Time limits for bringing disciplinary action

Disciplinary responsibility is a special type of legal liability, its application is always associated with the performance of labor or official duties. Feature disciplinary liability is the application of penalties that constitute its content, as a rule, by the subject of labor relations, namely the employer. In this connection, disciplinary liability is one of the manifestations of the employer’s power in relation to the person who entered into a contract with him employment contract employee.

Disciplinary liability consists of the application by an authorized representative of the employer to an employee who has committed a disciplinary offense of disciplinary sanctions established by law. Bringing disciplinary action against an employee who has committed a disciplinary offense is the right of the employer's authorized representative. Whereas an employee who has committed a disciplinary offense is obliged to suffer the adverse consequences established by law. Consequently, the authorized representative of the employer has the right to release the employee from the obligation to suffer adverse consequences in connection with the disciplinary offense committed by him. In this case, the employee’s position improves compared to the law. Therefore, such an exemption should be recognized as meeting the requirements of labor legislation.

Thus, disciplinary liability can be defined as one of the types of legal liability, which consists in the right of an authorized representative of the employer to apply disciplinary measures provided for by law to an employee who has committed a disciplinary offense and in the corresponding obligations of the employee who has committed the crime. disciplinary offense, suffer the adverse consequences established by law.

There are two types of disciplinary liability for employees. Firstly, the general disciplinary liability of employees. General disciplinary liability applies to all employees without exception. General disciplinary liability occurs according to the rules established in the Labor Code of the Russian Federation. The application of general disciplinary liability does not require proof of additional or special legally significant circumstances. In this connection, it is recognized as general disciplinary liability.

Secondly, we can distinguish special disciplinary liability of employees, which exists along with general disciplinary liability. In this case, special disciplinary liability is applied only in cases where general disciplinary liability cannot be applied. Disciplinary liability is introduced by special legislation, in particular by statutes and regulations on employee discipline. The application of disciplinary liability is always associated with proof of additional, that is, special, legally significant circumstances. There are several types of legally significant circumstances that must be proven when applying special disciplinary liability.

The first type of special legally significant circumstances that must be proven when applying special disciplinary liability is the assignment of an employee to special subjects who are subject to disciplinary liability according to special rules. For example, prosecutors and judges are subject to disciplinary liability according to special rules. At the same time, the general rules on disciplinary liability are applicable to them to the extent that they do not contradict the special legislation on bringing to responsibility of this type.

Secondly, as a type of special legally significant circumstances that must be proven when applying special disciplinary liability, we can highlight the performance by an employee of special labor duties directly related to the life and health of people. Such duties include performing work directly related to the movement of railway transport.

Thirdly, a circumstance, the proof of which allows us to draw a conclusion about the application of special disciplinary liability, is the presence of a special circle of persons or bodies vested with the right to impose disciplinary liability. For example, judges are subject to disciplinary liability by qualification boards upon the recommendation of the chairman of the relevant court. The President of the Russian Federation may bring heads of federal executive bodies to disciplinary liability.

Fourthly, a special type of circumstances, the proof of which allows us to draw a conclusion about the application of special disciplinary liability, is the presence of additional, that is, special, disciplinary sanctions applied to employees. For example, a special disciplinary sanction is deprivation of the driver's right to drive a locomotive for a period of three months to one year with transfer with his consent to another job, release from a position related to the operational work of railways, with the provision of another work.

Fifthly, the circumstances, the proof of which allows us to draw a conclusion about the application of special disciplinary liability, should recognize the existence of additional opportunities for appealing disciplinary sanctions. In particular, in addition to the judicial one, there may be an extrajudicial procedure for appealing disciplinary sanctions, for example, to a higher authority or to a higher official. For example, the decision of the regional qualification board of judges on the application of special disciplinary liability can be appealed to the High Qualification Board of Judges of the Russian Federation, and then in court. Employees of government organizations can appeal a disciplinary sanction to a higher official.

Proof of each type of circumstances considered allows us to draw a conclusion about the application of special disciplinary liability to the employee. At the same time, when applying special disciplinary liability, circumstances that are included in various types can be proven. For example, judges are classified as special subjects of disciplinary liability and appeal against special disciplinary liability in a special manner. Although proof of one type of circumstance allows us to draw a conclusion about the application of special disciplinary liability.

Thus, general disciplinary liability differs from special liability in terms of proof of one or more types of circumstances considered. Proof of each of them may become the basis for recognizing special disciplinary liability. However, as a general rule, general disciplinary liability is applied along with special one. In this connection, special disciplinary liability is applied only in cases where there are no grounds for applying general disciplinary liability.

procedure for bringing to disciplinary liability

The main responsibilities of the employee are submission to the rules of conduct enshrined in the Labor Code of the Russian Federation, other laws, collective agreements, employment contracts, internal labor regulations, other local acts and conscientious performance of functional duties in accordance with job description. Accordingly, failure to fulfill or improper performance of these duties serves as grounds for bringing the employee to disciplinary liability.

An employer can bring an employee to disciplinary liability only if he has created appropriate conditions for the employee to comply with labor discipline.

Thus, prerequisite disciplinary liability is the presence of the employee’s guilt. Consequently, it is impossible to raise the question of bringing to disciplinary liability an employee who refused to perform work in the event of a danger to his life and health due to violation of labor protection requirements; or from performing heavy work and work with harmful and dangerous working conditions not provided for by the employment contract; or refused to terminate his vacation early at the request of the employer.

To protect the employee, the law established a clear procedure for bringing to disciplinary liability and a closed list of types of disciplinary sanctions.

Before applying disciplinary action, the employer must obtain a written explanation from the employee. If the employee refuses to write, an act is drawn up in any form. Refusal to provide an explanation is not an obstacle to applying disciplinary action.

An order to impose a disciplinary sanction is issued signed by the manager. The employee must be familiarized with the order against signature within 3 days from the date of its publication. If the employee refuses to sign the specified order, a corresponding act is drawn up.

Disciplinary action is applied no later than one month from the date of discovery of the misconduct. The specified period begins to run from the day when the person to whom the employee is subordinate for work (service) became aware of the commission of an offense, regardless of whether he was vested with the right to impose disciplinary sanctions. This does not take into account the time the employee is ill, on vacation, or the time required to take into account the opinion representative body workers. The absence of an employee from work for other reasons, including in connection with the use of days off, does not interrupt the specified period. Vacation that interrupts the flow of a month should include all vacations provided by the employer in accordance with current legislation, including annual (main and additional) vacations, vacations in connection with training educational institutions, leaves without pay.

In addition, 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, financial and economic activity or audit, no later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction can be applied. The Labor Code names the following as disciplinary measures:

Comment;

Rebuke;

Dismissal.

Only their employer can apply them to the employee, taking into account the severity of the offense committed, the circumstances under which it was committed, the employee’s previous behavior, and his attitude to work.

Labor discipline is the factor that plays a stabilizing role in the process of coordinated work of the team. Its main points, which every future employee of an enterprise or organization undertakes to comply with, are stated in the annex to the employment contract and sound like a list of the organization’s provisions on discipline. From the moment an employee puts his signature on the list of requirements, he automatically becomes dependent on standard established rules, as well as from additional individual conditions enterprises based on the specifics of the organization’s work.

What does a disciplinary offense entail?

Violation of any rule on your own initiative entails the imposition of a disciplinary sanction, which takes into account several types of punishment: from a reprimand to dismissal from work.

Having received reliable information that his employee or employee has committed a disciplinary violation, the head of the enterprise must receive from the perpetrator a written explanation indicating the reasons that influenced such actions. These are the requirements of Article 193 of the Labor Code, and both the employee and the manager must comply with them.

Often, negligent employees are in no hurry to provide written explanations in the hope that such a concealment of the reasons for their misconduct will serve as a reason to reassure management.

However, as practice shows, their hopes are rarely justified, especially if these employees are not in good standing. In addition, the reluctance to provide a written justification is an incentive to impose a disciplinary sanction, and on the other hand, the person deprives himself of the opportunity to present his own view of the situation. It happens that well-founded reasons become a very compelling reason for an employer not to resort to punitive actions.

Grounds determining disciplinary liability

The main determining factor for the application of punishment to an employee is the action committed by the employee, which is interpreted as a serious violation labor agreement.

Intentional actions of an employee committed through his own fault may be considered grounds for disciplinary action. They can be expressed either in failure to fulfill their direct duties, or in ignoring other obligations taken into account in the employment contract.

It is necessary to take into account that the application of penalties, in accordance with the procedure for bringing to disciplinary liability an employee who has committed an offense, can only occur if the obligations violated by the employee are taken into account in the employment agreement and justified by the articles of the current legislation.

In turn, the following facts are considered a violation, considered as ignoring the articles of the Labor Code:

If the employee was absent from the workplace without subsequently presenting valid arguments for explanation. In this case, the agreement of the parties may not specify the location of the workplace. In this case, according to Part 6. Art. 209 Labor Code of the Russian Federation, workplace employee is defined as the point where an employee must report to perform his or her job duties. This place may not be official and may be temporary, but at the same time it is subject to direct control by the employer.
If an employee does not want to perform his direct job duties without a valid justification. It is worth noting here that if such actions occur as a result of adjustments to the employment contract, then in this case there is no violation of discipline. In this situation, the reasonable action is to terminate the contract.
If an employee, without presenting any arguments, refuses to undergo a medical examination, which is mandatory for some professions.
In the event that an employee refuses to undergo special training and pass exams, which are specified in the employment agreement and are necessary for admission to work.

A separate clause contains provisions on participation in a strike. This action is not considered a violation and cannot become a reason for disciplinary action.

The only exception may be that a strike is declared illegal according to a court ruling. After presenting a copy of the court decision to the persons leading the strike, the employee is obliged to start work the next day.

Deadline for disciplinary action

A person guilty of violating labor regulations may be punished no later than within monthly period from the date of detection of a violation of established standards.

Punishment of an employee caught in a gross violation labor activity, is determined and follows within a month from the date of discovery of the offense.

When applying the procedure for bringing to disciplinary liability, one should not forget that:

The period when the guilty employee needs to determine the type of punishment begins from the moment he is convicted of the offense.
If during this period the employee was on vacation or was sick, the time is not counted. All other days missed without good reason are included in the calculation of the period of disciplinary action.
The initial day of disclosing the offense is considered to be the day when the direct superior of the employee becomes aware of it, who may not have the right to independently make a decision on the application of punishment.

Types of disciplinary punishment

The employer has the right to apply the following penalties to the offending employee:

Oral remark.
A reprimand or severe reprimand entered into your personal file.
Dismissal of an employee based on irrefutable evidence of his guilt.

These types of disciplinary liability can only be imposed general director. However, in large organizations where large number branches, carrying out such actions is difficult and impractical. Therefore, the decision to accept the type of punishment is transferred to another person agreed with the management.

This appointment is made on the basis of an order on the distribution of powers. After this, the immediate superior acquires the right to punish the guilty employee and choose the type of punishment independently. In this case, he needs to take into account that:

Types of disciplinary liability are unacceptable if they are not taken into account by labor legislation.
For one fact of violation of labor activity, one penalty is imposed (Article 193 of the Labor Code, Part 5). If an employee receives a reprimand or reprimand, and then is forcibly dismissed, he can go to court, which will recognize this fact of action as illegal. In addition, if an employee does not agree with the decision that determined the type of his punishment, he can contact the authorities that are responsible for the analysis of individual labor disputes. There is also a state labor inspectorate whose range of activities includes resolving such issues.

The employer also has the right to apply disciplinary punishment against an employee who has submitted a resignation letter due to at will even before the disciplinary violation is committed.

Involvement in disciplinary liability and the Labor Code of the Russian Federation

According to Part 5 of Art. 193 of the Labor Code of the Russian Federation, only one type of punishment can be applied to the offending employee, taking into account the proof of the offense, at the discretion of the manager.

Dismissal as a disciplinary measure is possible only if there are irrefutable arguments justified by the articles of the Labor Code of the Russian Federation. Disciplinary action, namely the list of possible penalties, is contained in this codified legal regulation.

Despite this, many organizations use own system fines and sanctions. Most often they are expressed in a material deduction from wages. As for the Labor Code of the Russian Federation, but on the basis of Art. 22, 137 it prohibits such penalties. Legally permitted only certain types accounting deduction.

But in this case, employers use loopholes and apply own order bringing to disciplinary liability. As a rule, in most enterprises the salary is divided into basic and bonus. And if penalties are not applied to the first part, then the employee may be deprived of 100% of the bonus.

When can an employee be punished?

In this case, all mandatory conditions for bringing to disciplinary liability must be taken into account. The list of them is formed based on the signs characterizing labor misconduct. That is why disciplinary action can only be taken if certain factors are present.

Causing harm

It is important to note that it does not always reflect property damage. Harm can be caused to the internal way of life in the organization, that is, labor discipline. This, in turn, can stimulate the emergence of negative motivation among other employees.

Presence of guilt

Expressed with direct or indirect intent. At the same time, it also happens due to negligence. The form of fault is what determines the disciplinary action imposed on the employee. Guilt through negligence requires a reprimand. The direct intent of the employee may be considered as a reason for dismissal.

Causality

It must necessarily be between the harm caused, which affected labor discipline, and behavior of an illegal nature. In this case, it is determined whether similar harm to labor discipline would have been caused if the employee had acted differently.

Bringing disciplinary action to the employer

Basis - Art. 195 Labor Code of the Russian Federation. If the head of an enterprise or organization or his deputy violates the norms of labor legislation or the rules of a collective labor agreement, a statement of unlawful action is sent to the relevant authorities (authority) from a person authorized on behalf of the employees of the enterprise.

If the facts reflected in the application are confirmed, then the standard procedure for bringing disciplinary action, including dismissal, is applied to the manager. Labor legislation applies equally to everyone; both ordinary employees and managers must obey it.

M.E. DZARASOV,
Ph.D. legal Sciences, Jr. scientific co-workers sector of labor law and law social security Institute of State and Law of the Russian Academy of Sciences

Types of disciplinary sanctions. The procedure for bringing an employee to disciplinary liability

Duration of disciplinary action

The purpose of legal norms is to ensure order in society. In the event that people in their behavior deviate from the rules contained in legal norms, a violation of law and order occurs. The internal labor regulations of the organization are part of the general legal order, and they must also be observed.
Disciplinary liability is the employer’s reaction to the employee’s unlawful behavior, that is, to the disciplinary offense he has committed. However, it must be remembered that according to Part 2 of Art. 189 of the Labor Code of the Russian Federation, it is the employer who has the obligation to create the conditions necessary for employees to comply with labor discipline.

Labor discipline is obligatory for all employees to obey the rules of conduct determined in accordance with labor legislation, collective agreements, agreements, employment contracts, and local regulations of the organization. Part 1 art. 189 Labor Code of the Russian Federation

Grounds for bringing an employee to disciplinary liability. Disciplinary offense

The basis for bringing an employee to disciplinary liability is the commission of a disciplinary offense. The Labor Code of the Russian Federation understands a disciplinary offense as the failure or improper performance by an employee, through his fault, of the labor duties assigned to him (Part 1 of Article 192 of the Labor Code of the Russian Federation).
A disciplinary offense is characterized by the presence of such characteristics as subject, subjective side, object, objective side.
The subject of a disciplinary offense may be an employee who has an employment relationship with a specific employer.
The subjective side is the guilt on the part of the employee, which can be expressed in the form of direct or indirect intent, as well as negligence.
The object of a disciplinary offense is the internal labor regulations of the organization.
The objective side is the action (inaction) of the offender.
For correct application For disciplinary action, it is necessary to have a clear understanding of what labor law classifies as labor duties. The main responsibilities of the employee are set out in Art. 21 Labor Code of the Russian Federation. Thus, the employee is obliged:
- conscientiously fulfill his labor duties assigned to him by the employment contract;
- comply with the internal labor regulations of the organization;
- maintain labor discipline;
- fulfill established standards labor;
- comply with labor protection and occupational safety requirements;
- treat the property of the employer and other employees with care;
- immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the employer’s property.
The labor responsibilities of both the employee and the employer may also be stipulated in other regulations, collective agreements and agreements, and they are specified in employment contracts.
In paragraph 35 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" emphasizes that when considering a case on the reinstatement of a person dismissed under clause 5 of Article 81 of the Labor Code of the Russian Federation, or on challenging a disciplinary sanction, it should be taken into account that failure by an employee to perform labor duties without good reason is failure to perform or improper performance under the employee’s fault for the job duties assigned to him (violation of legal requirements, obligations under the employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules etc.).
The Supreme Court of the Russian Federation in this resolution draws attention to the fact that such violations include:
1. Absence of an employee without good reason from work or workplace.
At the same time, it is clarified that if the employment contract concluded with the employee, or the employer’s local regulatory act (order, schedule, etc.) does not stipulate the specific workplace of this employee, then in the event of a dispute regarding the issue of where the employee is obliged be in the performance of their labor duties, it should be assumed that, by virtue of Part 6 of Art. 209 of the Labor Code of the Russian Federation, a worker is the place 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.

As a general rule, applying disciplinary sanctions is the right, not the obligation of the employer.

2. Refusal of an employee, without good reason, to perform job 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 fulfill the requirements specified in this agreement labor function and 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 due to a change essential conditions the employment contract is not a violation labor discipline, but serves as the basis for termination of the employment contract under clause 7 of Art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Art. 73 Labor Code of the Russian Federation.
3. 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 working hours special training and passing exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work (clause 35 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
Participation of workers in a strike cannot be considered as a violation of labor discipline, and accordingly, disciplinary measures cannot be applied to them in this case, except in cases where a court decision declares the strike illegal (Parts 1 and 2 of Article 414 of the Labor Code of the Russian Federation). If a strike is declared illegal, workers are obliged to stop it and begin work no later than next day after delivering a copy of the said court decision to the body leading the strike (Part 6 of Article 413 of the Labor Code of the Russian Federation). If employees do not start work in established by law terms, they may be subject to disciplinary action for violation of labor discipline (Part 1 of Article 417 of the Labor Code of the Russian Federation).
The employee, in the performance of his work duties, must submit to the disciplinary authority of the employer. Application of disciplinary action in accordance with Art. 22 and 192 of the Labor Code of the Russian Federation is the right of the employer; he is independent when making decisions. An exception to the rule is provided for in Art. 195 of the Labor Code of the Russian Federation, which states the employer’s obligation to apply disciplinary action to the head of the organization (or his deputies), up to and including dismissal, in cases where it is confirmed that the head of the organization (his deputies) violated laws and other normative legal acts on labor, conditions collective agreement, agreements specified in the statement of the representative body of workers.

Types of disciplinary sanctions. The procedure for bringing an employee to disciplinary liability

The employer does not have the right to establish in local regulations and apply other types of disciplinary sanctions other than those listed in Art. 192 of the Labor Code of the Russian Federation, federal laws, charters and regulations on discipline

The employer has the right to apply the following disciplinary sanctions:
- remark;
- reprimand;
- dismissal for appropriate reasons.
Most employees can be subject to only those penalties that are determined by the Labor Code of the Russian Federation. In addition to the above-mentioned disciplinary sanctions, penalties provided for by federal laws, charters and discipline regulations may be applied to certain groups of employees. Labor legislation does not allow the use of disciplinary sanctions not provided for by federal laws, charters and discipline regulations.
The Labor Code of the Russian Federation does not directly indicate on what grounds dismissal should be considered a disciplinary sanction. Such grounds include, for example, paragraphs. 5, 6, 9 and 10 tbsp. 81 Labor Code of the Russian Federation.
It is necessary to pay attention to the following: Part 2 of Art. 77 of the Labor Code of the Russian Federation establishes that the grounds for termination of an employment contract can be established by the Labor Code of the Russian Federation and other federal laws. In fact, it turns out that in the regulations or charter on discipline, approved. By decree of the Government of the Russian Federation, additional grounds for dismissal cannot be specified other than those contained in the Labor Code of the Russian Federation and other federal laws.

The Presidium of the Supreme Court of the Russian Federation, by its resolution dated July 3, 2002 No. 256pv-01, recognized clause 18 of the Regulations on the discipline of railway transport workers of the Russian Federation, approved. by Decree of the Government of the Russian Federation dated 08/25/92 No. 621 (as amended by Decrees of the Government of the Russian Federation dated 12/25/93 No. 1341, dated 04/23/96 No. 526, dated 02/08/99 No. 134), illegal. It was recognized that the introduction by the by-law of an additional basis for dismissal (for an employee committing a gross violation of discipline that created a threat to the safety of train traffic... the life and health of people or led to a violation of the safety of cargo...) contradicts the requirements of the legislation of the Russian Federation.

Labor discipline of workers whose work is directly related to the movement vehicles, must be regulated by the Labor Code of the Russian Federation and regulations (statutes) on discipline approved by federal laws. To date, no such charter or regulation has been adopted. In accordance with Art. 423 of the Labor Code of the Russian Federation, previously approved charters and regulations on discipline are valid until the relevant federal laws are put into effect, which will approve new charters and regulations on discipline.
The procedure for bringing an employee to disciplinary liability is established by Art. 193 Labor Code of the Russian Federation. The employer, before applying any disciplinary sanction, must request a written explanation from him.

The employee’s refusal to provide an explanation is reflected in the report.
An employee’s refusal to provide an explanation is not an obstacle to applying disciplinary action. Parts 1 and 2 st. 193TKRF
The period for applying a disciplinary sanction (1 month) does not include the time the employee is ill, on vacation, or the time required to take into account the opinion of the representative body of employees. Part 3 art. 193 Labor Code of the Russian Federation

An employee can be brought to disciplinary liability no later than one month from the date of discovery of the offense .
When bringing an employee to disciplinary liability, you should remember:
- the month period for imposing a disciplinary sanction must be calculated from the date of discovery of the offense;
- the day of discovery of the offense from which the month period begins is considered the day when the person to whom the employee is subordinate for work (service) becomes aware of the commission of an offense regardless of whether it has the right to impose disciplinary sanctions;
- the one-month period for applying a disciplinary sanction does not include the time of illness of the employee, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (Part 3 of Article 193 of the Labor Code of the Russian Federation); the employee’s absence from work for other reasons, including in connection with the use of rest days (time off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the specified period;
- vacation that interrupts the flow of a month should include all vacations provided by the employer in accordance with current legislation, including annual (main and additional) vacations, vacations in connection with training in educational institutions, vacations without pay ( clause 34 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
A disciplinary sanction cannot be applied to an employee later than 6 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 2 years from the date of its commission. The specified time frame does not include the time of criminal proceedings (Part 4 of Article 193 of the Labor Code of the Russian Federation).
Thus, the legislation clearly establishes the time limits within which an employee can be brought to disciplinary liability. Imposing disciplinary action after these deadlines is illegal.
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). Often, employers reprimand or reprimand and immediately fire the employee. This practice is unacceptable, since such dismissal will be declared illegal by the court. In this case, the employer imposes disciplinary sanctions twice for the same disciplinary offense.

Citizen I. contacted the State Labor Inspectorate with a complaint about illegal dismissal. During the audit, it was established that I. worked at Lions LLC as an accountant for 3 years. During this period, she was repeatedly brought to disciplinary liability for improper performance of her duties under the employment contract. When another violation was discovered, she was reprimanded, then she was fired under clause 5 of Art. 81 of the Labor Code of the Russian Federation for repeated failure to fulfill labor duties without good reason.

I. was reinstated at work because the employer applied two disciplinary sanctions for the same disciplinary offense. In addition, he violated the procedure for applying disciplinary sanctions against I. - she was not familiarized with any of the orders to bring her to disciplinary liability against signature.

The Labor Code stipulated that the body considering a labor dispute has the right to take into account the adequacy of the disciplinary sanction with the gravity of the offense committed, the circumstances under which it was committed, the employee’s previous work and behavior. Unfortunately, the Labor Code of the Russian Federation does not contain such a rule. However judicial practice when considering cases of reinstatement at work, it follows the path of taking into account these circumstances. It seems that when making a decision to bring an employee to disciplinary liability, these circumstances should still be taken into account, despite the fact that the Labor Code of the Russian Federation does not yet contain an obligation to take them into account

The employer's order (instruction) to apply a disciplinary sanction must be announced to the employee against signature within three working days from the date of issue. If the employee refuses to sign the specified order (instruction), then a corresponding act is drawn up (Part 6 of Article 193 of the Labor Code of the Russian Federation).
Paragraph 33 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 states that the employer has the right to apply a disciplinary sanction to the employee even when he, before committing the offense, filed an application for termination of the employment contract on his own initiative, since labor relations in this case, terminate only upon expiration of the notice period for dismissal.
An employee may appeal a disciplinary sanction to state inspection labor or bodies for consideration of individual labor disputes (Part 7 of Article 193 of the Labor Code of the Russian Federation). The bodies that consider individual labor disputes are commissions for labor disputes and courts.
In accordance with Art. 391 of the Labor Code of the Russian Federation directly in the courts, individual labor disputes are considered based on applications from employees for reinstatement at work, regardless of the grounds for termination of the employment contract, or about changing the date and wording of the reason for dismissal. If an employee believes that a disciplinary measure such as dismissal has been unlawfully applied to him, then he should go directly to the court, bypassing the labor dispute commission. At the same time, if an employee is held accountable and sanctions such as a reprimand or reprimand are applied to him, the employee can go to both the court and the labor dispute commission.

Duration of disciplinary action

Part 1 of Art. 194 of the Labor Code of the Russian Federation establishes: if within a year from the date of application of a disciplinary sanction an employee is not subjected to a new disciplinary sanction, then he is considered to have no disciplinary sanction.

Before the expiration of the one-year period, the employer has the right to remove the penalty from the employee for own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees (Part 2 of Article 194 of the Labor Code of the Russian Federation). If a disciplinary sanction is lifted early, a corresponding order (instruction) must be issued.

Labor legislation establishes additional legal guarantees for certain groups of workers when their employer brings them to disciplinary liability.
Thus, the dismissal of workers who are members of a trade union under clause 5 of Art. 81 of the Labor Code of the Russian Federation, which also refers to disciplinary sanctions, is carried out taking into account the opinion of the elected trade union body this organization. The opinion of the trade union organization must be taken into account in the manner established by Art. 373 Labor Code of the Russian Federation.
Employee representatives participating in collective negotiations during the negotiation period cannot without the prior consent of the body that authorized them to represent, be subject to disciplinary action, as well as dismissed at the initiative of the employer, with the exception of cases of termination of the employment contract for committing an offense for which, in accordance with the Labor Code of the Russian Federation or other federal laws, dismissal from work is provided (Part 3 of Article 39 of the Labor Code of the Russian Federation).
According to Art. 66 of the Labor Code of the Russian Federation information on penalties in work book are not made, except in cases where the disciplinary sanction is dismissal.
The forms of orders to announce a reprimand or reprimand are not unified; when preparing them, you must follow general rules which are presented for registration of organizational and administrative documents.
In the event that a disciplinary sanction such as dismissal is applied to an employee, the order is drawn up according to the unified form No. T-8. This form was approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment.”
In conclusion, we note that employers are primarily interested in complying with the requirements contained in the legislation when applying disciplinary sanctions. Following the rules set out in regulations legal acts, they save their money and time.

Assigns to the employer, that is, the manager, the right to bring an employee to disciplinary liability if the latter allowed the improper performance of his official duties or did not perform them at all without good reason and through your own fault. Such a disdainful attitude towards labor discipline in labor law falls under the concept of “disciplinary offense”.

Depending on the severity of the offense, as well as on their number, a reprimand or reprimand may be applied to the offending employee, or the employee may be dismissed for negative reasons.

In order to insure yourself against unjustified disciplinary action, you must carefully read your own job description, which lists all job responsibilities. In addition, Article 21 of the Labor Code of the Russian Federation provides for general rules of labor discipline, which are the same for all categories of workers. First of all, this is the need to comply with internal regulations, labor protection and safety requirements, as well as compliance with the standards provided for a specific position.

Most often, the reasons for imposing a disciplinary sanction are absenteeism, appearing at the workplace while intoxicated, or refusal to comply with the manager’s orders, if such is provided for in the employment contract.

Often, employers use this provision of the law as a lever of pressure on their employees who decide to go on strike and not show up for work because of this. Of course, absence from work without presenting a supporting document will be regarded as absenteeism. However, participation in a strike, according to Art. 414 of the Labor Code of the Russian Federation, is not a violation of labor discipline. This means it cannot serve as a basis for prosecution. There is only one exception to this rule - declaring a strike illegal in court.

The procedure for bringing to disciplinary liability

The first thing a manager must do when identifying a disciplinary violation is to request a written explanation from the alleged culprit. This obligation is enshrined in Art. 193 of the Labor Code of the Russian Federation, and there are no exceptions to it.

Wanting to evade responsibility, the employee often refuses to provide an explanation. This is a rash decision, because, firstly, such a refusal does not in any way prevent the imposition of a disciplinary sanction, and secondly, an explanation is an excellent opportunity to present your own vision of the situation. Sometimes the reasons given turn out to be so significant that the employer may abandon the intention to punish the employee.

Disciplinary liability, like any other, has a statute of limitations set out in the same article. 193 Labor Code of the Russian Federation. Thus, punishment can be applied no later than a month from the moment the offense was discovered and no later than 6 months from the moment it was committed. The favorite tricks of the guilty in the form of emergency sick leave will not help in this case - time of illness, as well as being on vacation, are not included in the statute of limitations.

The punishment must be formalized properly, that is, an appropriate order is issued regarding its imposition, which the guilty person familiarizes himself with under signature within three days from the date of issue. Time away from work during this period is also not taken into account.

Removal of a disciplinary sanction and the possibility of appealing it

The commission's decision can only be appealed in court within 10 days from the date of its receipt in writing. It is also advisable to seek judicial protection if the commission refuses to consider the dispute, as well as if all methods of pre-trial settlement of the dispute have been exhausted.

Before reprimanding, making a reprimand or registering dismissal “under the article”, make sure that the period for bringing disciplinary action has not yet expired!

From the article you will learn:

All employees of an enterprise who have entered into an employment contract with it must comply with the rules of conduct in the workplace established by the employer. The law allows violators to be held accountable.

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In this case, a violation is considered to be failure to perform or improper performance by an employee of the duties assigned to him. In addition, violation of the work regime established , ignoring instructions from the manager, going to work in a state of alcohol intoxication, deliberate damage to the organization’s property are also regarded as guilty actions. Violations that violate the order adopted in the organization and established by local documents are grounds for bringing the perpetrators to disciplinary liability, including their .

Statute of limitations for bringing disciplinary action

The statute of limitations for bringing to disciplinary liability in 2017 is strictly limited by the provisions of Parts 3 and 4 of Article 193 of the Labor Code of the Russian Federation. Apply any type of penalties for violation of internal labor regulations, and other local regulations is possible after one month from the date of discovery of the offense, but no later than six months after this fact became known.

According to slightly different rules, disciplinary action is taken for misconduct identified during a scheduled or unscheduled audit, or financial and economic activities of the enterprise, other audit activities. The period for bringing to disciplinary liability an employee who has violated discipline is increased to two years.

Both the six-month and two-year periods do not include periods of vacation or the guilty employee. The time spent requesting the opinion of a trade union or other representative body of workers is not taken into account. If dismissal is chosen as a disciplinary measure, taking into account the opinion of the trade union becomes a mandatory stage of the procedure (Articles 82 and 373 of the Labor Code of the Russian Federation).

Important: all types of leave provided in accordance with the law - educational, , additional, without pay - belong to the category of leaves that interrupt the flow of the month allotted for bringing to disciplinary liability (clause 34 of the resolution of the Plenum Supreme Court RF No. 2 dated March 17, 2004).

It is impossible to bring an employee to disciplinary liability if more than six months have passed since the commission of the offense. In other words, if an employee violated discipline a year ago, he cannot be punished for this - even if the fact of violation was discovered and recorded relatively recently.

Disciplinary action based on the results of the inspection

The starting point is the moment when the offense was committed, and not the moment when the offense was discovered. Time of proceedings in a criminal case initiated in connection with , in this case the calculation is not accepted. In practice, problems usually do not arise with determining the exact date from which the period for bringing disciplinary action begins.

In this case, in order to comply with the statute of limitations for bringing disciplinary liability, the employer must V in writing indicating the date of the request. If you refuse to provide explanations, you must draw up an appropriate act indicating the facts identified. In this case, the statute of limitations for the violation can begin to count from the date of the explanatory statement submitted by the employee, or from the date on which the act of refusal to provide an explanation will be issued.

Most often, an employee’s misconduct is not discovered based on the results internal audit, and during carried out by the control and supervisory authority. An external audit at an enterprise can be carried out by the most different organizations- private audit agencies, government agencies and so on.

But in any case, based on the results of the audit, a or other document. The date the employer receives such a document will be considered the day the misconduct was discovered. Therefore, it is necessary to apply disciplinary action to the guilty employee within a month from the date of receipt of the report, as required by Part 3 of Article 193 of the Labor Code of the Russian Federation.