The circle of persons having the right to impose disciplinary sanctions. The procedure for applying a disciplinary sanction (step by step instructions). Terms of application of disciplinary action

In order for the work of the organization to bring the expected results, it is necessary to maintain production discipline in it. If an employee does not comply with it, and is not punished for this, then something like a chain reaction can occur. Others will also behave in the same way.

What measures can be applied to negligent employees?

For starters, an educational conversation might suffice. If it did not bring the desired result, then it is possible to apply more serious measures that can force the employee to keep himself within the limits of what is permitted. There are different ones for this. The grounds and varieties of which the legislation outlined in Art. 192 of the Labor Code of the Russian Federation.

Comment

In addition, as long as the unremoved penalty “lies” on the employee, he is deprived of incentive payments and other “praise” measures, even if he deserves them. Removal of the reprimand occurs in the same order as the remarks.

The essence of this punishment is obvious from its name. - this is the last penalty in the history of the employee in this organization. It is not subject to removal, it is imposed for a single gross violation or systematic misconduct.

Certain groups of workers, for example, employees of customs, prosecutors, internal affairs bodies, military personnel, may be subject to other measures provided for by the legislation regulating their activities.

What can be levied for?

The grounds for punishing an employee with “discipline” are misconduct committed by him. It can be:

• failure to perform or improper performance of the labor functions assigned to him, for example, ignoring the instructions of the management, non-compliance with the necessary instructions, violation of technology;
• non-compliance with the work schedule, for example, being late, legally unjustified absences from work;
• violation of discipline, for example, appearing on the employer's premises in a state of intoxication, ignoring the requirements for passing the necessary examinations or training;
• commission of unlawful guilty acts, for example, property crimes (theft, damage, misappropriation).

Foreclosure procedure

1. First of all, the violation committed must be documented, for example, in the memorandum of the person who identified it or in the inventory report, which revealed a shortage.
2. The second prerequisite is the demand for an explanation from the employee about the causes and circumstances of his misconduct. A delay in its provision is permissible for two days, if during this period the employee has not deigned to explain himself, then an act of refusal to give explanations is drawn up about this. It is desirable to request an explanation in writing, against signature, in order to confirm the timeliness of the request in the event of an appeal against the penalty through the court.

If an explanation is provided, then on its basis the employer can assess the situation and decide whether to apply the penalty or not.

If it is decided to apply punishment, then the explanation in which the employee admits to the misconduct can be used as confirmation of his guilt.

The third stage is the decision on the choice of the type of penalty and publication. The order must be issued within a month from the date of detection of the violation, no later than six months from the date of its commission. It sets out: the source from which the violation became known, the circumstances of the misconduct, the norms violated by him, information obtained from the employee's explanations and during the verification of the report about the violation committed by him, the type of penalty.

The employee gets acquainted with the order against signature. If a refusal to familiarize or sign is made, then it is recorded by the relevant act, and the order is announced aloud.

These rules apply when any penalty is imposed.

Of key importance in determining the legality of the application of disciplinary measures is the actual guilt of the employee in committing violations. If he did not have the opportunity to do otherwise, for example, he could not fulfill his labor duties due to his lack of necessary equipment or raw material either left workplace, due to insurmountable circumstances, for example, an emergency, then he cannot be punished for this.

Imposing a penalty on a guilty employee is the right of the employer, and not his duty. If, due to the circumstances, he decides not to take such measures, this will not be considered a violation of the law. Therefore, the employee always has the opportunity to avoid such harsh measures by promising to improve.

Examples

Dismissal for absenteeism

Engineer Andreev V.I. was absent from the workplace on May 23, 2016 from the beginning of the working day (09:00) for 5 hours. When he arrived at work, he refused to explain the reason for his absence.

Absence from the workplace for such a long time is considered absenteeism, for which the employer has the right to terminate relations with Andreev.

In confirmation of the fact of committing a violation of the labor schedule, an Act of absence from the workplace must be drawn up. It should be compiled by the head or representative of the personnel department.

The act must contain:

• place, date and time of its compilation;
• the name and position of the compiler;
• list of persons present (positions, full name);
• description of the recorded violation (for example, by me, full name, position, in the presence (list of witnesses), this act was drawn up stating that engineer Andreev V.I. was absent from work on May 23, 2016 from 09:00 to 2:00 pm;
• signatures of the originator, persons present, offender.

If the employee refuses to sign, an appropriate entry must be made at the bottom of the act and the signatures of witnesses must be put.

The following may also serve as evidence of misconduct:

• memorandum of the employee who recorded the absence of Andreev;
• explanations of the offender's colleagues;
• explanations of the security guards standing at the checkpoint about what time Andreev came to work;
• data from the turnstile at the entrance to the enterprise (if any).

Prior to imposing a penalty, a written notice must be sent to the employee asking for an explanation of the substance of the proceedings. Based on this explanation, the issue of his dismissal will be decided.

If the employee within two days did not provide an explanation or documents confirming the validity of his absence. An act is drawn up about his refusal to give an explanation, which sets out the essence of what is happening and puts the signatures of witnesses

Then the head of the organization issues an order to impose a disciplinary sanction in the form of dismissal. The order must contain short description what happened, a reference to the documents confirming the assumption of the violation and to the paragraph of the article of the Labor Code of the Russian Federation, on the basis of which the dismissal is carried out. The employee must be familiarized with the order against signature.

Next, in work book an entry is made on the dismissal on the basis specified in the order and a link to the order. The wording of the reason for dismissal must strictly comply with the Labor Code of the Russian Federation, for example: “The employment contract was terminated due to a single gross violation by the employee of his job duties- absenteeism, pp. “a”, paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation.

Remark for non-compliance with the technical regulations of work

During the re-checking of rejected parts by a specially created commission at the foundry, a part was found that was rejected by an employee of the department technical control quality (QC) Larionova E.I., as evidenced by the entry available in the inspection log and the part passport.

During the inspection of this part, it was found that the defect on the basis of which the part was rejected, according to the criteria established by the technical regulations of the Quality Control Department, is subject to correction and is not a basis for sending the part to marriage. The term of work of the employee is 1 year, she is familiarized with all the instructions and regulations against signature. Before starting work, she underwent special training at the enterprise. There were no prior violations on her part.

It is necessary to take into account the positive characterization of Larionova and the short period of her work. However, the fact that the employee was familiar with all necessary documentation and was trained, speaks of her irresponsible attitude to the implementation of her official duties. In this connection, a remark can be made to her.

This penalty must be applied in the following order:

1. sending to the head of the QCD a memorandum on the detected violation and a copy of the act drawn up as a result of the re-check of the marriage;
2. carrying out by this official of the verification of the received message and providing the head of the enterprise with the materials of this verification and copies of logs confirming the fact that Larionova was familiarized with the necessary documentation and documents evidencing the training she completed and its results;
3. requesting an explanation from Larionova about the reasons and circumstances for her marriage of the discovered detail;
4. issuance of a punishment order;
5. acquaintance Larionova with the order.

The procedure for requesting an explanation, familiarization with the order and the list of documents confirming the violation will be similar to the previous example.

In addition, the information provided by the head of the Quality Control Department is attached to the audit materials.

Reprimand for being late

Sales consultant of the store "Iris" Fadeeva T.V. for her part, she was late for work by 40 minutes, about which an act of absence from the workplace was drawn up.

As the reason for her being late, she explained that she had overslept. Two weeks before, Fadeeva had already been late for 1.5 hours, on the same basis for which she was reprimanded. Fadeeva was acquainted with her work schedule against signature when applying for a job.

Given the disrespectfulness of Fadeyeva's lateness and the fact of a repeated violation, she may be reprimanded.

This should happen as follows - based on:

• an act drawn up on the fact of a violation;
• information about the previous collection;
• explanations of Fadeeva's colleagues, confirming the fact of her being late;
• explanations of the employee herself;
• a document confirming the fact that Fadeeva got acquainted with her work schedule,
  the head of the organization must issue an order to impose a penalty on Fadeeva.

The order must be entered in the book of orders and brought to the attention of Fadeeva against signature. In addition, the employee should be informed that if such a violation occurs again, then the management will have grounds for her dismissal due to repeated violations of labor discipline.

The examples describe acts that cannot be found not guilty, but even in such situations, the penalty can be canceled by the court if the leader violates the procedure for its application. This practice is quite common. Therefore, all formalities must be strictly observed.

• Subject, method and system of Russian labor law
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Disciplinary responsibility and its types

Providing measures to encourage employees who conscientiously perform their labor duties, labor legislation establishes disciplinary measures against violators of labor discipline.

Disciplinary liability of employees is one of the types of legal liability for misconduct. In addition to disciplinary, there are criminal, administrative, civil and material liability.

Disciplinary liability is understood as the condemnation of the behavior of an employee by declaring a disciplinary sanction to him by the authorities of the administration (i.e., the employer or persons authorized by him).

Disciplinary responsibility should be distinguished from administrative, which occurs for the commission of an administrative offense by a person, i.e. for violation of the established authorities government controlled generally binding rules of conduct (for example, Rules traffic, fire regulations, safety regulations, etc.). Administrative liability (usually in the form of a fine) is applied by bodies or persons with whom the violator is not connected by subordination relations at work or service (for example, police authorities, labor inspectors, etc.).

Legislation, giving the employer the right to impose a disciplinary sanction on the employee (and in some cases obliging him to do so), at the same time provides for the appropriate employee guarantees. These include:

1. legal basis for bringing to disciplinary responsibility;
2. circle of persons having the right to impose disciplinary sanctions;
3. terms and procedure for imposing disciplinary sanctions;
4. an exhaustive list of disciplinary sanctions;
5. the procedure for announcing disciplinary sanctions;
6. the procedure for removing disciplinary sanctions;
7. procedure for appealing disciplinary sanctions.

For certain categories of workers, additional guarantees. So, employees who are members of trade union bodies and are not released from their main work cannot be subjected to disciplinary action without the prior consent of the trade union body of which they are members, the heads of trade union bodies in subdivisions of organizations - without the prior consent of the relevant trade union body in the organization, and heads of trade union bodies in the organization, trade union organizers - the body of the relevant union (association) of trade unions.

Representatives trade union organizations and labor collectives participating in collective negotiations on the development, conclusion and amendment of a collective agreement, agreement, during the period of their conduct, cannot be subjected to disciplinary action without the prior consent of the body that authorized them to represent.

The legal basis for bringing an employee to disciplinary liability is disciplinary offense, i.e. Guilty non-fulfillment by the employee of his labor duties. Therefore, the employer, before imposing a disciplinary sanction on the employee, must establish the unlawful behavior of this employee in the labor sphere, his guilt.

The employee's behavior is illegal if he does not comply with the rules of conduct established for him, as well as the orders and instructions of the employer. Such rules may be contained in laws, government decrees and other acts emanating from state bodies, as well as in local regulations. In this case, we are talking about the mandatory rules of behavior for an employee in the labor sphere, i.e. during the performance of his job.

An example of unlawful behavior of an employee can be absenteeism, lateness, appearing at work in a state of intoxication, failure to comply with labor standards, manufacturing substandard products, participating in an illegal strike, evading employer representatives from participating in conciliation procedures, or guilt in failure to fulfill obligations under an agreement reached as a result of this procedures. Guilty an unlawful act committed intentionally or by negligence is recognized. Intent means that the employee, foreseeing the consequences of his behavior, wishes or knowingly allows the occurrence of damage. In case of negligent infliction of damage, the employee does not foresee (although he should have foreseen) the consequences of his actions or frivolously hopes to prevent them.

If an employee improperly performs his duties due to insufficient qualifications, lack of normal working conditions, etc., he cannot be found guilty. In this case, illegal behavior does not entail disciplinary liability of the employee. Moreover, it is impossible to hold an employee liable for refusing to execute an illegal order of the employer, for example, performing work not stipulated by an employment contract.

For certain categories of employees, a culpable violation of the established rules of conduct in office premises, on the territory of organizations, even if it was committed not in the performance of labor duties, can also be recognized as a disciplinary offense. With regard to civil servants, failure to perform or improper performance of the duties assigned to them constitutes an official misconduct, for which disciplinary liability may also occur.

Specific working conditions for employees of diplomatic missions and consular offices, as well as representatives of federal executive bodies and state institutions abroad, provide for special cases of disciplinary offenses. This is a non-compliance by the employee and failure to fulfill obligations to comply with the customs and laws of the host country, generally accepted norms of behavior and morality, rules of residence in force on the territory of the relevant representative office, as well as a single violation of labor duties and regime requirements (Subparagraphs 4-6 paragraph 2 part I, article 341 of the Labor Code of the Russian Federation).

If, as a result of a disciplinary offense, the employer has been material damage, then the employee can be brought not only to disciplinary, but also to material liability.

As a general rule, the right to impose a disciplinary sanction on an employee belongs to the head of the organization. Other officials have such a right if it is provided for in the charter of the organization or they are specially authorized by its head. The charters (regulations) on discipline in force in certain sectors of the economy provide for the powers of the heads of the ministry (department) in terms of imposing disciplinary sanctions on employees of unitary state and municipal organizations of this ministry (department).

In accordance with Art. 192 of the Labor Code of the Russian Federation for committing a disciplinary offense, i.e. non-performance or improper performance by the employee due to his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

1. comment;
2. rebuke;
3. dismissal for appropriate reasons.

Federal laws, charters and regulations on discipline (part 5 of article 189 of the Labor Code of the Russian Federation) may provide for other disciplinary sanctions for certain categories of employees.

It is not allowed to apply disciplinary sanctions that are not provided for by federal laws, charters and regulations on discipline.

The procedure for applying disciplinary sanctions provided for by Art. 193 of the Labor Code of the Russian Federation.

Before applying a disciplinary sanction, the employer must request a written explanation from the employee. The purpose of this explanation is to find out whether the employee has committed a misconduct and whether he pleads guilty. If, after two working days, the specified explanation is not provided by the employee, then an appropriate act is drawn up.

A disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

Leave that suspends the course of a month includes all leaves provided by the administration in accordance with applicable law, including annual (basic and additional), leave in connection with training in educational institutions, short-term leave without pay, etc. The day of detection of a misconduct, from which the monthly period for imposing a penalty, is considered the day when the person to whom the employee is subordinated became aware of the misconduct, regardless of whether it is endowed with the right to impose disciplinary action. The one-month period from the date of detection of a violation in cases where an employee takes a long absenteeism should be calculated not from the first day of absenteeism, but from the last.

A disciplinary sanction cannot be applied later than six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the day it was committed. The above time limits do not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction may be applied.

As a general rule, it is prohibited to apply disciplinary measures to workers participating in a strike.

The legislation on disciplinary liability, charters and regulations on discipline for certain categories of employees may provide for other disciplinary sanctions. For example, a pedagogical worker of an educational institution may be dismissed for the use, including a single use, of methods of education related to physical and (or) mental violence against the personality of a student, pupil (subparagraph 2, paragraph 4, article 56 of the Law of the Russian Federation of July 10, 1992 No. 3266-1 (as amended and supplemented, which entered into force on November 12, 2012) "On Education"; subparagraph 2, paragraph 3, article 336 of the Labor Code of the Russian Federation).

Special mention should be made of the disciplinary sanctions that can be applied to workers in the leading professions of railway transport. For the commission by the driver, driver, assistant driver, assistant driver of an offense that created a threat of a crash or an accident, the life and health of people, these employees may be deprived of a certificate (certificate) for the right to drive a locomotive, railcar, etc. for up to three months or up to a year.

At the same time, a disciplinary sanction in the form of dismissal from his position with the provision, with the consent of the employee, in the order of transfer of another job, may be imposed on the employee for committing a disciplinary offense that poses a threat to the safety of train traffic and shunting work, life and health of people, or for violation of the established rules for transportation and official duties for servicing passengers, ensuring the safety of cargo, luggage and other entrusted property, violation of labor protection legislation that resulted in injury or death of people.

A civil servant may be sanctioned with a warning of incomplete service compliance. A civil servant who has committed an official misconduct may be temporarily (but not more than for a month), until the issue of his disciplinary responsibility is resolved, suspended from the performance of official duties with the preservation of a monetary allowance. In this case, the removal of a civil servant from the performance of official duties is carried out by order of the head who has the right to appoint him to a public position.

When choosing a specific penalty, the circumstances under which the offense was committed, the previous work and the behavior of the employee are taken into account.

The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against receipt within three working days from the date of its issuance. If the employee refuses to sign the specified order (instruction), an appropriate act is drawn up.

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

Removal of a disciplinary sanction regulated by Art. 194 of the Labor Code of the Russian Federation.

If within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have a disciplinary sanction. The law, therefore, links the issue of automatic removal after a year of disciplinary action with the further behavior of the employee. In the absence of new disciplinary sanctions, the disciplinary sanction is removed (without issuing a special order), if there are any, the effect of the original sanction remains in force.

A disciplinary sanction may be lifted before the expiration of the year, if the person punished did not allow a new violation of labor discipline and showed himself to be a conscientious employee. 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 on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees (Article 194 of the Labor Code of the Russian Federation). Early removal of a disciplinary sanction is issued by a special order.

The employer is obliged to consider the application of the representative body of employees about the violation by the head of the organization, his deputies of laws and other regulatory legal acts on labor, the terms of the collective agreement, agreement and report the results of the consideration to the representative body of employees. If the facts of violations are confirmed, the employer is obliged to apply a disciplinary sanction to the head of the organization, his deputies, up to and including dismissal.

Legal Consequences for bringing an employee to disciplinary responsibility are that during the period of validity of the disciplinary sanction, incentive measures are not applied to the employee. In particular, the employee may be deprived of all bonuses for the period of the penalties. However, in modern conditions this rule is obligatory only for unitary state and municipal enterprises. In this case, we mean only one-time incentives, and not bonuses provided for by the wage system.

According to the conclusion of an employment contract, the employee not only acquires a certain list of rights, but also bears a number of obligations, for example, to conscientiously fulfill his labor duties assigned to him by the employment contract; observe the rules of internal labor regulations; observe labor discipline, etc. Failure to perform or improper performance by an employee through his fault of the labor duties assigned to him is a disciplinary offense (), for which a disciplinary sanction is imposed. Consider their types and features of application.

For the commission of a disciplinary offense, the employer has the right to impose a disciplinary sanction. However, it is necessary to take into account the gravity of the offense committed and the circumstances under which it was committed. Therefore, you should carefully consider the procedure for imposing a disciplinary sanction, because. the consequence of inaccurate or incorrect execution of documents justifying the application of a disciplinary sanction, as a rule, is the emergence of a labor dispute.

In cases where the employee sees a violation of his labor rights in the actions of the employer, he has the right to apply to the state labor inspectorate without any time limit. And for the resolution of individual labor disputes - to the commission on labor disputes and (or) to the court within the time limits established by law (Articles 386 and 392 of the Labor Code of the Russian Federation).

The article provides for a simple procedure for applying disciplinary sanctions for such violations. At the same time, not all employers manage to avoid mistakes and violations in the procedure established by law. Moreover, in most cases, employers do not take into account the fact that the main criteria for the legality of imposing a disciplinary sanction are the sequence of actions of the employer and the availability in full of all documents confirming the fact of a disciplinary act, as well as indicating the legitimacy of the employer's actions when applying this sanction.

Types of disciplinary sanctions and features of application

The current legislation, namely, regulates what for committing a disciplinary offense, i.e. non-performance or improper performance by the employee due to his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

1) remark;

2) reprimand;

3) dismissal on appropriate grounds.

In accordance with Art. 192 of the Labor Code of the Russian Federation, this list is not exhaustive, because Federal laws, charters and regulations on discipline for certain categories of employees may provide for other disciplinary sanctions.

For example, Federal Law No. 79-FZ of July 27, 2004 "On the State Civil Service of the Russian Federation" for committing a disciplinary offense, that is, for failure to perform or improper performance by a civil servant through his fault of his official duties, may be issued a warning of incomplete official compliance.

The legislation clearly defines that it is not allowed to apply disciplinary sanctions that are not provided for by federal laws, charters and regulations on discipline. From which it follows that there are two types of disciplinary responsibility: general, provided for by the Labor Code of the Russian Federation, and special, which employees bear in accordance with the charters and regulations on discipline.

Therefore, organizations cannot establish any additional disciplinary sanctions on their own (the provided list is exhaustive), however, in practice, referring to Art. 192 of the Labor Code of the Russian Federation, employees are often given a disciplinary sanction: "severe reprimand" or "reprimand with a warning", although such categories of the Labor Code of the Russian Federation are not provided, as well as the application of various fines, deprivation of allowances and surcharges. Similarly, it will be illegal, for example, to transfer an employee as a disciplinary sanction to a lower-paid position.

For each disciplinary offense, only one disciplinary sanction may be applied (Article 193 of the Labor Code of the Russian Federation).

In addition, when imposing a disciplinary sanction, the gravity of the offense committed and the circumstances under which it was committed must be taken into account. However, as practice shows, the measures of disciplinary action applied by employers do not always objectively correlate with the committed act. As a result, when resolving labor disputes, the court recognizes the groundlessness of the decision taken by the employer.

Keep in mind that when considering cases, the courts are guided by the fact that the employer needs to provide evidence indicating not only that the employee committed a disciplinary offense, but also that the severity of this offense and the circumstances in which it was committed were taken into account when imposing a penalty. committed (part 5 of article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee and his attitude to work.

If, when considering the reinstatement case, the court comes to the conclusion that the misconduct did take place, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied (paragraph 53 of the resolution of the Plenum Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", hereinafter - Resolution N 2).

Arbitrage practice.So, the court, resolving the dispute on reinstatement, came to the conclusion that the measure of disciplinary action applied to the plaintiff does not correspond to the severity of the misconduct, which is assumed by the defendant, is unfair and unreasonable. At the same time, the court considered that the defendant did not provide evidence that the disciplinary sanction in the form of dismissal was commensurate with the gravity of the offense committed, in the defendant's opinion. By a court decision, the plaintiff was reinstated at work, the defendant was charged in her favor average earnings for the time of forced absenteeism and the amount of compensation for non-pecuniary damage (decision of the Dzerzhinsky District Court of the city of Perm dated January 22, 2014 in case No. 2-133-14).

An employer’s disciplinary action should also take into account the level of employee fault, including: whether they suffered any harm, what external factors prompted the employee to a certain act, whether there was intent in his actions. It is equally important to take into account general characteristics employee: experience, achievements, personal and business qualities, professionalism, health status.

In any case, the decision to impose a disciplinary sanction, provided for by the Labor Code of the Russian Federation, is made by the employer, who has the right to do so specified by law, and not the obligation. Therefore, in some cases it is quite appropriate to confine ourselves to a verbal warning, a personal conversation, etc.

It should also be understood that disciplinary sanctions may be imposed by managers and other officials vested with appropriate powers on the basis of documents (the charter of the organization, local regulations, etc.).

The special liability provided for by the statutes and statutes on discipline applies to all workers who are subject to them. At the same time, direct employers themselves do not have the right to make any additions and changes to them. The difference between these regulations is the presence of more stringent penalties for certain categories of employees. As an example, we can cite Decree of the President of the Russian Federation of November 10, 2007 N 1495 "On approval of the general military charters of the Armed Forces of the Russian Federation", namely, the Charter of the internal service, the Disciplinary Charter and the Charter of the garrison and guard services of the Armed Forces of the Russian Federation.

The sequence of actions when applying disciplinary sanctions

The procedure for applying disciplinary sanctions is regulated by Art. 193 of the Labor Code of the Russian Federation, which states that before applying a disciplinary sanction, the employer must require a written explanation from the employee. But a written explanation, as a rule, is provided upon the fact of any circumstances, therefore, despite the fact that the Labor Code of the Russian Federation does not contain a requirement to document the fact of a violation, this must be done, because. from the day the misconduct is discovered, the period allotted to the employer for the application of a disciplinary sanction begins to run.

The fact of a disciplinary offense of an employee can be recorded by drawing up an official or memorandum of the official to whom the employee is subordinate, regardless of whether this person is vested with the right to impose penalties or not. Certainly in the best option it is better to familiarize the employee with it under a personal signature, thereby further reinforcing the legality of their actions.

Also, the fact of a disciplinary offense can be recorded in the form:

Act (absence from the workplace, refusal to undergo a medical examination, etc.);

Conclusions of the commission (based on the results of an internal investigation).

If an employee is requested to provide a written explanation orally, then a situation may arise when the employee begins to deny that the employer has fulfilled his obligation under Art. 193 of the Labor Code of the Russian Federation, and indeed requested a written explanation. Therefore, it is recommended to demand an explanation of the circumstances of the violation committed by the employee in writing. To provide a written explanation to the employee, the legislation of the Russian Federation provides two working days.

Some employers make the mistake of issuing a disciplinary order on the day a written explanation is requested, which should not be done, because. this action of the employer can be challenged by the employee in court.

The Labor Code of the Russian Federation does not provide for any special requirements for an employee’s explanation, with the exception of the written form and deadlines for submission, therefore it can be drawn up arbitrarily in the form of an explanatory note addressed to the employer.

Please note that this is a right and not an obligation of the employee. The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. Rather, such a rule is provided in order to give him the opportunity to state his own view of the event, to explain the reasons for the disciplinary offense, to bring reasoned facts in his defense. This is one of the guarantees that the imposition of a penalty will be lawful.

If, after two working days, an explanation is not provided by the employee, then with the firm intention to apply a disciplinary sanction to the employee, an act should be drawn up on the employee’s refusal to give an explanation, with which the employee must be familiarized with a personal signature (in case of refusal to familiarize, a corresponding note is made in this same document).

Paragraph 23 of Resolution No. 2 clarifies that when considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

Therefore, when imposing a disciplinary sanction, it is necessary to check the following circumstances:

Whether a disciplinary offense is the basis for imposing a disciplinary sanction;

Are there really no good reasons for non-performance or improper performance of labor duties;

Are the guilty illegal actions (inaction) of the employee related to the performance of his labor duties;

Are certain labor duties provided for by any local regulatory act or other document and is the employee familiarized with it under a personal signature;

Is the measure of disciplinary sanction applied to the employee provided for by the legislation of the Russian Federation;

Whether the terms and procedure for imposing a disciplinary sanction were observed;

Does the official signing the order (instruction) on bringing to disciplinary responsibility have the right to apply a disciplinary sanction against the employee;

Whether the previous behavior of the employee, his attitude to work is taken into account.

Only if all of the above conditions are met, the application of a disciplinary sanction can be lawful.

Terms of application of disciplinary action

An order (instruction) of the employer is issued on the application of a disciplinary sanction, which contains information about a specific disciplinary offense of the employee. The employee must be familiarized with this order (instruction) under a personal signature. Refusal to sign should be recorded in the relevant act.

According to Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction may be applied to an employee no later than one month from the date of his discovery. The day when a misconduct is discovered, from which the period for applying a disciplinary sanction is calculated, is the day when the immediate supervisor of the employee became aware of the committed misconduct, which is confirmed by the relevant document (service or memorandum, act, conclusion of the commission, etc.).

The specified period for the application of a disciplinary sanction does not include the period when the employee was absent from work due to illness or was on vacation (regular, educational, paid or unpaid - clause 34 of Resolution No. 2), as well as the time required for taking into account the opinion of the representative body of employees. Here we are talking about the reasoned opinion of the representative body of employees when terminating the employment contract. Absence from work for other reasons does not interrupt the course of the specified period.

With a long absenteeism, when it is not known for certain about the reason for the absence of the employee and he may not know about the imposition of a penalty, it is advisable to start calculating the monthly period from the last day of absenteeism, from the day preceding the appearance of the employee at work.

In any case, the application of a disciplinary sanction after six months from the date of the misconduct is not allowed, and based on the results of an audit, audit of financial and economic activities or an audit - after two years from the date of its commission (Article 193 of the Labor Code of the Russian Federation). The above time limits do not include the time of criminal proceedings.

The application to the employee of a new disciplinary sanction, including dismissal, is also permissible if the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction. At the same time, it must be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the 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 (para. 33 of Resolution No. 2).

In practice, employers often apply disciplinary sanctions to employees when the period for their application has already expired, thereby allowing a violation of the legislation of the Russian Federation, which leads to the recognition of a disciplinary sanction as illegal.

Arbitrage practice.The employee filed a lawsuit against the employer to declare illegal the order to impose a disciplinary sanction on her in the form of a reprimand and cancel it.

The court came to the conclusion that the employee was brought to disciplinary responsibility in violation of the monthly period established by law. Evidence of the suspension of this period on the grounds indicatedPart 3 Art. 193The Labor Code of the Russian Federation was not included in the case file and they were not presented to the court. The court reacted critically to the arguments of the defendant that he had observed the six-month period for holding the plaintiff liable, since the provisionsPart 4 Art. 193The Labor Code of the Russian Federation is applied in cases where a disciplinary offense could not be detected within a month established by Part 3 of Art. 193 of the Labor Code of the Russian Federation to bring the employee to disciplinary responsibility.

In this regard, the court decided to declare illegal and cancel the order to impose a disciplinary sanction on the employee in the form of a reprimand, to recover in favor of the employee cash in compensation for non-pecuniary damage (decision of the Lermontov City Court of the Stavropol Territory of the city of Lermontov dated February 9, 2012 in case No. 2-19/2012).

Please note: information about penalties is not entered in the work book, except in cases where dismissal is a disciplinary sanction (Article 66 of the Labor Code of the Russian Federation).

The concept of disciplinary offense

We think it would not be superfluous to explain what a disciplinary offense is, since practice shows that employers often interpret it erroneously. So, a disciplinary offense is a guilty illegal non-performance or improper performance by an employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, internal labor regulations, job descriptions, regulations, regulations, technical rules, other local regulations, orders, other organizational and administrative documents of the employer, etc.).

Only such non-fulfillment or improper fulfillment of labor duties is considered guilty when the employee's act is intentional or negligent. Failure to perform or improper performance of duties for reasons beyond the control of the employee (for example, due to lack of necessary materials, disability, insufficient qualifications) cannot be considered as a disciplinary offense. For example, the legislation of the Russian Federation does not provide for the right of the employer to prematurely recall him from vacation without the consent of the employee, therefore the employee’s refusal (regardless of the reason) to comply with the employer’s order to return to work before the end of the vacation cannot be considered a violation of labor discipline (clause 37 of Resolution No. 2) .

Only such unlawful actions (inaction) of an employee that are directly related to the performance of his labor duties can be recognized as a disciplinary offense. So, the employee's refusal to fulfill a public assignment or his violation of the rules of conduct in public places cannot be considered a disciplinary offense.

The violations of labor discipline that are disciplinary offenses, paragraph 35 of Resolution No. 2, include, among other things:

a) the absence of an employee without good reason at work or workplace.

At the same time, it must be borne in mind that if the specific workplace of this employee is not specified in the employment contract concluded with the employee, or the local regulatory act of the employer, then in the event of a dispute over the question of where the employee should be in the performance of his labor duties, should proceed from the fact that by virtue of h. 6 Article. 209 of the Labor Code of the Russian Federation, a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer;

Arbitrage practice.The director of the institution explained that the employee was not at the workplace, which is his office, at the time specified in the dismissal order.

Taking into account the provisions of the employee's job description submitted to the court by the defendant, the court accepted the plaintiff's explanation that the office was not his only workplace. The absence for some time of an employee in the workplace, which is not the only one for him, is not absenteeism. The possibility of an employee being in other premises of the employing organization, as well as outside the territory of the institution, may be due to his official duties.

Thus, the court concluded that it was necessary to recognize the dismissal order as illegal and satisfy the employee's demand for reinstatement (decision of the Leninsky District Court of Kostroma dated May 26, 2010 in case No. 2-568/2010).

b) refusal of an employee without good reason to perform labor duties in connection with a change in the established procedure for labor standards (Article 162 of the Labor Code of the Russian Federation), t.to. By virtue of the employment contract, the employee is obliged to fulfill the labor function, comply with the internal labor regulations in force in the organization (Article 56 of the Labor Code of the Russian Federation).

At the same time, it should be borne in mind that the refusal to continue work in connection with a change in the terms of the employment contract determined by the parties is not a violation of labor discipline, but serves as the basis for terminating the employment contract under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for by Art. 74 of the Labor Code of the Russian Federation;

Arbitrage practice.The teacher of the MDOU for refusing to work on a shift schedule with other groups of children and in another building, after applying disciplinary sanctions in the form of a remark and a reprimand, was dismissed from work on the basis provided forp. 5 h. 1 art. 81TK RF.

The court concluded that disciplinary sanctions, including dismissal from work, were illegal and should be cancelled. By a court decision, the claim of the educator against the MDOU for the abolition of the disciplinary sanction, reinstatement, payment for forced absenteeism and compensation for non-pecuniary damage was satisfied in full (decision of the Ust-Kulomsky District Court of the Komi Republic dated December 2, 2011 in case No. 2-467 / 2011).

c) refusal or evasion without valid reasons from medical examination of workers of certain professions, as well as refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work.

Also, a violation of labor discipline should be considered the refusal of an employee, without good reason, to conclude an agreement on full liability for the safety of material assets, if the fulfillment of duties for servicing material assets constitutes for the employee his main labor function, which is agreed upon when hiring, and in accordance with by the current legislation, an agreement on full liability can be concluded with him (paragraph 36 of Resolution No. 2).

Please note that the application of a disciplinary sanction can be recognized as legal in cases of non-performance or improper performance by an employee of labor duties only when he has been familiarized with each of the local acts establishing the relevant duties under his personal signature, t.to. This requirement is provided for in Art. 22 of the Labor Code of the Russian Federation.

Therefore, the courts often cancel the disciplinary sanctions of employers due to the lack of familiarization of the employee with the document that he violated.

Arbitrage practice.During the meeting, the court found that when applying for a job, the employee signed only an employment contract and an agreement on full liability. The job description was approved only in 2012, and a disciplinary sanction was imposed for disciplinary offenses committed by an employee in 2011.

The court concluded that when applying a disciplinary sanction in the form of a reprimand, the employer could not be guided by the job description, since the employee was not familiar with it when concluding the employment contract, and his job duties were not established. Referring toletterRostrud dated 09.08.2007 N 3042-6-0, the court indicated that the job description is not just a formal document, but an act defining tasks, qualification requirements, functions, rights, duties and responsibilities of the employee.

By a court decision, bringing an employee to disciplinary liability was declared illegal (definitionSamara regional court dated July 30, 2012 in case No. 33-6996).

Dismissal as a measure of disciplinary action

The most severe, extreme measure of disciplinary action is dismissal. So, in cases of application of a disciplinary sanction in the form of dismissal by employees, the actions of the employer are often disputed if:

There were good reasons for being absent from work during working hours;

The employee is not familiarized under a personal signature with the order of dismissal or other local acts of the employer;

The procedure provided for in Art. 193 of the Labor Code of the Russian Federation, including the violation of the terms for bringing an employee to disciplinary responsibility;

The employee was fired for a violation for which he had already received a disciplinary sanction (note that only one disciplinary sanction can be applied for each disciplinary offense, i.e. you cannot simultaneously reprimand and dismiss the employee for one violation).

For example, let's take a closer look at one of the grounds for dismissal of employees related to disciplinary sanctions. So, upon dismissal for repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation), the following conditions must be met:

The employee, without good reason, allowed non-performance or improper performance of his labor duties;

For non-fulfillment of labor duties earlier (no later than the calendar year) a disciplinary sanction has already taken place (an order has been issued);

At the time of repeated non-fulfillment by him without good reason of labor duties, the previous disciplinary sanction was not removed or extinguished;

The employer took into account the previous behavior of the employee, his previous work, attitude to work, the circumstances and consequences of the misconduct.

Employers often make the mistake of believing that a previous disciplinary sanction alone is sufficient for the subsequent dismissal of an employee.

Arbitrage practice.The court found that the employee was dismissed from his position forp. 5 h. 1 art. 81Labor Code of the Russian Federation for repeated failure to fulfill his labor duties without a good reason. At the same time, the employer does not indicate in the order for which particular violation of labor duties the disciplinary sanction in the form of dismissal was applied (which labor duties were again not fulfilled). The named order contains only references to previously applied disciplinary sanctions.

As a result, the court concluded that the employee was disciplined in the form of dismissal for the same actions for which he had previously been disciplined. And since the employer did not prove what new disciplinary offense (committed after a disciplinary sanction was applied to the employee) served as the basis for the dismissal of the plaintiff, the employer had no grounds for terminating the employment contract with him onp. 5 h. 1 art. 81TK RF.

Employer's argument about his right to dismiss an employee forp. 5 h. 1 art. 81The Labor Code of the Russian Federation, in the presence of two disciplinary sanctions, without waiting for him to commit a new disciplinary offense, is erroneous, based on an incorrect interpretation of the norm of paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. According to the meaning of this norm, for the dismissal of an employee on this basis, there must be a reason in the form of a disciplinary offense committed by the employee after the application of a disciplinary sanction to him.

In the present case, the employer dismissed the employee for the same offenses for which disciplinary sanctions had already been applied to him in the form of comments and reprimands. In such circumstances, the dismissal of an employee on this reason could not be recognized as legal, and he was subject to reinstatement (decision of the Meshchansky District Court of Moscow dated January 16, 2013 in case No. 2-512/2013).

Thus, if mistakes made by the employer are identified, the state labor inspectorate can bring the employer to administrative responsibility, and by a court decision, the employee can be reinstated at work, and the employer can be charged in favor of the employee the average earnings for the time of forced absenteeism, as well as the amount compensation for moral damage. Therefore, when deciding to impose a disciplinary sanction on an employee, all the conditions provided for by law should be observed and the established procedure should be strictly followed.

Any punishment, including disciplinary punishment, must be reasoned, formalized and enforced in strict accordance with labor legislation. Otherwise, it is possible to appeal the order to impose a disciplinary sanction on the part of the employee. Let us further consider what types of disciplinary sanctions exist and how the imposition of punishment should be legally correct.

Disciplinary sanction under the Labor Code of the Russian Federation

A disciplinary sanction in the implementation of labor relations is a punishment applied to an employee of an organization, regardless of his rank and status. A charge may be imposed in the following cases:

• in case of non-fulfillment or poor-quality performance of their official duties;
• in case of violation of the rules and regulations of the company, prescribed in internal regulations:
  • violation of labor discipline,
  • presence at work under the influence of alcohol or drugs,
  • disclosure of trade secrets, etc.

These and other reasons for which punishment may follow are spelled out in the Labor Code (LC) of the Russian Federation, in Art. 81 .

It is worth noting that a citizen's ignorance of his official duties does not relieve him of responsibility for their failure to fulfill them. All actions that the employee must carry out are prescribed in the employment contract concluded between him and the employer. Familiarization with this document is a priority for employment.

Curious facts

The application of a disciplinary sanction is allowed no later than 1 month from the date of fixing the misconduct, while not taking into account the time spent on sick leave, on vacation, as well as the period of time spent taking into account the opinion of the representative body of employees.

Disciplinary measures can be applied only in the case of proven guilt of the employee and documentary fixation of the fact of violation. For example, if an employee did not go to work for an unexcused reason, and absenteeism was not marked on his working time record card, then it will not be possible to apply any penalties to him.

You can record a disciplinary violation with the following documents:

• act. It is compiled mainly in case of violations of a disciplinary nature. For example, when being late for work, when absenteeism, etc.;
• report note. It is issued by the head of the offending employee regarding non-fulfillment or poor-quality performance of official duties, in case of violation of reporting, etc.;
• minutes of the committee's decision. This document is drawn up, for example, in the event of material damage to the company.

An employee has the right to appeal against a disciplinary sanction with the help of the state labor inspectorate.

The term of a disciplinary sanction is one year, and if during this time the employee does not receive a new disciplinary sanction, then he will be considered as having no disciplinary sanction.

Terminology of disciplinary sanction as a legal act

A disciplinary sanction, like any procedural action, is strictly regulated Labor Code(TC) RF. Violation of the norms and procedure for imposing a penalty may lead to an appeal against its application and recognition as invalid.

The disciplinary sanction procedure implies that there is a subject, object, subjective and objective side in the case:

• the subject is an employee who has committed a disciplinary offense;
• object - the norms and procedures established in the labor organization;
• the subjective side is the fault of the employee;
• the objective side is the relationship between the fault of the offending employee and the consequences.

Types of disciplinary responsibility of employees

There are several types of disciplinary sanctions that are approved by the labor legislation of the Russian Federation (Article 192 of the Labor Code). Only these types can be applied in labor relations, while others will be illegal.

Types of charges:

• comment,
• rebuke,
• dismissal.

The list is modeled in order of increasing severity of punishment for the violations committed. Remark - the mildest measure of influence, is issued orally. The reprimand is also announced orally, but has more serious consequences.

If an employee has several reprimands, he can be fired legally. Dismissal, as a measure of disciplinary sanction, is applied in case of repeated violations for which the employee was previously given more lenient types of punishment.

Only one penalty may be applied per violation. Let's give an example: the employee did not complete the work within the specified time. If the employer reprimanded the employee for this, then he has no right to announce an additional reprimand.

Disciplinary responsibility is the obligation of an employee to incur a penalty in accordance with labor legislation when committing unlawful acts.

Reasons for imposing a penalty

The penalty may be imposed by the employer on the employee, if there are grounds for that. The reason for a disciplinary sanction is the commission of a disciplinary offense (Article 189 of the Labor Code of the Russian Federation).

What exactly falls under the wording of a violation of discipline:

• being late for work;
• failure to appear at the workplace without a good reason (truancy);
• being at the workplace in a state of alcoholic or drug intoxication;
• violation of safety regulations;
• disclosure of trade secrets;
• non-fulfillment or poor-quality performance of official duties prescribed in the employment contract;
• non-compliance with the rules and regulations of the company, etc.

Any violations committed by an employee that are not included in the list of possible reasons for imposing a disciplinary sanction cannot be the basis for applying punishment. For one misdemeanor, only one disciplinary sanction may be imposed.

Disciplinary sanctions are general and special. General ones are used in all labor collectives, and special ones only in certain areas, for example, in the Armed Forces of the Russian Federation or in the public service.

Some facts

In case of early release of an employee from a penalty, the employer needs to back up and draw up an order “to remove the penalty”, and the employee needs to familiarize himself with it and put his signature. The organization can draw up the form of the order on its own.

General disciplinary sanctions, according to Art. 192 of the Labor Code of the Russian Federation:

• comment,
• rebuke,
• dismissal.

A remark is the most sparing measure of influence, and dismissal is an extreme one.

Terms for imposing a disciplinary sanction under the Labor Code of the Russian Federation

The imposition of a penalty is possible only within a certain period of time after the violation has occurred. This period is equal to 1 calendar month from the date of fixation of the committed disciplinary offense, but no more than 6 months from the date of its commission should elapse. It should be noted that this period does not include the time when the employee was on vacation, sick or absent for other reasons from the workplace.

If a violation is revealed during any inspection, then the limitation period is 24 months (Article 193 of the Labor Code of the Russian Federation).

The procedure for imposing a disciplinary sanction on an employee

There is a certain procedure for taking measures for a disciplinary violation (Article 193 of the Labor Code of the Russian Federation). A change or omission of any of the stages may make the imposition of a penalty unlawful and result in its cancellation.

Stage 1: the employer receives a signal about the commission of a misconduct.

This signal must be in writing. This may be an act, report, memorandum or protocol of the decision of the commission after any verification. Any of the listed documents must contain a description of the violation committed. The date the employer received the signal is the date the disciplinary case was opened.

Curious information

In the event of a dispute, the employer's requirement to provide explanations and the corresponding act on the absence of these explanations in writing are grounds for disciplinary action. However, if the employee provides explanatory note, observing the deadlines, then the penalty can be canceled.

Stage No. 2: presenting a written request to the employee for an explanation of the act committed.

After reading this requirement, the employee must put his signature.

Step 3: Explanation by the employee of the event.

The form of presentation is an explanatory note. It must contain a description of the reasons that led to the violation. Reasons can be both valid and disrespectful.

The employer evaluates the reasons for this criterion, he has the right to classify them at his own discretion. The Labor Code of the Russian Federation does not regulate the concept of "good reason", therefore, generally accepted grounds are applied: illness, absence material resources for labor activity, execution of orders from higher authorities, etc.

The employee has the right not to write an explanatory note, in this case, after 2 days of waiting, the employer (or other responsible person) must draw up a special act on the absence of explanations from the employee. This act must be signed by the employer (or representative of the employer) and 2 witnesses.

Stage 4: Imposition of a disciplinary sanction.

If the employer recognizes the cause of the misconduct on the part of the employee as disrespectful, then he has the right to apply one of the disciplinary measures. Such a decision is made by issuing an order. This document must contain the following points:

• order number and date of issue;
• the basis for drawing up the document is the wording that a certain disciplinary sanction has been applied to a particular employee (indicating the full name and position);
• an indication of the reason for which the penalty was imposed;
• employer's signature.

The order is an important document to confirm the facts of the imposition of penalties. Several such documents are a good reason for the employer to take an extreme measure of disciplinary action - dismissal (Article 81 of the Labor Code of the Russian Federation).

If there are no other penalties within one year, and after that year, the employee must be waived the penalty. At the request of the employer, it can be removed during this one year, as well as at the request of the employee, or at the request of the representative body or the head of the employee.

Stage number 5: familiarization of the employee with the issued order.

This must be done by employees of the personnel department or the employer himself no later than 3 working days from the date of its publication. Familiarization with the order is confirmed by the employee's handwritten signature. If a citizen refuses this procedure, then a special act is drawn up that fixes the refusal.

Alternative disciplinary measures

Disciplinary measures of influence can be applied not only in labor collectives, but also in other structures. For example, in the ranks of the Armed Forces of the Russian Federation, in state bodies. The legal regulation of disciplinary sanctions in these structures is carried out, respectively, by the Charter "On the Armed Forces of Russia" and the Federal Law (FZ) "On Civil Servants".

The list of disciplinary measures in the Armed Forces, in addition to the standard ones, also has a number of additional penalties:

• demotion;
• disciplinary arrest;
• deprivation of a leave of absence;
• expulsion (if we are talking about military training, courses, educational institutions);
• appointment of a work order out of turn, etc.

Watch the video on the timing of bringing an employee to disciplinary responsibility

Consequences of imposing a penalty

The penalty is an official warning to the employee about the inadmissibility of misconduct committed by him. Repeated violations lead to regular penalties in the form of comments and reprimands. In such a case, the employer has the right to dismiss the employee on a legal basis with the issuance of the appropriate wording.

If, with the existing penalties, the employee did not commit such violations during the year, then the imposed penalty is automatically removed from him.

All questions of interest can be asked in the comments to the article.

In the general theory of law, it is noted that a disciplinary offense is a socially harmful violation of labor, performance and other discipline, i.e. violation of the mandatory procedure for the activities of organizations and other collective entities. Such offenses disorganize work, and disorganization is a socially harmful state of managerial relations, A.B. Vengerov. The theory of disciplinary offenses is also developed in their works by the authors - specialists in the field of labor law V.N. Smirnov believes that a disciplinary offense is a guilty, unlawful, excluding criminal liability failure to fulfill labor duties or failure to exercise or exceed the powers that ensure the labor process by a person who is in labor relations with a specific enterprise (institution, organization).

The authors of a work devoted to the responsibility of a leader for violation of labor legislation understand approximately the same way. a person who is in an employment relationship with a particular organization.

In general, agreeing with all these definitions, we note that when determining a disciplinary offense, one should also proceed from the fact that employees, in addition to the general categories of employees, can be presented by various other categories - employees, as well as employees who are subject to, in addition to the general norms of labor law , special acts and overlays.

Based on this, we can give the following definition of a disciplinary offense.

A disciplinary offense is an unlawful guilty violation of labor or service discipline by an employee (employee, employee), non-fulfillment by him (them) of his functional (labor) duties provided for by labor legislation, internal labor regulations by a collective agreement, individual labor contracts (service contracts) concluded by an employee (employee, employee) with a specific employer, military regulations and regulations on internal discipline, as well as other regulatory legal acts containing the rules of law on labor discipline.

The Labor Code does not contain a list of disciplinary offenses, however, a systematic analysis of labor legislation makes it possible to attribute the following offenses to such offenses:

Refusal of an employee without good reason to perform work duties;
absenteeism;
refusal or evasion without good reason from a medical examination (workers of certain professions);
refusal to conclude a written contract on full material liability (an employee whose duties, under the terms of an employment contract, include the direct maintenance of material assets), if such an agreement can be concluded with him in accordance with the law;
the employee's refusal to undergo special training during working hours and pass exams on labor protection, safety and operating rules, if this is a prerequisite for admission to work;
non-compliance with labor protection and labor safety requirements;
careless attitude to the property of the employer, etc.

According to K.N. Gusova, Yu.N. Poletaev, the most common disciplinary offenses can be divided into four groups:

Encroachments on full use working hours (absenteeism, being late for work, leaving work prematurely, etc.);
encroachment on the careful and proper use of the property of the employer, his property (manufacturing of defective products, loss or damage to inventory, tools, equipment, overalls, etc., loss or damage to materials, semi-finished products, etc.);
encroachments on the order of management of production and labor processes in the organization (refusal to work and failure to comply with the lawful orders and orders of the employer, violation technological process, rudeness, violation of public order during work, violation of established requirements for hiring, transfers and movements of workers, their dismissal, giving illegal orders by the employer);
encroachments that create a threat to the health, morality and life of members of the team of workers (violation of labor protection and safety regulations, non-compliance with labor protection standards, drunkenness during working hours, etc.).

Disciplinary liability is one of the types of legal liability applied by the employer to the employee for committing a disciplinary offense by the latter. From this definition, first of all, it follows that this type of liability is applied in the sphere of labor relations between two parties - the employee and the employer. However, in order to determine the grounds for such responsibility, it is necessary to understand what a disciplinary offense is.

Disciplinary responsibility consists in the application by the employer (authorized representative of the employer) to the employee (employee, employee) who has committed a disciplinary offense, disciplinary sanctions established by law.

Thus, disciplinary liability is a special type of legal liability, for which the following circumstances are legally significant:

Committing a disciplinary offense;
the authorized representative of the employer has the right to apply the disciplinary measures provided for by law;
the presence of adverse consequences that the offender undergoes in connection with the commission of a disciplinary offense by him.

There are two types of disciplinary liability: general and special. General disciplinary responsibility is regulated by the general norms of labor legislation (Articles 192-194 of the Labor Code of the Russian Federation) and right-handed internal labor regulations. It can be imposed on all employees, with the exception of those in respect of which special disciplinary liability has been established.

Special disciplinary responsibility - responsibility provided for certain categories of employees by charters and regulations on discipline (for example, the previously mentioned charters on the discipline of maritime transport workers; on the discipline of workers of the fishing fleet of the Russian Federation; Regulations on the discipline of railway workers of the Russian Federation, etc., as well as special legislation (for example, federal laws: No. 2201-1 "On the Prosecutor's Office of the Russian Federation"; No. 17-FZ "On Railway Transport in the Russian Federation"; No. 170-FZ "On the Use of Atomic Energy", etc.). disciplinary responsibility is based on a set of rules of law that determine the obligation of special subjects of labor law to bear, under certain conditions and in cases provided for by law, the responsibility provided for by the relevant federal laws, charters and regulations on discipline of certain categories of workers.

K.N. Gusov and V.N. Tolkunov, indicate that special disciplinary responsibility differs from general responsibility according to the following criteria:

According to the circle of persons subject to the relevant regulations;
on measures of disciplinary action;
in a circle of persons and bodies endowed with disciplinary power;
according to the established procedure for appealing against penalties.

Consequently, special disciplinary responsibility has the following features: the circle of persons subject to the relevant norms is strictly defined; special disciplinary measures are provided for; the circle of persons and bodies endowed with the power to apply disciplinary sanctions is outlined; There is a special procedure for appealing against penalties.

Disciplinary action. Disciplinary sanction (punishment) is an unfavorable consequence that an employee undergoes in connection with the non-fulfillment (improper fulfillment) of the obligations assumed by the labor contract, violation of labor discipline, internal labor regulations or the order of the head. The imposition of a disciplinary sanction on an employee, in addition to moral dissatisfaction, has important legal consequences: the imposition of a disciplinary sanction may affect the receipt of a bonus by an employee, and even such a seemingly insignificant penalty as a remark imposed and not withdrawn during the year is a circumstance that allows, for example, , for a repeated violation within a year after its imposition, dismiss the employee.

The list of disciplinary sanctions specified in Part 1 of Art. 192 of the Labor Code of the Russian Federation, is exhaustive: in addition to three types of punishments (remark, reprimand, dismissal), no others, as a general rule, can be applied. The strict reprimand that existed in the past, the transfer of an employee to a lower-paid job or mixing from a position cannot currently be applied. Also, any kind of monetary deductions from wages and other penalties cannot be applied as a disciplinary sanction. Establishing the fact that such sanctions have been applied to an employee can be regarded as an administrative violation committed by the employer.

When applying the established types of disciplinary sanctions, you should be aware that the Labor Code does not establish any hierarchy among them. Despite the fact that this type of disciplinary sanction, as a remark, is fixed in paragraph 1 of the hour, 1 of Art. 192 of the Labor Code of the Russian Federation, there is no difference between it and the reprimand specified in paragraph 2 of this part of this article. Both of these types of punishment have the same legal force.

The most severe punishment is dismissal. However, of course, not every dismissal is a measure of disciplinary action, but only one that is associated with the guilty behavior of the employee.

In particular, disciplinary sanctions include the dismissal of an employee on the following grounds:

Repeated non-performance by an employee without good reason of labor duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);
- a single gross violation of labor duties by an employee (absenteeism; appearing at work in a state of intoxication; disclosure of secrets protected by law; commission of theft, embezzlement, deliberate destruction or damage to property at the place of work, violation by the employee of labor protection requirements) (paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation);
- adoption of an unreasonable decision by the head of the organization (branch of the representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9, part 1, article 81 of the Labor Code of the Russian Federation);
- a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (clause 10, part 1, article 81 of the Labor Code of the Russian Federation);
- Repeated gross violation within one year teacher the charter of the educational institution (clause 1, article 336 of the Labor Code of the Russian Federation);
- the use by a pedagogical worker (including one-time) of methods of education related to physical and (or) mental violence against the personality of a student, pupil (clause 2 of article 336 of the Labor Code of the Russian Federation);
- the commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer (clause 7, part 1, article 81 of the Labor Code of the Russian Federation);
- commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation);
- disqualification of an athlete for a period of six months or more (clause 1 of article 348.11 of the Labor Code of the Russian Federation);
- violation by an athlete (including a single violation) of the anti-doping rules (clause 2 of article 348.11 of the Labor Code of the Russian Federation).

In addition to these norms established by the Labor Code of the Russian Federation, other disciplinary sanctions may also be provided for certain categories of employees established by other regulatory legal acts.

For example:

For committing a disciplinary offense, a judge of the Constitutional Court of the Russian Federation may be subject to a disciplinary sanction in the form of: a warning; termination of the powers of a judge (Article 15 of the Federal Constitutional Law No. 1-FKZ "On the Constitutional Court of the Russian Federation");
- for a disciplinary offense to a serviceman or a citizen called up for military training, the following types of disciplinary sanctions may be applied:
- severe reprimand;
- deprivation of the next dismissal from the location of the military unit or from the ship to the shore;
- deprivation of the badge of an excellent student;
- warning about incomplete service compliance;
- reduction in military position;
- reduction in military rank by one step with a reduction in military position;
- early dismissal from military service due to non-fulfillment of the terms of the contract;
- expulsion from a military educational institution or from military training and even disciplinary arrest (Article 28.4 of Federal Law No. 76-FZ “On the Status of Military Personnel”;
- for non-fulfillment or improper fulfillment by an employee of the Investigative Committee of the Russian Federation of his official duties and committing misconduct that discredits the honor of an employee of the Investigative Committee of the Russian Federation, the following disciplinary sanctions may be applied to him:
- severe reprimand; demotion in special rank; deprivation of medals of the Investigative Committee of the Russian Federation;
- deprivation of the badge "Honorary Officer of the Investigative Committee of the Russian Federation"; a warning about incomplete official compliance (Article 28 of Federal Law No. 40E-FZ “On the Investigative Committee of the Russian Federation”), etc.

The procedure for applying disciplinary sanctions. The procedure for applying disciplinary sanctions is carried out in accordance with Art. 193 of the Labor Code of the Russian Federation, which provides for a number of legal guarantees for employees in order to prevent unreasonable bringing them to disciplinary responsibility. In order to avoid such violations, the law establishes a certain procedure (disciplinary proceedings) for the imposition of disciplinary sanctions, as well as a number of rules that the employer must follow.

The main requirement prescribed by law, which the employer must comply with when imposing a disciplinary sanction, is that he must take into account the severity of the misconduct committed and the circumstances under which it was committed. This is drawn to the attention of the courts and the Plenum of the Supreme Court of the Russian Federation in Resolution No. 2. The Plenum explains: employee of disciplinary action arising from Articles 1, 2, 15, 17, 18, 19, 54 and 55 of the Constitution of the Russian Federation and recognized by the Russian Federation as a constitutional state general principles legal, and, consequently, disciplinary responsibility, such as justice, equality, proportionality, legality, guilt, humanism” (p. 53).

However, the requirement of the law under consideration is very complicated by the fact that the concept of “severity of the committed misconduct” is not disclosed by the legislator and law enforcers evaluate this category based on their own discretion, sometimes based on emotions and mood.

Unfortunately, such a violation on the part of the employer is very common, analysis judicial practice shows that the disciplinary measures applied to employees often do not correspond to the misconduct committed. For example, the Judicial Collegium for Civil Cases of the Primorsky Regional Court5See. decision of the Judicial Collegium for Civil Cases of the Primorsky Regional Court dated April 12, 2004 No. 33-1886. it is indicated that the employer, when applying a disciplinary sanction to an employee, did not take into account the severity of the misconduct committed.

In particular, the panel of judges found that the court of first instance reasonably indicated that, when applying the extreme measure of disciplinary action - dismissal, the employer did not take into account the circumstances of the employee's absence from work, his attitude to work, the absence of disciplinary sanctions and positive characteristics, as well as the fact that the employee’s absence from work did not negative consequences for the employer.

It was also found that the employee's actions had no effect on the production process. And since the employer did not provide evidence of the onset of serious consequences associated with the actions of the employee, the latter was reinstated in his position, in his favor, the average earnings were collected for the time of forced absenteeism.

Also, when choosing a measure of disciplinary responsibility, one should take into account the previous work and behavior of the employee, his attitude to work, personal qualities and, in some cases, the state of health.

Before applying a disciplinary sanction, the employer must request a written explanation from the employee. The Code indicates a specific period during which this explanation must be given - two working days. If, after two days, an explanation is not provided by the employee, the employer, in order to avoid disputes in the future, must take care of drawing up an appropriate act. The fundamental point here is the two-day period provided for the opportunity to give explanations.

In some cases, it is believed that if the employee, after the employer’s demand for a written explanation, did not remain silent, but answered with a verbal or written refusal, then supposedly the employer may not wait, but immediately draw up an act, since the employee’s right to submit an explanation is not violated - after all, he ordered right, refusing to provide explanations. However, such a situation may arise that the employee nevertheless submitted an explanation by the end of the second day. Therefore, given some of the ambiguity of the situation, the employer should still not rush to draw up the act, even if the employee verbally refused explanations on the first day.

Refusal to provide an explanation for a disciplinary offense cannot be considered as a new disciplinary offense, because the legislator gives the employee the right to give a written explanation of his act, and does not at all oblige him to do so.

The form and procedure for drawing up an act are not regulated by law. However, according to established practice, such an act in free form are made by specialists of the personnel service (with the invitation of other specialists) in the amount, as a rule, of three people. It reflects the fact that the employee was asked to provide an explanation, the date when the explanation was requested, and the fact that after two working days the explanation was not provided; other circumstances relevant to the case can be recorded in the act (oral explanations of the employee or oral refusal of the employee to provide explanations, etc.). The act is signed by persons who can testify to its content. The persons who signed the act must be prepared for the fact that they may be summoned to court to establish the circumstances of the preparation of this document.

The employee's failure to provide an explanation or an attempt to justify his behavior by some unconvincing arguments in the explanation is not an obstacle to the application of a disciplinary sanction.

There are statutory time limits for imposing a disciplinary sanction. This can be done no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, as well as the time required to take into account the opinion of the employees' representative body.

The day when the misconduct is discovered, from which the monthly period begins, is the day when the person to whom the employee is subordinate at work (service) became aware of the commission of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions (subparagraph "b" p 34 resolutions of the Plenum of the Supreme Court of the Russian Federation No. 2).

However, it cannot be applied later than six months from the date of the misconduct (as a general rule). Based on the results of an audit, audit of financial and economic activities or an audit, a disciplinary sanction may be applied no later than two years from the date of its commission (the time period for the proceedings in a criminal case is not included in the indicated periods).

The application of disciplinary measures is subject to general rules legal liability: only one penalty can be imposed for one violation. That is why only one disciplinary sanction can be applied for each disciplinary offense.

Issuance of an order (instruction) on the application of a disciplinary sanction. A disciplinary sanction can be considered applied on the day when the employer issued the appropriate order (instruction). An order to apply a remark or a reprimand is issued in free form, and an order to apply a disciplinary sanction in the form of dismissal is issued according to unified forms No. T-8 “Order (order) on termination (termination) of an employment contract with an employee (dismissal)”, No. T- 8a "Order (instruction) on the termination (termination) of an employment contract with employees (dismissal)", approved by the Resolution of the State Statistics Committee of Russia No. 1.

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

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

Removal of disciplinary action. A disciplinary sanction shall remain in force for one year. If within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have a disciplinary sanction (part 1 of article 194 of the Labor Code of the Russian Federation), i.e. it is removed automatically. To confirm this fact, the issuance of any order or order of the head is not required.

In some cases, a disciplinary sanction can be lifted, most often this happens at the request of the employee himself, the petition of his immediate supervisor or the representative body of employees. However, it should be borne in mind that this is the right of the employer, and not his obligation. At the same time, the employer may himself, before the expiration of a year from the date of application of the disciplinary sanction, remove it from the employee on his own initiative.

Gross disciplinary offenses

Serious disciplinary offenses include:

Violation of the statutory rules of relations between military personnel;
- unauthorized abandonment of a military unit or a place of military service established outside the military unit by a military serviceman undergoing military service on conscription (with the exception of officers);
- failure to appear on time without good reason for service upon dismissal from the location of a military unit or from a ship ashore, upon appointment, transfer, as well as from a business trip, vacation or medical institution;
- the absence of a military serviceman doing military service under a contract, or an officer doing military service by conscription, in a military unit or a place of military service established outside the military unit, without good reason, for more than four hours in a row during the established daily service time;
- evasion of military service duties;
- violation of the rules of combat duty (combat service);
- Violation of the rules of the border service;
- violation of the statutory rules of guard duty;
- violation of the statutory rules for internal service;
- violation of the statutory rules of patrolling in the garrison;
- violation of the rules of service for the protection of public order and ensuring public safety;
- intentional destruction, damage, spoilage, illegal spending or use of military property;
- destruction or damage due to negligence of military property;
- violation of the rules for saving military property entrusted for official use, resulting in its loss or damage due to negligence;
- violation of the rules for handling weapons, ammunition, radioactive materials, explosives or other substances and objects that pose an increased danger to others, military equipment or operating rules military equipment negligently causing harm to human health, destruction, damage or loss of military property or other harmful consequences;
- violation of the rules for driving vehicles or their operation, which negligently caused harm to human health, damage to military property or other harmful consequences;
- performing the duties of military service in a state of intoxication, as well as the refusal of a soldier to undergo a medical examination for intoxication; - failure by the commander, within his competence, to take the necessary measures to prevent or suppress a disciplinary offense committed by a serviceman subordinate to him, to bring a serviceman to disciplinary responsibility for committing a disciplinary offense or to eliminate the causes and conditions that contributed to its commission, as well as the concealment by the commander of information about the commission military personnel subordinate to him in the service of a crime, administrative offense or disciplinary offence;
- an administrative offense for which a serviceman, in accordance with the Code of the Russian Federation on Administrative Offenses, bears disciplinary responsibility.

Disciplinary misconduct of an employee

If there are rules, then, accordingly, there may be those who violate them. The norms and rules established in society are divided into groups, which are regulated by separate legal institutions. Depending on which branch of the law the committed offense belongs to, it can be classified either as a crime or as a misdemeanor. In this case, the offense can be administrative, disciplinary or civil law.

An employee, while at his workplace, may well commit any of the above offenses. However, a disciplinary offense has one characteristic feature only for him: he, unlike others, is firmly connected with the performance of labor duties.

What is the responsibility of the employer of the employee for the commission of the violation?

An employee who has committed a violation of the norms of the law or the rules of labor discipline, depending on the severity of the deed, may be brought to justice. different types responsibility. Accordingly, different persons/organizations have the right to be held liable.

Thus, an employee can be brought to criminal responsibility only by a court decision, to administrative - by a decision of authorized bodies or their officials. Only the employer has the right to punish for a disciplinary offense.

This happens by issuing an appropriate order approved by the head of the organization (or the head of the unit, if such powers are vested in him by a local act), and familiarizing the violator with it. At the same time, the employer, even before punishing the employee for a disciplinary offense, must demand a written explanation from the person who committed it in order to decide on the imposition of punishment and the choice of specific sanctions, taking into account all the circumstances.

True, in some cases it is problematic to correctly qualify a misconduct committed by an employee. If we take, for example, the division of criminal and administrative responsibility, then in the Code of Administrative Offenses of the Russian Federation the legislator often uses the wording "if such an action does not contain a criminally punishable act."

The boundary between administrative and disciplinary offenses or the crime of an official is somewhat blurred. As a result, the employer sometimes has to wait until the competent authorities refuse to initiate a criminal case and an administrative offense case on the basis of the absence of signs of their commission, and only after that independently bring the employee to disciplinary responsibility.

How many sanctions can be applied for each disciplinary offense?

There is an immutable rule in the Labor Code of the Russian Federation, enshrined in Part 5 of Art. 193, which states that only one penalty can be imposed for one disciplinary offense. That is, it is impossible, for example, to reprimand an employee and dismiss him under Art. 81 of the Labor Code of the Russian Federation. The employer will have to wait until the employee commits the next disciplinary offense - only he can serve as a basis for dismissal in this case.

And it does not matter whether the misconduct is such that in itself it can serve as a reason for dismissal, and whether there is a mandatory condition in the law about the repetition of the violation. If instead of dismissal, the employer initially chose a reprimand, then so be it. The term for bringing to disciplinary liability is limited to 6 months from the date of its commission and 1 month from the date of its discovery.

However, in life, situations often occur when an employee’s violation of labor duties also causes damage to the employer. For example, Ivanov, being in a state of intoxication, did not follow the line, as a result of which defective parts were stamped. And what should an employer do about this?

For such cases, it is provided for the employee to be held liable, under which the employee fully or partially compensates for the damage caused to him. At the same time, it is important to distinguish between material and disciplinary liability, since these are different concepts and they have different reasons for their occurrence. Thus, if a disciplinary offense served as the basis for the occurrence of damage, the employee can be punished both disciplinary and financially (that is, according to separate procedures).

In order to be able to talk about the fact of committing a disciplinary offense, the violation must have the following features:

1. Violation is expressed in non-performance (or improper performance) of labor duties by a specific employee.
2. Obligations that have been violated are imposed on the employee within the framework of labor legislation, an employment contract or other local acts of the organization.
3. Violation is recognized as a guilty act (or inaction). The form of guilt does not matter.

Moreover, all these signs must be present necessarily. That is, the absence of even one of them deprives the employer of the opportunity to talk about a disciplinary offense and hold the employee accountable for this type of violation. However, it is important to remember that there is no such sign as negative consequences for the employer in the above list. In other words, the manager can reprimand the employee for being absent from the workplace even if manufacturing process it had no effect.

Types of disciplinary offenses

There is no special part in the Labor Code of the Russian Federation where possible disciplinary offenses and specific punishments for them would be described. In Art. 192 of the Labor Code of the Russian Federation, which defines a disciplinary offense, lists only types of sanctions.

At the same time, the most serious types of violations are mentioned in the text of the Labor Code of the Russian Federation even as possible grounds for dismissal.

According to Art. 81 of the Labor Code of the Russian Federation, such are recognized:

1. Non-performance by an employee of labor duties, expressed as:
in the absence of an employee at the workplace;
refusal to continue work after a change in labor standards;
evading medical examination or training when this is a prerequisite for admission to work.
2. Walking.
3. Showing up at work drunk.
4. Disclosure of a secret that became known as part of the performance of labor duties.
5. Committing an immoral act.
6. Submission of false documents when applying for a job.

However, even for these disciplinary offenses, other types of penalties may be assigned if the manager so decides. After all, it is he who is authorized to determine sanctions for committing a disciplinary offense - while his choice must be motivated, because otherwise the employee will be able to challenge it.

Other examples of disciplinary offenses are scattered throughout the text of the Labor Code of the Russian Federation, but may well be specified in local acts organizations.

Detection of disciplinary offense

The procedure for applying disciplinary sanctions is not violated only if both deadlines are observed: both the deadline from the day of discovery and the deadline from the day the misconduct was committed.

If the period from the date of committing a disciplinary offense (not discovered by the results of an audit, audit of financial and economic activities or an audit) has exceeded six months, a disciplinary sanction cannot be applied to the employee.

In accordance with the third part of Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, and the time required to take into account the opinion of the representative body of employees.

Along with this norm, part of the fourth art. 193 of the Labor Code of the Russian Federation establishes that a disciplinary sanction cannot be applied later than six 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 two years from the date of its commission. The above time limits do not include the time of criminal proceedings.

Thus, the procedure for applying disciplinary sanctions is not violated only if both deadlines are observed: both the deadline from the day of discovery and the deadline from the day the offense was committed.

In the event of a dispute, the employer is obliged to provide evidence proving that he complied with the deadlines provided for in parts three and four of Article 193 of the Labor Code of the Russian Federation for the application of a disciplinary sanction (paragraph 34 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2).

If the employee’s fault in violating labor discipline was established, as in your case, less than a month ago, however, more than six months have passed since such a violation was committed (and according to the results of an audit, audit of financial and economic activities or an audit - two years ), no disciplinary action can be taken. If a month has already expired from the date of discovery of a disciplinary offense, the imposition of a penalty is also unacceptable, including subject to the deadline established by part four of Article 193 of the Labor Code of the Russian Federation (see also the definitions of the Perm Regional Court N 33-3945, the Khanty-Mansiysk Court autonomous region No. 33-1107).

Failure by the employer to comply with any of the specified deadlines is an independent basis for declaring the order to impose a disciplinary sanction illegal (see also the rulings of the Supreme Court of the Republic of Sakha (Yakutia) N 33-1515, Leningrad Regional Court N 33-4926, Krasnoyarsk Regional Court N 33-6547). If in the situation under consideration a disciplinary offense was discovered not as a result of an audit, an audit of financial and economic activities or an audit, then the employee cannot be held disciplinary liable, since more than six months have passed since the date of its commission (see also the answer of representatives of Rostrud to the question:. .. 3) Art. 193 of the Labor Code of the Russian Federation states that a disciplinary sanction is applied no later than one month from the day the misconduct was discovered, and the next paragraph says that a disciplinary sanction cannot be applied later than six months from the date the misconduct was committed. How to reconcile the fact that about a year has passed since the misconduct, and it became known about it only now? Is it possible to impose a disciplinary sanction in this case?

When calculating the terms for imposing a disciplinary sanction, it is necessary to take into account the provisions of parts three and four of Art. 14 of the Labor Code of the Russian Federation, according to which periods calculated in years, months, weeks expire on the corresponding date last year, month or week term. The period calculated in calendar weeks or days includes non-working days. If the last day of the term falls on a non-working day, then the next working day following it is considered the expiration day of the term (see, for example, the rulings of the Leningrad Regional Court N 33-3603, the Sverdlovsk Regional Court N 33-9014).

Penalty for committing a disciplinary offense

For the commission of a disciplinary offense, the employer has the right to apply the following disciplinary sanctions:

1) remark;
2) reprimand;
3) dismissal on appropriate grounds.

Federal laws, charters and regulations on discipline for certain categories of employees may also provide for other disciplinary sanctions.

Disciplinary sanctions, in particular, include the dismissal of an employee on the following grounds: repeated failure by the employee to fulfill his labor duties without good reason, if he has a disciplinary sanction; a single gross violation of labor duties by an employee: absenteeism, that is, absence from the workplace without good reason during the entire working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day (shift); the appearance of an employee at work (at his workplace or on the territory of the organization - the employer or the facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication; disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee; committing at the place of work theft (including small) of another's property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into force or a decision of a judge, body, official authorized to consider cases of administrative offenses, etc.

It is not allowed to apply disciplinary sanctions that are not provided for by federal laws, charters and regulations on discipline.

When imposing a disciplinary sanction, the gravity of the misconduct committed and the circumstances under which it was committed must be taken into account.

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

A disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

A disciplinary sanction may not be applied later than six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the day it was committed. The above time limits do not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction may be applied.

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

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

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

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

Types of disciplinary offenses

A disciplinary offense can be: continuing, repeated, withdrawn, terminated.

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 a similar one!), Then a new disciplinary sanction can be applied to the employee (including dismissal on the appropriate grounds).

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 is given a notice for late preparation. 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.

A repeated disciplinary offense is an offense committed repeatedly after a certain time has elapsed after the suppression of a similar offense. For example, after announcing a remark to him for being late for work, an employee arrives on time for some time, but after some time is late for work again. In this case, both offenses are regarded as two separate ones, for each of which the employer can apply a disciplinary sanction in case of guilty actions of the employee.

Removed disciplinary sanction - 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 the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have a disciplinary sanction. Therefore, before determining whether another misconduct gives grounds to believe that there is a repeated failure to perform duties, one should review the orders for personnel (personnel) on the application of disciplinary sanctions or another document for recording penalties and thus find out whether the previously imposed disciplinary sanction has not lost its force.

A disciplinary sanction may also be removed from the employee before the expiration of the one-year period. 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 (part 2 of article 194 of the Labor Code of the Russian Federation):

1) On their own initiative.

The employer, based on his own observations of the employee, may issue an order (instruction) to lift a disciplinary sanction for the employee's impeccable behavior, high performance 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. Personnel officers will in this case act as the initiators of the removal of a 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 disciplinary offense committed earlier, proved himself with positive side increased the quality and performance of their 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 employees' representative body. The representative body can express its opinion in the same form as the immediate supervisor of the employee (that is, in a petition or presentation).

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

final decision about whether to remove or not remove a disciplinary sanction based on the request of the employee or the petition of the immediate supervisor, the representative body of employees is accepted 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.

Stopped misconduct - if an employee has committed a disciplinary misconduct (for example, made a mistake in the report), independently detects it and uses all available methods to eliminate the error and minimize or eliminate the negative consequences of his misconduct, then this should undoubtedly be regarded as a mitigating circumstance and be the basis for not applying a disciplinary sanction to the employee or its mitigation.

If an employee has committed a disciplinary offense, the employer has the right to apply to him any disciplinary sanction from those provided for by law (with the exception of dismissal, for which a number of additional conditions are taken into account). Article 192 of the Labor Code of the Russian Federation provides for the following types of penalties: remark, reprimand and dismissal. Other types of penalties may be provided for only in federal laws, charters and regulations on discipline for certain categories of employees.

The introduction by some employers of penalties such as fines deducted from wages for lateness or other violations is unlawful.

For misconduct, regarded as a gross violation of labor duties, you can be fired immediately, without prior penalty. Such offenses are: absenteeism, appearing at work in a state of intoxication, disclosure of trade secrets and other violations (clause 6 of article 81 of the Labor Code of the Russian Federation).

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. The legislation does not prohibit the employer for the same offense to bring the employee to both disciplinary and material 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 part 6 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 chapters 30 and 37 of the Labor Code of the Russian Federation.

It is not a disciplinary sanction and suspension from work, carried out in accordance with 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, due to his (employee's) fault, did not undergo a mandatory periodic medical examination in accordance with the established procedure, and at the same time is 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.

Day of detection of disciplinary offense

It is possible to issue an order to apply a disciplinary sanction only if no more than six months have passed from the day the misconduct was committed, and no more than one month has passed since the day it was discovered (Article 193 of the Labor Code of the Russian Federation). In this case, the day when the misconduct was discovered is the day when this misconduct became known to the immediate supervisor of the employee. And it doesn’t matter if this leader has the right to apply a reprimand or a remark (paragraph 34 of the Decree of the Plenum of the RF Armed Forces N 2).

An entry on a disciplinary sanction is not made in the work book (part 4 of article 66 of the Labor Code of the Russian Federation), except in cases where dismissal is a disciplinary sanction. It is not necessary to make a record of a disciplinary sanction on a personal card. But if necessary (to ensure internal accounting) this information can be reflected in section 10 "Additional information".

If the employee has a disciplinary sanction (whether it is a comment or a reprimand), the employer has the right to:

Not to pay incentive payments to the employee in full or in part, if local regulations provide that these payments are not made in the presence of outstanding disciplinary sanctions;
in case of repeated (within a year) violation of labor discipline, dismiss the employee (clause 5, part 1, article 81 of the Labor Code of the Russian Federation).

If during an inspection (including those carried out on the basis of an employee’s complaint (part 7 of article 193 of the Labor Code of the Russian Federation)) it turns out that the employer has violated the procedure for applying a disciplinary sanction, or has applied a sanction without reason, the Federal Labor Inspectorate may bring the organization to administrative responsibility under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. In addition, the applied penalty will be recognized as illegal. Accordingly, if any amounts were not paid to the employee due to this penalty, they will have to be paid to him with interest (monetary compensation) for the delay in payment (Article 236 of the Labor Code of the Russian Federation).

The penalty applied to the employee (reprimand or remark) is automatically removed after a year, provided that during this year the employee was not subjected to a new disciplinary sanction (Article 194 of the Labor Code of the Russian Federation). At the same time, the employer should not draw up any documents, since the Labor Code of the Russian Federation does not require this. The employer has the right to remove the penalty from the employee before the expiration of a year from the date of its application, and he can do this both on his own initiative and at the request of the employee himself, his immediate supervisor or a representative body of employees (Article 194 of the Labor Code of the Russian Federation). Removal of the penalty is issued by order.

An employee who has already been brought to disciplinary responsibility (i.e. has an unremoved reprimand or remark), in case of repeated violation of labor discipline, can be dismissed for repeated failure to perform labor duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation). Dismissal is possible regardless of what the first penalty was, i.e. in case of repeated violation, it is possible to dismiss both an employee who has a reprimand and an employee who has been reprimanded.

After issuing an order to apply a penalty in the form of dismissal and familiarizing the employee with it, it is necessary to draw up an order (instruction) to terminate the employment contract for repeated non-performance of labor duties ( unified form N T-8, approved by the Decree of the State Statistics Committee of the Russian Federation N 1). It must indicate that the employment relationship is terminated in accordance with paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation in connection with the repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction. What is considered good cause? In the Labor Code of the Russian Federation there is no list of valid reasons for being late. Therefore, the question of "respect" in each case is decided by the management. But if the employee appeals against bringing him to justice in court, then he will not only find out the reason for the delay, but also decide whether the employer objectively assessed it. For this, an explanation is needed.

Responsibility for disciplinary offense

Lawful conduct in the field public organization labor, labor activity of employees are provided through the use of material and moral incentives. One of the means of combating the misconduct of employees who violated labor discipline is legal action in the form of bringing violators to disciplinary and (or) material liability.

Disciplinary liability is one of the types of legal liability under labor law. It is usually considered in two aspects.

As a legal institution, disciplinary responsibility is included in the legal institution "labor discipline" and means a certain reaction of the state to an offense in the field of labor relations, the potential possibility of applying disciplinary measures to the violator specified in the legislation.

The second aspect is a consequence of non-performance or improper performance of labor duties by a specific employee and consists in the application of sanctions to the violator of labor discipline and their implementation. In this aspect, disciplinary liability is the duty of the violator to answer for the committed disciplinary offense and suffer unpleasant consequences in the form of personal, organizational or property restrictions. On the part of the employer, the reaction to a disciplinary offense is to demand a report from the violator and apply sanctions to him legal regulations labor law.

Disciplinary responsibility is assigned to the employee, as a rule, directly by the head of the organization, who has administrative and disciplinary power in relation to employees who are in an employment relationship with this organization. Other officials have such a right if it is provided for in the charter of the organization or if they are authorized by the employer.

Disciplinary liability of employees occurs for violation of labor discipline, i.e. non-performance or improper performance due to the fault of the employee of the labor duties assigned to him. Such an offense that does not entail criminal liability is called a disciplinary offense (part 1 of article 192 of the Labor Code).

A disciplinary offense, like any other offense, has a set of features: subject, subjective side, object, objective side. In other words, the basis for bringing to disciplinary liability under the norms of labor law is the presence in the act of the violator of signs of a disciplinary offense.

The subject of a disciplinary offense is a person who is in an employment relationship with a specific employer and, therefore, has labor legal capacity. Legal capacity indicates not only the achievement of a certain age by a person, but also the ability to give an account of his actions. Therefore, the ability to bear personal responsibility for a committed misconduct (delicacy) is an integral part of the legal personality of employees along with labor legal capacity and occurs simultaneously with the latter.

In a number of cases, the subject of a disciplinary offense is a special subject (for example, in certain sectors of the economy, where disciplinary responsibility occurs according to charters and regulations on discipline).

The object of a disciplinary offense is social relations that develop in the process of joint work, regulated labor law, law and order within a particular organization.

The objective side of a disciplinary offense is formed by those elements that characterize it as a certain act. external behavior faces. Disciplinary offenses, like other offenses, are always the behavior of people, and not thoughts and beliefs.

Mandatory elements of the objective side of a disciplinary offense are:

Illegal act (action or inaction);
- causing harm to the employer;
- the existence of a causal relationship between the wrongful act and the resulting harm.

The unlawfulness of behavior is manifested in the violation of labor duties imposed on the employee by an employment contract, a collective agreement, internal labor regulations, job descriptions etc., and is not limited to the performance of a labor function. An example of illegal behavior of employees can be absenteeism, being late, appearing at work in a state of alcoholic or other intoxication, failure to comply with labor standards, participation in an illegal strike. Since the subject of the employment contract is only the labor obligations of the employee, and not his obligations in general (i.e., regardless of the subject of the employment relationship), therefore, actions that, although they are adjacent to the employment relationship, do not follow from its content, do not constitute a disciplinary offense, for example Refusal to attend refresher courses. This does not apply when training is necessary condition performance of the employee's labor function, for example, the safe performance of work related to high voltage energy, with underground devices, etc. In these cases, training is a condition for admission to such types of work and their normal implementation and is the obligation of the employee in an employment relationship.

Refusal or evasion of a medical examination without good reason for those categories of workers for whom such an examination is a necessary condition for admission to work should also be considered as a violation of labor discipline. The refusal of an employee without good reason to perform labor duties in connection with a change in the established procedure for working conditions (for example, production standards, service standards) is a disciplinary offense.

The refusal of an employee to conclude an agreement on full liability may be considered as a failure to fulfill labor duties if the fulfillment of duties for the maintenance of material assets constitutes for the employee his main labor function, which is agreed upon when hiring, and in accordance with applicable law, he must be signed an agreement on full liability. It should be borne in mind that the employee's failure to comply with the requirements of the employer is a violation of labor discipline only in cases where such requirements were legal. So, for example, it is impossible to bring to disciplinary liability an employee who refused to comply with the employer's requirement to return to work before the end of the vacation, or an employee with a child under the age of three who refused to go on a business trip. It cannot be considered as a violation of labor discipline and suspension of work in accordance with Art. 142 of the Labor Code in case of non-payment of wages to the employee.

Illegal behavior of an employee that is not related to the performance of labor duties is not a violation of labor discipline (for example, failure to fulfill a public assignment).

As it was said, an obligatory element of the objective side of a disciplinary offense is the infliction of harm to the organization (employer) by the employee's non-performance or improper performance of his labor duties. At the same time, the harmful consequences resulting from the commission of various disciplinary offenses are heterogeneous in content. So, for some disciplinary offenses, real property damage is typical (for example, if the employer's car breaks down by the driver). These are the so-called disciplinary offenses with a material composition. When committing other disciplinary offenses, although the harm is less noticeable, it is also present (for example, when an employee is late for work). Such offenses are called offenses with a formal composition.

Subjective side disciplinary offense is expressed in the guilt of the offender. The presence of guilt is a prerequisite for bringing to disciplinary responsibility. In labor law, disciplinary offenses are not differentiated depending on the form of guilt (intention, negligence).

Non-performance by an employee of labor duties for reasons beyond his control (for example, due to insufficient qualifications, health conditions that prevent the performance of work) is not a disciplinary offense. In this case, the employee is not at fault.

A disciplinary offense is also characterized by the fact that it is not a socially dangerous act and this differs from a crime that entails criminal liability, as well as the fact that it entails the application of measures of disciplinary or social influence.

Offenses related to improper performance of labor duties can be both disciplinary and administrative offenses.

At the same time, a disciplinary offense differs from an administrative offense (misdemeanor):

By subject (the subject of a disciplinary offense is an employee of the organization, and the subject of an administrative offense is any citizen who has reached a certain age);
- according to the object (the object of a disciplinary offense is public relations that develop in the labor process, the internal labor schedule of a particular organization, and an administrative offense is public order (public safety));
- according to the sanctions applied (the penalties for committing a disciplinary offense are disciplinary sanctions contained in the labor legislation, and not specific administrative sanctions addressed to the person of the violator, - deprivation of a special right granted to this citizen (the right to drive a vehicle), administrative arrest, a fine and etc.);
- according to the bodies vested with the right to apply sanctions (the employer has the right to impose disciplinary sanctions, and sanctions in the event of an administrative offense - bodies or persons with whom the violator is not connected with labor relations, for example, internal affairs bodies, state supervision bodies).

Disciplinary offense of a civil servant

For the commission of a disciplinary offense by a civil servant, that is, for failure to perform or improper performance through his fault of the duties assigned to him, the representative of the employer has the right to apply a disciplinary sanction. As stated in Art. 57 of Federal Law N 79-FZ "On the State Civil Service of the Russian Federation" (hereinafter - Law N 79-FZ) - the main legal act regulating the civil service. What types of disciplinary sanctions are applied to civil servants, in what cases and in what order, we will describe in this article.

Types of disciplinary sanctions

According to Art. 11 of the Labor Code of the Russian Federation, the effect of labor legislation and other acts containing labor law norms on state civil and municipal employees applies with the features provided for by federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation on state civil and municipal service. Therefore, it is legitimate that the list of types of disciplinary sanctions against civil servants is wider than the list of types of disciplinary sanctions established by the Labor Code of the Russian Federation.

The representative of the employer has the right to apply the following types of disciplinary sanctions to a civil servant (Article 57 of Law N 79-FZ):

Comment;
- reprimand;
- warning about incomplete official compliance;
- exemption from a substituted civil service position;
- dismissal from the civil service on the grounds established by paragraph 2, paragraphs. "a" - "g" p. 3, p. p. 5 and 6, part 1, art. 37 of Law N 79-FZ.

For each disciplinary offense, only one disciplinary sanction can be applied (part 2 of article 57 of Law N 79-FZ).

The procedure for applying a disciplinary sanction

According to Art. 58 of Law N 79-FZ, before applying a disciplinary sanction, the representative of the employer must request an explanation from the civil servant in writing. We recommend that you submit a notice of the need to provide an explanation in writing. If the employee refuses to give an explanation, an appropriate act is drawn up, preferably with the signatures of two witnesses from among the employees. The refusal of an employee to give an explanation will not be an obstacle to the application of a disciplinary sanction.

When applying a disciplinary sanction, it is necessary to take into account the severity of the misconduct committed by a civil servant, the degree of his guilt, the circumstances under which the misconduct was committed, and the quality of the performance by the employee of his official duties.

Attention! A copy of the act on the application of a disciplinary sanction to a civil servant, indicating the grounds for its application, is handed over to the civil servant against receipt within five days from the date of issuance of the relevant act (part 6 of article 58 of Law N 79-FZ).

A disciplinary sanction can be appealed by a civil servant to the commission government agency on official disputes or in court.

If within a year from the date of application of a disciplinary sanction, a civil servant is not subjected to a new disciplinary investigation, he is considered not to have a disciplinary sanction. At the same time, the representative of the employer has the right to remove a disciplinary sanction from a civil servant before the expiration of a year from the date of its application on his own initiative, at the written request of a civil servant or at the request of his immediate supervisor (parts 8, 9 of article 58 of Law N 79-FZ).

Attention! When a civil servant is released from a civil service position to be substituted in connection with a disciplinary sanction, he is included in personnel reserve to fill another position in the civil service on a competitive basis (part 10 of article 58 of Law N 79-FZ).

The day of the commission and the day of discovery of the disciplinary offense

A disciplinary sanction may be applied no later than one month from the day the disciplinary offense was discovered. This period excludes the time of incapacity for work of a civil servant, his stay on vacation, his absence from service for other reasons. good reasons, as well as the time of the internal audit. At the same time, a disciplinary sanction may not be applied later than six months from the day the disciplinary offense was committed, and based on the results of an audit of financial and economic activities or an audit, later than two years from the date the disciplinary offense was committed. The indicated terms do not include the time of criminal proceedings (parts 4, 5 of article 58 of Law N 79-FZ). Let's look at it Special attention.

The Ministry of Health and Social Development in Letter N 2647-17 gives the following explanations on this matter: the day of the commission of a disciplinary offense should be considered the day of its discovery. The day of detection of a disciplinary offense, from which the period for applying a disciplinary sanction is calculated, is the day when the immediate supervisor of a civil servant became aware of the misconduct. If the second part of the explanation does not raise questions, then it is impossible to agree with the words that “the day the offense was committed is equal to the day it was discovered”, due to the literal interpretation of the norms of parts 4, 5 of Art. 58 of Law N 79-FZ, especially since Law N 79-FZ delimits the period for applying a disciplinary sanction relative to the date of commission and the date of discovery of the misconduct. That is, it is correct to consider the date of the commission of the disciplinary offense the day when the offense was committed, and the date of discovery - the day when the immediate supervisor of the civil servant became aware of the commission of the offense.

Service check

Unlike the Labor Code of the Russian Federation, Law N 79-FZ provides for a mandatory internal audit before applying a disciplinary sanction (part 2 of article 58).

During this check, the following is determined:

The fact that a civil servant has committed a disciplinary offense;
- fault of a civil servant;
- the reasons and conditions that contributed to the commission of a disciplinary offense by a civil servant;
- the nature and extent of the harm caused to civil servants as a result of a disciplinary offense;
- the circumstances that served as the basis for a written application by a civil servant to conduct an internal audit (if it is carried out at the written request of a civil servant - part 1 of article 59 of Law N 79-FZ).

An internal audit is carried out by a subdivision of the state body on public service and personnel with the participation of the legal (legal) division and the elected trade union body of this state body. A civil servant who is directly or indirectly interested in the results of the audit cannot participate in it. If such a fact takes place, the civil servant is obliged to apply to the representative of the employer who appointed the check, with a written application to release him from participation in the conduct of this check. If this requirement is not met, the results of an internal audit are considered invalid (parts 4, 5 of article 59 of Law N 79-FZ).

The obligation to control the timeliness and correctness of the internal audit rests with the representative of the employer who appointed it.

An internal audit must be completed no later than one month from the date of the decision to conduct it.

The results of the internal audit are reported to the representative of the employer who appointed the internal audit in the form of a written opinion (part 6 of article 59 of Law N 79-FZ).

It indicates (part 9 of article 59 of Law N 79-FZ):

Facts and circumstances established as a result of an internal audit;
- a proposal to apply a disciplinary sanction to a civil servant or not to apply a disciplinary sanction to him.

A written conclusion based on the results of an internal audit is signed by the head of the department of the state body for public service and personnel and other participants in the audit and is attached to the personal file of the civil servant in respect of whom it was carried out (part 10 of article 59 of Law N 79-FZ).

The representative of the employer, who has appointed an internal check, has the right to remove from the position of the civil servant in respect of whom this check is being carried out, for its time. At the same time, a civil servant retains a monetary allowance for a civil service position to be replaced (part 7 of article 59 of Law N 79-FZ).

A civil servant in respect of whom an internal audit is being carried out has the right (part 8 of article 59 of Law N 79-FZ):

Give oral or written explanations, submit applications, petitions and other documents;
- appeal against the decisions and actions (inaction) of civil servants conducting an internal audit before the representative of the employer who appointed the audit;
- at the end of the internal audit, get acquainted with the written conclusion and other materials based on the results of the internal audit, if this does not contradict the requirements of non-disclosure of information constituting state and other protected federal law secret.

The procedure for conducting an internal audit and imposing a disciplinary sanction may be specified by departmental legal acts.

For example, in relation to civil servants of the authorities for the control of circulation drugs and psychotropic substances apply:

Instructions on the organization of work on the application of incentives and disciplinary sanctions in the bodies for the control of the circulation of narcotic drugs and psychotropic substances, approved by Order of the Federal Drug Control Service of Russia N 424;
- Instructions on the organization of work on conducting internal audits in relation to federal state civil servants of the bodies for the control of the circulation of narcotic drugs and psychotropic substances, approved by Order of the Federal Drug Control Service of Russia N 365.

Examples of disciplinary offenses

Examples of disciplinary offenses (DP):

1. Objective DP:

Absence from work at all;
Appearance with identification;
Reporting to work in a state of intoxication;
Refusal to perform their duties;
Others.

2. Subjective DP:

Unfair performance of duties;
Fulfillment of duties is not complete.
Others.

If the head of the company decided to punish the employee and filed a disciplinary offense in accordance with the law, then from a legal point of view, disciplinary liability in the form of a penalty has come.

The disciplinary responsibility of an employee is expressed in the imposition of one of the types of disciplinary sanction on him:

Comment;
Rebuke;
Dismissal.

The peculiarity of such legal liability is that it is always associated exclusively with labor relations. And it is a tool for manifesting the power of the leader in relation to the hired person.

General and special disciplinary responsibility

General and special are the types of disciplinary responsibility of employees of the enterprise.

Disciplinary responsibility that can be applied to any employee without exception, regardless of position, specialty, field of activity, etc., is called general.

It is regulated exclusively by the Labor Code of the Russian Federation and is brought to the attention of each employee of the enterprise without exception when hiring.

Disciplinary liability (DO), which applies only in exceptional cases to certain employees, and is regulated by the charter of the enterprise, regulations on discipline and specially developed legislative acts, is called special.

Before classifying an employee's disciplinary liability as specifically, it is necessary to check for the presence of the following circumstances:

An employee to whom the DO applies can be attributed to special subjects (prosecutor, judge, etc.);
The employee performed duties related to caring for the life and health of people (car conductor, etc.);
Only special bodies can apply the DO (only the Qualification Board can involve a judge in the DO);
Only disciplinary action can be taken against an employee special kind(for example, a doctor may be prohibited from practicing medical practice for some time);
You can appeal the DO not only through the courts, but also by contacting a higher authority.

Special and general disciplinary responsibility are not mutually exclusive.