I ask for disciplinary action. Disciplinary sanctions: commandments for personnel officers

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

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

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

2. six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or audit- later than 2 years from the date of its commission; the specified time frame does not include the time of criminal proceedings.

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

At the same time, the employer has the right to apply a disciplinary sanction to the employee even when he filed a notice of termination before committing this offense. employment contract on their own initiative, since labor relations in in this case terminate only upon expiration of the notice period for dismissal.

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

The employee can present his explanations in various ways.

First of all, in an explanatory note drawn up by the employee, usually in free form by hand.

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

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

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

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

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

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

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

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

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

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

1) on your own initiative.

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

2) at the request of the employee himself.

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

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

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

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

Why can an employee be subject to disciplinary action?responsibility? The procedure for bringing to disciplinary liability.

First of all, it should be noted that regulation labor relations employees and other directly related relations are carried out in accordance with the Labor Code Russian Federation(hereinafter referred to as the Labor Code of the Russian Federation).

Disciplinary liability is a type of legal liability, the main content of which is the measures (disciplinary action) applied by the employer to the employee in connection with his commission of a disciplinary offense.

In the system of the Regional Ministry of Internal Affairs of Russia for the Khabarovsk Territory, the right to bring subordinate employees to disciplinary liability belongs to the head of the Regional Ministry of Internal Affairs of Russia for the Khabarovsk Territory, and the superiors of subordinates territorial bodies and organizations of the Ministry of Internal Affairs of Russia.

According to Articles 21, 22 of the Labor Code of the Russian Federation, an employee is obliged to conscientiously fulfill his labor duties assigned to him by an employment contract, to comply with internal rules labor regulations, labor discipline, labor protection and labor safety requirements, comply with established labor standards, take care of the employer’s property, and the employer, in turn, has the right to demand that the employee fulfill labor responsibilities and careful attitude towards the employer’s property, subject the employee to disciplinary and financial liability in the manner established by the Labor Code of the Russian Federation, other federal laws.

In accordance with Article 192 of the Labor Code of the Russian Federation, for committing a disciplinary offense, 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 disciplinary sanctions:

1) remark;

2) reprimand;

3) dismissal for appropriate reasons.

The procedure for applying disciplinary sanctions is determined by Article 193 of the Labor Code of the Russian Federation.

Before applying disciplinary action, the employer must request a written explanation from the employee. If the employee refuses to provide the specified explanation within two working days, a corresponding act is drawn up.

In the system of the Ministry of Internal Affairs of Russia, employees can be involved in work in shifts, in which case the period for submitting an explanation is two shifts.

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill or on vacation. The day on which the misconduct is discovered, from which this period begins, is considered the day when the person to whom the employee is subordinate at work became aware of the commission of the misconduct, regardless of whether he is entitled to impose disciplinary sanctions.

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.

When bringing an employee to disciplinary liability, only the Labor Code of the Russian Federation can be applied, that is, internal checks are not carried out against employees.

It is also prohibited to apply disciplinary sanctions not provided for by federal laws, charters and regulations on discipline.

For each disciplinary offense, the employer can apply only one disciplinary sanction (Part 5 of Article 193 of the Labor Code of the Russian Federation).

It should be noted that departmental acts of the Ministry of Internal Affairs of Russia stipulate that managers have the right to deprive employees annual bonus for improper performance of official (labor) duties in cases provided for by collective agreements, local regulations. However, deprivation of a bonus (reduction in its size) is not classified by labor legislation as disciplinary sanctions, which is confirmed judicial practice.

When applying a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.

In the Resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2
“On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” states that the employer must provide evidence indicating that when imposing a penalty, the employee’s previous behavior and attitude to work were also taken into account.

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

The legislator has provided for the possibility of early lifting of a disciplinary sanction at the initiative of the employer, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees at any time from the moment the sanction is applied. The employer issues an order regarding the early lifting of a disciplinary sanction, indicating in it the motives that served as the basis for this decision.

Term: no later than one month from the date of discovery of the offense and no later than six months from the date of its commission (and based on the results of an audit or inspection, no later than two years from the date of commission).

Duration: two days.

Coordinate the dismissal with the relevant state labor inspectorate and the commission for minors’ affairs and protection of their rights

To obtain permission, you must send a request to these organizations regarding the dismissal of a minor employee.

Result:

Consent of the state labor inspectorate and the commission for minors’ affairs and protection of their rights to terminate the employment contract.

Familiarize yourself with the employee's order

The order should be printed and familiarized with it to the employee against signature - at the bottom of the order the employee must sign and put the date of familiarization.

Duration: three days.

Duration: day of termination of the employment contract.

Make an entry on the termination of the contract in the work book

The entry is made in accordance with the dismissal order in the following format:

Make a copy of the work book (sheets with entries) of the dismissed employee for the archive of the enterprise

Section 11 of the personal card is filled out according to the following model:

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 discovery 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 submit 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 offense 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 judicial practice allows us to draw the following general conclusions on this problem:

• 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 in writing, however, consistent with the form 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. 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 the 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

Issuance of an administrative document on the application to an employee who has committed a disciplinary offense of appropriate disciplinary measures, 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, a corresponding report on 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 inspection. The powers of the State Tax Inspectorate are enshrined in law (paragraph 2 of Article 356, paragraph 6 of Article 357 of the Labor Code of the Russian Federation) and confirmed by judicial practice (Review of judicial practice of the Armed Forces of the Russian Federation for the first quarter of 2011, approved by the Presidium of the Armed Forces of the Russian Federation 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 employer received a notice to bring disciplinary action against the employee. What is the procedure for bringing to disciplinary liability based on representation?

Often, employers, having received a representation that contains a requirement to hold the employee accountable, completely forget about Labor Code Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation). An employee is subject to disciplinary liability only on the grounds that this or that supervisory authority requires it. The presence and degree of guilt of the employee is not established, the procedure for bringing to disciplinary liability is not followed. But this is fundamentally wrong and gives rise to violations labor rights workers.

We have already written about how to act if. Let's now take a closer look at the very procedure for bringing disciplinary action on presentation.

If a request for disciplinary action has been received

Remember that bringing disciplinary action against an employee is a right, not an obligation of the employer.

If the submission contains a requirement to bring the employee to disciplinary liability, then this requirement is illegal. The supervisory authority can only recommend consideration of disciplinary action, but not require it.

In accordance with Part 1 of Article 192 of the Labor Code of the Russian Federation, for failure to perform or improper performance of labor duties by an employee, the employer has the right to apply disciplinary sanctions. Labor legislation directly states that the application of disciplinary sanctions is RIGHT, but not DUTY employer. This circumstance is confirmed by the opinion of the Supreme Court of the Russian Federation, in particular in the Resolution of the Supreme Court of the Russian Federation dated 03.03.2016 N 46-AD16-2.

It is necessary to hold an employee accountable for culpable failure to perform or improper performance of official duties.

The presence of guilt and the severity of the employee’s disciplinary offense must be established. Often the presentation contains general information about violation of the law and demands “... to bring the perpetrators to disciplinary liability.” Therefore, it is advisable for the employer, as part of the consideration of the application for disciplinary action, to conduct its own verification of the stated facts.

Based on the submission, we recommend creating a commission and conducting an internal investigation into all violations. The commission will be able to objectively determine whether the facts of violations set out in the submission are confirmed. Whether or not the workers are at fault for this.

Based on the results of the inspection, the commission must draw up a conclusion or certificate in which it sets out its conclusions for the employer.

It is imperative to follow the procedure for applying disciplinary sanctions

Before applying a disciplinary sanction to an employee, it is necessary to demand from him the facts set out in the application for disciplinary action. If carried out internal audit, then it is advisable to familiarize the employee with its conclusion.

If the fact of a violation or violations is confirmed, the employee’s guilt is established, only then should the issue of the advisability of holding the employee accountable be considered. The very idea of ​​bringing to disciplinary liability, without additional actions on the part of the employer, cannot serve as a basis for bringing to responsibility.