The use of the listed types of punishments should not necessarily be applied in sequence, from a more lenient punishment to a more severe punishment. How strict it should be depends on the significance of the act committed by the employee, as well as on the circumstances in which it occurred.
Moreover, it should be taken into account: for each act, only one penalty can be applied (according to Part 5 of Article 193 of the Labor Code).
Collection procedure
In accordance with the provisions of Article 193 of the Labor Code of the Russian Federation, before issuing an order imposing punishment, written documentation of the grounds for its issuance is required. To this end:
- The violator's immediate supervisor must demand from him an explanation of the reasons for the action. The explanatory statement must be presented in writing;
- If an employee refuses to write an explanatory document, at the end of two working days from the moment the boss contacts him, a report on this fact is drawn up. Lack of explanation is not a reason to cancel the punishment;
- after considering the employee’s explanation (if any), the manager renders his verdict in a memo sent to the superior manager;
- An order is issued based on the documents presented. This must happen within a period not exceeding one month from the date of the violation. The time an employee is on sick leave, on vacation, as well as the period of time required for consideration of the issue by the body representing the interests of the employee is not included in this period.
- When serious disciplinary violations are committed, a special commission is created to conduct an internal investigation in order to objectively assess the severity of their consequences. The need for an investigation necessarily arises in the presence of accidents that occurred due to the fault of the employee. In this situation, the head of the enterprise can, and sometimes is obliged, to transfer the investigation materials to law enforcement agencies. In this case, the period for applying the penalty cannot exceed 6 months from the moment the act was committed, and in the case of an investigation of unlawful actions in the financial and economic spheres, it should not exceed two years, since the period for investigating a criminal case is excluded.
- The order imposing a penalty must be presented to the employee so that he can familiarize himself with it against signature. The period for familiarization with the order is 3 days from the date of its issue.
- If he does not agree with the contents of the presented document and refuses to sign it, the executor is obliged to record the refusal to sign in the form of an act.
Legal basis
Dismissal is a procedure after which all obligations between the employer and the contractor come to an end. All issues related to release from work obligations are regulated by labor law, legislation and contract.
The legality of termination of employment relations is achieved with the simultaneous fulfillment of three conditions:
- existence of valid grounds for dismissal provided for by the legal framework;
- the termination procedure complies with the established procedure and is not violated;
- the employment contract has been terminated.
The main document defining the labor relationship between employer and employee is the Labor Code.
It is a priority basis when resolving conflict situations that go beyond the scope of the employment agreement. In particular, the Code explains the rights and obligations of both the employer and the employee, regulates the rules for receiving wages, and the duration of work. It describes issues relating to occupational safety, employment and dismissal. Separate articles describe the features of working relationships with certain categories of people, for example, minors, disabled people, guardians, single mothers.
But at the same time, the fundamental document for creating a regulatory framework is the Constitution of the country, which protects the rights of citizens in any area of their life. Therefore, the articles of the Labor Code in no way contradict the Constitution.
Labor relations are obligations between an employee and an employer. The first is considered an individual, and the second is an individual or legal entity. The subject of the relationship is regulated by an employment contract, the validity of which gains legal grounds from the moment it is signed by both parties. But this is provided, unless otherwise specified in the concluded agreement and does not go against the regulations.
Types of dismissal
Under the current Labor Code, there are many different grounds for terminating a working relationship between two parties involved. The Labor Code also specifies the rights of a dismissed employee. The code also guarantees protection against illegal termination of employment. There are four types of dismissal:
- termination of employment relations at the request of the employee;
- the initiative to terminate the employment contract comes from the employer;
- mutual desire of the parties;
- termination of the agreement.
Based on legal acts, the last two types are considered the simplest. And this is understandable, since at the end of the contract the relationship does not end suddenly. Each party has time to prepare for this process. The only condition, according to the Labor Code, is the need for advance warning to either party of the intention not to continue the contract. And with mutual agreement, conflict issues are usually resolved at the stage of preparing documents, and dismissal occurs on mutually beneficial terms.
Dismissals associated with the desire of only one party are complex types of termination of relations, and most of the articles of the legal framework are devoted specifically to resolving these conflict situations.
But any dismissal, regardless of appearance, must take place in accordance with certain requirements. Their important part is the dismissal order issued by the employer in a free or standard form. Such an order must be drawn up in two copies. Moreover, it is personally signed by the person being dismissed and by the employer or his legal representative.
The deadline for issuing the order is not specified anywhere, but usually it is done in advance, since on the last day of actual work the employee must receive his documents from the HR department and a full financial statement.
Calculation procedure
The procedure for dismissing an employee is described in sufficient detail in legislative acts and usually does not cause difficulties.
But here it is important to comply with all legal norms, since any violation of them can create a precedent for the dismissed person to appeal to the courts. So, in the event of dismissal of an employee, the employer’s responsibilities include preparing and processing the relevant documents. Based on the order or instruction, an entry is made in the work book. This entry must contain the reason for dismissal, indicating the relevant article of the Labor Code and be made in the state language.
The reason for dismissal must coincide with the grounds specified in the order. On the last working day, the employee is given a work book and, upon his request, a copy of the dismissal order. In addition, the employer is obliged to pay all money due to the dismissed person.
If the work book cannot be issued and the owner is not to blame for this, then for each day of delay the employee is awarded monetary compensation equal to the average salary. When the employee does not pick up the work book on his own initiative on the day of dismissal, the employer is obliged to send him a postal notice. Sending the work book itself directly by mail or transfer through third parties is possible only with the consent of the dismissed employee. The issuance of a work book is confirmed by the personal signature of its owner.
The employer must also notify the employee in writing of his dismissal in advance. The person being dismissed must sign this order. In case of refusal to sign it, the employer draws up an act in the presence of three witnesses, which is then certified by their signatures.
The settlement day is considered to be the last working day. The employee is provided with written notice of the accrued amounts payable upon dismissal. Moreover, for each day of delay in payment, the former employer will be required to pay penalties and fines.
Requirements for placing an order
The legislation does not provide for a special form of order informing about the disciplinary punishment taken by the employee. Each enterprise or organization can use an independently developed form for writing it or an existing unified form of this document.
In the absence of such forms, you can use a standard A4 sheet. It is allowed to present the text of the order, both in printed form and manually.
The text of the order must contain information:
- about the organization, enterprise or other legal entity that is the employer of the guilty employee;
- about the employee himself, indicating his full name, position and specific place of work;
- about the reason that served as the reason for the penalty, with a detailed statement of the circumstances, the violation that occurred, and the date of its commission;
- about the type of punishment itself (reprimand, reprimand or dismissal);
- about the documents provided confirming the validity of the offense that occurred, which became the basis for issuing this order.
Procedure for placing an order:
- The header of the order indicates the detailed name of the enterprise as a legal entity, for example, CJSC, LLC, individual entrepreneur, etc.
- Next, the name of the document “Order” is written in the center, indicating the number in accordance with the internal document flow and a brief indication of the essence of the document.
- The line below indicates the name of the locality where the enterprise is located and the date the order was issued: day, month (indicated in words), and current year.
- Below is the essence of the offense committed, the date it was committed, and by whom it was committed (full name of the employee).
- Next, the manager’s order is written: “I order that the employee (his full name is repeated again) be reprimanded, reprimanded, or fired. The reasons for such an order are indicated (a report and explanatory note, or a drawn up act).
Usually three copies of the order are drawn up. One original and two copies taken after signing the original copy of the document. The original order is kept in the file among other orders relating to personnel. One copy of the order is filed in the employee’s personal file, and the second is given to him personally.
Basis for the order
Absolutely any order drawn up on behalf of the company’s management must have a written basis. In most cases, this is:
- a memorandum or memo from the head of the structural unit in which the offending employee works,
- as well as an act recording the offense and an explanatory note.
Without these papers, the document will not be considered justified and in which case it will be very easy to refute it; moreover, for the lack of a basis for writing the order, and therefore the penalty itself, the employer may be subject to administrative punishment.
Appealing a disciplinary sanction
Each employee has the right to appeal the punishment applied to him if he disagrees with the penalty imposed. To do this, he should seek assistance from the relevant labor dispute resolution bodies.
An appeal against the order can take place in the labor inspectorate or in the district court. His interests can also be represented by the prosecutor's office.
According to the law, you can apply within three months from the date the employee familiarizes himself with the order. In the event of an unfair penalty, these authorities may cancel the order.
Possibility of early withdrawal of foreclosure
According to Article 194 of the Labor Code of the Russian Federation, the penalty from the employee is automatically lifted after a year, provided that there is no new disciplinary offense within a year from the date the previous penalty was imposed on him. This does not require the issuance of a new order.
Article 194 of the Labor Code of the Russian Federation - Removal of disciplinary sanctions
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.
Also, a penalty can be lifted early earlier than one year from the moment it was imposed on the initiative of the manager or the employee himself. For this purpose, a new order is issued on early removal of the penalty. It states:
- reason for early cancellation of foreclosure;
- grounds for removal;
- information about the order issued in connection with the punishment: its number and date.
The manager is also obliged to familiarize the employee with this order. After reviewing the document on early removal of the punishment, the employee will be considered free from it.
Based on the results of the internal inspection, the employer may issue an order for disciplinary action. Unlike the Act of Internal Investigation and the process of proving a disciplinary offense itself, drawing up an order is quite simple.
Expert opinion
Gusev Pavel Petrovich
Lawyer with 8 years of experience. Specialization: family law. Has experience in defense in court.
And it is the verification documents that give it legitimacy and validity. During which the employer will establish the fact of the commission of the offense and the guilt of the employee.
The law does not contain a strict form of order for disciplinary action. Therefore, we suggest using the example document we have developed.
Order of disciplinary action
Order to lift a disciplinary sanction
Order of disciplinary action in the form of a reprimand
Order of disciplinary action in the form of a remark
Order of disciplinary action in the form of dismissal
Order functions
Collection orders perform several functions simultaneously:
- streamline office work at the enterprise;
- record the type of penalty and the date it was imposed;
- serve to familiarize yourself with the fact that an employee is being held accountable;
- allow you to appoint a person responsible for imposing a disciplinary sanction;
- from the moment the order is issued, the validity period of the penalty begins to count (by default it is valid for 1 year);
- serve as evidence in court for the employer and confirm its compliance with the procedure for holding employees accountable.
Example of a disciplinary sanction order
Order of disciplinary action
No. 48 of November 28, 2021
In connection with the commission of a disciplinary offense by office manager Stepanyuk Maria Viktorovna, which resulted in a violation of Art. 21 of the Labor Code of the Russian Federation, clause 4.6 of the internal labor regulations of Iris LLC, clauses 5.16 and 8.3 of the employment contract dated 03/01/2020 No. 6l, namely:
- in absence from work on November 20, 2021 from 08:00. 00 min. until 10 o'clock 00 min. without good reason. Documents confirming valid reasons were not presented. Stepanyuk Maria Viktorovna was familiarized with the Internal Labor Regulations when concluding an employment contract on March 1, 2021.
- Apply a disciplinary sanction in the form of a reprimand to the office manager Maria Viktorovna Stepanyuk.
- Head of the HR Department Pavlenko A.V. familiarize office manager Maria Viktorovna Stepanyuk with this order against signature within 3 working days from the date of its publication. In case of refusal, draw up an appropriate Act.
- Control over the implementation of this order is assigned to the head of the personnel department A.V. Pavlenko.
Grounds: Report of absence from work dated November 20, 2021, memo from the head of the HR department A.V. Pavlenko. dated November 20, 2021, explanatory note by M.V. Stepanyuk
General Director Orlova Orlova V.K.
The following have been familiarized with the order:
Head of HR Department Pavlenko Pavlenko A.V.
Office manager Stepanyuk Stepanyuk M.V.
Why is the act needed?
Essentially, this act allows you to document an act that violates the internal rules of the company. Based on the document, the director issues an order for disciplinary action. As you might guess, in each specific case it is determined how serious the offense is. Punishments are chosen accordingly.
It is also worth noting that the act records all the details of the violation of labor discipline. This is necessary so that the manager, having carefully studied the specific situation, can assign an adequate punishment.
You need to understand that everything here depends on the degree of violation. The leader chooses the punishment himself.
In serious situations, it can even lead to dismissal. But it also happens that the manager limits himself to a reprimand or remark.
Moreover, this can be either an oral or written warning.
For example, we can consider various situations that relate to violation of labor discipline:
- Lateness . If an employee does not warn in advance that he will be late, he faces a reprimand, often entered into his personal file. Although it must be understood that if there are mitigating circumstances, this may be a verbal remark;
- Disruption of the production process . As a rule, such actions can lead to serious losses for the enterprise. Accordingly, the guilty employee faces a severe reprimand; in particularly serious situations, the punishment may be dismissal;
- Working while drunk . This situation can be considered as a negligent attitude towards work. This can lead to quite serious consequences. This can not only disrupt the production process, but also cause traumatic situations.
As you can see, violation of discipline can manifest itself in different ways. The main task of a leader is to thoroughly understand a specific situation.
This is exactly where a properly drawn up act will help, which should show the details of the offense. It would be useful to indicate in the document whether the employee provided an explanatory note or refused to give any explanations.
Expert opinion
Mikhailov Vladislav Ivanovich
Lawyer with 6 years of experience. Specializes in family law. Knows everything about the law.
( Video : “How to apply disciplinary action for violation of labor discipline?”)
What documents regulate labor discipline?
It is worth noting that the law does not have strict requirements regarding documents defining the rules of labor discipline. But practice shows that many organizations cannot do without it.
When starting a job, an employee is required to familiarize himself with the rules; accordingly, he will know how to behave in the workplace. You need to understand that in the absence of such rules, it will be quite difficult to hold the guilty employee accountable.
That is why today you can hardly find an organization that does not use these documents.
Typically, the rules regulate local regulations, labor standards, and other internal regulations. It is highly desirable that these documents spell out the rules in great detail. In this case, it will be easier for the employer to establish the fact of a specific violation.
How to issue a disciplinary order
The law does not establish a uniform form for an employer’s order to impose disciplinary liability. In contrast to the grounds for applying penalties in labor activity. And the procedure for bringing to justice.
The employee has the right to challenge the issued order for disciplinary action. He can file a complaint with the labor inspectorate. Or he can file a claim in court for disciplinary action. Therefore, when creating an order for disciplinary action, make sure there are legal grounds.
The employee responsible for working with personnel must draw up documents that would confirm the fact of violation of labor discipline or labor regulations. And prepare written evidence that the employee knew these rules.
This may be a clause in the employment contract. A sheet of familiarization with the Internal Labor Regulations or other document that the employee violated.
If the employee’s obligation is not documented, the chance of cancellation of the penalty is quite high.
The employer may impose penalties on some employees for immoral misconduct. Basically, these are people who carry out the educational function (teachers, educators). But written evidence of misconduct is required.
Is it possible to appeal
The boss, at his discretion, may subject the employee to disciplinary action.
For his own protection, a person can write an explanatory note indicating the following information:
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- about the facts relating to the offense;
- about all the reasons that led to the disciplinary violation. For example, if a person was punished due to absenteeism, then he can provide information and documents confirming the presence of a good reason.
This is also important to know:
Sample order to lift a disciplinary sanction: how to draw it up correctly
At the end of the document, it is required to indicate an admission of one’s own guilt or the fact that actions on the part of the boss were unreasonable.
If, despite the explanatory note, the manager issues an order, the employee may appeal to:
- court;
- labor inspection;
- labor dispute commission.
It is worth considering that an application can be submitted to three authorities at once. The most common way to challenge is to go to court.
To do this, a person must file a claim. To make a decision in favor of the employee, the citizen must provide evidence that the reprimand was imposed unlawfully.
Choosing a penalty when preparing a disciplinary order
For one offense, only one type of penalty can be applied. This is a reprimand, reprimand or dismissal. Special regulations (legislative, not local) may establish other types of penalties. And, of course, the employer chooses the type.
If it is decided to apply dismissal, then there must be an appropriate basis (Article 81 of the Labor Code of the Russian Federation). Then you can only issue an order for dismissal from work. In court cases regarding claims for reinstatement, this document and the grounds for its issuance will be sufficient to substantiate the legal position.
A pregnant woman cannot be fired for committing a disciplinary offense.
The employer MUST request an explanation from the employee before issuing an order for disciplinary action. And the extent of his guilt and the presence of circumstances indicating its absence should be assessed.
The employer is obliged to familiarize the employee with the order. A signature is taken from the employee as evidence of familiarization, and if the employee refuses, a certificate of refusal to sign is drawn up.
How long does a remark last?
After an employer has reprimanded his subordinate, the latter must keep in mind that for a year after that he will be under close supervision.
If during this period there are no repeated violations, then the remark will be automatically canceled and all the employee’s rights will be restored in full, but if something similar happens again, the offender may be punished more severely: with a reprimand or even dismissal.
It should be noted that the employer has the right to early cancel a disciplinary sanction previously applied to an employee. This is quite simple to do: you just need to issue the appropriate order to cancel the order and familiarize the responsible persons with it, as well as the employee himself. Typically, the reason for canceling a penalty is repentance, clear signs of correction by the employee, strict adherence to labor discipline and excellent work performance.
Contents and issuance of a disciplinary sanction order
The document is drawn up indicating the publication date and its number. The following information is required:
- employer (name, possibly TIN, OGRN)
- title – DISCIPLINARY ORDER
- last name, first name, patronymic, employee position
- circumstances of the offense: what exactly the employee violated, what acts provide for the corresponding obligation, the employee’s guilt, good reasons
- application of punishment, choice of punishment
- order to familiarize the employee with the order issued against him
- control over execution (you can - “I entrust it to myself”)
- date and signature
- familiarization column. The person against whom the employer applied the penalty, and all those to whom the instruction was given (to familiarize, control, etc.).
Within 3 working days (excluding the time when the employee is absent), the order for disciplinary action is brought to the attention of the employee.
Clarifying questions on the topic
The manager has been working recently, the employee has been working for 15 years. The employee refuses to carry out direct orders from her immediate supervisor, answering: I think there are more important things to do.
Challenges the manager to a conflict, speaking in a raised tone, lecturing, comparing with the former manager. Moreover, he carries out suspicious actions at work, i.e.
brought strangers into the office, prayers were read, the day before she brought a candlestick with candles to work, when asked, she answered that the former manager forgot (more than 8 months have passed since the former manager left) It is simply impossible to work. It is often discovered that there are no letters on e-mail from senior management, in the absence of the manager, but the letters arrived by mail.
Expert opinion
Gusev Pavel Petrovich
Lawyer with 8 years of experience. Specialization: family law. Has experience in defense in court.
In this case, the manager needs to limit communication with the employee to formal, business relations. In case of failure to fulfill job duties, disciplinary action can be taken.
A high school student was smoking in the school toilet. He categorically denies this fact, which he wrote about in the explanatory note. But it was precisely this that the primary school student pointed to. Can the school principal issue a disciplinary order in the form of a reprimand if a high school student denies his guilt?
If the director considers the testimony of a primary school student sufficient and reliable, then he can punish the senior student.
A teacher accidentally sent a video to an online group, compromising his behavior in the workplace. How to formalize disciplinary punishment.
For teaching staff of educational institutions, in addition to general norms, specific grounds for bringing to disciplinary liability have been established: gross violation of the charter of an educational institution, as well as the use of educational methods associated with physical and (or) mental violence against the student’s personality. In your case, compromising behavior must be assessed taking into account the circumstances of the incident and the consequences of the teacher’s actions.
An internal investigation is necessary. If a violation of labor discipline is detected, disciplinary punishment is issued in accordance with the general procedure.
How to obtain a copy of a punishment order or an extract from the order
Write a written request for a copy of the order. Or ask to see the order and make a photocopy of it.
What punishment can be applied to an employee who does not carry out the instructions of a superior manager, if this is stated in the job description?
Elena, the type of disciplinary sanction is determined by the employer, based on the severity of the offense committed, the consequences, and the personality of the employee. The most important thing is that the type of punishment complies with Art. 192 of the Labor Code of the Russian Federation - reprimand, reprimand, dismissal on the grounds of the Labor Code of the Russian Federation.
the employer is obliged to issue a copy of the order to punish the employee without his request
The employer signs the order of disciplinary punishment to the employee against his signature. A copy of the order can be obtained upon request for the issuance of work-related documents.
Organization for cargo transportation to Finland. The forwarding driver returning to Russia buys food products and tries to transport them across the border; at customs they find the goods and draw up a protocol for the organization. The manager convincingly asks his employees not to engage in these activities, but everything is fine.
Is it possible to draw up an order that if the driver is caught with food at the border, he will pay a fine to the manager?
A fine cannot be a disciplinary sanction, since it is not directly specified in the Labor Code of the Russian Federation. The employer has the right to demand compensation for damage caused to him from the employee according to the rules of Chapter 39 of the Labor Code of the Russian Federation.
Is it necessary to draw up a report on the discovery of a disciplinary violation in order to impose a disciplinary sanction?
In accordance with Art. 193 of the Labor Code of the Russian Federation, 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.
Therefore, very often a report on the discovery of a violation is drawn up. But this is optional.
An order to impose a disciplinary sanction is an administrative act by which an employee is punished for a violation. It is allowed to issue it not only within a month from the moment of the offense, in some cases the period is three years.
Recording the fact of a disciplinary offense
When an offense is identified that, in the manager’s opinion, requires the imposition of a penalty, it is not enough and even extremely harmful to simply verbally say “I reprimand you,” even in the presence of the team.
This action has no legal force and absolutely does not support the authority of management.
The basis for conducting an official investigation and analysis of what happened is a message (memorandum, petition) from the head of a structural unit or an employee appointed senior in a certain area of work.
As a rule, a report on what happened is drawn up, certified by the signatures of real witnesses. The perpetrator must also be familiar with the act. In case of refusal, this must also be recorded in an act.
The manager must require the perpetrator to provide an explanation of what happened within two working days. It is better to do this in writing, a service letter or an order.
If the employee is absent at this time, you can send him a telegram notifying him of its delivery. An employee’s refusal to write an explanatory note is quite possible, but this must be documented in an act.
In some cases, an expert opinion may be required
- about the state of alcohol or drug intoxication,
- about violation of labor protection requirements,
- about non-compliance with the process flow chart, etc.
How to write an order to approve the vacation schedule, how to fill out the T7 form? Why does an accountant need to know the SOS turnover ratio?
By decision of the manager, explanations are collected from employees who can cover in more detail the process of the violation or its consequences.
This is important to know: Recovery of losses from the company by a shareholder
The following may be attached to the investigation materials:
- extracts from the established routine and work schedule,
- copies of job descriptions, orders,
- other documents confirming the fact of violation.
In no case should they be accepted retroactively - this will all play a negative role in a possible trial of a labor dispute.
The manager has the right to impose a penalty within a month from the date of notification of it, and no later than six months from the date of its commission.
Disciplinary action is applied no later than one month from the date of commission.
The monthly validity period does not include the time the perpetrator was on sick leave and the period necessary for the trade union body to issue a reasoned conclusion about what happened.
The six-month validity period will not include possible investigative actions by law enforcement agencies.
Types of penalties
For violations committed by an employee, the employer applies certain types of penalties. The list of penalties included in the Labor Code of the Russian Federation is limited to the following options:
- Comment.
- Rebuke.
- Dismissal.
The legislator established in the Labor Code of the Russian Federation strictly defined wording of orders for collection, which are used by employers in local administrative acts when punishing for violations (Article 192 of the Labor Code of the Russian Federation).
For certain categories of employees, other penalties are provided for in federal laws, charters, and regulations (Part 5 of Article 189, Part 2 of Article 192 of the Labor Code of the Russian Federation). It is prohibited to apply punishments not established in these acts. If the norm is violated, the employer is liable under Art. 5. 27 Code of Administrative Offenses of the Russian Federation.
Expert opinion
Gusev Pavel Petrovich
Lawyer with 8 years of experience. Specialization: family law. Has experience in defense in court.
The sequence of application of types of punishments is not defined, that is, they are applied not only in the order in which they are listed in the Labor Code of the Russian Federation. The employer determines the type of penalty based on the severity of the offense.
This means that the employee has the opportunity to receive an immediate reprimand. When determining the type of penalty, the employer takes into account the severity of the violation, the reasons and circumstances of its commission (Part.
5 tbsp. 192 of the Labor Code of the Russian Federation).
Punishments for disciplinary offenses in the form of a fine or deduction from wages are not provided for by law; therefore, they are not applied to the employee.
How to draw up an act of violation of labor discipline
The legislation does not put forward any special requirements for the execution of this document. Typically, recommendations are prescribed by internal rules.
Expert opinion
Mikhailov Vladislav Ivanovich
Lawyer with 6 years of experience. Specializes in family law. Knows everything about the law.
You can fill it out either on a simple sheet of paper or on a company letterhead, which is developed by the enterprise specifically for these purposes. You can enter information on a computer or using a regular ballpoint pen.
The document must be signed by the drafters and members of the commission. If possible, you should obtain the signature of the accused himself.
Although in practice there are quite often situations when this employee does not make contact and, accordingly, refuses to sign his autograph. In this case, it is necessary to put the appropriate mark in the act itself.
A few years ago, such a document had to be certified with a company seal. But today the use of various stamps is not mandatory.
Therefore, there is no need to put a stamp on the act.
The document must have two copies. One of them is intended for an employee who is accused of violating labor discipline. The second copy is stored at the enterprise. It is on this basis that the manager issues an order for disciplinary punishment. If necessary, the number of copies can be increased.
How to compose
When drawing up an act, you must adhere to generally accepted rules of execution:
- At the top you need to indicate the company where the accused works and the name of the act. The registration date and city are also indicated here.
- Then comes the main part, which describes the essence of the problem. Here you need to indicate for which employee the document is being drawn up. The offense and detailed circumstances are described. Also listed here are the members of the commission who are investigating the incident, filling out the report, and identifying details.
- The final stage is signing autographs. The report is signed by all members of the commission, and, if possible, by the accused employee himself.
Often some additional documentation is attached to the act itself. This could be an explanatory note, an extract from the working time log, or other documents. All information about them must also be displayed in the act.
Sample of drawing up a report on violation of labor discipline
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- Form
- Sample
How long and how to store the document
After completing the deed, it must be registered. To do this, a corresponding note is made in the organization’s accounting journal.
The act is attached to the order for collection, which was drawn up on its basis. These two documents must be kept with all administrative documentation.
Typically, companies use their archives for storage. The document must remain here for at least three years.
Although internal rules may extend this period. After the storage period expires, the act and other accompanying documents must be disposed of.
At any enterprise, situations arise in which one or another employee is noticed for not fulfilling his direct duties or for poor-quality work. At the same time, the main task of the employer is to ensure that this precedent is not repeated in the future.
Sometimes this requires holding the employee to some responsibility. You must act consistently.
Before carrying out a series of completely legal actions, it is necessary to draw up a special document - an order on violation of official duties. A sample of its preparation can be easily found on the Internet.
Expert opinion
Mikhailov Vladislav Ivanovich
Lawyer with 6 years of experience. Specializes in family law. Knows everything about the law.
The Labor Code of the Russian Federation and other legal sources do not regulate how this document should be drawn up. Each organization may have its own template for generating such orders.
However, there are general recommendations on this matter. In order for a document to have legal force, it must contain certain information.
Let's consider when and according to what rules it is created, as well as what consequences it entails.
What is it permissible to punish an employee for?
When carrying out the collection procedure, you should remember the following rules:
- The measure is fair.
- The sanction is an employer's right, not an obligation.
- For one offense they are punished only once (Part 5 of Article 193 of the Labor Code of the Russian Federation).
- Punishments that are not provided for by law cannot be applied (Part 4 of Article 192 of the Labor Code of the Russian Federation).
- The type of sanctions is determined taking into account all the circumstances and the severity of the offense.
- Punishment in the form of withholding funds is unacceptable.
- Punishment is applied no later than one month from the date of discovery of the offense.
- There is no template defined at the legislative level on how to write an order for disciplinary action; accordingly, the template adopted by the organization is used.
The employer punishes the employee for misconduct of a disciplinary nature, that is, failure to perform, improper performance of functional duties by the employee through the fault of the latter (Part 1 of Article 192 of the Labor Code of the Russian Federation).
The rights and obligations of the employee are established in Art. 21 Labor Code of the Russian Federation, including:
- conscientious performance of labor functions;
- compliance with labor regulations and labor discipline.
Rules for employees are determined in local acts of the enterprise (Articles 8, 22, 189 of the Labor Code of the Russian Federation).
Employees are introduced to these documents against their signature. The Plenum of the Armed Forces of the Russian Federation in Resolution No. 2 of March 17, 2004 explained that failure by an employee to comply with the requirements of labor legislation, the provisions of the labor agreement, PVTR, job instructions, and orders of the institution is a disciplinary offense for which punishment is imposed.
Types of labor discipline violations
Based on many years of practice, experts distinguish three categories of violations of labor discipline. There are violations:
- Administrative. The employee does not adhere to subordination and refuses to carry out instructions from immediate supervisors and superiors.
- Technical. With such a violation, the employee cannot perform his direct duties. For example, he is technically not ready for this job. Often an employee simply refuses to do the work he is required to do.
- Regime. The employee does not adhere to the work and rest schedules established by regulatory documents.
As for the regime or administrative violation, everything is clear here. After an offense, when there are no explanations, an act is drawn up, on the basis of which disciplinary punishment is then applied.
But with a technical violation, things are a little different. The fact of the violation must not only be recorded, but also verified that it was committed through the fault of the employee.
But quite often there are situations when outdated equipment fails. Naturally, this leads to the fact that the employee is not able to complete the work to the required extent.
In order not to encounter a situation where groundless penalties are applied to an employee, you need to remember a simple rule. Thus, employees working on complex devices and equipment must report to the manager any breakdowns or defects.
It is recommended to do this not orally, but with the help of a memo. This will be documentary evidence that management was notified of problems with the equipment.
If an employee does not report a breakdown, such actions may be considered a violation of labor discipline.
Who draws up an act of violation of labor discipline?
There is no fundamental difference in who exactly will be involved in the preparation of this document. In fact, the manager himself appoints the person responsible.
In general, any employee whose authority allows him to do so can draw up an act. Although practice shows that the manager in such situations issues a separate order, appointing someone responsible.
It is possible that the obligation to draw up such documents may be specified in the job descriptions of specific employees.
As a rule, the responsibility for drawing up the act falls on the shoulders of the head of the department, accountant, personnel officer, or lawyer. Although it is possible, another employee may be appointed responsible.
But one person is not enough to draw up such an important document. There must be witnesses here.
Usually, for these purposes, by order of the head, an entire commission is created, which should consist of three or more people. They not only draw up a document, but also find out the details of what happened.
( Video : “How to punish an employee according to the law - Elena A. Ponomareva”)
How to correctly declare a foreclosure
The employer punishes the employee if the deadlines established for the procedure have not expired (Article 193 of the Labor Code of the Russian Federation).
Punishment is applied no later than:
- 1 month from the moment the violation was discovered (illness, vacation, the period of obtaining the union’s opinion are not included in the calculation of the period, Article 193 of the Labor Code of the Russian Federation);
- 6 months from the date of the violation (in general cases);
- 2 years from the date of the audit of financial and economic activities;
- 3 years from the date of violation when punished for violating prohibitions and restrictions of corruption legislation (the period of criminal proceedings is not included in this period - Article 19 of the Labor Code of the Russian Federation).
The foreclosure procedure consists of the following steps:
- Record the fact in documents (depending on the type of violation - report, act, commission decision).
- Receive an explanatory note from the employee within 2 working days (if refused, draw up a report).
- Issue an order to impose a penalty no later than the deadlines determined by the legislator.
- Familiarize the employee with the administrative document for signature. The employer's completed and approved order to apply a disciplinary sanction must be announced to the employee within 3 working days. If the employee refuses to review and endorse the document, an act of refusal to sign is drawn up.
Who will account for a violation in the form of failure by an employee to fulfill his duties?
Responsibility for drawing up reports in case of failure to fulfill duties in most cases rests with employees holding management positions, for example, heads of structural divisions.
HR specialists can also bring the employee to punishment.
After completing the document, the employees who took part in its preparation notify the employee who is not performing official duties about the creation of the act.
He must familiarize himself with the data indicated on the paper, and then leave his signature on it. If a refusal is received, the drafters of the document make the appropriate one.
It is important to take into account some nuances. For example, if the act was written because an employee appeared at work in a state of any kind of intoxication, he cannot study the contents of the document on the day the offense was committed.
The thing is that at that moment he is recognized as incompetent. In this case, the citizen can familiarize himself with the document only the next day.
Expert opinion
Mikhailov Vladislav Ivanovich
Lawyer with 6 years of experience. Specializes in family law. Knows everything about the law.
If the documentation is drawn up due to improper execution of the provisions of the job description, then the contents of this document should be immediately conveyed to the employee.
Design rules
When drawing up an act of failure to properly fulfill official duties, you do not need to use any unified form.
To fill out the paper, you can use a sample developed by the company’s specialists.
Free style writing is also allowed.
If possible, the act should be drawn up on one sheet of paper. The optimal version of its format is A4. In the header of the document, it is important to indicate the exact name of the company, as well as the city in which the form is issued and the date of its preparation. The name of the paper is written in the middle of the sheet.
The main part follows. It must include the following information:
- the initials and positions of the persons included in the commission, with the participation and under whose control the act was drawn up. The story is told by one specialist. The rest sign the document, thereby confirming that the selected citizen represents the interests of all listed employees;
- position and initials of the employee who failed to fulfill official duties;
- description of the document on the basis of which the violator must perform his official duties. This could be an employment contract, instructions, etc.;
- a detailed statement of the essence of the violation - what exactly was the improper performance or failure to fulfill duties. If there is a job description whose rules have been violated, a reference is made to this document;
- a listing of the consequences that resulted from the employee’s misconduct. For example, an accident, a deterioration in the company’s position, unexpected production costs;
- information about the presence or absence of an explanatory note. You should also indicate whether the employee received an offer to provide it.
At the end of the document, all specialists who took part in its preparation put their signatures on it. They act as confirmation that they fully agree with the information reflected.
The offender must also sign the act. If he refuses to perform this action, the fact of refusal is recorded in the document.
The completed act is handed over to the employer. After studying the paper, the head of the company must conduct an inspection, during which the fact of an offense will be confirmed or denied.
If, based on the results of the investigation, the employee’s guilt is proven, the employer has the right to impose a disciplinary sanction on him. The decision on the type of punishment is made by the manager independently; to impose a penalty, an order of this type is drawn up.
act on improper performance by an employee of his duties - word.
This is what the sample looks like:
How to create an order
The legislator has not defined the form of an order to punish an employee for individual entrepreneurs or legal entities of other forms of ownership. The general situation is this:
- if the penalty is a reprimand or reprimand, then the order is drawn up in any form;
- if the sanction is dismissal, then the document is issued according to the unified form T-8 (approved by the Resolution of the State Statistics Committee of Russia dated January 5, 2004) or an independently developed form.
The order reflects the following information:
- Full name of the employee;
- job title;
- the structural unit where the employee works;
- describe the violation, indicate documents confirming the fact, violated provisions of the contract, instructions, norms containing provisions of labor law, including local acts of the employer;
- the circumstances of the violation, the severity and guilt of the employee;
- type of punishment;
- basis for issuing a local act (details of the document in which the offense is recorded).
Here is what a sample order to punish an employee for a violation looks like:
STATE BUDGETARY EDUCATIONAL INSTITUTION FOR ADDITIONAL CHILDREN’S EDUCATION SPECIALIZED CHILDREN AND YOUTH SPORTS SCHOOL OF OLYMPIC RESERVE “ALLUR”
(GBOU DOD SDYUSSHOR "ALLUR")
about disciplinary action in the form of a reprimand
Due to the absence of riding coach P.P. Petrov from work. 05/11/2020 from 10:00 to 13:00 and the injury received during this period by student Sazonov S.S. (dislocation of the arm joint)
Reprimand the riding coach P.P. Petrov.
— memo from the head of the riding department, Anisimova A.A. from 12.05. 2020;
- medical report on the injury of Sazonov S.S. dated May 11, 2020.
Director ____________________ Ivanov I.I.
Head of the riding department ____________________ Anisimova A.A.
The employee is familiar with the order ______________________ Petrov P.P.
Documents attached to the order
Bringing disciplinary action against an employee is a complex procedure that requires the preparation of a number of documents. All of them subsequently act as appendices to the order of disciplinary action.
If, despite the explanatory note received, the employer decided to punish the employee because he considered his arguments unconvincing, then he should attach it to the order of punishment.
In reality, the employee may refuse to provide an explanation or fail to provide it in a timely manner. This fact is reflected in a written act signed by the witnesses. The report is attached to the order, since failure to comply with the requirement to request explanations from the employee is grounds for challenging the imposition of a penalty.
This is important to know: Recovery of damages from the arbitration manager, judicial practice
Also attached to the order is a memorandum from the employee’s immediate supervisor , which was the basis for imposing a penalty.
If the employee’s misconduct resulted in damage to the employer and harm to the health of third parties, then a special commission may be created to investigate the incident. The results of its work (for example, an act or protocol) are attached to the order.
Thus, a memorandum or protocol of the commission’s work, an explanatory note from the employee or an act of absence are attached to the order to impose a penalty. Also, if the employer has decided on the form of punishment in the form of dismissal, then it may be necessary to obtain a preliminary opinion from the trade union. An order is a mandatory document that is drawn up when an employee is subject to one of the forms of punishment: a reprimand, reprimand or dismissal. It is drawn up in free form, but contains a certain set of necessary information.
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How long to store
As of February 18, 2020, the document storage algorithm is regulated by Rosarkhiv Order No. 236 dated December 20, 2019. The document determined new storage periods for papers generated in the activities of organizations.
The mandatory storage period for personnel administrative documents regarding the imposition of a penalty has been reduced and is 3 years (previously 5 years).
We have prepared a sample order for a disciplinary reprimand or penalty for you. This measure can be applied to an employee if he has not fulfilled his job duties or has not performed them sufficiently fully, efficiently, or responsibly.
Part 1 of Article 192 of the Labor Code of the Russian Federation characterizes this kind of action as a disciplinary offense. The punishment for committing it is punishment.
Types of disciplinary sanctions and what they include
The Labor Code clearly stipulates the list of disciplinary sanctions applied to employees.
Thus, Article 192 of the Labor Code says that an employee may be reprimanded, reprimanded, or dismissed in connection with misconduct falling under Article 81, Parts 5-10.
There is also the so-called special disciplinary liability, regulated by federal, industry or even local legal acts that take into account the peculiarities of labor organization at a particular enterprise.
So, for example, it is often practiced to temporarily (up to 3 months) transfer an employee to a lower position or to another area of work with a lower salary.
If the organization has clearly worked out the provision on bonuses, indicating the powers of management to stimulate employees, then the boss will have the right not to reward the financially delinquent employee.
But using the term “deprive of something” absolutely does not fit into the legal framework.
Definition of misconduct and its signs
The Labor Code provides a clear list of requirements for an employee:
- Perform duties conscientiously.
- Adhere to internal rules.
- Maintain labor discipline.
- Comply with established production standards.
- Comply with labor protection and safety requirements.
- Treat the equipment, property of the employer and colleagues with care.
Failure to comply with these rules, as well as failure to comply with the orders and instructions of the employer, are disciplinary offenses that entail appropriate liability. The most common examples of violations in practice:
- absenteeism;
- refusal to perform work duties;
- evasion of mandatory medical examination.
Do I need to file instructions if instructions are not followed properly?
An act of the specified sample is drawn up in a situation where a citizen employed on an official basis performed his work inappropriately, or completely deviated from fulfilling the powers assigned to him.
The act of improper performance of official duties or failure to fulfill them and the memo have a number of similar characteristics.
A distinctive feature of the first is that its registration must be carried out in the presence of a special commission, the members of which are witnesses to the commission of an offense. The commission must include 3 or more employees.
The need to compile this form occurs when the following violations of production discipline are identified:
- the employee commits actions that contradict the current Labor Legislation;
- the employee’s refusal to comply with the employer’s instructions and duties prescribed by the job description (if the issuance of orders from the manager is permitted by the employment contract);
- missing job description;
- the employee’s inaction at a time when his actions could have prevented an emergency or other similar event;
- absenteeism, being late, etc.
Violations of the listed types can be committed either once or systematically. For registration, it is enough to identify at least one offense.
Types of Disciplinary Action
- Comment.
- Rebuke.
- Dismissal.
There is a misconception that the next most stringent measure can be applied only if the previous one has already been implemented in relation to the employee. That is, a reprimand is only after a reprimand, and dismissal is only after a reprimand.
This is not true. The severity of the penalty applied in a particular case should depend only on the severity of the offense and the circumstances of its commission.
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Rules and procedure for drawing up an order
The order is drawn up in any form. We invite you to familiarize yourself with what information a sample reprimand order for violation of labor discipline should contain. It must contain the following information:
- Name of the organization;
- name, number and date of publication of the document;
- FULL NAME. and the position of the offending employee;
- committed misconduct with references to legislation, employment contract and/or local regulations of the company;
- the circumstances of the offense and the severity of the guilt;
- type of punishment applied (reprimand);
- employer's signature.
Sample order on violation of industrial discipline
Also, for educational purposes, a warning order may be drawn up in connection with a violation of discipline. It is issued in cases where the employer has decided not to punish the employee, but to limit himself to an oral warning about the need to comply with the procedure established at the enterprise.
Sample order: warning about violation of labor discipline
Sometimes an employer who has shown loyalty to an offending employee may not draw up a separate order in relation to him, but limit himself to instructions affecting the entire staff.
Sample order on compliance with labor discipline
The citizen must be familiarized with the order and signed within 3 days. A copy of the order is included in the employee’s personal file.
If the employee refuses the request to sign the order, the employer will be required to draw up a corresponding act in the presence of two witnesses.
There is a limited period for imposing a penalty, which is equal to one month from the date of violation. After 6 months, no penalty can be applied.
Failure to comply with an order (judicial, commander's order, directive) is a socially dangerous act, since as a result of failure to comply with a court verdict or other order, the authority of the judiciary is undermined, the principle of mandatory management orders is violated, and the interests of people, organizations or institutions in whose favor the decision was made are violated. one order or another.
For failure to comply with an order, the Criminal Code of the Russian Federation provides for several articles, including Art. 332. What punishment faces a subordinate for refusing to carry out the order of the commander, and what article regulates failure to comply with a court order?
