Engaging an employee disciplinary responsibility: scheme

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

• At what age does disciplinary responsibility begin? .

General scheme The procedure for bringing an employee to disciplinary liability is as follows:

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

IMPORTANT! The day when a disciplinary offense was discovered is the day when this offense was detected by a person to whom the employee is subordinate at work / service (paragraph 34 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2, hereinafter - PPVS No. 2).

Act of refusal to give explanations: sample

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

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

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

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

You can download a sample document from this link: The act of refusal to give explanations - sample.

Bringing to disciplinary liability under the Labor Code of the Russian Federation: notification of giving an explanation on disciplinary action

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

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

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

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

How to hold an employee accountable: types of disciplinary sanctions

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

• comment;
• rebuke;
• dismissal.

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

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

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

• the severity of the offense committed;
• the circumstances under which it was committed;
• previous behavior of the employee and his attitude to work.

In addition, the court (when the employee disputes the imposed disciplinary measure) may also take other circumstances that have weight in a particular case. specific case. For example:

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

Order on the application of disciplinary action

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

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

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

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

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

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

For example, taking into account the fact that the order to impose a disciplinary sanction is usually issued by the head of the enterprise, the right to impose disciplinary punishment belongs to him (although the charter of the organization, the regulation on the unit, such a right can be granted to the head of the unit).

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

More about this in the articles:

• Petition for the removal of a disciplinary sanction - sample.

At the same time, the disciplinary sanction may be appealed by the employee to the court and the state labor inspectorate. The powers of the GIT are enshrined in law (paragraph 2 of article 356, paragraph 6 of article 357 of the Labor Code of the Russian Federation), confirmed by judicial practice (Review of the judicial practice of the Armed Forces of the Russian Federation for the first quarter of 2011, approved by the Presidium of the Armed Forces of the Russian Federation of 06/01/2011). For more information about this order, see the articles:

• The procedure for appealing and lifting a disciplinary sanction;

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

• identification by the employer of the fact of committing a disciplinary offense;
• a request by the employer from the relevant employee for a written explanation;
• submission by the employee within 2 days of a written explanatory note;
• adoption by the employer of a decision on the application / non-application of disciplinary measures;
• issuing an order to employers to apply an appropriate disciplinary measure.

The provisions of the Labor Code of the Russian Federation governing the procedure for bringing to disciplinary liability have not been changed since 2006. Despite this, questions and litigation still arise regarding the application of certain legal norms on disciplinary sanctions. How long should an employee who has committed a disciplinary offense be held accountable? Is the demand for explanations from the employee mandatory for bringing to disciplinary responsibility? What are the mandatory requirements for the procedure for issuing an order to impose a disciplinary sanction? What decisions do judges make when considering these issues?

General rules for bringing to disciplinary responsibility

The general rules for bringing to disciplinary responsibility are defined in Art. Art. 192 and 193 of the Labor Code of the Russian Federation.
So, for committing a disciplinary offense, that is, for non-fulfillment or improper fulfillment by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions to him:
- remark;
- reprimand;
- dismissal on the appropriate grounds.
In addition, federal laws, charters and regulations on discipline for certain categories of employees may provide for other disciplinary sanctions. It is not allowed to apply disciplinary sanctions that are not established by the Labor Code of the Russian Federation or other regulatory legal acts.
Only one disciplinary sanction may be imposed for each disciplinary offence.
When imposing a disciplinary sanction, the gravity of the misconduct committed and the circumstances under which it was committed must be taken into account.
A disciplinary sanction may be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

Deadlines for disciplinary action

A disciplinary sanction is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, as well as the time necessary to take into account the opinion of the employees' representative body. More this question discussed below.

In accordance with the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2 "On the application by courts Russian Federation of the Labor Code of the Russian Federation "the day of discovery of a misconduct, from which the month period begins, is considered the day when the person to whom the employee is subordinate at work (service) became aware of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions. VS The Russian Federation clarified that the period of illness of an employee, his stay on vacation, as well as the time necessary to comply with the procedure for taking into account the opinion of the representative body of employees (Article 193 of the Labor Code of the Russian Federation) are not counted within a month for the application of a disciplinary sanction. other reasons, including in connection with the use of rest days (days off), regardless of its duration (for example, with a rotational method of organizing work), does not interrupt the course of the specified period.It is also explained that all leave granted by the employer in accordance with applicable law, including including annual (basic and additional) vacations, vacations in connection with studying at educational institutions, vacations without pay.
If an employee commits a disciplinary offense, it must be recorded in writing. As a rule, an appropriate act is drawn up, which is signed by several employees of the organization. In some cases, official or memorandums are prepared to the head about the commission of a violation by an employee. These documents are sent to the head. From the date of receipt by him of the indicated documents, a monthly period begins to be calculated for bringing the employee to disciplinary responsibility.
Also, violation by employees of the organization of labor duties can be detected during the audit.
Checks can be carried out on the subject entrepreneurial activity other organizations (eg. government bodies exercising control and supervisory functions). If they reveal any violations, the day of discovery of a misconduct committed by an employee of the audited organization will be the day the act is received based on the results of the audit. In this situation, as a rule, there are no difficulties with determining the start date of the monthly period.
Otherwise, the issue of the day of discovery of a misconduct revealed during an internal audit, that is, an audit conducted by a unit or authorized officials of the organization itself, is resolved.
By general rule the monthly period is calculated from the date of drawing up the act of such an inspection, which is quite logical, since the results of the inspection, including the identified violations, are documented in this way. At the same time, it does not matter when this act was received by the person exercising the powers of the employer: it is necessary that the act be received by the person to whom the employee who committed the violation is subordinate, which follows from the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2. This position is confirmed by materials of judicial practice. In the cassation ruling Supreme Court Chuvash Republic dated 01/11/2012 in case N 33-102-12, the monthly period for bringing to disciplinary liability based on the results of an audit of financial and economic activities was calculated by the court from the day when the official who had the right to impose disciplinary sanctions received an act drawn up based on the results of the audit. At the same time, this person was a leader in relation to the employee who committed the violation.
If in the course of the audit any detected violations are recorded by separate documents (for example, acts, certificates of individual actions), the date of discovery of the misconduct should be considered the day when such documents were received by the immediate supervisor of the offending employee, regardless of the date of receipt of the relevant documents. This position is confirmed in the materials of judicial practice, in particular in the Appellate ruling of the Yamalo-Nenets Court. autonomous region dated October 21, 2013 in case No. 33-2307/2013. The court found that the improper performance of official duties on the part of the employee brought to disciplinary responsibility (the head of the motor transport section) resulted in a violation of the operating time accounting technology Vehicle and registration of waybills, approved by a local legal act. The head of the motor transport section is directly subordinate to the head of the ground support service, which follows from the job description of the latter. The fact of violations when filling out waybills became known to the employer's officials on 04/04/2013, since the inventory of fuels and lubricants (POL) was carried out, among other things, according to the data contained in the waybills. This circumstance follows from the act of removing the remains of fuel and lubricants dated 04/05/2013, signed by the head of the ground support service as the chairman of the commission. Accordingly, the period for bringing to disciplinary liability must be calculated from the specified date. However, the order to impose a disciplinary sanction was issued only on May 17, 2013, that is, outside the monthly period established by the legislator. The arguments of the appeal that the inventory was completed only on 04/17/2013 and the period for bringing to disciplinary responsibility should be calculated from that date were not taken into account by the court.
Similarly, the date of discovery of the misdemeanor is set in the Cassation ruling of the Oryol Regional Court dated 01/11/2012 in case No. 33-17. An internal audit was appointed in the JSC on the facts of violation of credit activities by one of the branches, as a result of which the fact of illegal use of the premises rented by the branch was revealed. According to the conclusion of an internal audit dated 09/08/2011, within six months starting from 02/10/2011 on the territory of an additional office, by oral order of an employee of the branch, subsequently brought to disciplinary responsibility, without registration contractual relations located outside commercial organization. By order dated 05.10.2011, the specified employee was brought to disciplinary responsibility for failure to fulfill labor duties, expressed in violation of the procedure for making a decision in the management of real estate, provided for by a local regulatory legal act.
The court established that on May 6, 2011, the manager of the additional office informed the director of the branch about this violation in a memo. Under these circumstances, since the director of the branch, vested with the authority to bring employees to disciplinary liability, became aware of the commission of a disciplinary offense on 05/06/2011, and the order to bring the employee to disciplinary liability was issued only on 05/10/2011, the court concluded that the disputed disciplinary the penalty was applied in violation of Art. 193 of the Labor Code of the Russian Federation for a month. In addition, the court noted that the disciplinary offense was committed by the employee in February 2011, therefore, based on the provisions of Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction could be applied no later than September 2011.

Demanding explanations from the employee

Before applying a disciplinary sanction, the employer must request a written explanation from the employee. The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction to him. If, after two working days, the specified explanation is not provided by the employee, an appropriate act is drawn up.

Note! If the employee does not give an explanation, two working days must pass from the date of the misconduct. This requirement is mandatory. Failure to comply with it entails the recognition of illegal application of a disciplinary sanction.

As the court pointed out in the Appellate ruling of the Astrakhan Regional Court of October 23, 2013 in case N 33-3162/2013, from the analysis of Art. 193 of the Labor Code of the Russian Federation directly follows that the legislator granted the employee the right, within two working days from the date of requesting an explanation from him on the fact that he committed a disciplinary offense, to submit a written explanation or refuse to submit it. Therefore, a disciplinary sanction, including in the form of dismissal, can be applied to the employee only after receiving an explanation from him in writing or after the employee fails to provide such an explanation (refusal to provide it) after two working days from the date of requesting an explanation.
If the issue of imposing a disciplinary sanction is resolved before the expiration of two working days after requesting a written explanation from the employee, the procedure for applying a disciplinary sanction in the form of dismissal is considered violated, and dismissal by virtue of Art. 394 of the Labor Code of the Russian Federation - illegal.
A different interpretation of these norms would mean that the employer does not have to comply with the deadline for the employee to submit an explanation and the employer can ignore the requirements of Art. 193 of the Labor Code of the Russian Federation. Consequently, this would entail the loss of the meaning of these norms and a significant violation of the employee's right to submit an explanation within the period established by law.
Also, the obligation to demand explanations when applying disciplinary sanctions is indicated in the Appeal ruling of the Kemerovo Regional Court dated May 28, 2013 in case No. 33-4822. Thus, the court of appeal found that the claims for contesting disciplinary sanctions were rightfully satisfied, since when bringing the plaintiff to disciplinary liability, the employer violated the procedure for applying the disciplinary sanction, in particular, did not demand a written explanation from him, in connection with which the order was declared illegal and subject to cancellation.

Issuing a disciplinary order

After requesting explanations from the employee, an order (instruction) is prepared, signed by the person exercising the powers of the employer, on the application of a disciplinary sanction with the obligatory indication of the grounds for bringing to disciplinary responsibility. The Labor Code does not contain a direct indication that this basis should be reflected in the order. However, from the definition of the concept of "disciplinary offense", given in Art. 192 of the Labor Code of the Russian Federation, it follows: there must be a failure to perform or improper performance of official duties, which, if necessary, the employer should be able to confirm. As a basis, the order may also refer to a document in which the violations committed by the employee are recorded.
Thus, in the Appellate Ruling of the Arkhangelsk Regional Court dated July 22, 2013 in case N 33-4289 / 2013, it was noted that the court of first instance reasonably proceeded from the fact that when applying a disciplinary sanction to the plaintiff for violating the deadlines for submitting executive documents to the bailiff service, the employer did not submit evidence of both the plaintiff's violation of the provisions of the employment contract and job description, and the commission of the indicated misconduct by the plaintiff. Moreover, the court directly indicated that the appealed order for disciplinary action does not contain any indication of legal norms or clauses of local acts, which, in the opinion of the defendant, were violated by the plaintiff.
The order (instruction) of the employer to impose a disciplinary sanction is announced to the employee against receipt within three working days from the date of its issuance, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against receipt, an appropriate act is drawn up.
Interesting is the Determination of the Kemerovo Regional Court dated February 29, 2012 in case N 33-1984. Thus, the court found that the plaintiff (employee) was not familiarized with the order to impose a disciplinary sanction in a timely manner. Having satisfied the plaintiff's claims and recognizing the dismissal order as illegal, the court indicated that the defendant violated the procedure for imposing a disciplinary sanction (this was reflected in the fact that the plaintiff was not familiarized with the order against receipt within the period established by Article 193 of the Labor Code of the Russian Federation). Meanwhile, the Judicial Collegium of the Kemerovo Regional Court recognized the indicated conclusions of the court of first instance as unfounded and illegal on the following grounds.
Familiarization of the plaintiff with the contested order to impose a disciplinary sanction after the expiration of the period established by Art. 193 of the Labor Code of the Russian Federation, the current labor legislation is not prohibited. The employer is imperatively obliged to familiarize the employee with the order to apply a disciplinary sanction, and therefore, in order to obtain the employee's signature on familiarization with such an order, the employer has the right to perform this action without any restrictions. Provided for Part 6 of Art. 193 of the Labor Code of the Russian Federation, the period during which the employee must be familiarized with the order to apply a disciplinary sanction is not restrictive, its violation does not entail the recognition of the imposed disciplinary sanction as illegal.
The plaintiff had the right to challenge the order to apply a disciplinary sanction on the day when he learned about its publication.
According to Part 1 of Art. 14 of the Labor Code of the Russian Federation, the duration of the terms with which the Labor Code of the Russian Federation associates the occurrence labor rights and obligations, begins from the calendar date, which determines the beginning of the emergence of these rights and obligations. Consequently, it is from the date of familiarization with the appealed order that the period established by Art. 392 of the Labor Code of the Russian Federation for the employee to go to court.
Thus, familiarizing the plaintiff with the contested order beyond the time limits provided for by Art. 193 of the Labor Code of the Russian Federation, is not a violation of the procedure for bringing the plaintiff to disciplinary responsibility, but affects the timing of the employee's application to the court for the protection of his rights.
Based on the foregoing, we come to the following conclusions.
Before applying a disciplinary sanction, the employer must require the employee to provide a written explanation of the reasons for the misconduct. If, after two working days, the specified explanation is not provided by the employee, an appropriate act is drawn up. The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction to him.
A disciplinary sanction is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, as well as the time necessary to take into account the opinion of the employees' representative body.
A disciplinary sanction may not be applied later than six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the day it was committed. The above time limits do not include the time of criminal proceedings.
For each disciplinary offense, only one disciplinary sanction may be applied.
The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against receipt within three working days from the date of its issuance, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against receipt, an appropriate act is drawn up.

Labor discipline. Grounds and procedure for bringing to disciplinary responsibility.

Labor discipline is obligatory obedience for all employees to the rules of conduct determined in accordance with the Labor Code of the Russian Federation, other federal laws, collective agreement, agreements, local regulations, labor contract. The employer is obliged to create the conditions necessary for employees to comply with labor discipline.

In most cases, the labor schedule is determined by the rules of the internal work schedule, which are approved by the employer, taking into account the opinion of the representative body of employees in the manner prescribed by Article 372 of the Labor Code of the Russian Federation. For certain categories of workers (employees nuclear energy, railway transport, etc.) there are charters and regulations on discipline established by federal laws.

Each manager must be fluent in such methods of ensuring labor discipline as persuasion, encouragement, and coercion. The employer encourages employees who conscientiously fulfill their labor duties: announces gratitude, issues a bonus, rewards with a valuable gift, diploma, represents the title of the best in the profession (Article 191 of the Labor Code of the Russian Federation). Other types of employee incentives for work are determined by a collective agreement or internal labor regulations, as well as charters and regulations on discipline. For special labor services to society and the state, employees can be nominated for state awards.

The basis for bringing an employee to disciplinary responsibility is the commission of a disciplinary offense. A disciplinary offense is understood as non-fulfillment or improper fulfillment 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). The labor duties of an employee are enshrined in legislation, an employment contract, internal labor regulations, job descriptions and other local acts. Disciplinary offenses, for example, include the absence of an employee without good reasons at work or workplace, the employee's refusal to go to work time special education and passing exams in occupational health, safety and operating rules, if this is prerequisite work permit, etc.

As a general rule, the application of a disciplinary sanction is the right, and not the obligation, of the employer. The employer has the right to apply one of the following disciplinary sanctions:

- comment;

- reprimand;

- dismissal for appropriate reasons(in particular, in accordance with paragraphs 5, 6, 9 and 10 of article 81 of the Labor Code of the Russian Federation).

Most employees may be subject to only those three penalties that are defined by Article 192 of the Labor Code of the Russian Federation. In addition to them, certain groups of employees may be subject to penalties provided for by federal laws, charters and regulations on discipline. The application of other disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not allowed.

As the results of a study by the National Union of Personnel Officers (NSC) show, many Russian employers, not believing in the effectiveness of remarks and reprimands and trying to avoid the “paper” procedure, prefer to punish their employees with a ruble, that is, they use a system of fines. Since such a disciplinary sanction as a fine is not provided for by the current legislation, the employer is not entitled to apply it to violators of labor discipline. This position is confirmed by judicial practice. At the same time, it should be noted: if in local regulations observance of labor discipline is provided as a condition for bonuses, the employer has the right to deprive the employee who has a disciplinary sanction.

The procedure for bringing an employee to disciplinary responsibility is established by Art. 193 of the Labor Code of the Russian Federation. The employer, before applying this or that disciplinary sanction, must request a written explanation from the employee. If after two working days the specified explanation is not provided, then an appropriate act is drawn up. The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction.

For each disciplinary offense, the employer can apply only one disciplinary sanction. When imposing a disciplinary sanction, the gravity of the misconduct committed and the circumstances under which it was committed must be taken into account.

A disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. The day of discovery of the misdemeanor, from which the period of one month begins, is considered the day when the person to whom the employee is subordinate at work (service) became aware of the misconduct whether or not it has the right to impose disciplinary sanctions. A disciplinary sanction may not be applied later than six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the day it was committed. The above time limits do not include the time of criminal proceedings. Thus, the legislation clearly establishes the time limits during which it is possible to bring an employee to disciplinary responsibility. The imposition of a disciplinary sanction after the expiration of these terms is illegal.

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

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

If within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have a disciplinary sanction.

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

Disciplinary responsibility is special kind legal responsibility, its application is always associated with the performance of labor or official duties. A feature of disciplinary responsibility is the application of penalties that make up 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 power of the employer in relation to the employee who has concluded an employment contract with him.

Disciplinary liability consists in the application by the authorized representative of the employer to the employee who has committed a disciplinary offense of the disciplinary sanctions established by law. Bringing an employee who has committed a disciplinary offense to disciplinary liability is the right of the authorized representative of the employer. Whereas an employee who has committed a disciplinary offense is obliged to endure the adverse consequences established in the legislation. 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 position of the employee in comparison with the law is improving. Therefore, such an exemption should be recognized as complying with 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 the authorized representative of the employer to apply to the employee who has committed a disciplinary offense the disciplinary measures provided for by law and in the duty of the employee who has committed the disciplinary offense, corresponding to this right, to undergo legislation adverse effects.

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

Secondly, we can highlight the special disciplinary responsibility of employees, which exists along with the general disciplinary responsibility. At the same time, special disciplinary liability is applied only in cases where general disciplinary liability cannot be applied. Disciplinary responsibility is introduced by special legislation, in particular, charters and regulations on the discipline of employees. The application of disciplinary liability is always associated with proving additional, that is, special, legally significant circumstances. There are several types of legally significant circumstances that are subject to proof in the application of special disciplinary liability.

The first type of special legally significant circumstances to be proved when applying special disciplinary liability is the assignment of an employee to special subjects that 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 insofar as they do not contradict the special legislation on bringing this type of liability to justice.

Secondly, as a type of special legally significant circumstances to be proved when applying special disciplinary responsibility, one can single out the performance by an employee of special labor duties directly related to the life and health of people. These duties include the performance of work directly related to the movement of railway transport.

Thirdly, the circumstance, the proof of which allows us to conclude that special disciplinary liability is applied, is the presence of a special circle of persons or bodies with the right to bring to disciplinary liability. For example, bringing judges to disciplinary responsibility is carried out by qualification collegiums on the recommendation of the chairman of the corresponding court. The President of the Russian Federation may bring to disciplinary responsibility the heads of federal executive bodies.

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

Fifth, the circumstances, the proof of which allows us to conclude that special disciplinary liability is applied, we should recognize the existence of additional opportunities for appealing disciplinary sanctions. In particular, in addition to the judicial procedure, there may be an out-of-court procedure for appealing disciplinary sanctions, for example, to a higher authority or 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 state organizations may appeal a disciplinary sanction to a higher official.

The proof of each type of the considered circumstances allows us to conclude that special disciplinary liability is applied to the employee. At the same time, when applying special disciplinary liability, circumstances that fall into various types can be proved. For example, judges belong to special subjects of disciplinary liability and appeal against special disciplinary liability in a special manner. Although the proof of a circumstance of one type allows us to conclude that special disciplinary liability is applied.

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

procedure for disciplinary action

The main duties of an employee are to comply with the rules of conduct enshrined in the Labor Code of the Russian Federation, other laws, collective agreements, an employment contract, internal labor regulations, other local acts and conscientious performance of functional duties in accordance with the job description. Accordingly, failure to perform or improper performance of these duties is the basis for bringing the employee to disciplinary liability.

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

Thus, a prerequisite for disciplinary liability is the presence of the employee's fault. Therefore, it is impossible to raise the issue 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 prematurely interrupt his vacation at the request of the employer.

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

Before applying a disciplinary sanction, the employer must obtain a written explanation from the employee. If the employee refuses to write, an act is drawn up in an arbitrary form. Refusal to give an explanation is not an obstacle to the application of a disciplinary sanction.

On the imposition of a disciplinary sanction, an order is issued signed by the head. The employee must be familiarized with the order against signature within 3 days from the date of its issuance. If the employee refuses to sign the specified order, an appropriate act is drawn up.

A disciplinary sanction is applied no later than one month from the day the misconduct was discovered. The specified period begins to run from the day when the person to whom the employee is subordinated by work (service) became aware of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions. This does not take into account the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. The absence of an employee from work for other reasons, including in connection with the use of days off, does not interrupt the course of the specified period. All holidays provided by the employer in accordance with the current legislation, including annual (basic and additional) holidays, holidays in connection with studying at educational institutions, holidays without pay should be classified as leave interrupting the course of a month.

In addition, a disciplinary sanction cannot be applied later than six months from the date of the misconduct, and based on the results of an audit, financial and economic activity or an audit, no later than two years from the date of its commission. The above time limits do not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction may be applied. As a disciplinary measure Labor Code calls:

Comment;

Rebuke;

Dismissal.

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

Concept of accused businessman on white background

The main duty of an employee is the conscientious execution of the task entrusted to him, according to employment contract, work. It happens that it is precisely from this duty that the employee evades or understands its content in his own way. Then the employer has to resort to various methods impact on the performer, including disciplinary liability.

Reasons for bringing to disciplinary responsibility in accordance with the TC TF

Another thing, violation of labor discipline and rules internal regulations. Here, the Labor Code of the Russian Federation, internal documents of the enterprise and some federal laws. The most common misdemeanors are:

• being late;
• absenteeism;
• being in the workplace in a state of intoxication;
• prolonged absence during the working day, more than 4 hours.

How to properly discipline an employee

Most industrial conflicts and disagreements are resolved by mutual agreement or after an oral conversation "on the carpet". If the matter is not settled with words, the situation will have to be documented.

Any identified violation must be recorded on paper. In case of being late, absenteeism or unauthorized absence, an act must be drawn up, with the involvement of witnesses.

If an employee is suspected of drunkenness, then no eyewitnesses will help here, only a medical report will confirm or refute doubts. You can invite the offender to undergo an examination voluntarily or call ambulance in case of his refusal. Be that as it may, until the circumstances are clarified, the employee must be suspended from work in order to avoid injury or damage.

The situation is more complicated with non-performance or dishonest performance of duties. Here you need to justify your position, you may need to involve specialists in the same field or a lawyer.

The further algorithm of actions is the same for any of the listed options. IN without fail Written explanations must be requested from the employee. It is quite possible that the reasons justifying his actions or inaction will become clear, then the procedure for imposing disciplinary liability will be terminated or its final wording will be softened. The employee has two days to provide an explanatory note.

Based on the results of consideration of all documents, taking into account the degree of guilt and the severity of the consequences for the enterprise and the team, the manager decides on the application of one of the forms of disciplinary action:

• comment;
• rebuke;
• dismissal "under the article."

Is fixed decision in an order or instruction for the enterprise, the issued document must be handed over to the party subjected to disciplinary liability in person against signature. If the addressee refuses to receive the document in his hands, then the fact of refusal is recorded in the act with signatures of witnesses.

A common employer mistake is dismissal on the basis of a reprimand. Labor law Russia has an unequivocal opinion on this matter: one offense - one punishment. No matter how great the temptation to get rid of a negligent employee right away, the employer should understand that dismissal is an extreme measure and is only permissible in case of a systemic refusal to work or deliberate sabotage.

Who and in what order can bring a lawyer to disciplinary responsibility

For certain professions, the procedure for bringing to responsibility is prescribed in specialized laws. So misconduct of a lawyer, as a self-employed person, is considered in the qualification and disciplinary commission of the bar. The reason for initiating a disciplinary case may be the filing of a complaint by any person who became aware of the incriminating facts, or the head of the legal association in which the lawyer is a member.

Can a judge be disciplined?

Despite the special status of judges, the law allows them to be disciplined as well. Such facts are considered in the Qualification Board of Judges. Any citizen, his authorized representative, or an official who has information about the guilty actions of a judge during the performance of his official duties, violation of judicial ethics or other disciplinary offense can also apply to it.

Can a pregnant woman be disciplined?

Our legislation is very supportive of pregnant women, protecting their health and protecting them from possible complications or abuse by superiors. But this in no way means that the expectant mother can neglect her job responsibilities or ignore work discipline. If this nevertheless took place, then such an employee can be held accountable on an equal basis with the rest. The prohibition exists only on termination of the contract at the initiative of the employer.

How to discipline teachers

Additional requirements of a moral and ethical nature are imposed by our society and the law on educators. When a written complaint is received against a teacher, the provisions of the Charter are taken into account educational institution. Moreover, the results of a disciplinary investigation may be made public without the consent of the guilty party, and one of the punitive measures may well be a ban on professional activities.

Deadline for disciplinary action

In general, decide on the imposition of a disciplinary sanction governing body must not later than six months from the date of commission of the offense and not later than one month from the date on which the violation was or could be discovered. After the expiration of the one-month period, the question of the application of punishment may no longer be raised.

The army approaches the situation differently: after what period of time can a serviceman not be subject to disciplinary action? The answer is to be found in the Charter. military service. According to the Decree of the President of the Russian Federation for this category of citizens, the deadlines have been extended to a year; it will no longer be possible to punish a guilty soldier or officer later.

The difficulty of managerial work is to organize very different people to perform very specific tasks, and punishment is indispensable here. But every leader will feel more comfortable if he can approach this issue objectively, and, most importantly, procedurally and documented correctly.