Disciplinary sanctions: commandments for the personnel officer. Disciplinary sanctions: commandments for the personnel officer The administration of the enterprise imposed a penalty on the employee

When compiling assignments on the topic " labor law"material was used from open bank FIPI data and collections test items to prepare for the exam. Tasks can be used when repeating the section "Law" to the textbook A.I. Kravchenko.

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Tasks for preparing for the exam on the topic "Labor Law".

1. In what orderlegal proceedings, according to Russian legislation, lawsuits are considered in disputes arising from labor relations?

1) administrative 2) civil 3) criminal 4) arbitration

2. Learning that grandmotheran expensive operation is required, 16-year-old schoolboy Ivan decided to get a job as a salesman in a tobacco shop. He was satisfied with the size of the estimated wages and work schedule. But the employer refused to hire Ivan. Is the employer's actions legal? Explain your answer. nameany two features of labor regulation for workers under 18 years of age.

3.Which of the followingcases a person can apply to the court for the restoration of violated rights?

1) Citizen A. was not admitted to the institute, since she did not score required amount points

2) Returning to work after a long illness, citizen U. saw an order on his dismissal on the notice board

3) Citizen M., whose apartment was damaged by a fire through her fault, was denied free repairs by the DEZ, citing the lack of insurance.

4) During a hurricane, citizen F.'s car was damaged by a fallen tree, but the administration of the DEZ denied him the right to compensation for material damage.

4.According to the results of the competition forthe employer refused to fill the position of assistant secretary to 50-year-old Anna Ivanovna, who is fully consistent in her professional qualities job requirements. A 19-year-old student who had no work experience and special education was hired. Anna Ivanovna considered her rights violated and went to court. Are Anna Ivanovna's claims justified? Give a reasoned answer. Under what jurisdiction will this case be considered? What procedural role will Anna Ivanovna have in the trial?

5.According to LaborCode of the Russian Federation individual who has the right and opportunity to work under an employment contract is called: 1) a worker 2) a partner 3) an employer 4) an employee

6. Are they true the following judgments on termination employment contract?

Grounds for terminating an employment contract include:

	termination of the employment contract at the initiative of the employee.
	expiration of the employment contract.

1) only A is true 2) only B is true 3) both judgments are correct 4) both judgments are wrong

7. Find in the list below the situations that are related to labor relations.

1) the mechanic was late for work 2) the teacher did not show up for class 3) the director of the theater was late for the anniversary

4) the boss was late for the meeting 5) the passenger was late for the ship 6) the secretary was late for the picnic

8. Indicate the situation in which the administration of the enterprise carried out illegal dismissal worker.

1) The employee was fired due to the reorganization of the enterprise to reduce staff

2) The employee was dismissed for his systematic violation of the internal labor regulations at the enterprise

3) The employee was fired due to the expiration of the employment contract and the decision of the administration not to renew it

4) An employee who applied for a sick leave and did not go to work was fired under an article for absenteeism

9. Find the legal grounds in the list belowtermination of the employment contract and write down the numbers under which they are indicated. 1) employee initiative 2) piecework wages 3) violation of labor laws 4) change of ownership 5) economic downturn

10. The administration of the enterprise imposedrecovery of an employee who violated the labor schedule. What kind of legal liability does this example illustrate? 1) disciplinary

2) administrative 3) civil 4) criminal

11. Below is a list of features. All of them, with the exception of one, relate to the legal grounds for termination of an employment contract. Find and indicate a term that refers to another concept.

The agreement of the parties, the expiration of the term, the desire of the employee, the decline in production, changes in conditions.

12. To designate one of the parties to an employment contract, the Labor Code of the Russian Federation uses the term

1) “entrepreneur” 2. “employer” 3. “employee” 4. “individual”

13. Name and illustrate with examples any three basic rights of the employer, enshrined in the Labor Code of the Russian Federation.

14. Are the following judgments about labor relations correct?

15. Are the following judgments about the rights of an employee correct?

1) only A is true 2. only B is true 3. both judgments are correct 4. both judgments are wrong

16. Read the text below, each position of which is indicated by a specific letter.

Determine which positions of the text have

1) factual nature 2. nature of value judgments 3. nature of theoretical statements

17.B work book information about

1) health status 2. marital status 3. awards and incentives 4. salary

18. Are the following judgments about labor relations correct?

A. Labor relations arise by decision of one of the parties.

B. When applying for any job, a probationary period of at least three months is established.

1) only A is true 2. only B is true 3. both judgments are correct 4. both judgments are wrong

19. The administration of the enterprise refused to grant another vacation to citizen K.. The citizen decided to challenge this decision. Where (to whom) should he apply for this?

1) to the notary 2. to the prosecutor's office 3. to the court 4. to the commissioner for human rights

20. Absence from work without a good reason is a violation of the law

1) criminal 2. administrative 3. civil 4. labor

21. According to Art. 63 of the Labor Code of the Russian Federation, the conclusion of an employment contract (according to general rule) allowed with persons who have reached the age

1) 16 years old 2. 18 years old 3. 21 years old 4. 14 years old

22. Name any three grounds for terminationemployment contract and give an example of each of them.

23. Are the judgments about the employment contract correct?

A. An employment contract may be concluded orally

B. The employment contract needs to be notarized

1) A is true 2) B is true 3) both judgments are correct 4) both judgments are wrong

24 . Andrey's grandfather Stepan Petrovichloves pranks. Yesterday, for example, Stepan Petrovich, on his way to work at a car dealership, asked his grandson to look for a work book, which he allegedly lost at home. What is the draw?

25. Woman with two small children, turned to the personnel department of the plant with a request to hire her, but at the same time take into account that the children need care. Indicate what type should be offered to her, taking into account her situation: a) a working day of normal duration; b) a working day of reduced duration; c) part-time work.

26. On what basis is the series formed?Changes in working conditions, refusal of the employer to take into account the opinion of the elected representative body of employees, implementation of the collective labor agreement.

27. One hour before the end of the shift 17-year-oldlocksmith removed his workplace and went to the dressing room. An elderly worker from another station who was passing by asked if he was going home early. What did the elderly worker forget about when making a remark?

28. Employment tests are not applicable to:1) Persons of retirement age

2) Persons liable for military service 3) Disabled persons 4) Employees under 18 years of age.

29. Duration of the disciplinary sanction:1) 1 year 2) 3 years 3) 6 months 4) 2 weeks

30. When applying for a job, a document is not required:

1) passport 2) birth certificate 3) employment record 4) diploma

Bringing employees to disciplinary responsibility for committing disciplinary offenses in accordance with Article 22 of the Labor Code of the Russian Federation is law, and not the obligation of the employer, therefore, he is free to use or not use it. However, using the right granted to him, the employer must be guided by the norms established by the Labor Code of the Russian Federation and other federal laws. In addition to legal ones, there are also social and ethical rules that the personnel officer, when applying disciplinary sanctions, must remember, know and follow, like commandments.

Let's talk about them.

"Remember the essence"

According to the first part of Article 192 of the Labor Code of the Russian Federation, disciplinary sanctions are applied for committing a disciplinary offense. The latter is understood as non-fulfillment or improper fulfillment by the employee through his fault of the tasks assigned to him. job duties. In jurisprudence, a misdemeanor is not only a guilty, but also an unlawful act of a delinquent person (in this case, an employee).

What is meant by job responsibilities? According to the second part of Article 21 of the Labor Code of the Russian Federation, the employee is obliged:

• conscientiously fulfill their labor duties assigned to him by the employment contract;
• comply with the internal labor regulations of the organization;
• observe labor discipline;
• fulfill established norms labor;
• comply with the requirements for labor protection and ensuring labor safety;
• take care of the property of the employer and other employees;
• 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 property of the employer.

This wording of the norm gives grounds to conclude that disciplinary sanctions can only be applied for non-performance or improper performance of those labor duties that are related with the implementation labor function and are directly specified in the employment contract, and all other duties (for example, observe labor discipline, comply with labor protection requirements, etc.) remain outside the scope of part one of Article 192 of the Labor Code of the Russian Federation. These conclusions have no basis, since the specified norm implies the entire set of labor duties of the employee assigned to him within the framework of labor relations, and not just the labor function. Most often, the duties of the employee listed in the second part of Article 21 of the Code are fully reproduced in the text of the employment contract, and thereby ambiguities are eliminated: for failure to perform or improper performance of any of them, disciplinary sanctions may be applied to the employee.

Analyzing the essence of a disciplinary sanction, one cannot ignore the following question. Cases of bringing an employee to disciplinary liability for acts not related to the performance of labor duties still take place. Thus, employers often apply disciplinary sanctions for “unworthy behavior that dishonors the honor labor collective» in the wake of bringing an employee to administrative responsibility, for example, for petty hooliganism, other offenses not related to labor activity employee and committed by him outside of working hours and outside the task of the employer.

Disciplinary action may be taken only for non-fulfillment or improper fulfillment of labor duties, that is, duties due to the existence of labor relations between employee and employer. Meanwhile, exceptions to this rule are possible, and they are provided for by federal laws in relation to certain categories civil servants. For example, in accordance with Article 41.7 of the Law of the Russian Federation of January 17, 1992 No. 2202-I “On the Prosecutor’s Office Russian Federation”(as amended on 05.10.2002) the basis for imposing disciplinary sanctions on prosecutorial employees is not only their failure to perform or improper performance of their official duties, but also the commission of misconduct that discredits the honor of a prosecutorial employee.

In local regulations organizations, disciplinary offenses in order to determine the schemes for the application of disciplinary sanctions are divided into two groups:

• failure to perform or improper performance of duties stipulated by employment contracts, official and production (by profession) instructions;
• violation of labor discipline, that is, a violation of the rules of conduct binding on all employees, determined in accordance with the Labor Code of the Russian Federation, federal laws, a collective agreement, agreements, an employment contract, local regulations of the organization, as well as disobedience of employees to these rules.

As already noted, any differentiation of disciplinary sanctions depending on what takes place - non-fulfillment of labor duties or their improper fulfillment - is not provided for by law. At the same time, if it is established in local regulations, then it should be assumed that the criteria for the proper performance of duties are:

• proper way;
• due date;
• proper place;
• proper volume;
• proper subject;
• other.

One of the qualifying signs of a disciplinary offense is guilt the employee who made it. Guilt in law is understood as the mental attitude of a person in the form of intent or negligence to his unlawful behavior and its consequences. Guilt in the form of intent means that the person foresaw the illegality of his behavior and the possibility of negative consequences, wished or allowed them and consciously, deliberately did not take measures to prevent them; in the form of negligence - a person foresaw the possibility of the occurrence of harmful consequences of his action or inaction, but frivolously counted on their prevention or did not foresee the possibility of such consequences, although he should and could have foreseen them. For the institution of disciplinary responsibility, the form of guilt is of no fundamental importance. However, the theory of law, as well as the codes of the Russian Federation, have not found a more successful definition of guilt, except by revealing the essence of its forms.

Before a disciplinary sanction can be applied to an employee, it is necessary to establish the presence of guilt. The most common are disputes regarding being late to work due to traffic problems, bad weather conditions which the employee is not able to foresee, even if he wishes. The courts have repeatedly recognized the application of disciplinary sanctions for absenteeism as unlawful due to the fact that there was no fault of the employee in his absence from the workplace for more than 4 hours in a row during the working day. For absenteeism to qualify as absenteeism, it must be due to bad reasons. Whether the reason given by the employee is valid is determined by the employer. However, the point of view of the court does not always coincide with the opinion of the employer. Thus, the administrative detention of an employee, carried out on legal grounds, was recognized by the court as a valid reason for the absence of an employee, and his dismissal for absenteeism was unlawful.

The list of circumstances, as well as the reasons for the absence of an employee at the workplace, giving the employer grounds for applying disciplinary sanctions, was determined by the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 No. labor disputes"(as amended on November 21, 2000). Primarily, absenteeism without good reason is equated :

a) abandonment of work without a valid reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about the termination of the contract, as well as before the expiration of the 2-week notice period;

b) leaving work without a valid reason by a person who has concluded an employment contract for a certain period, before the expiration of the contract;

c) the presence of an employee without valid reasons for more than 4 hours during the working day outside the territory of the enterprise, institution, organization or outside the territory of the facility, where he, in accordance with his labor duties, must perform the assigned work;

d) unauthorized use of days off, as well as unauthorized leave on vacation (basic, additional). At the same time, it should be taken into account that the use of rest days by an employee is not absenteeism in the case when the employer, contrary to the law, refused to provide them, and the time the employee used such days did not depend on the discretion of the employer.

In addition, absenteeism is considered absenteeism due to the employee's disagreement with the transfer, made in compliance with the law.

Not considered absenteeism:

• absenteeism of the employee at social events;
• evasion of the employee from performing actions not related to labor duties;
• the refusal of the employee to start work to which he was transferred in violation of the law;
• the presence of an employee, without good reason, not at his workplace, but in the premises of another or the same workshop, department or on the territory of an enterprise or facility where he must perform labor functions;
• removal of an employee from work by the employer.

Disputes about the legality of the application of disciplinary sanctions due to the innocence of the employee also take place in relation to other disciplinary offenses. In judicial practice, there were decisions when improper execution official duties was not recognized as a disciplinary offense for the reason that the incorrectness of the wording of duties did not allow determining how the employee should fulfill these duties, and therefore, the employee’s guilt could not be considered established.

Another category of controversy concerns periods application of disciplinary sanctions. So, the question is natural, is it possible to bring an employee to disciplinary responsibility during the probationary period? After all, the employee is just hired with the condition of a test in order to check his compliance with the assigned work? Here it should be assumed that the legislation does not provide for any restrictions on the application of disciplinary sanctions during probationary period. Basically, disputes about dismissal under Article 71 of the Labor Code of the Russian Federation are based on the fact that a violation is called an unsatisfactory test result. labor discipline and, above all, being late. The position of the workers boils down to the fact that the test was assigned to them in order to check their business qualities, qualifications, and being late does not indicate that their knowledge and professional quality prevent them from doing their assigned work. To avoid such disputes, employers should not only keep a record of all violations of labor discipline, but also apply disciplinary sanctions in a timely manner.

"Don't Invent"

Before the introduction of the Labor Code of the Russian Federation, every self-respecting market-type employer invented new types of disciplinary sanctions. The Labor Code of the Russian Federation was ignored under the pretext that he was not responsible modern conditions economic development.

We do not know anything about punishment with rods in the nineties of the last century, but the “reduction of salaries” took place at every turn. It was denoted by a capacious word - "fine". Fines were introduced not only by small and medium-sized, but also by large enterprises, which declared law-abidingness as the main corporate value. Often, bonus deductions were prescribed in the internal labor regulations or the staff regulation in the section "Disciplinary responsibility". Transfers to a lower-paid job or a lower position were also considered an effective measure to combat non-fulfillment of official duties, non-fulfillment of norms, and violation of labor discipline.

It cannot be said that all employers were so bloodthirsty. There was another category - loyal and progressive, who believed that the effect of persuasion, educational conversations and oral remarks could be greater than that of punishment. Conversations and persuasions, it seems, are not disciplinary sanctions to be fixed, but with their help it is also possible to influence an employee who improperly performs his duties, ignores labor discipline, etc. However, in order for all these oral "warnings", "stating" not to be forgotten, accounting was still required, as well as a description of the schemes for using each of them. So, disciplinary sanctions were included in local regulations, which were issued orally and did not provide for detailed fixation, and, consequently, compliance with labor laws.

The illusions of the early-mid-nineties of the last century that the new Labor Code of the Russian Federation should provide for European methods of dealing with negligent workers, allowing for free disposal of the size wages, and a simplified procedure for dismissal, were dispersed as orders were issued by the state labor inspectorate. They finally disappeared after the introduction of the Labor Code of the Russian Federation, which directly prohibited employers from inventing new disciplinary sanctions.

So, once again we turn to article 192 of the Labor Code of the Russian Federation. According to its first part, the employer has the right to apply the following disciplinary sanctions:

• comment;
• rebuke;
• dismissal for appropriate reasons.

Federal laws, charters and regulations on discipline for certain categories of employees may also provide for other disciplinary sanctions (part two of Article 192). The application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not allowed (Part three of Article 192).

If you - commercial organization, stop trying to find federal laws that supplement the list of types of disciplinary sanctions. With regard to Article 192 of the Labor Code of the Russian Federation, among the federal laws that expand the list of types of disciplinary liability, or, in legal language, regulating the procedure for bringing to special disciplinary liability, the first one should be called Federal Law No. Federation” (as amended on 07.11.2000). Along with measures of general disciplinary responsibility (remark, reprimand, dismissal), its article 14 provides for a warning about incomplete service compliance, as well as a still severe reprimand. In the Law of the Russian Federation "On the Prosecutor's Office of the Russian Federation", the list of disciplinary sanctions is supplemented by demotion in class rank, deprivation of the badge "For impeccable service in the prosecutor's office of the Russian Federation", deprivation of the badge "Honorary worker of the Prosecutor's office of the Russian Federation". In fact, all of the enumerated special types of disciplinary sanctions are to some extent reproduced in other federal laws on civil servants.

Considering that by introducing your own “Regulations on Discipline” you automatically extend the norm of part two of Article 192 of the Labor Code of the Russian Federation to yourself, you are committing nothing more than a legal mistake. It has been "stretching" since the time of the Labor Code of the RSFSR, when the nature of such documents as charters and regulations on discipline was not defined. Part two of Article 130 of the Labor Code of the Russian Federation only provided that in some industries National economy for certain categories of employees, charters and regulations on discipline apply. The new owners of industry-forming enterprises used this norm in their own way and adopted charters and regulations in the form of local regulations. This gap is filled in the Labor Code of the Russian Federation - it is established that the charters and regulations on discipline for certain categories of workers are approved by the Government of the Russian Federation in accordance with federal laws (part five of Article 189). Even now, no one forbids the employer to adopt a local normative act specifying the internal labor regulations in terms of disciplinary liability and calling it a “regulation”. However, it will not be subject to parts two and three of Article 192 of the Labor Code of the Russian Federation, and therefore, it should only provide for penalties established by the Labor Code of the Russian Federation.

Among the disciplinary statutes and provisions provided for by this norm, in particular, include:

• Regulations on employee discipline railway transport(approved by Decree of the Government of the Russian Federation of August 25, 1992 No. 621 (as amended on May 24, 2002);
• Charter on the discipline of workers of the fishing fleet of the Russian Federation (approved by the Decree of the Government of the Russian Federation of September 21, 2000 No. 708);
• Charter on employee discipline maritime transport(approved by Decree of the Government of the Russian Federation of May 23, 2000 No. 395);
• Charter on the discipline of employees of organizations with especially hazardous production in the field of the use of atomic energy (approved by Decree of the Government of the Russian Federation of 10.07.1998 No. 744);
• The disciplinary charter of paramilitary mine rescue units in transport construction (approved by Decree of the Government of the Russian Federation of July 30, 1994 No. 879) and others.

The Disciplinary Charter stands somewhat apart. customs service Russian Federation - it was approved not by the Government of the Russian Federation, but by the President of the Russian Federation (Decree No. 1396 of November 16, 1998).

So that inventions do not continue, we pay attention to the following points.

1. Penalties . In jurisprudence, a fine is understood as one of the types of liability, expressed in a monetary amount, which is subject to recovery from a person who has committed a crime or offense and is imposed within the limits provided for by criminal law, legislation on administrative offenses, tax and customs legislation, other branches of legislation. The authorities and their officials are authorized to impose fines, the jurisdiction of which provides for the authority to resolve legal disputes and resolve cases of offenses, assess the acts of subjects of law in terms of their legality or illegality. The exception is civil law relations, in which a fine is understood to be one of the types of forfeit, that is, a sum of money established by law or contract, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of an obligation.

The desire of the employer to introduce a system of fines is often due not to the fact that the employee does not fulfill duties or performance standards at all, but to the fact that duties are performed improperly - not in full, untimely or formally, performance does not meet specified standards, etc. The indignation of employers that in most European countries the reduction of wages is legalized, but not in Russia, is not entirely justified. According to Article 8 of the ILO Convention on the Protection of Wages (dated July 1, 1949 No. 95), deductions (deductions) from wages are allowed to be made under the conditions and within the limits prescribed by national legislation or determined in a collective agreement or in a decision of an arbitration body. Russian labor legislation does limit the cases and grounds for deductions from wages. However, many employers still have not read the Labor Code of the Russian Federation to the end and have not discovered the norm contained in the third part of Article 155. It directly establishes that in case of non-fulfillment of labor standards (official duties) due to the fault of the employee, payment of the normalized part of wages is made in accordance with the amount of work done. So far, this norm seems suitable only for the material impact on workers and subject to labor rationing. With regard to employees whose job responsibilities are very difficult to account for, recommendations for its application have not yet been fully developed. In order for the third part of Article 155 of the Labor Code of the Russian Federation to become a working one, and its application to be lawful, in job descriptions for employees, production instructions workers need to determine the mechanism for recording the performance of duties, as well as comply with the requirements of Article 163 of the Labor Code of the Russian Federation.

It is advisable to describe in detail the scheme for applying part three of Article 155 of the Labor Code of the Russian Federation either in the internal labor regulations, or in the regulation on payment or other act, but at the same time do not attribute these actions of the employer to disciplinary sanctions, and even more so do not call them fines.

2. Deprivation of bonuses or "deprivation of bonuses." This is a more legalized form of material impact on the employee. However, it does not apply to disciplinary measures.

Back in 2000, the Legal Department of the Ministry of Labor of Russia, in its letter dated July 31, 2000 No. 985-11, explained that the legislation does not contain the concept of “deprivation” of a bonus; the legislation proceeds from the fact that non-payment of a bonus to a violator of labor discipline is not a disciplinary sanction. In each specific case, such issues are resolved in the manner prescribed by the current regulation on bonuses in the organization. This legal position is also true in relation to the Labor Code of the Russian Federation. However, it is necessary to pay attention to the definition of the concept of “wage”, contained in Article 129 of the Labor Code of the Russian Federation, from which it follows that wages are remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation and incentive payments; therefore, various kinds of bonuses are included in it. In order for the bonus to really meet the criteria for “incentive payment”, in the regulation on bonuses or the regulation on remuneration, in another local regulatory legal act regulating remuneration issues, a list of grounds for its payment should be defined and a system of their accounting should be described. But it is not necessary to paint for what misconduct the bonus is not paid - according to legally significant signs, the actions of the employer will be subject to the application of disciplinary measures to the employee.

At the same time, in the regulation on bonuses or other local regulatory act, it is possible to link the deprivation of the bonus or reduction of its size with disciplinary sanctions (for example, “the bonus is not paid to employees who have disciplinary sanctions”). With this approach, it is desirable for the employer to determine the periods of non-payment of the bonus (for example, specify that the condition for paying the bonus is that the employee does not have disciplinary sanctions in the period of work for which the bonus is accrued).

As for other forms of monetary impact on employees for disciplinary offenses invented in recent years - deprivation of percentage allowances, allowances for the special nature of work, reduction of travel expenses or vacation pay - they directly contradict the current legislation, and the very first appeal of an employee to the state labor inspectorate or the court will confirm it. The decision of the latter will already relate to the methods of the state's monetary impact on the employer.

By the way, despite the accusations of Belarus in the old, Soviet type of government, its Labor Code is more specific in relation to these issues. Article 198 of the Labor Code of the Republic of Belarus establishes that “to employees who have committed a disciplinary offense, regardless of the application of disciplinary measures, the following can be applied: deprivation of bonuses, change in the time of granting labor leave and other measures"; “the types and procedure for the application of these measures are determined by the internal labor regulations, the collective agreement, agreement, and other local regulations.”

What conclusions can be drawn from the above?

Since neither the payment of wages in accordance with the volume of work performed, nor the deprivation of bonuses (deprivation of the bonus, reduction in its size) are disciplinary measures, they:

a) may be applied simultaneously with disciplinary sanctions;

b) their application is not taken into account when an employee is dismissed for repeated non-performance of labor duties.

3. Warning, reprimand. Despite the fact that a warning as a legal means of influence refers to measures of administrative responsibility, the requirement for compliance with its features, enshrined in the Code of Administrative Offenses of the Russian Federation, is not as strict as in relation to a fine; especially if it is specified as a "disciplinary warning". Along with the concept of "warning", such a form of influence as "put in sight" is used. In fact, these are equivalent concepts - an employee who has committed a misconduct is warned that if he commits a misconduct again, he will be “put in sight”, “put under control”, etc. "Censure", at its core, is a concept of the same kind. A censure is a statement in which the speaker expresses a negative assessment of the employee's act, his behavior, in order to cause a negative emotional reaction in the latter.

Such measures of influence, as a rule, are introduced in organizations whose management does not seek to "chop off the shoulder" and dismiss them for minor infractions. In case of a frivolous violation of labor discipline, for example, a smoke break before lunch break, an educational conversation is held with the employee; the employee is warned that if he commits a similar misconduct again, he will be subject to disciplinary liability in the manner prescribed by the Labor Code of the Russian Federation. At the same time, in local regulations, these activities are often referred to as corporate disciplinary actions.

Do not neglect the law and call a spade a spade. Warning, censure, etc. can be considered disciplinary action. impact but not to disciplinary measures responsibility and not to the types of disciplinary penalties. In the theory of personnel management, disciplinary influence is understood as tools of both positive influence on personnel (encouragement) and negative influence (penalties, team reaction, etc.). Warning and censure lie in the field of education of employees, which has no legal consequences. Their main goal is to show the employee that he has shortcomings, to help overcome negative traits in behavior and communication with people, to form respect for the rules adopted in the organization.

The form of fixing and recording such measures of influence on the employee can be both oral and written.

In general, warning, censure, etc. are a kind of analogue of the measures of public influence provided for by Article 138 of the previously existing Labor Code of the Russian Federation, according to which the administration has the right, instead of applying a disciplinary sanction, to refer the issue of violation of labor discipline to the consideration of the work collective, and the latter to apply such measures of public influence as a comradely remark, a public reprimand .

Provided that local regulations provide for the possibility of making a decision on issuing a warning to the employee, on his reprimand by the work team, these acts must detail all the mechanisms. If a written record of such measures is kept, it must be remembered that in the case when, upon the commission of a disciplinary offense, the employer limited himself to a censure and there is written confirmation of this, then the application of a disciplinary sanction for the same offense may be recognized as unlawful. To such a situation, by analogy, the courts can apply the provision of paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On Certain Issues of the Application of Legislation by the Courts of the Russian Federation in the Resolution of Labor Disputes”, according to which, if the employer, instead of applying a disciplinary disciplinary action referred the issue of his violation of labor discipline to the consideration of the labor collective, by the decision of which measures of social influence were applied to the employee, he does not have the right to subject the violator to disciplinary action for the same offense, since he did not use the right granted to him to bring the employee to disciplinary responsibility. Therefore, it is necessary to revise your local regulations with regard to the mechanism for applying disciplinary measures in conjunction with disciplinary sanctions. Remember that, since the Labor Code of the Russian Federation does not contain rules governing the application of public influence measures, your local regulations will be carefully studied by the court, the state labor inspectorate.

"Remember Deadlines"

According to part three of Article 193 of the Labor Code of the Russian Federation, a disciplinary sanction is applied no later than 1 month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, and the time required to take into account the opinion of the representative body of employees. Part four of the same article establishes that a disciplinary sanction cannot be applied later than 6 months from the date of the misconduct, and based on the results of an audit, audit of financial and economic activities or an audit - later than 2 years from the date of its commission; the specified time does not include the time of criminal proceedings.

It is impossible to be late with the application of disciplinary sanctions. Deadlines must always be remembered. It is with the verification of compliance with the established deadlines that state labor inspectorates and courts begin to consider disputes related to disciplinary liability.

Let us analyze the above norms of Article 193 of the Labor Code of the Russian Federation and determine from what moment the calculation of the monthly period begins. Based on the wording of the third part of Article 193 of the Labor Code of the Russian Federation, the period is counted from the moment detection offense, it does not matter how it was discovered. For example, the obligation to detect lateness to work by the immediate supervisor of the employee in the system of recording the attendance of work at the checkpoint is debatable. In this case, the record of the employee's attendance at work is kept special worker, which fixes the time of arrival of workers and, accordingly, is the first person who detects a violation of labor discipline. The same can be said about the employees of the personnel department, who, by the regulation on the department and (or) job descriptions, may be empowered to exercise control over discipline in various forms(checks of workplaces, etc.). In this case, it is these workers who will record the fact of violation of labor discipline.

But, at the same time, in most cases, the person who has the opportunity to detect a disciplinary offense is the immediate supervisor of the employee. Thus, the resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 No. 16 “On Some Issues of the Application of Legislation by the Courts of the Russian Federation in the Resolution of Labor Disputes” determines that the day when a misconduct is discovered, from which the month period begins, is considered the day when the person to whom the employee is subordinate, it became known about the misconduct, regardless of whether it is endowed with the right to impose disciplinary sanctions or not.

Neither the Labor Code of the Russian Federation, nor other acts of labor legislation contain an explanation of how to count the monthly period in the event of a long absenteeism of an employee. In order to formally meet the deadlines established by part three of Article 193 of the Labor Code of the Russian Federation, as well as to find out the reasons for the employee’s long absence from work, logically, the starting point should come from the last, and not from the first day of absenteeism. This legal position can also be traced in court decisions. At the same time, this is possible only in the event of the end of the misconduct, that is, the employee's appearance at work. How to proceed in the event of a long absenteeism and fulfill the requirements of Article 193 of the Labor Code of the Russian Federation is explained in detail below.

By virtue of the law, only the time of illness of the employee or his stay on vacation is not included in the monthly period for the application of a disciplinary sanction; absence from work for other reasons, including in connection with the use of rest days (days off), regardless of their duration (for example, when shift method organization of works), does not interrupt the course of the specified period. Leave interrupting the course of a month should include all holidays provided by the employer in accordance with current legislation, including annual (basic and additional) vacations, vacations in connection with studying in educational institutions, short-term leave without pay and others.

In addition, as established by part three of Article 193 of the Labor Code of the Russian Federation, the time required to take into account the opinion of the representative body of workers is not included in the monthly period when it comes to the application of a disciplinary sanction in the form of dismissal against a member of a trade union.

How to record the fact of committing a misdemeanor? Indeed, before the issuance of an order (instruction) of the employer on the application of a disciplinary sanction, much can change (the exact date of the offense, its essence, etc. will be forgotten). The documents listed in the next section of this publication can be used to fix the date and substance of a disciplinary offense.

When applying a disciplinary sanction in the form of dismissal under subparagraph "d" of paragraph 6 of Article 81 of the Labor Code of the Russian Federation, the monthly period is calculated from the date of entry into force of the verdict, which establishes the employee's guilt in stealing other people's property, or the decision of the competent authority to impose on the employee for this offense administrative penalty. With regard to the last act - the decision of the body authorized to draw up protocols on administrative offenses - there are several features that must be taken into account:

• the rule on the flow of a month from the date of entry into force of the decision of the competent authority applies only to such administrative offenses as theft of another's property, embezzlement, deliberate destruction of property or damage to property. It does not apply to other offenses;
• if the same offense in accordance with local regulations refers to disciplinary offenses, and in accordance with the Code of Administrative Offenses of the Russian Federation - to administrative offenses, and an administrative offense case is initiated, then the month period begins from the moment the offense is discovered, and the employer is not charged link the application of a disciplinary sanction to the decision to bring to administrative responsibility. For example, an inspection of the store, conducted by officials of the control and supervisory authorities, revealed such an offense as the failure to use a cash register when selling goods to customers. A protocol was drawn up on an administrative offense under Article 14.5 of the Code of Administrative Offenses of the Russian Federation. However, this offense is also a disciplinary offense, since the obligation to use a cash register is assigned to the seller by his employment contract, production (by profession) instruction. If the employer waits for the decision of the control and supervisory authority, then he risks missing the monthly period established by Article 193 of the Labor Code of the Russian Federation, since the terms for investigating and considering an administrative offense case established by Articles 28.7 and 29.6 of the Code of Administrative Offenses of the Russian Federation are equal to one and a half months and may be in case the complexity of the cases under consideration was extended for another 1 month. Since the moments of detection of administrative and disciplinary offenses coincide, in practice, events will develop in such a way that in the process of investigating and considering a misconduct, the period for imposing a disciplinary sanction will expire before a decision is made to impose an administrative penalty. When applying a disciplinary sanction in cases similar to the example described, it should be remembered that as a result of the investigation and consideration of an administrative offense, it may be established that the employee is not guilty, and then he will have grounds for going to court, the state labor inspectorate.

Part four of Article 193 of the Labor Code of the Russian Federation establishes that a disciplinary sanction cannot be applied later than 6 months from the date of committing misconduct, and according to the results of the audit, financial checks -economic activity or audit - later than 2 years from the date of its commission; the specified time does not include the time of criminal proceedings.

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

At the same time, the employer has the right to apply a disciplinary sanction to the employee even if, before committing this misconduct, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the term of notice of dismissal. This follows from paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 No. 16 “On Certain Issues of the Application of Legislation by the Courts of the Russian Federation in Resolving Labor Disputes”.

The six-month period from the day the disciplinary offense was committed corresponds to the one-month period from the day the misconduct was discovered as follows. If the misconduct was committed, for example, on April 1, and the employer discovered it on August 1, then until September 1, the employer can apply a disciplinary sanction to the employee. If the employer discovered it on September 1, then the penalty can be applied only until October 1. But if the misconduct was discovered on October 1, then the 6-month period from the date of its commission has expired, and, therefore, the employer cannot exercise his right to bring the employee to disciplinary responsibility. The exception is cases when the misconduct is detected as a result of an audit, audit of financial and economic activities or an audit. Then the term for applying a disciplinary sanction is increased to 2 years from the date of the misconduct. At the same time, the one-month limitation provided for by part three of Article 193 of the Labor Code of the Russian Federation must still be taken into account.

"Be Meticulous"

Scrupulous fixation of the facts of committing disciplinary offenses is necessary. Firstly, in order not to forget about the exact date of their commission and nature, and secondly, in order to have a documentary basis for the head of the organization to issue an order (instruction) to apply a disciplinary sanction if the immediate supervisor of the employee is not empowered on the application of disciplinary sanctions.

Personnel practice has developed two approaches to the execution of documents confirming the fact of committing a disciplinary offense:

• on the fact of non-fulfillment or improper fulfillment of labor duties stipulated by the employment contract, the immediate supervisor of the employee draws up a submission on bringing the employee to disciplinary responsibility;
• on the fact of violation of labor discipline, non-compliance with the rules of internal labor regulations, an act is drawn up.

The authority to apply disciplinary sanctions is delegated to managers structural divisions relatively few organizations. As a rule, these employees are entitled to send representations to the head of the organization (deputy head of the organization for personnel) on bringing their subordinate employees to disciplinary responsibility. The expediency of preparing such a presentation is explained by the fact that only the immediate supervisor of the employee can determine whether the employee properly performs, for example, his job duties. Practitioners proceed from the fact that in order to confirm the fact of non-performance or improper performance of functions, it is not necessary to involve other employees, and therefore it is not advisable to draw up an act. As an example of representation, the form given in the section "PAPERS" can be used. Notify the head of the organization about the commission of a disciplinary offense by an employee, his immediate supervisor can also by sending a memorandum. And only if he wants to protect himself from accusations of bias, as well as distribute the burden of his responsibility to other employees, the fact of committing a disciplinary offense can be fixed with the help of an act.

It is desirable to draw up an act in case of detection of violations of labor discipline, detection of facts of non-compliance with the rules of internal labor regulations. So, if control over labor discipline is carried out by employees of the personnel department, and during inspections of workplaces, they revealed facts of being late for work, leaving the workplace during the working day, absenteeism, appearing at work in a state of intoxication, etc., then such misconduct it will be correct to reflect in the act signed by several employees (exemplary forms of acts, as well as samples of their completion are given in the "PAPERS" section.

Scrupulousness is necessary not only when drawing up representations and acts, but also when taking into account all disciplinary sanctions imposed on the employee. Because the labor law a ban has been established on entering information about disciplinary sanctions in work books, and a personal card does not provide columns for entering such information, the employer establishes the forms and methods for recording disciplinary sanctions independently. As a rule, an extract from the order (instruction) of the head of the organization on the application of a disciplinary sanction, as well as representations, acts and other documents that served as the basis for issuing the order, is filed in the employee’s personal file. The instruction on office work in the organization may provide that the order (instruction) on the application of a disciplinary sanction is directly placed in a personal file or compiled into a separate file “Orders for personnel (personnel)”.

Since for orders (instructions) on penalties, in comparison with other orders for personnel, more short term storage (only 5 years), practice has developed a different way of entering information on the application of a disciplinary sanction to an employee in a personal file - by maintaining a sheet (sheet, card) of rewards and penalties, which is stored in the employee’s personal file throughout his work in the organization. Such a document was necessary for the personnel service to determine the possibility of encouraging the employee in accordance with part three of Article 137 of the Labor Code of the Russian Federation, which established that during the period of validity of the disciplinary sanction, incentive measures were not applied to the employee. The Labor Code of the Russian Federation does not contain a ban on encouraging employees who have disciplinary sanctions. Meanwhile, personnel services continue to keep records of penalties to determine the employee's right to promotion, the degree of the next penalty imposed, taking into account the existing one, for the timely removal of disciplinary sanctions, etc. It would be more correct to call such a document a “penalty sheet”, since to reflect information about incentives, the corresponding section is provided in the personal card (the list of penalties can be maintained in the form given in the “PAPERS” section).

Gazette of the Supreme Soviet of the USSR, No. 20(83), 07/05/1940.

"Listen to explanations"

The employer is obliged to listen to the explanations of the employee before applying disciplinary penalties. Moreover, by virtue of the first part of Article 193 Labor code RF, he must demand the submission of explanations in writing.

The employee can state his explanations in various ways.

First of all - in an explanatory note . It is desirable that this document be drawn up by the employee in any form by hand. However, in a number of organizations, in order for the explanations to be coherent and logical, it is practiced to use template forms in which the employee is asked to fill in columns (lines, cells) designed to answer the questions: what are the reasons (motives) for committing a disciplinary offense, does the employee consider himself guilty of misconduct, if not, then who, in the opinion of the employee, should be brought to disciplinary responsibility. An explanatory note is addressed either to the head of the organization, or to his deputy for personnel, or to the head of the personnel department, or to the head of the structural unit in whose staff the employee is included. To whom specifically - should be determined in the local regulations of the organization.

The second option for obtaining explanations is fixing the employee's explanations in an act drawn up on the fact of committing a disciplinary offense , by certifying the explanations by the employee with his signature.

According to the second part of Article 193 of the Labor Code of the Russian Federation, the employee's refusal to give an explanation is not an obstacle to the application of a disciplinary sanction. However, it does not at all follow from this that if the employee refused to explain the reasons for his behavior, then the employer can safely apply a disciplinary sanction. Rejection must be recorded- either in an act drawn up on the fact of committing a disciplinary offense, or in a separate act on refusal to give explanations. In the first case, after setting out the essence of the misconduct and the signatures of the originator and those present, a note is made that the employee refused to provide explanations, and the persons participating in the preparation of the act put their signatures again.

One of the most difficult situations in personnel practice is a long absenteeism. The employee does not appear at work, does not provide any information either about himself or about the reasons for his absence. The employer suffers losses - the work is not performed, it is impossible to dismiss the employee, because the reasons for the absence are unclear, and it does not allow hiring a new employee staffing. In this case, the employer can only be advised one thing: to send a letter with a notification to the employee’s known place of residence or location, in which they demand an explanation from him about the reason for the long absence from work and warn that if, within a certain period of time, from he does not receive a response, then the employer will exercise his right to apply a disciplinary sanction, up to termination of the employment contract under subparagraph “b” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation. It should be noted here that when considering cases on the reinstatement of those dismissed for a long absence from work, the courts resolved this issue in different ways: there were also cases of reinstatement, since the employee was absent for a long time due to temporary disability, and there was no opportunity to notify the employer, and cases of recognition as lawful dismissal for a long absenteeism of an employee who did not appear at work.

If there are doubts about the veracity of the information received from the employee as a result of his explanations, the personnel department checks them. For example, a human resources inspector may call the DEZ at the worker's place of residence and find out if there was a malfunction in the plumbing equipment, which the worker cited as the reason for his being late. If an employee, in support of the reason for his absenteeism, presented a certificate of temporary disability, but there are doubts about its authenticity, a specialist in the personnel department can contact a special division of the FSS of Russia that monitors the legality of issuing certificates of disability.

The reasons for the employee's failure to fulfill his official duties, listed in the explanatory note, should be analyzed together with the immediate supervisor of the employee. In addition, it will be necessary to study the terms of the employment contract that describe the labor function and labor duties of the employee, the provisions of the job description and other documents related to the labor function of the employee.

"Don't overdo it"

According to part five of Article 193 of the Labor Code of the Russian Federation only one disciplinary sanction may be applied for each disciplinary offense .

A situation is unacceptable when an employee is first subjected to one disciplinary sanction for committing one disciplinary offense, for example, a reprimand, and then another for the same offense. If, for example, an employer for the appearance of an employee at work on April 7, 2003 in a state of intoxication reprimanded the employee and issued an appropriate order, then he is not entitled to apply to the same employee for the same disciplinary offense (that is, for appearing at work on April 7, 2003 years in a state of intoxication) the second disciplinary sanction, for example, to dismiss the employee under subparagraph "b" of paragraph 6 of Article 81 of the Labor Code of the Russian Federation. By reprimanding the employee, the employer exercised his right to choose the type of disciplinary sanction, and he has no right to change his decision.

Another thing is a continuing disciplinary offense, that is, an offense that continues for a long period of time. If, having discovered a disciplinary offense, the employer applied a disciplinary sanction, but this disciplinary offense continues (this particular offense, and not the next one, even if it is similar), then in accordance with the explanations of the Supreme Court of the Russian Federation (paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 No. 16 “On Certain Issues of the Application of Legislation by the Courts of the Russian Federation in the Resolution of Labor Disputes” (as amended on November 21, 2000), a new disciplinary sanction, including dismissal on the appropriate grounds, is permissible for an employee.

A continuing offense continues uninterrupted until it is stopped. The employer applies a disciplinary sanction just for the purpose of suppressing behavior that is expressed in non-performance or improper performance of a specific job duty. If this is not fulfilled, that is, it was not possible to stop this disciplinary offense by bringing the employee to disciplinary responsibility, the employer has the right to apply a new disciplinary sanction for the same offense. For example, an employee was given a notice for late preparation of reports for the first quarter. However, even after the application of the disciplinary sanction, the employee did not prepare reports within the time allotted to him by the employer. In this case, the employer did not stop the misconduct by applying a disciplinary sanction, and he has the right to exercise his right to apply a new disciplinary sanction. Naturally, all of the above is only valid if the employee is really guilty of committing a misdemeanor.

Another thing is re-offending. Under such is understood a misdemeanor committed repeatedly after a certain time after the suppression of a similar misconduct. Let's take the same example. The employee, after announcing a remark to him for the late preparation of reports for the first quarter, prepared reports within the time limits established by the order (instruction) on the application of disciplinary action. When preparing reports for the second quarter, the employee again violated the deadlines for preparing reports, that is, he committed a similar misconduct. In this case, the employer cannot use the above clarification of the Supreme Court of the Russian Federation.

As for repeated disciplinary offenses, for the application of paragraph 5 of Article 81 of the Labor Code of the Russian Federation it does not matter in principle whether a similar offense has been committed or another. By the way, here employers need to be careful. The said norm provides that the basis for dismissal is only repeated failure to perform duties in conjunction with a disciplinary sanction, but not repeated improper performance of labor duties. This wording already now allows employees to defend their case in courts, referring to the fact that they only improperly performed their duty, and therefore there are no grounds for dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation.

The legislation does not prohibit the employer for the same misconduct, bring the employee to both disciplinary and liability . If the purpose of the first is to stop the misconduct, then the purpose of the second is to compensate for the damage caused to the employer, including as a result of the misconduct. This follows from the sixth part of Article 248 of the Labor Code of the Russian Federation: “damage is compensated regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.” When bringing an employee to disciplinary and financial liability at the same time, the employer must comply with the requirements established by both Chapter 30 and Chapter 37 of the Labor Code of the Russian Federation.

In the same way, it is not bound by a ban on the use of such a measure of material influence on an employee for failure to perform or improper performance of labor duties, as deprivation of the bonus or reduction of its size . If a disciplinary sanction was applied to the employee (for example, a remark) and if, in accordance with the local regulatory act of the organization (for example, the provision on bonuses or the regulation on remuneration), this affects the amount of the bonus or its payment as a whole, then the deduction or payment of the bonus in a smaller amount cannot be considered as a second disciplinary sanction (see the commandment "Do not invent").

It is not a disciplinary sanction and suspension from work produced according to the rules established by Article 76 of the Labor Code of the Russian Federation. The employer has the right to apply a disciplinary sanction to an employee who, through his (the employee's) fault, has not passed the mandatory periodic medical checkup, and at the same time obliged to remove him from work. The same actions can (in relation to the application of a disciplinary sanction) and are required (in relation to suspension) to be taken if the employee, through his own fault, has not undergone training and testing of knowledge and skills in the field of labor protection in the prescribed manner. The employer must remove the employee who appeared at work in a state of alcoholic, narcotic or toxic intoxication; however, the suspension will not prevent him from bringing the employee to disciplinary responsibility.

"Do not exceed"

This refers to the powers that are often exceeded by both personnel department employees and heads of structural divisions, when, before the issuance of the corresponding order (instruction), a remark or reprimand is announced loudly and in the presence of the entire team, or that the employee is dismissed.

The right to apply disciplinary sanctions to employees, the employer is endowed with the first part of Article 22 of the Labor Code of the Russian Federation. According to the fourth part of Article 20 of the Code, the rights and obligations of the employer in labor relations carried out:

• an individual who is an employer;
• governing bodies legal entity(organization) or persons authorized by them in the manner prescribed by laws, other regulatory legal acts, constituent documents of a legal entity (organization) and local regulations.

In organizations, the right to bring an employee to disciplinary responsibility is usually vested in sole executive body, that is, the head of the organization (general director, director, president, etc.). This right is enshrined either in the constituent documents or in other local regulations of the organization (for example, in the regulation on CEO, regulations on material and moral incentives for personnel), as well as in an employment contract with the head of the organization.

By order on the distribution of duties, the head of the organization may transfer the authority to bring employees to disciplinary responsibility to his deputy for personnel or another official .

It is extremely rare that the authority to apply disciplinary sanctions is transferred to the heads of structural divisions. As a rule, in resolving issues of bringing to disciplinary responsibility, line managers are assigned the main, but not decisive role - they are assigned the right to direct ideas about bringing subordinate employees to disciplinary responsibility, memorandums or memos containing proposals to bring the employee to disciplinary responsibility.

The actions of employees of the personnel department in the scheme for applying disciplinary sanctions should be strictly described in the local regulations of the organization (for example, in the regulation on material and moral incentives for personnel, the regulation on the personnel department, job descriptions for department specialists).

"Be Fair"

Part three of Article 135 of the earlier Labor Code of the RSFSR provided that when imposing a disciplinary sanction, the severity of the misconduct committed, the circumstances under which it was committed, the previous work and behavior of the employee should be taken into account.

Since the entry into force of the Labor Code of the Russian Federation, the right to choose the type of disciplinary sanction belongs entirely to the employer. At first glance, from the point of view of the law, he is not charged with clarifying the listed circumstances and facts.

But if today the Supreme Court of the Russian Federation had to give clarifications on the application of Article 193 of the Labor Code of the Russian Federation, it would undoubtedly draw the attention of employers to the fact that the severity of the misconduct, the circumstances of its commission, the previous characteristics of the employee and his behavior should be taken into account when determining a measure of disciplinary responsibility for an employee, since all of them are key elements of the principles of validity and fairness of any type of legal liability.

At present, a draft federal law “On Amendments and Additions to Article 193 of the Labor Code of the Russian Federation” has already been prepared, which proposes to supplement Article 193 of the Code with the following part: “When imposing a disciplinary sanction, the compliance of the disciplinary sanction with the severity of the offense committed, the circumstances it is done, the previous work and the behavior of the employee "- that is, in fact, to return the previously withdrawn norm. In the explanatory note to the draft law, the non-inclusion of this legal norm in the Labor Code of the Russian Federation is called a technical omission. The developers of the bill proceed from the fact that earlier (during the period of the Labor Code of the Russian Federation) it forced the employer to make more objective decisions when bringing employees to disciplinary responsibility. According to the conclusion of the Committee on Labor and Social Policy of the State Duma of the Russian Federation on the draft federal law “On Amendments and Additions to Article 193 of the Labor Code of the Russian Federation”, the absence of a rule on the obligation of the employer to take into account a number of factors when applying disciplinary sanctions will lead to the fact that in practice the employee may be, for example, dismissed for minor violations of labor discipline, although the application of such a disciplinary measure will not correspond to the degree of his guilt and take into account other significant circumstances. This will create a real possibility of abuse of the right. 29 reviews of legislative (representative) and 50 reviews of higher executive bodies were received for the bill state power subjects of the Russian Federation.

The Legal Department of the Office of the State Duma did not express any comments of a legal nature to the bill; The Federation Council Committee on Social Policy supported the concept of the bill.

On the contrary, the Government of the Russian Federation considered the adoption of this bill inexpedient. The main argument for such a position is the opinion that the establishment specific list circumstances that must be taken into account when bringing an employee to disciplinary responsibility will narrow the range of issues investigated by the employer when determining the reasons that led to the commission of a disciplinary offense. As follows from the opinion of the Committee on Labor and Social Policy of the State Duma of the Russian Federation on the draft law, the opinion of the Government of the Russian Federation is based on a restrictive interpretation of the proposed norm as an exhaustive list of circumstances to be taken into account by the employer when imposing a disciplinary sanction. However, from explanatory note it follows that the concept of the draft law is not to establish an exhaustive list of circumstances to be taken into account, but in the need to legally oblige the employer to make more objective decisions when bringing employees to disciplinary responsibility. When finalizing the draft law for the second reading, amendments may be made to it in order to expand the specified list or make it open.

In the official response of the Government of the Russian Federation, it is rightly noted that before applying a disciplinary sanction, the employer must request an explanation from the employee in writing. Indeed, having received the employee's explanation, the employer can find out the circumstances of the disciplinary offense, as well as the degree of guilt of the employee who committed it. But the obligation of the employer to take into account the circumstances clarified in this way is not established by the Labor Code of the Russian Federation.

In addition, it is indicated that the severity of the misconduct committed, the circumstances under which it was committed, as well as the previous work and behavior of the employee, as well as other circumstances of the case, should be taken into account by state labor inspectorates or labor dispute authorities when appealing against the imposed disciplinary sanction by the employee. It seems that this argument cannot be recognized as justified, since these bodies in their activities should be guided only by the law. The absence in the law of an indication of the need to take into account the above circumstances will not allow making decisions on the inconsistency of the penalty applied by the employer.

In view of the above, the Committee on Labor and Social Policy of the State Duma of the Russian Federation supported the draft federal law "On Amendments and Additions to Article 193 of the Labor Code of the Russian Federation" and recommended that the State Duma adopt it in the first reading.

Whether or not additions will be made to the Labor Code of the Russian Federation obliging, when applying a disciplinary sanction, to take into account the severity of the offense committed, the circumstances under which it was committed, the previous work and behavior of the employee, the employer should remember about justice. And also that the court will still check whether the employer took into account the indicated circumstances, and if not, it will strongly recommend that the employer reconsider its decision, especially if it resulted in dismissal (itself to replace one disciplinary sanction with another, as well as dismissal by another disciplinary measure, the court does not has the right, since the imposition of a disciplinary sanction on an employee is the competence of the employer with whom the employee has an employment relationship (part two of paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On Certain Issues of Application by the Courts of the Russian Federation of Legislation in Resolving Labor Disputes” ).

"Finish by the rules"

The decision of the employer to apply a disciplinary sanction to the employee must be expressed in order (instruction) of the employer . Within three working (and not calendar!) Days from the date of publication, due to the requirements of part six of Article 193 of the Labor Code of the Russian Federation, it must be announced to the employee against receipt.

If a decision is made to apply such a disciplinary sanction as dismissal on an appropriate basis, then the order (instruction) is drawn up in accordance with the unified form No. T-8 - on the termination of the employment contract with the employee. In this case, in the lines "grounds for dismissal" a reference is made to the clause and article of the Labor Code of the Russian Federation, and in the line "Basic" the documents are listed that document the fact of detection of a disciplinary offense (act, explanatory note, etc.).

Because the unified form general order (instruction) on the application of a disciplinary sanction in the form of a remark or reprimand at the federal level is not approved, the employer independently determines its content. Such an order (instruction) should reflect:

• the essence of the disciplinary offense;
• time of commission and time of discovery of a disciplinary offense;
• the type of penalty applied;
• documents confirming the commission of a disciplinary offense;
• documents containing explanations of the employee.

In the order (instruction) on the application of a disciplinary sanction, you can also provide a summary of the employee's explanations.

One of the essential points in the design this document is the endorsement of the project by the head of the legal service or the lawyer of the organization. The sighting should be preceded by a check of the order (instruction) for compliance with the legislation of the applied disciplinary sanction, compliance with the deadlines for bringing to disciplinary responsibility. The head of the legal service or the lawyer of the organization must familiarize himself with all the materials relating to the disciplinary offense, as well as the explanations of the employee for whom the order (instruction) on the application of a disciplinary sanction is being prepared. Approximate form an order to apply a disciplinary sanction is given in the section "PAPERS" (p. 55).

"Make no mistake"

When counting or summing up disciplinary sanctions, one cannot be mistaken.

Previously, the attention of employers was drawn to the fact that neither the deprivation of bonuses and the legitimate reduction of wages, nor censures and other inventions are disciplinary sanctions. Therefore, their summation is illegal and unreasonable. It is impossible to deprive the bonus (produced, of course, legally) as the first penalty and, when an employee commits one disciplinary offense during the year, apply paragraph 5 of Article 81 of the Labor Code of the Russian Federation.

Another thing to pay attention to when summing up disciplinary sanctions is the “following” of disciplinary sanctions when transferring an employee. For example, an employee holding the position of an engineer in the quality control department was reprimanded for producing a defective batch of products. A month later, the employee was transferred to the position of head of the quality control department. In this position, he committed a disciplinary offense, expressed in the failure to provide the employees of the department with OKC stamps. Can the employer apply a disciplinary sanction to him in the form of dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation? Answering this question, one should proceed from the essence of disciplinary responsibility: it is focused not on ensuring the performance of the labor function within the framework of a specific and specific position, but on ensuring the diligence and conscientious attitude of the employee to work in general. Transfer to another position, to another job with the same employer does not entail the cancellation of a disciplinary sanction. It does not matter that it was imposed for failure to perform or improper performance of labor duties in another position or other work.

When summing up disciplinary sanctions, you need to remember the following.

"Remember Forgiveness"

In accordance with part one of Article 194 of the Labor Code of the Russian Federation, if within a year from the date of application of a disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered without disciplinary action . Therefore, before determining whether another misconduct gives grounds to believe that there is a repeated failure to perform duties, one should look at the orders for personnel (personnel) on the application of disciplinary sanctions, an extract from the order (order) on the application of a disciplinary sanction in the employee’s personal file, “sheet Penalties” or another record of penalties to determine whether the previously imposed disciplinary sanction has not become invalid.

A disciplinary sanction can also be removed from an employee. According to the second part of Article 194 of the Labor Code of the Russian Federation, the employer, before the expiration of a year from the date of application of the disciplinary sanction, has the right to remove it from the employee:

1) on their own initiative. The employer, on the basis of his own observations of the employee, may issue an order (instruction) to lift a disciplinary sanction for the employee’s impeccable behavior, high labor indicators and other positive characteristics. As a rule, the personnel department is entrusted with monitoring the behavior of an employee after a disciplinary sanction has been imposed on him. He will in this case act as the initiator of the removal of the disciplinary sanction;

2) at the request of the employee himself. The employee, realizing his negative behavior, made every effort to correct the consequences of a previously committed disciplinary offense, proved himself on the positive side, increased the quality and performance of his work. Why shouldn't he himself turn to the employer with a request to take into account the merits to the organization and “forget” about the previously committed misconduct? He must state his request in writing in the form of an application addressed to the head of the organization or the person whose administrative act imposed a disciplinary sanction;

3) at the request of the immediate supervisor of the employee. The direct supervisor's initiative is expressed in a document entitled "petition" or "representation";

4) at the request of the representative body of employees. The representative body can express its opinion in the same form as the immediate supervisor of the employee, i.e. in a petition or submission.

A petition for the removal of a disciplinary sanction from an employee can also be voiced orally, for example, at a meeting of the labor collective. In this case, it is recorded in the minutes of the meeting and must be considered by the employer.

The final decision on whether or not to remove a disciplinary sanction based on the request of the employee or the petition of the immediate supervisor, the representative body of employees is made by the employer, or rather, the person whose administrative act it was applied.

On the removal of a disciplinary sanction, the employer must issue an appropriate order (instruction), on the basis of which the documents on personnel records relevant information is entered (an exemplary order (instruction) on the removal of a disciplinary sanction is given in the "PAPERS" section (p. 56).

"Do not forbid"

According to part 7 of article 193 of the Labor Code of the Russian Federation, a disciplinary sanction can be appealed by an employee to state labor inspectorates or bodies for the consideration of individual labor disputes (a commission on labor disputes and court). Any restriction of the employee's right to appeal through local regulations, individual acts (employee's receipts that he will not complain, etc.) is void.

It has already been noted earlier that, for example, a court considering a labor dispute on the unlawfulness of dismissal for committing a disciplinary offense cannot replace dismissal with another type of penalty. However, having recognized the decision of the employer as unlawful, he thereby limits the latter to the terms for applying another disciplinary sanction. So, if a disciplinary sanction was applied by a person who was not authorized to bring employees of the organization to disciplinary responsibility, and as a result of the consideration of the case in court or in the commission on labor disputes, the inspection of the state labor inspectorate, it will be canceled, then the employer risks missing the deadlines allotted by the Labor Code Russian Federation for the application of disciplinary sanctions.

In order for the disciplinary procedure to be manageable at the employer level, the latter should not prohibit employees from appealing against the actions of their immediate supervisors. Such a ban in relation to jurisdictional bodies (court, federal labor inspectorate) is illegal, and in relation to higher officials of the organization, it only limits the ability to resolve the dispute without going beyond the organization.

From the history of disciplinary responsibility

Institute disciplinary responsibility in pre-revolutionary Russia included various measures disciplinary penalties: “remarks more or less severe”, “reprimands with inclusion in the service record” and “reprimands without inclusion in the service record”, “deduction from salary”, “deduction from the time of service of various periods”, “moving from a higher position to a lower one” , "removal from office" and "dismissal from office". It should be noted that in the overwhelming majority they were linked to criminal liability, since they were provided for persons who were public service. As for free-hired workers, for marriage, failure to meet production standards, lateness and other violations, the employer established penalties on his own, of which the smallest was a deduction from earnings, and the most common was dismissal.

Until 1863 (the reforms of Alexander II), corporal punishment was applied not only to serfs, but also to hired workers, apprentices, and apprentices. Their rights in Russian factories and factories were not regulated by any acts until 1886 (until the introduction of the decree “On Supervision of Factory Industry Establishments and on Mutual Relations between Manufacturers and Workers”). However, cases of punishment of workers with whips and rods took place until the end of 1905. It was only with the first Soviet decrees that corporal punishment was finally abolished, and education by persuasion was proclaimed as the main method of dealing with violators of discipline. Over time, the Soviet state revised such a loyal attitude towards disciplinary offenses, and in 1940 (June 26) the Decree of the Presidium of the Supreme Soviet of the USSR “On the transition to an 8-hour working day, a 7-day working week and the prohibition of unauthorized departure of workers and employees from enterprises and institutions. This act established judicial (!) liability: “for absenteeism without a good reason, workers and employees of state, cooperative and public enterprises and institutions are brought to trial and, by the verdict of the people's court, are punished by corrective labor labor at the place of work for a period of up to 6 months with a deduction of up to 25% from wages. The people's judges, who considered such cases alone (without the participation of people's assessors), were instructed to resolve them within no more than 5 days and to carry out the sentences in these cases immediately. In addition, directors of enterprises and heads of institutions were also brought to justice for evading prosecution of persons guilty of absenteeism without good reason. By the way, being late for more than 20 minutes was also equated to absenteeism. Judicial liability in the form of corrective labor was abolished only in 1956.

By 1971, the Labor Code of the RSFSR provided for such types disciplinary penalties, how:

• comment;
• rebuke;
• severe reprimand;
• transfer to a lower-paid job for up to 3 months;
• dismissal (for appropriate reasons).

The transfer to a lower-paid job "lasted" among the measures of disciplinary responsibility until 1992 (until amendments and additions were made to the Labor Code of the RSFSR by Law of the Russian Federation of September 25, 1992 No. 3543-I). Having ratified ILO Convention No. 105 on the Abolition of Forced Labor (Federal Law No. 35-FZ of March 23, 1998), Russia had to bring national legislation in line with the norms of the Convention. Transfer to a lower-paid job as a disciplinary sanction, that is, in order to maintain labor discipline, meets the criteria for forced labor set forth in the said Convention. In the new Labor Code of the Russian Federation, there is not a word about transfer as a measure of disciplinary responsibility. Moreover, Article 4 of the Code directly prohibits forced labor, that is, the performance of work under the threat of any punishment (violent influence), including in order to maintain labor discipline. It should be noted here that, in accordance with separate charters and regulations on discipline, transfer to another, lower-paid job or another, lower position for up to 3 months is still possible, but only with the consent of the employee.

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Federal Law No. 328-FZ of October 1, 2019 "On Service in Compulsory Enforcement Bodies of the Russian Federation and Amendments to Certain Legislative Acts of the Russian Federation"

Article 50

1. The procedure for applying to employees the incentive measures provided for in paragraphs 1 - and 10 of Part 1 and Part 2 of Article 46 of this federal law, is established by the federal executive body, which performs the functions of developing and implementing state policy and legal regulation in the field of ensuring the established procedure for the activities of courts and the execution of judicial acts and acts of other bodies.

2. For employees holding positions in enforcement bodies, the appointment and dismissal of which are carried out by the President of the Russian Federation, the incentive measures provided for in paragraphs 1 - and 10 of Part 1 and Part 2 of Article 46 of this Federal Law may be applied by the head of the federal enforcement agency execution or authorized supervisor.

3. Disciplinary sanctions are imposed on an employee by direct supervisors (chiefs) within the limits of the rights granted to them by the head of the federal enforcement agency, with the exception of the dismissal from service in enforcement agencies of an employee who fills a position in enforcement agencies, appointment to which and dismissal from which are carried out President of the Russian Federation. The head of the federal enforcement agency is obliged to inform the President of the Russian Federation about the imposition of a disciplinary sanction on an employee holding a position in the enforcement bodies, the appointment and dismissal of which are carried out by the President of the Russian Federation.

4. The direct supervisor (chief) also has the right to impose a disciplinary sanction granted to a subordinate manager (supervisor). If it is necessary to impose such a disciplinary sanction on an employee that the relevant manager (supervisor) does not have the right to impose, he requests the imposition of this disciplinary sanction before a higher manager (supervisor).

5. A superior manager (supervisor) has the right to change or cancel a disciplinary sanction imposed by a subordinate manager (supervisor) if it does not correspond to the severity of the disciplinary offense committed by the employee.

6. A disciplinary sanction must be imposed no later than two weeks from the day when the direct supervisor (supervisor) or immediate supervisor (supervisor) became aware of the commission of a disciplinary offense by the employee, and in the event of an internal audit or initiation of a criminal case - no later than one month from the date of approval of the conclusion based on the results of an internal audit or the issuance of a final decision on a criminal case. The specified periods do not include periods of temporary disability of the employee, being on vacation or business trip.

7. A disciplinary sanction cannot be imposed on an employee after six months from the date of committing a disciplinary offense, and based on the results of an audit, audit of financial and economic activities or an audit, after two years from the date of committing a disciplinary offense. The specified periods do not include periods of temporary disability of the employee, being on vacation or business trip, as well as the time of criminal proceedings.

8. Prior to the imposition of a disciplinary sanction, an explanation in writing must be requested from the employee held liable. If, after two working days, the specified explanation is not provided by the employee or he refused to give such an explanation, an appropriate act is drawn up. The employee's failure to provide an explanation in writing is not an obstacle to the imposition of a disciplinary sanction. Before imposing a disciplinary sanction, by decision of the head of the federal enforcement agency or an authorized head, an internal audit may be conducted in accordance with Article 52 of this Federal Law.

9. An order of the head of the federal enforcement agency or an authorized head is issued to impose a disciplinary sanction on an employee. A disciplinary sanction in the form of a remark or reprimand may be announced publicly orally. In case of temporary disability of an employee, being on vacation or a business trip, an order to impose a disciplinary sanction on him is issued after his recovery, exit from vacation or return from a business trip. An employee is considered to be brought to disciplinary responsibility from the date of issuance of an order to impose a disciplinary sanction on him or from the day of a public announcement of a remark or reprimand to him orally.

10. The order to impose a disciplinary sanction on an employee indicates other employees to whose attention this order must be brought.

11. The authorized manager is obliged, within three working days, to familiarize the employee against receipt with the order to impose a disciplinary sanction on him. The specified period does not include periods of temporary disability of the employee, being on vacation or a business trip, as well as the time required for the employee to arrive at the place of familiarization with the order to impose a disciplinary sanction on him or to deliver the specified order to the place of service or residence of the employee.

04.03.19 34 996 11

No extra words or excuses

I made a mistake at work. The explanatory note did not help, and the administration reprimanded me. Not oral, but what is brought into a personal file.

challenged the disciplinary action

The administration really could hold me accountable for labor code but did it wrong. So I challenged the remark and it was cancelled. Now there are no more wrongdoings in my personal file.

In this article, I will tell you when and how you can challenge a disciplinary sanction at work.

An argument can be won, but a relationship can be ruined

The author of this article went against the employer: he complained to the commission on labor disputes, achieved the cancellation of the order to impose a disciplinary sanction and defended his position in court. After that, the attitude towards him at work did not change, everything remained as before. But the story of the author is a special case.

Sometimes you can win an argument, but ruin your relationship with management. The boss may hold a grudge, and the consequences may be worse than what caused the argument.

Therefore, before suing the employer, think about whether the game is worth the candle. Especially if you're happy with your job.

A good salary is not a reason to bend over and indulge the authorities in everything, especially on unloved job. Sometimes it's better to quit, or

What is a disciplinary action

If the employee did not fulfill his duties or performed them poorly, the employer may apply a disciplinary sanction to him. This is a punishment that is provided for by the labor code. A disciplinary sanction also threatens for being late, absenteeism, non-compliance with labor discipline, labor protection requirements and other misconduct.

There are three types of disciplinary action: reprimand, reprimand, and dismissal. There can be no other punishments. The easiest of the disciplinary sanctions is a reprimand. The most severe is dismissal, information about it is entered in the work book. If an employee is fired for misconduct, new employer be sure to find out about it and ask about the details - it's not pleasant enough.

The law does not establish rules according to which one offense is punished with a remark, and another with a reprimand. Everything is decided by the employer individually and depends on the nature of the misconduct and its consequences. The exception is layoffs. The list of cases when an employee can be fired is established in article 81 of the labor code. This, for example, absenteeism, appearing at work drunk or divulging state secrets.

The term of punishment. By default, a disciplinary sanction lasts a year. If within a year from the date of application of a disciplinary sanction, a new one is not imposed on the employee, it is considered that he has no disciplinary sanctions.

The employer may cancel the disciplinary sanction earlier - on his own initiative, at the request of the employee or at the request of his supervisor.

Consequences of disciplinary action. With the consequences of dismissal, everything is clear. It's nerves, time to search new job, unpleasant questions from a potential employer.

A remark or reprimand gives the employer the right not to pay incentive payments to the employee - some allowances and additional payments or a bonus - if this is provided for by the provision on bonuses. In addition, if the employee again commits a disciplinary offense, he may be fired. All disciplinary sanctions are stored in the employee's personal file or in a folder with documents for the employee, which is kept by the employer - also nothing good.

I am a Lead Engineer for state enterprise. We have many local acts with rules and restrictions that are unusual for ordinary companies. Breaking these rules is strictly prohibited. A small misconduct, which can be overlooked at a regular job, at a state-owned enterprise is likely to result in an internal investigation and disciplinary liability.

So it was with me. Chronic fatigue towards the end of the year and loss of vigilance led to the fact that I was given a disciplinary sanction in the form of a remark.

Why you can't punish an employee

An employee cannot be held liable for failure to fulfill duties that he did not know about, or duties that are not spelled out in local regulations. For example, if it is late or absenteeism, the employee must be familiarized in advance with the work schedule, which is prescribed in the internal labor regulations. If he has not fulfilled any obligation, he must be familiarized with job description. If the employee's signature is not in the instruction or the employee has not fulfilled the obligation that is not in the instruction, it will not be possible to hold the employee liable.

The refusal of an employee to work that poses a danger to his life and health and violates the requirements of labor protection is also not a disciplinary offense.

When and how is disciplinary action applied?

It is not easy to bring an employee to disciplinary responsibility. The Labor Code protects employees from the misconduct of employers. To impose a penalty on an employee, you need to draw up a bunch of acts and orders and meet specific deadlines.

Order. There is certain order subject to disciplinary action. If it is violated, the punishment becomes illegal and must be canceled.

After the misconduct is discovered, the employer must request a written explanation from the employee. If the employee does not provide an explanation within two working days, the employer is obliged to draw up a statement about this. Then an internal investigation of the misconduct is carried out or an act of violation of official duties is drawn up, confirming the fact of violation of labor discipline.

Only after that, the employer issues an order to apply a penalty to the guilty employee. The order must indicate what the employee is punished for and what penalty is applied to him. The order is drawn up on the basis of the conclusion of an internal investigation or an act on violation of labor discipline.

With the order on the application of a disciplinary sanction, the employee is familiarized under the signature within three working days from the date of its issuance. The time when the employee is absent from work is not considered. If the offender falls ill or decides to take a vacation, he will be familiarized with the order anyway - but the familiarization period will be counted from the moment the employee returns to work.

Timing. A disciplinary sanction is applied no later than one month from the day the misconduct was discovered. Usually the day a misdemeanor is discovered is the day it was committed. But if it is not known who committed the misconduct and whether there was any misconduct at all, the day of discovery is considered the day the official investigation is completed.

The law establishes another period that the employer must comply with in order to bring the employee to disciplinary responsibility. A disciplinary sanction may not be applied later than six months from the day the misconduct was committed - or two years if the misconduct was discovered as a result of an audit or audit of financial and economic activities. An exception is the penalty for corruption. It shall apply no later than three years from the day the misdemeanor was committed.

That is, in order to impose a disciplinary sanction, the employer must comply with both deadlines: from the date of discovery and from the date of the misconduct.

The employer is obliged to provide evidence that he met both deadlines. Failure to comply with any of the deadlines is the basis for recognizing the order to impose a disciplinary sanction as illegal.

For example, if an employee skipped work eight months ago, and they noticed it only now, it is impossible to apply a disciplinary sanction. If the employee did not come to work and the employer knew about the misconduct, but decided to reprimand the employee two months after absenteeism, such a penalty is also unacceptable.

The documents. After applying the penalty, the employer must have the following documents:

1. An explanatory letter from an employee about non-fulfillment of duties or an act of refusal to give explanations.
2. The conclusion of an internal investigation or an act of violation of labor discipline.
3. Order to impose a disciplinary sanction.
4. A document that confirms the employee's familiarization with the order to impose a penalty on time or refusal to familiarize himself with it. This may be the order itself with the signature of the employee or an additional act.

If at least one of these documents is missing, the disciplinary sanction can be considered illegal.

What did my employer do wrong?

Either the administration at my enterprise did not know all the subtleties, or they simply got confused in terms. I was brought to disciplinary responsibility after the expiration of the legal period. And the order to impose a remark was also introduced at the wrong time - on the fourth working day.

My immediate supervisor found out about my mistake on the same day. An official investigation was appointed, which lasted 28 days. In the conclusion of the internal investigation commission, it was found that I had violated the requirements of local regulations. By order of the deputy director, I was brought to disciplinary responsibility in the form of a remark. It took 22 days to release.

I knew that these deadlines were contrary to the labor code. I was also hurt by the attitude towards me during the internal investigation. Therefore, instead of making excuses, I decided to challenge the order to impose a disciplinary sanction. I thought that it would be a quick and easy victory and the issue would be decided in ten days. But everything turned out to be wrong.

You can challenge the disciplinary sanction through the court or the commission on labor disputes. You can also complain to labor inspection. Which way to go, the worker decides.

Court. Statement of claim You can file a lawsuit without going through the labor dispute committee. The deadline for applying is three months from the moment the employee learned about the violation of his rights, or a month from the date of familiarization with the dismissal order. You don't need to pay a stamp duty.

Labor disputes are considered by justices of the peace. The exception is cases of reinstatement and resolution of collective labor disputes.

Labour Inspectorate. A complaint to the inspection is made in a free form. It can be submitted through the Online Inspection-rf service. The complaint may become the basis for an inspection of the employer, as a result of which the labor inspectorate has the right to issue an order to cancel the order to apply a disciplinary sanction.

It makes sense to complain to the labor inspectorate only if the employer has violated the procedure for imposing a penalty. If the employee does not agree with the misconduct, the dispute between him and the employer is considered only by the court.

I had no desire to sue the employer or complain about him to the labor inspectorate. I wanted to resolve the issue as quickly as possible, so I turned to the labor dispute commission.

The dispute is considered in the presence of the employee or his representative. The CCC has the right to call witnesses to its meeting and invite experts. The CCC decides by secret ballot by a majority of votes.

At the meeting, the employee is read his statement and asks questions. You need to be prepared for aggressive attacks by the employer. For example, they asked me why I was challenging the order because of the missed deadlines, and not the subject of the dispute: they wanted to get an admission of guilt. Although non-compliance with the procedure for bringing to disciplinary responsibility is also a basis for declaring the penalty illegal. Therefore, I advise you not to succumb to provocations and stick to your position.

In some organizations, there may not be a CCC, then in case of a dispute, you need to go directly to the court.

Application to the CTC. An application to the commission is written in any form, there is no single sample. It is necessary to apply to the KTS within three months from the moment when the employee learned about the violation of his rights. The application must describe the essence of the problem and why the employee believes that his rights have been violated. In conclusion, you must specify the requirements and put a signature.

I wrote as briefly as possible that I was brought to disciplinary responsibility in a manner contrary to the labor code. That was enough.

The application is written in two copies: one remains with the KTS, the second with a mark of acceptance - with the employee.

KTS decision. The Commission on Labor Disputes agreed with me and pointed out that my employer missed the deadline for bringing to disciplinary responsibility and violated the deadline for my familiarization with the order to impose a disciplinary sanction.

The decision of the CCC is binding on the employer. It must be executed within three days after the expiration of the period for appeal. You have ten days to appeal.

Satisfied, I left the CCC meeting and waited for the execution of the decision. But instead of canceling the order to impose a disciplinary sanction, the administration appealed the commission's decision in court.

If it didn't work out without a trial

My employer disagreed with the commission's decision. In his lawsuit, he attempted to shift the date of discovery of the wrongdoing. The main argument is that the circumstances of the misconduct were established by an internal investigation, therefore, the period for bringing to disciplinary responsibility must be considered from the moment the conclusion of the commission of inquiry is approved.

Despite the fact that the dispute was already between the employer and the commission, the court decision could affect my rights and interests. Therefore, after the first meeting, I was involved as a third party - this is required by law.

The court could not agree with the employer's arguments. And according to the labor code, and according to the Plenum of the Supreme Court, the day a misconduct is discovered is the day when the employee's boss became aware of it.

My boss was called to court as a witness. He confirmed that he found out about my offense on the day of the commission. It is from this date that the period of bringing to responsibility should be calculated. The order to impose a disciplinary sanction on me was issued after 50 days instead of the prescribed month. They acquainted me with the order also later than the legal deadline - on the fourth day after publication.

Therefore, the court considered lawful the decision of the CCC to cancel the order to impose a penalty and did not satisfy the employer's claim. But it didn't end there.

Appeal. The administration filed an appeal against the decision with the regional court. It was possible to write an objection to the complaint, which I did. I had nothing to add to the decision of the local court, so my objections were contained in one paragraph: I ask you to leave the decision of the court of first instance unchanged.

I was too lazy to go to another city. It turned out that the representative of the employer also did not go. The regional court upheld the decision of the commission and the court of first instance.

How it all ended

Appeal the decision regional court my employer did not. Based on the decision, the administration canceled the order to impose a disciplinary sanction on me. There are no more comments.

If I had known that my complaint to the labor dispute committee would end up in court, I would have filed a lawsuit myself and demanded compensation for moral damages. So it is possible.

I cannot say for sure whether any employee should appeal a disciplinary sanction. In my case, definitely yes. The attitude towards me has not changed: I work there.

Remember

1. For misconduct at work can be punished - to impose a disciplinary sanction. It can be a remark, a reprimand or a dismissal.
2. It is not easy to bring an employee to disciplinary responsibility - there is a certain procedure. If it is violated, the disciplinary sanction becomes illegal and can be challenged.
3. To impose a disciplinary sanction, the employer must comply with two deadlines: from the date of discovery and from the date of the misconduct. Failure to comply with any of them is the basis for recognizing the order to impose a disciplinary sanction as illegal.