, and according to the results of the audit, inspection of financial and economic activities or audit - 2 or more years from the date of its commission, then the employee can no longer be punished.

For each disciplinary offense, only one disciplinary sanction can be applied (Article 193 of the Labor Code of the Russian Federation). Although within one incident there may be several such offenses (see numbers “1” and “2” in the act from Example 12).

If within a year from the date of application of the disciplinary sanction the employee is not subject to a new disciplinary sanction, the original one “burns out,” that is, the employee is considered to have no disciplinary sanction. The employer has the right, before the end of this period, on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees by order to lift a penalty from an employee. See Examples 14 and 15 for how this can be done.