It is not a disciplinary action. Reprimand as a disciplinary sanction (nuances). How long does the penalty apply?
Any punishment, including disciplinary punishment, must be reasoned, formalized and enforced in strict accordance with labor legislation. Otherwise, it is possible to appeal the order to impose a disciplinary sanction on the part of the employee. Let us further consider what types of disciplinary sanctions exist and how the imposition of punishment should be legally correct.
Disciplinary sanction under the Labor Code of the Russian Federation
A disciplinary sanction in the implementation of labor relations is a punishment applied to an employee of an organization, regardless of his rank and status. A charge may be imposed in the following cases:
- in case of non-fulfillment or poor-quality performance of their official duties;
- in case of violation of the rules and regulations of the company, prescribed in internal regulations:
- violation of labor discipline,
- presence at work under the influence of alcohol or drugs,
- disclosure of trade secrets, etc.
These and other reasons for which punishment may follow are spelled out in the Labor Code (LC) of the Russian Federation, in Art. 81 .
It is worth noting that a citizen's ignorance of his official duties does not relieve him of responsibility for their failure to fulfill them. All actions that the employee must carry out are prescribed in the employment contract concluded between him and the employer. Familiarization with this document is a priority for employment.
Curious facts
The application of a disciplinary sanction is allowed no later than 1 month from the date of fixing the misconduct, while not taking into account the time spent on sick leave, on vacation, as well as the period of time spent taking into account the opinion of the representative body of employees.
Disciplinary measures can be applied only in the case of proven guilt of the employee and documentary fixation of the fact of violation. For example, if an employee did not go to work for an unexcused reason, and absenteeism was not marked on his working time record card, then it will not be possible to apply any penalties to him.
You can record a disciplinary violation with the following documents:
- act. It is compiled mainly in case of violations of a disciplinary nature. For example, when being late for work, when absenteeism, etc.;
- report note. It is issued by the head of the offending employee regarding non-fulfillment or poor-quality performance of official duties, in case of violation of reporting, etc.;
- minutes of the committee's decision. This document is drawn up, for example, in the event of material damage to the company.
An employee has the right to appeal against a disciplinary sanction with the help of the state labor inspectorate.
The term of a disciplinary sanction is one year, and if during this time the employee does not receive a new disciplinary sanction, then he will be considered as having no disciplinary sanction.
Terminology of disciplinary sanction as a legal act
Disciplinary action, like any procedural action, is strictly regulated by the Labor Code (LC) of the Russian Federation. Violation of the norms and procedure for imposing a penalty may lead to an appeal against its application and recognition as invalid.
The disciplinary sanction procedure implies that there is a subject, object, subjective and objective side in the case:
- the subject is an employee who has committed a disciplinary offense;
- object - the norms and procedures established in the labor organization;
- the subjective side is the fault of the employee;
- the objective side is the relationship between the fault of the offending employee and the consequences.
Types of disciplinary responsibility of employees
There are several types of disciplinary sanctions that are approved by the labor legislation of the Russian Federation (Article 192 of the Labor Code). Only these types can be applied in labor relations, while others will be illegal.
Types of charges:
- comment,
- rebuke,
- dismissal.
The list is modeled in order of increasing severity of punishment for the violations committed. Remark - the mildest measure of influence, is issued orally. The reprimand is also announced orally, but has more serious consequences.
If an employee has several reprimands, he can be fired legally. Dismissal, as a measure of disciplinary action, is applied in case of repeated violations for which the employee was previously given more soft types punishment.
Only one penalty may be applied per violation. Let's give an example: the employee did not complete the work within the specified time. If the employer reprimanded the employee for this, then he has no right to announce an additional reprimand.
Disciplinary responsibility is the obligation of an employee to incur a penalty in accordance with labor legislation when committing unlawful acts.
Reasons for imposing a penalty
The penalty may be imposed by the employer on the employee, if there are grounds for that. The reason for a disciplinary sanction is the commission of a disciplinary offense (Article 189 of the Labor Code of the Russian Federation).
What exactly falls under the wording of a violation of discipline:
- being late for work;
- non-attendance at workplace without a good reason (truancy);
- being at the workplace in a state of alcoholic or drug intoxication;
- violation of safety regulations;
- disclosure of trade secrets;
- non-fulfillment or poor-quality performance of official duties prescribed in the employment contract;
- non-compliance with the rules and regulations of the company, etc.
Any violations committed by the employee, not included in the list possible causes for the imposition of a disciplinary sanction, cannot be the basis for the imposition of punishment. For one misdemeanor, only one disciplinary sanction may be imposed.
Disciplinary sanctions are general and special. General ones are used in all labor collectives, and special ones only in certain areas, for example, in the Armed Forces of the Russian Federation or in the public service.
Some facts
In case of early release of an employee from a penalty, the employer needs to back up and draw up an order “to remove the penalty”, and the employee needs to familiarize himself with it and put his signature. The organization can draw up the form of the order on its own.
General disciplinary sanctions, according to Art. 192 of the Labor Code of the Russian Federation:
- comment,
- rebuke,
- dismissal.
A remark is the most sparing measure of influence, and dismissal is an extreme one.
Terms for imposing a disciplinary sanction under the Labor Code of the Russian Federation
The imposition of a penalty is possible only within a certain period of time after the violation has occurred. This period is equal to 1 calendar month from the date of fixation of the committed disciplinary offense, but no more than 6 months from the date of its commission should elapse. It should be noted that this period does not include the time when the employee was on vacation, sick or absent for other reasons from the workplace.
If a violation is revealed during any inspection, then the limitation period is 24 months (Article 193 of the Labor Code of the Russian Federation).
The procedure for imposing a disciplinary sanction on an employee
There is a certain procedure for taking measures for a disciplinary violation (Article 193 of the Labor Code of the Russian Federation). A change or omission of any of the stages may make the imposition of a penalty unlawful and result in its cancellation.
Stage 1: the employer receives a signal about the commission of a misconduct.
This signal must be in writing. This may be an act, report, memorandum or protocol of the decision of the commission after any verification. Any of the listed documents must contain a description of the violation committed. The date the employer received the signal is the date the disciplinary case was opened.
Curious information
In the event of a dispute, the employer's requirement to provide explanations and the corresponding act on the absence of these explanations in writing are grounds for disciplinary action. However, if the employee provides an explanatory note, observing the deadlines, then the penalty may be canceled.
Stage No. 2: presenting a written request to the employee for an explanation of the act committed.
After reading this requirement, the employee must put his signature.
Step 3: Explanation by the employee of the event.
The form of presentation is an explanatory note. It must contain a description of the reasons that led to the violation. Reasons can be both valid and disrespectful.
The employer evaluates the reasons for this criterion, he has the right to classify them at his own discretion. The Labor Code of the Russian Federation does not regulate the concept of “good reason”, therefore, generally accepted grounds are applied: illness, lack of material resources for labor activity, execution of orders from higher authorities, etc.
The employee has the right not to write an explanatory note, in this case, after 2 days of waiting, the employer (or other responsible person) must draw up a special act on the absence of explanations from the employee. This act must be signed by the employer (or representative of the employer) and 2 witnesses.
Stage 4: Imposition of a disciplinary sanction.
If the employer recognizes the cause of the misconduct on the part of the employee as disrespectful, then he has the right to apply one of the disciplinary measures. Such a decision is made by issuing an order. This document must contain the following points:
- order number and date of issue;
- the basis for drawing up the document is the wording that a certain disciplinary sanction has been applied to a particular employee (indicating the full name and position);
- an indication of the reason for which the penalty was imposed;
- employer's signature.
The order is an important document to confirm the facts of the imposition of penalties. Several such documents are a good reason for the employer to take an extreme measure of disciplinary action - dismissal (Article 81 of the Labor Code of the Russian Federation).
If there are no other penalties within one year, and after that year, the employee must be waived the penalty. At the request of the employer, it can be removed during this one year, as well as at the request of the employee, or at the request of the representative body or the head of the employee.
Stage number 5: familiarization of the employee with the issued order.
This must be done by employees of the personnel department or the employer himself no later than 3 working days from the date of its publication. Familiarization with the order is confirmed by the employee's handwritten signature. If a citizen refuses this procedure, then a special act is drawn up that fixes the refusal.
Alternative disciplinary measures
Disciplinary measures of influence can be applied not only in labor collectives, but also in other structures. For example, in the ranks of the Armed Forces of the Russian Federation, in state bodies. Legal regulation disciplinary sanctions in these structures are carried out, respectively, by the Charter "On the Armed Forces of Russia" and the Federal Law (FZ) "On Civil Servants".
The list of disciplinary measures in the Armed Forces, in addition to the standard ones, also has a number of additional penalties:
- demotion;
- disciplinary arrest;
- deprivation of a leave of absence;
- expulsion (if we are talking about military training, courses, educational institutions);
- appointment of a work order out of turn, etc.
Watch the video on the timing of bringing an employee to disciplinary responsibility
Consequences of imposing a penalty
The penalty is an official warning to the employee about the inadmissibility of misconduct committed by him. Repeated violations lead to regular penalties in the form of comments and reprimands. In such a case, the employer has the right to dismiss the employee on a legal basis with the issuance of the appropriate wording.
If, with the existing penalties, the employee did not commit such violations during the year, then the imposed penalty is automatically removed from him.
All questions of interest can be asked in the comments to the article.
Each person officially working in any company signs an employment contract with the employer. Based on this document, different types of disciplinary sanctions can be applied to an employee in the presence of various violations, for which the main provisions of the Labor Code are taken into account. They are represented by certain penalties, and if enough violations are recorded on the part of an employee of an enterprise, then this may become the basis for his official dismissal forcibly.
What is a disciplinary offense?
If any disciplinary offense is detected on the part of an employee, then different penalties are applied to him. This misconduct is represented by the failure to fulfill one's obligations in the workplace. For example, the rights of other employees may be violated, orders of management are not followed, or the requirements of local regulations are violated.
All actions that are disciplinary offenses are listed in the Decree of the Plenum of the Supreme Court No. 2. Certainly such actions are accompanied by signs:
- labor discipline is violated, so if a citizen simply does not want to take part in public life company, this cannot be the basis for using different types disciplinary actions;
- when violations are detected, there must be evidence of the guilt of a particular specialist, therefore, if he did not come to work due to natural disasters, a fire or an accident, then this is a good reason, therefore, it cannot be regarded as absenteeism.
It is allowed to apply the penalty only if there is evidence of the employee's guilt. If he can prove that he is not guilty of certain actions, then according to Art. 192 of the Labor Code of the Russian Federation, disciplinary sanctions cannot be used.
Features of punishment
These penalties may be general or specific. The first are listed in Art. 192 of the Labor Code, so they can be applied to any employee of the enterprise. Special ones are used only for certain categories of employees. They are usually established by different laws or prescribed in the charter of the enterprise.
Most commonly used general views disciplinary sanctions prescribed in the Labor Code. They can be used for any employee who violated labor discipline or did not comply with the requirements of the company's management. It does not matter what position he occupies and what labor duties he performs.
It is forbidden to use different types of punishment that are not listed in the Labor Code, for example, it is not allowed to apply a disciplinary sanction in the form of a fine.
Only the direct head of the company or a responsible person who has the appropriate powers transferred in an official way can use different penalties. The same person chooses which measure will be used. This takes into account the severity of the existing misconduct, as well as the circumstances this process, as softening nuances are often revealed.
Often employees, after applying various penalties to them, go to court for help. After considering all the circumstances of the case, the court may recognize that dismissal or other punishment is an illegal action on the part of the employer, therefore all the requirements of the employee are satisfied.
If within a year after the citizen was sanctioned, there are no complaints about his work and behavior, then it is automatically recognized that he has no punishments. Additionally, before the expiration of a year, the status of a respectable specialist can be returned to the employee by sending a special written application to the employer. It indicates a request for the removal of the penalty.
When are they applied?
Penalties can be used by the employer only if there are good reasons. All of them are listed in Art. 192 TK. Therefore, different types of disciplinary sanctions under the Labor Code of the Russian Federation can be applied in the following situations:
- failure to fulfill their basic official duties under an employment contract;
- dishonest performance of functions in the workplace;
- performing various actions that are not permitted by the company's regulations;
- the main provisions of job descriptions are violated;
- labor discipline is not observed, for example, regular delays or unreasonable absence from the workplace are detected.
Based on the above violations, the employer can certainly use different methods of punishment. Therefore, the employees themselves must ensure that they take a responsible approach to the performance of their duties.
Comment
This method of punishing negligent workers is considered the most common. A disciplinary sanction is issued in the form of a remark for minor misconduct. For example, if minor damage is caused to company property or discipline standards are violated. At the same time, there should be no negative consequences such misconduct by the employee for the enterprise.
Usually, a remark is applied if for the first time the duties are improperly performed by a specialist. In order to apply a disciplinary sanction in the form of a remark, even when hiring a citizen, it is required to familiarize him with the job descriptions.
How is a note made?
The very process of using such punishment involves the implementation of actions on the part of the management:
- initially, the employer must demand written explanations from the employee;
- an explanatory note is prepared within two working days after receipt of the request;
- in the explanatory note, the specialist may indicate that there is evidence that there is no fault of his or that there were certain unforeseen circumstances due to which he violated the requirements of the company's management;
- the employer independently decides whether the existing reasons are valid, since such circumstances are not fixed in the Labor Code;
- most often, punishment is not applied if the employee was ill or did not have the necessary materials to perform his job duties;
- if the reason is recognized as valid, then the employer does not apply punishment to the employee in the form of a remark;
- if there are no good reasons for violating the requirements of the company, then an order is issued by the head, on the basis of which a remark is issued to the employee;
- a specialist signs this order, and if he refuses to put his signature, then an act is formed by the management.
The term for imposing a disciplinary sanction is usually one year. It is allowed to withdraw it ahead of schedule, and this process is carried out at the initiative of the employer or on the basis of a petition drawn up by the employee, the head of the department where he works, or a representative of the trade union.
Rebuke
This method punishment is considered quite specific, and there is no information in the legislation about what offenses it can be used for. Typically, a disciplinary sanction in the form of a reprimand is applied if serious misconduct is identified that leads to certain negative consequences for the company. Additionally, it is used for regular minor violations.
Most often, reprimand is used in the following situations:
- violation of the main provisions of the Labor Code;
- regular walks;
- violation of the charter or internal other regulatory documents of the enterprise;
- failure to fulfill their official duties, with which the employee of the company was familiarized in advance against signature.
This type of disciplinary sanction may be applied if a citizen refuses to undergo a medical examination or refresher courses. If a person is found to have intentionally or unknowingly taken actions that caused the company to suffer losses, they are usually also reprimanded. This penalty is imposed only after the issuance of an official order by the head of the enterprise. Such punishment can be used for a variable period of time, but is usually applied for 6 months.
Most often, the reprimand is used after the remark has been made. It is not allowed to apply several types of disciplinary sanctions at once under the Labor Code of the Russian Federation. A severe reprimand can only be issued if the employer has written evidence of the guilt of a particular employee.
How is a reprimand made?
The process of holding accountable must be realized in successive actions. Initially, the immediate supervisor of the specialist must transfer to the management of the company a memo or a special memorandum. This document contains information about:
- the date the event occurred;
- the circumstances under which the violation was committed by the employee of the company;
- the names of all persons who are related to this misconduct.
The violator is given the opportunity to submit written explanations to the employer. If this type of disciplinary sanction is applied for absenteeism or other violations, then the relevant information must be entered in the personal file of the employee of the enterprise. Such a punishment may serve as a basis for depriving an employee of a bonus or other monetary incentives. If during the year no more violations are revealed, then the penalty is automatically removed. It is allowed to withdraw the reprimand ahead of schedule if the employer is loyal to the employee.
Dismissal
This method of punishment is considered the most severe. It is due only to the presence of a really serious misconduct on the part of an employee of the enterprise. The use of such punishment is the right of the head of the company, therefore, in the presence of extenuating circumstances, he may not resort to dismissal.
Disciplinary action in the form of dismissal is applied in situations:
- there are several cases of violation of the labor schedule at the enterprise, for example, regular delays or ignoring job descriptions;
- gross misconduct, such as appearing at work under the influence of alcohol, disclosing important information about the company, stealing or damaging company property.
Such violations are indeed significant. The guilt of the employee must be confirmed by official documents in order to assert that it was he who carried out the disciplinary offense. Types of disciplinary sanctions can only be applied separately, and before dismissal, it is always necessary to record other minor violations, as well as issue reprimands or comments.
How is a dismissal made?
There must be good reasons for applying this penalty. Additionally, you need to properly format it.
An act of theft is necessarily formed, and an explanatory note is required from the violator himself. It is possible to draw up an explanatory note only within two days.
The penalty represented by the dismissal must be drawn up in the form of an order. A copy of this document is provided to the employee for review. Based on this order, an order is issued to dismiss the employee. The citizen receives a salary and compensation for vacation, and information is entered in the work book that the employee was fired after committing a disciplinary offense.
You will not be able to fire a person if he is on vacation or on sick leave.
Design rules
Different penalties may be applied to employees who commit various misconduct and violations. The use of various types of disciplinary sanctions in the Russian Federation is considered common, but certain rules of this process must be observed.
A specific violation must be recorded, for which different documents can be formed:
- an act indicating that during working hours an employee of the company was absent from the workplace;
- a memorandum containing information that the work was not completed on time;
- the decision of the commission studying the nuances of the detected shortage.
After a violation is identified, the employee who is the culprit is determined. Evidence is prepared, after which an explanatory note is requested. If missing this document within two days, then an appropriate act is formed.
If the employee has valid reasons for the violations, then this may be a mitigating circumstance, so a lighter punishment may be applied. If there are no grounds for violation, then an order is issued to bring him to a disciplinary sanction represented by dismissal.
How long does the penalty apply?
As a standard, a decision is made to hold an employee liable within a month after a specific event or violation is discovered. If more than 6 months have passed, then it is not allowed to punish an employee of the enterprise. This period does not include the time when the employee did not go to work for good reasons.
Often, different violations are discovered after various checks or revisions. Under such conditions, the period during which the company's specialists can be held liable increases to two years.
Conclusion
Thus, each employer must understand the types of disciplinary sanctions and the procedure for their application in order to use them effectively to bring negligent employees to justice.
In the Russian Federation, three types of punishment are used, represented by a remark, a reprimand or dismissal. They are applied depending on the severity of the existing misconduct and the frequency of violations. Each such punishment must be properly executed, and they also have a limited duration.
It is allowed to remove the penalty in advance if there is an application from the employee or his immediate supervisor. The employer must evaluate all mitigating and aggravating circumstances before making a decision. The application of penalties is his right, not an obligation, so he can independently decide how an employee will be punished for various violations.
Discipline in terms
These terms are always heard, everyone understands them almost intuitively, but if you ask an employee to explain what it is, you will surely hear a lot of new and interesting things, but not always intelligible. Meanwhile, it is possible to understand each other correctly only if we put the same meaning into the words. So let's start with some terminology.
Labor discipline- obligatory obedience for all employees to the rules of conduct determined in accordance with the Labor Code of the Russian Federation (Labor Code of the Russian Federation), other federal laws, collective agreement, agreements, local regulations, labor contract (Article 189 of the Labor Code of the Russian Federation). It would seem that everything is clear enough: the employer says what and how to do during working hours, the employee obeys. But as always and in everything, there are certain nuances. Labor law regulates only those relations between an employee and an employer that. The employer cannot, however
Ways to formalize the familiarization of employees with a local regulatory act or changes to it are shown in the article “We draw up the updating of local regulations»
Disciplinary sanctions are applied in case of non-performance or improper performance by the employee of his duties (Article 192 of the Labor Code of the Russian Federation). In this case, these obligations must be fixed in the employment contract, job description or in the local regulations of the employer. This means that before starting the procedure for bringing an employee to responsibility, you need to make sure that the employee was familiarized (under signature with the date) with the document, the provisions of which he violated. Examples of violations of labor discipline:
- failure to perform a labor function;
- failure to comply with the instructions of the head;
- violation of labor discipline (lateness, absence from the workplace without good reason, refusal to undergo a medical examination, if it is mandatory for an employee, refusal to study the basics of labor protection, being in the workplace in a state of intoxication, etc.);
- committing guilty acts (theft, embezzlement, damage, etc.) in relation to the property of the employer, established by a court verdict that has entered into legal force (paragraph “d”, part 6, article 81 of the Labor Code of the Russian Federation).
Example 1
Being late or absent
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To determine how much a person was late for work, you must first find out what time he was supposed to arrive. The time of work established in the organization (beginning and end) must be recorded in the Internal Labor Regulations. But if they forgot to acquaint the late employee with them under the signature, then it will be problematic to hold him accountable.
late is later than scheduled, the arrival of the employee without good reason to work. If the employee was absent from the workplace without good reason during the entire working day (shift), regardless of its (her) duration, and also for more than 4 hours in a row, then this will already 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 its violation has been discussed for a long time, and most experts agree that the requirements for employee clothing are legitimate only in relation to those positions for which it is mandatory to wear overalls or corporate uniforms, for the rest, corporate requirements can only be advisory character.
Example 3
Use of obscene language
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Oddly enough, it is very difficult to fire an employee for using obscene language in relation to colleagues or even a manager. For example, the Irkutsk Regional Court (appellate ruling No. 33-9359/2013 dated 11/18/2013 in case No. 33-9359/2013) declared illegal the order to declare a remark “for a disrespectful tone in relation to higher management and direct subordinates” and recovered from the organization moral damage for bringing an employee to disciplinary responsibility.
Note that each case must be considered separately. It is one thing when a foreman swears at his subordinate builders, and quite another when a stewardess does it in relation to passengers. It seems that in the second case, the court is likely to support the employer, not the employee.
Disciplinary offense- non-fulfillment or improper fulfillment by the employee through his fault of the labor duties assigned to him (Article 192 of the Labor Code of the Russian Federation). A misdemeanor is a rather complex, composite event that includes a number of:
- firstly, there must be some actions (or inaction) of the employee that go against his obligations under the employment contract;
- secondly, the employee's actions must violate the rules established and fixed by the current legislation (for example, absenteeism) or local regulations of the employer (for example, the requirement to work in overalls) rules;
- thirdly, they must be committed by a person who has an employment relationship with the organization;
- fourthly, the actions of the employee must be conscious (have a direct intent to commit) or be committed through negligence.
It is after establishing the presence of these components that a person can be brought to disciplinary responsibility. In addition, to determine the proportionality of liability for a misdemeanor, 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, respectively, a special type of legal (established by law) 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 the employee must endure for his illegal behavior. The legislator severely limited their types and number (Article 192 of the Labor Code of the Russian Federation):
- comment;
- rebuke;
- dismissal on an appropriate basis.
In addition, federal laws, charters and regulations on discipline for certain categories of employees may also provide for other disciplinary sanctions. For example, civil servants may be subject to an additional “incomplete compliance warning.”
Responsibility varies.
Traditionally, disciplinary responsibility is usually divided into general - established by the Labor Code of the Russian Federation and special - established by specialized legal acts(Charter on the discipline of workers in maritime transport, Regulations on the discipline of workers in railway transport, etc.). However, this division is more doctrinal in nature.
At the household level, responsibility is usually divided into:
- disciplinary(affecting most often the moral and psychological component of the personality) and
- material, that is, affecting wages and "beating" the pocket. Let's make a reservation right away - fines from wages are prohibited in our country. However, this does not prevent the employer from reducing the final amount of wages to the employee in case of violation of discipline. This can be either a deduction from the “envelope” part of the salary (unfortunately, in Russia, the payment of wages under gray schemes is still quite common), or the payment of only a part of the bonus promised to the employee. However, most often material liability is applied to employees whose actions not only violated labor discipline, but also caused harm to the organization, which can be assessed and calculated.
The Labor Code (Article 192 of the Labor Code of the Russian Federation) calls on 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.
Each representative of the employer looks at them from "his own bell tower". For one boss, it is normal that his employees communicate during working hours on personal topics, for another, this is an unacceptable waste of working time.
Another example is smoking. Agree, the fact that an employee endlessly runs from his workplace to the smoking room, a smoking judge will certainly react differently than one 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 wage for the period of suspension from work, and possibly also 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 a misconduct, for which the legislator has established dismissal as the upper limit of punishment, it can be recommended to be held accountable “incrementally”. That is, “move” along that “pyramid” that was built in Art. 192 of the Labor Code of the Russian Federation: remark - 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 for them. relate:
- repeated failure employee without good reason job duties, if he has a disciplinary sanction(clause 5 of part 1 of article 81 of the Labor Code of the Russian Federation);
- single gross violation an employee of labor duties (paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation).
At the same time, 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 “repaid”, respectively, it is worth returning to the minimum penalties.
When imposing a penalty, the employer should reflect in the documents (memos, orders, acts) not only the circumstances of the misconduct, but also assess the person’s attitude to work, the characteristics of colleagues, the magnitude of the negative consequences for the employer.
Procedure for disciplinary action
The procedure for bringing an employee to disciplinary responsibility has several stages. Each of which must be properly designed.
In small organizations quite often they neglect the observance of the procedure, limiting it to simplified version of "explanatory - order" However, this approach is fraught with complications if the dispute goes 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 "request a written explanation from the employee." But on the other hand, the court, when assessing the legality of imposing a penalty, will study all the details of the case, affecting such ephemeral quantities as. In this situation, a lot will depend on how well the employer substantiated his position at the time the employee was held accountable. This can only be done through a full-fledged, properly documented investigation, especially if the employer's goal was to fire.
This short version is valid only if:
- the employee fully admits his guilt in a written explanation and
- the employer does not plan to apply "draconian" measures, limiting himself to a remark or reprimand, which are not even entered in the work book.
"Deployed" chain of actions / documents in our opinion, it should look like this (see examples of documents in Examples 6-13):
- Identification of misconduct - memorandum the person who identified it, in the name of the representative of the employer, authorized to make decisions on holding liable (by no means always such a person is general director). In some organizations, powers are not distributed according to the principle of delegating to one of the deputies the right to sign all documents on personnel matters. There are situations when different types of misconduct, the initiative to bring to justice lies with different leaders, for example:
- for misconduct related to the direct performance of labor duties, only the immediate supervisor can initiate the procedure,
- and for delays or violations of the regime - the head of the security service of the organization (data automated system accounting for the passage of employees become an additional basis).
- Organization of an investigation into a misdemeanor - an order to establish a commission or an order from the person in charge to conduct an investigation.
We note right away that the commission is not mandatory. One specialist, for example, a personnel officer, can cope with the coordination of work on 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 maturity of the procedure.
For example, in a large plant with “machine” accounting of working hours, the procedure for holding an employee late for work accountable may differ significantly from the same procedure in a small team:- in the first case, upon the fact of the daily printout of the data of the program that controls the time the employees pass through the turnstiles at the checkpoint, the responsible person, after receiving the employee's explanations, can immediately prepare a draft order for signature by the management. Indeed, in such organizations, the process of evaluating the explanations of the employee is usually established, as well as a certain scale of punishments, 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 receive explanations 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 misconduct and only then hold accountable. Each of these steps should be documented.
- 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 explanations in writing (so that later he could not change his “testimony”). After all, a person could really have good reasons or extenuating circumstances (for example, the movement of trains along the metro line on which the employee lives could be unexpectedly blocked, and he had to get “on bed rest” (the employer may not know about this).
Moreover, art. 193 of the Labor Code of the Russian Federation, before applying a disciplinary sanction, obliges the employer request a written explanation from the employee and give the employee 2 working days to prepare it. In fact, 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 DEZ or a printout from the Internet about interruptions in transport communication). Therefore, in our opinion, even the employee's refusal to give explanations on the day when they are requested by the employer does not stop this period. The employee may change his mind before the expiration of this period and still submit his vision of the situation in writing, and the employer will be obliged to take it into account.
Refusal of an employee to explain is not an obstacle to the application of a disciplinary sanction if it is recorded by the signatures of witnesses (this can be done in a separate act or provide for the appropriate section directly in the request for explanations, which, if necessary, is filled in in the copy of the employer, see the mark with the number "2" in Example 8 ). A recorded refusal to give written explanations when holding an employee liable may be regarded as an aggravating circumstance.
Now let's explain how the 2-day period, calculated in working days, is calculated:Example 4
Calculation of the time allotted for giving explanations
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If an explanation was demanded on January 14 on Thursday, then the first day of the deadline would be January 15 (Friday), and with a regular five-day working week with days off on Saturday and Sunday, the second day would be Monday January 18 until the end of the working day. After its completion or the next day in the absence of written explanations, they are considered not submitted. It is better to immediately indicate in the request the date by which explanations must be provided, this can eliminate misunderstandings (see the mark with the number “1” in Example 8).
- If the circumstances of the case are examined commission, then based on the results of its work, an act is drawn up(it must have at least 3 signatures). Before preparing the order, in our opinion, such a final document is highly desirable, which would contain:
- the results of the investigation of the misdemeanor (with the application of the collected evidence),
- recommendations on bringing the employee to a certain responsibility,
- an explanation of why he should be brought to such a measure of responsibility.
- Bringing an employee to disciplinary responsibility - issuing an order, as well as familiarizing the employee with it within 3 working days(in case of refusal - fixation of this fact by an act). Please note that a reprimand and a remark were always issued by order in a free form, and dismissal was previously issued according to a unified form No. T-8.
- If the most severe disciplinary sanction was applied to the employee - dismissal, then it is reflected in the work book:
- for repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction (under clause 5 of part 1 of article 81 of the Labor Code of the Russian Federation),
- for a single gross violation of labor duties by an employee (clause 6 of part 1 of article 81 of the Labor Code of the Russian Federation).
What personnel orders were drawn up according to unified forms and who now approves them? What is an "arbitrary" form of an order for personnel? Answers to these questions in the article "Orders for personnel in any form"
For a sample work book, see Example 2 of the article “Reinstatement at work by court decision»
The described “long” chain of actions (and documents) can be shortened, while observing all the requirements of the Labor Code of the Russian Federation, by seizing documents that deeply investigate the circumstances of the case and the attitude of the employee to his labor duties. 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. Let's keep the numbering of actions as in the "long" chain, but in some cases we will adjust their content:
Example 5
Act on the fact of violation (lateness) with the requirement to give written explanations
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The turnover is filled in if the employee refuses to put his signature on familiarization with the act
1. Identification of wrongdoing it is better to issue not just a memorandum (usually immediate supervisor), a an act signed by at least 3 people: the compiler and 2 witnesses(see Example 5). It is better to involve witnesses not from among the “administration”, but among the colleagues of the delinquent employee, this should be done for greater persuasiveness in the case of a case being considered in the labor inspectorate or court;
3. 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 that a separate act is not drawn up for this case). This can be done in a separate document (shown in Example 8) or all in the same original act (see mark "1" in Example 5). Accept and evaluate written explanations if the "violator" provided them on time;
5. After that, you can issue an order(it is understood that the executor who prepared it for signature already investigated this case instead of the commission, which appears in the “unfolded” chain of actions) and familiarize the employee;
6. If there was a dismissal, then it still needs to be reflected in work book.
The legislator has given the employer a certain period during which he can exercise his right to apply punishment. A disciplinary sanction 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 required to take into account the opinion of the trade union (representative body of workers). Moreover, if 6 months have passed from the date of the misconduct, and according to the results of an audit, audit of financial and economic activities or an audit - 2 or more years from the date of its commission, then the employee can no longer be punished.
Only one disciplinary sanction may be applied for each disciplinary offense(Article 193 of the Labor Code of the Russian Federation). Although within the framework of one incident there may be several such misconduct (see the 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 subjected to a new disciplinary sanction, the original "burns out", that is, the employee is considered not to have a 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 the representative body of employees remove the order from the employee. See Examples 14 and 15 for how this can be done.
We suggest using examples of paperwork to consider the situation with bringing an employee to responsibility (Examples 6-13), and we will do this within the framework of a requirement for employee discipline that is obviously losing for the employer. This will allow us to provide not only samples of documents drawn up by the employer, but also the employee's complaint to the labor inspectorate (Example 16), and how the employer will have to formalize the results of its inspection (Example 17).
Example 6
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In addition to the policy of incentives of various kinds, labor legislation also provides for disciplinary measures used against those who violate strict labor discipline. Therefore, each employee must have an idea of what a disciplinary sanction is and in what situations it may threaten.
What is a disciplinary sanction is clearly stated in the Labor Code
It is customary to refer to a disciplinary sanction as a way of influencing an employee fixed by regulatory enactments in the event that he fails to fulfill his immediate labor duties.
Many people are built in such a way that they do not have an impulse responsible for self-discipline, and they need to be exposed to external influence from time to time, which helps them to focus. We are talking about labor rules, routine, discipline.
It should be noted that the fear of punishment is a great incentive for people not to commit.
An important condition: a working citizen, by his non-performance, whether conscious or not, caused damage to the employer.
Order for disciplinary action
A disciplinary sanction is valid for 1 month from the moment when the employee committed a disciplinary offense. In order to be punished, the employer should take care of drawing up the appropriate order.
This document is free-form. The administrative part of the order must contain the following information:
- the time it was done
- the time the act was discovered.
On the basis of these data, a recovery order is drawn up, indicating its type. The document must be signed by the head. After that, the order is transferred to the employee for review.
In addition to the original order itself, two copies of the document are made, one of which must be glued to a personal file, the other must be given to the employee.
What types of disciplinary action are known
Reprimand as a disciplinary sanction
Federal labor legislation establishes three main types of disciplinary sanctions:
- comment
- rebuke
The institution itself is allowed to establish an additional gradation (for example, not just a reprimand, but marked “strict”). The main thing is that this should be fixed by local acts of the organization.
Important! The legislation does not allow resorting to the use of those measures that go beyond the scope of the Labor Code. For example, an increase in the working day, the imposition of fines, physical impact are not legally valid.
The type of disciplinary sanction chosen by the manager must be justified and commensurate with the misconduct that the employee has committed. There are frequent cases when through the court it was possible to cancel the penalty imposed on the employee, and its consequences.
The decision as to which misconduct to use a remark and a reprimand is decided directly by the head of the organization. But the reasons that can lead to dismissal are prescribed by law in article 81 of the Labor Code. This list is strict, it cannot be supplemented. It includes the following offenses:
- absenteeism
- drunkenness in the workplace
- embezzlement
- etc.
Features of the application of a disciplinary sanction, its terms
Dismissal as a punishment for violation of labor discipline
From the minute the misconduct was committed, within 2 days, the guilty employee is obliged to provide an explanation of his actions, indicating the reasons in writing.
If the employer finds the indicated reasons valid or justified, he has the right not to impose a penalty on the offender. If there were no explanations, then the penalty is imposed without them.
There are certain time limits within which a penalty may be imposed. They are fixed by law. Within 30 days from the date the offense was discovered. At the same time, the period of illness, vacation and the time of consideration of the situation are not included here.
- Within six months from the date of the act.
- Within 2 years, counting from the moment when the offense was committed, in situations where the act was revealed as a result of a financial and economic or audit check, audit.
Important! If it is difficult to judge the obvious guilt of an employee, an internal audit is necessary, which requires the creation of a special commission. The result of the audit will be a special document on the progress and results of the study.
The labor relations that develop between the employee and the employer consist in the adoption of certain norms, rules and obligations. Knowing what it is and all its features, it will be possible to avoid unpleasant incidents at work.
How do I file a disciplinary action? Find out from the video: