The term for appealing a disciplinary sanction in court. Statement of claim to appeal against a disciplinary sanction Statement to appeal against a disciplinary sanction
STATEMENT OF CLAIM
on appeal disciplinary action
Plaintiff, ______________________________________, with "___" __________ ___ (full name)
works in (y) ________________________________________________ in position
(full name or full name of the employer)
____________________ under an employment contract dated "___" ________ ____, N ____.
By order N _____ dated "___" _________ ___, I was brought to disciplinary responsibility in the form of ________________________________________________________________
(reprimand, reprimand, dismissal)
for committing the following disciplinary offense: ______________________________.
I believe that the disciplinary sanction was unlawfully applied to me for the following reasons: __________________________________________________________
_______________________________________________________________________________.
(give arguments and evidence supporting the plaintiff's arguments: explanations of witnesses, written and other evidence)
(Option:
When applying this disciplinary sanction, the defendant violated the procedure established by Art. 193 Labor Code Russian Federation, namely: _______________________, which is confirmed by: ______________________.)
In accordance with Part 7 of Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction may be appealed by an employee to the state labor inspectorate and (or) bodies for consideration of individual labor disputes.
The plaintiff appealed against this disciplinary sanction to the Commission on labor disputes. However, by decision of the commission on labor disputes "___" ______ ______, N ___, the plaintiff was denied the removal of a disciplinary sanction (or: the plaintiff's complaint was not considered by the commission on labor disputes within ten days).
In accordance with Part 1 of Art. 391 of the Labor Code of the Russian Federation, an employee who does not agree with the decision of the commission on labor disputes has the right to transfer the dispute to the court. (Option:
In accordance with Part 1 of Art. 390 of the Labor Code of the Russian Federation, if an individual labor dispute is not considered by the labor dispute commission within ten days, the employee has the right to transfer its consideration to the court.)
Based on the above, guided h. 1 Article. 391 (part 1 of article 390), art. Art. 392, 393 of the Labor Code of the Russian Federation, Art. Art. 131, 132 of the Civil Procedure Code of the Russian Federation, I ask: to declare illegal the application of a disciplinary sanction to the plaintiff in the form of _____________________________________________.
Applications:
1. Copy employment contract from "___"_________ ____ g. N ___.
2. A copy of the order for employment from "___" __________ __ N ___.
3. A copy of the order to impose a disciplinary sanction on the plaintiff from "___" _________ ___, N ___.
4. Evidence of the illegality of applying a disciplinary sanction to the plaintiff.
5. Evidence confirming the violation of the procedure established by law for applying a disciplinary sanction.
6. A copy of the plaintiff's complaint to the commission on labor disputes.
7. A copy of the decision of the commission on labor disputes dated "___" _______ _____, N ___ (or evidence confirming that the plaintiff's complaint was not considered by the commission on labor disputes within ten days).
8. Copies of the statement of claim and documents attached to it to the defendant.
9. Power of attorney of the representative from "___" ____ g. N ___ (if the statement of claim is signed by the representative of the plaintiff).
10. Other documents confirming the circumstances on which the plaintiff bases his claims.
Wrong performance official duties, inconsistency in the qualifications of the employee or systematic violations may cause disciplinary action.
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But some employers use this tool to infringe on the rights of employees. According to the current Labor Code of the Russian Federation, a mechanism is provided for challenging penalties of this type.
Types and procedure for punishments under the labor code
The list of measures taken in relation to the employee cannot go beyond the scope of the current Labor Code of the Russian Federation. A detailed description of the types of disciplinary sanctions can be found in Article No. 192. It can be a remark, a reprimand or a dismissal. The basis for their application is the action (inaction) of the responsible person in the performance of official duties.
Disciplinary action does not include:
- fines. The size wages cannot be changed at the whim of management. Imposing a monetary penalty on wages is illegal. An indirect type of material penalty can be considered a justified partial or complete deprivation of the bonus.
- Transfer to a lower position with a reduction in salary. An exception is a forced measure, since the employee does not meet professional requirements or is physically unable to perform duties (injury, disability).
A disciplinary sanction can only be applied after certain procedures have been followed. They are described in article No. 193 of the Labor Code of the Russian Federation.
Correct course of action.
- Request . It must be submitted no later than two business days. The absence of a document is not a reason for the cancellation of the penalty.
- Upon the provision of an explanatory note, a protocol is drawn up, which describes the situation and measures taken in relation to the employee.
- After the application of the penalty, this fact is indicated in the personal file.
The employee has the right to appeal against these actions in state inspection labor or legal action.
Terms of application
It is important to know the statute of limitations for certain misconduct or violations in the workplace. The employer is not entitled to make a disciplinary sanction if certain period from the date of disclosure of the fact of inconsistency of the action with official duties.
The statute of limitations is also described in article No. 193 and has the following meanings:
- Not later one calendar month from the date of discovery. Exceptions - the employee was on sick leave, was on vacation. In some cases, the expert opinion of trade union specialists is necessary. The time of its compilation is also not taken into account in due time.
- Not later six months upon the commission of an offence.
- Not later 2 years old if the activity is related to financial or economic activity. This period does not include the duration of the criminal case.
Only one penalty can be imposed for each misdemeanor. After completing all the formalities, the employee is provided with a protocol for review. These actions must be completed within 3 days from the date of registration. The absence of an employee for a good reason (vacation, sick leave) is not included in this period.
When is an appeal valid?
If any of the above conditions were not met by the employer, the employee has the right to challenge the disciplinary sanction. To do this, he must argue the cause of the dispute and try to resolve conflict situation at the place of work. But in practice this rarely happens.
The process of challenging in court or the labor protection inspectorate is most often initiated for the following reasons:
- the penalty does not correspond to the severity of the offense;
- registration formalities were not observed;
- the employee's actions are due to ignorance, which will need to be proven additionally;
- the penalty does not belong to any official category.
If there are suspicions about the presence of such violations, they must be checked. The best option is to consult with specialists or contact a trade union. The functions of the latter include the observance of the interests of employees and the suppression of excess of authority by managers.
The procedure for contesting a disciplinary sanction in the labor inspectorate
If negotiations with the management team about incorrect punishment have not been successful, it is necessary to contact the labor inspectorate at the place of work. To do this, you need to prepare an evidence base. These may be documents confirming the illegality of the act, the testimony of witnesses (in writing) or similar materials. It is advisable to send copies to the employer or provide him personally.
To challenge the body of the state labor inspectorate, such actions are performed.
- Go to the official website in the "Submit an appeal" section.
- The system will automatically redirect to the site public services where you will need to register.
- Scan the written complaint and attach it to the description of the problem.
- Make an alternative request - send a package of documents by registered mail to the local department of the state labor inspectorate.
- Within a month, the employer will receive an order to cancel the administrative penalty.
If the case is complicated, the inspectorate can organize a commission on labor disputes.
It is formed at the initiative of the employee in accordance with Articles No. 382 and No. 384 of the Labor Code of the Russian Federation. The term for applying to such bodies is three months from the date of notification of the punishment. This period may be extended if the employee was unable to file a complaint for a good reason - illness or another similar to it.
After the decision is made, the commission is obliged to provide a copy of it to the employee within 3 working days. Within the same period, the employer must cancel the act of recovery or revise it according to the results of the work of representatives of the labor inspectorate.
If the decision of the commission is not satisfactory, the employee may, within 10 working days complain about it. But this procedure differs from the above and is performed according to a different scheme.
Judicially
Before filing a claim, you need to make sure that the statute of limitations has not passed. If before that the case was considered by a special commission, they are 10 days. Claims can be filed within 3 months from the moment of acquaintance with the protocol from the place of work, if the case has not been checked by the labor inspectorate. This period is one month after the dismissal and the issuance of a work book.
The nuances of starting a trial to challenge a disciplinary sanction:
- a package of documents is submitted to the district court at the place of registration or work;
- an evidence base is necessarily formed;
- for such processes, the payment of a state fee is not provided (Article 393 of the Labor Code of the Russian Federation).
Since the essence of the matter may differ from the standard, it is recommended to conduct a preliminary consultation with a lawyer. He will help you compose Required documents, will indicate what can be used as evidence in court. The law provides for the representation of the interests of the employee at meetings by a third party. But for this you need to draw up a power of attorney certified by a notary.
Evidence base
It is important to correctly determine which particular norms of the law have been violated by the employer. A feature of the consideration of such cases is not the evidence from the plaintiff, but the counter-arguments of the defendant. Those. in fact, he must argue the legality of his actions regarding the employee.
The following can be used as evidence:
- a copy of the organization's order on disciplinary action;
- the fact that there are no official documents arguing for the dismissal;
- the norms of Article No. 76 of the Labor Code of the Russian Federation, prescribing the rules for suspension from work, were violated;
- the penalty was not expressed in a legal form - a reduction in wages.
All documents from the organization can be requested by the employee. To do this, a statement is first drawn up in which he indicates the reason for the provision. The personnel department and the accounting department are obliged to record the fact that the application was submitted and provide copies or originals necessary documents. Failure to do so may be used as evidence in court.
Additionally, you can involve witnesses and the conclusion of the commission of the labor inspectorate. The latter is mandatory if it was formed and the issue was considered by representatives of the inspection.
Drafting a claim
Consideration of cases on challenging a disciplinary sanction is carried out on the basis of a filed claim. Therefore, it is important to correctly draw up this document and attach an evidence base to it. The latter may be used by the court in part or in full. As necessary, the judge requests additional extracts, certificates to clarify the details of the case.
The statement of claim is drawn up in a standard form.
But you need to pay special attention to these details:
- Full details of the plaintiff and defendant. The claim is not filed against an organization, but against a specific employee or group of individuals.
- Description of the essence of the violation of the employee's rights, the circumstances that preceded the fact of the formation of a disciplinary sanction.
- The price of the claim. This refers to assessed or material damage.
- Other ways to compensate for the wrongfully applied punishment.
- List of documents used as an evidence base.
- Signature and date of the plaintiff.
After filing a claim, you will need to wait for the first meeting. It will not be attended by witnesses or other persons - in the process of familiarization with the documents, the essence of the case will be determined. Only then is the date of the main hearing set. It will decide the question of the legality or lack of such in the applied disciplinary sanction.
The decision of the court will determine the further actions of the employee and the employer. If it was positive, the latter is obliged to annul the penalties and pay the due compensation within the established time limits.
Judicial practice of challenging
Consideration of such cases is almost always individual. Examples can be given judicial practice to contest a disciplinary sanction, but it is likely that this will not be useful in a particular case.
Alternatively, one can consider violations on the part of the employer and a court decision when this fact was proven:
- Decrease in wages due to inconsistency in the qualifications of the employee. The appearance of such an entry in a personal file is a guarantee that the court will decide to compensate for the monetary difference and pay moral damages.
- Incrimination of failure to perform official duties that are not included in the job description. Please review this document prior to hiring.
- Demotion is not based on loss of qualification. Additionally, the plaintiff must provide evidence of his professionalism.
What you need to remember - an application to the court is filed at the location legal entity- employer.
The order for disciplinary action must clearly state the basis for the disciplinary action. Moreover, in a court session, it is the employer who must prove the proportionality and validity of the applied disciplinary sanction.
And the courts, when considering cases, apply paragraph 53 of the ruling Decree of the Plenum Supreme Court RF dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation". It determines that when considering cases of contesting a disciplinary sanction and reinstatement at work, the courts must make lawful and reasoned decisions based on the obligatory consideration of circumstances that are important for the correct consideration of cases.
The employer has the duty to prove that he complies with the general principles of legal, and, consequently, disciplinary responsibility, such as justice, equality, proportionality, legality, guilt, humanism when applying a disciplinary sanction to an employee.
As evidence of the proper imposition of a disciplinary sanction, the courts will demand from the employer a copy of the order to hire the plaintiff, a copy of the order to declare a disciplinary sanction, a copy of the employment contract, internal labor regulations, job descriptions the plaintiff, the materials on the basis of which the penalty was imposed (memorandums, explanations, reports, acts, etc.), documents characterizing the employee (copies of orders for the imposition of disciplinary sanctions, incentives, characteristics, etc.) and documents confirming compliance with the procedure for imposing a disciplinary sanction.
Of course, before applying a disciplinary sanction, the employer does not always deal in detail with each of the above principles. Consequently, the employee is more likely to recognize the groundlessness of the employer's decision.
Analysis of judicial and prosecutorial practice shows that the disciplinary measures applied to employees very often do not correspond to the misconduct committed.
Concluding our today's conversation, as an example, we will give a sample statement of claim to the court to cancel a disciplinary sanction.
To the district court _______________
G. _____________________________
Plaintiff: _________________________
(full name, address)
Respondent: ______________________
(name of employer,
his address)
STATEMENT OF CLAIM
about the abolition of disciplinary action
(Article 193 of the Labor Code of the Russian Federation)
In accordance with the employment contract dated "___" __________ ____ N _____,
I'm working _________________________________________________________________
(position, work performed)
to (c) _________________________________ from "___" ___________ ____
(name of employer)
By order ________________ N ___ dated "__" _______ ____, I was imposed
_________________________________ per ______________________________________
(remark or reprimand) (violation of labor discipline)
I consider the imposition of the said disciplinary sanction on me
unreasonable and illegal on the following grounds: _____________________,
(circumstances)
which is confirmed by _________________________________________________________.
(the documents)
When imposing a disciplinary sanction, the order of its
imposition under Art. 193 of the Labor Code of the Russian Federation, in particular: ___________________.
(violation of the order of imposition
disciplinary action)
In accordance with Article 46 of the Constitution of the Russian Federation, art. Article.2, 192, 193,352, 382, 391, 392 of the Labor Code of the Russian Federation, taking into account the clarification of the Decree of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” No. 2, guided by Art.Article. 23, 131, 132 Code of Civil Procedure of the Russian Federation,
I BEG:
Cancel the order imposed on me by ________________________ N _____
dated "___" __________ ____ disciplinary sanction in the form of _______________.
Subpoena and interrogate as witnesses _______________________
__________________________________________________________________________.
(full name, address)
Applications:
1. Copies of the employment contract, orders for employment and imposition
penalties.
2. Documents (or copies) confirming the circumstances on which
the plaintiff bases his claims.
3. Copies of the statement of claim (according to the number of defendants).
"___" _________ ____, signature ________________
To _____________________ District Court of _______________________________________ Plaintiff: _________________________________ __________________________________________ (full name, place of residence, telephone) Defendant: ________________________________ __________________________________________ (full name, place of residence, telephone)
State duty 1
1 According to Art. 393 of the Labor Code of the Russian Federation, when applying to the court with a claim on claims arising from labor relations, including regarding non-fulfillment or improper fulfillment of the terms of an employment contract that are of a civil law nature, employees are exempted from paying duties and court costs.
STATEMENT OF CLAIM to appeal a disciplinary sanction
I, ____________________ (full name of the plaintiff), with "_____" __________ ____, I work in (y) ____________________ (full name of the employer) in the position of ________________, which is confirmed by a copy of the employment order N ____ from "_____" ____________ _____ G.
By order N ______ dated "_____" __________ _____, I was brought to disciplinary liability in the form of ______________ (remark, reprimand) for the following violation: ______________________.
I believe that the disciplinary sanction was unlawfully applied to me for the following reasons: _________________________ (provide arguments and evidence supporting the plaintiff's arguments: written evidence, other evidence).
Based on the foregoing, guided by Art. Art. 192, 193 of the Labor Code of the Russian Federation, guided by Art. Art. 22, 24, 131, 132 of the Civil Procedure Code of the Russian Federation,
I BEG:
Cancel the disciplinary sanction imposed on ___________________ (full name of the plaintiff) in the form of __________________________.
Applications 1:
1 Copies of documents confirming the circumstances on which the plaintiff bases his claims are attached to the statement of claim for the defendants and third parties, if they do not have them.
1. A copy of the statement of claim for the defendant.
2. A copy of the order to hire the plaintiff, a copy of the employment contract, a copy of the order to impose a disciplinary sanction on the plaintiff, a written explanation of the violator of discipline, etc.).
"_____" ___________ ______ ________________________ Signature, transcript
Source - Claims. Common Mistakes: Educational and practical guide", "Avenue"
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