What is disciplinary liability, and what types of disciplinary liability are there?

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Published: 05/20/2016

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Disciplinary liability is a type of legal liability that implies adverse consequences for an employee for an offense committed by him.

This type of liability applies exclusively in the employee-employer relationship.

• Regulatory acts
• The concept of employee disciplinary liability
• What is general and special liability?
• Features of applying disciplinary liability to certain categories of employees
• What disciplinary sanctions can be applied to employees?
• Arbitrage practice

Employee disciplinary liability

24.03.20
The article was published in the newspaper “First Page” No. 2 (118), March 2021.

Every employer aims to obtain the greatest material benefit. Achieving this goal is possible through the correct organization of the work process and the effectiveness of interaction with the employee, as well as through the professional and high-quality performance by the employee of his functions and a conscientious attitude to work.

Failure to perform or improper performance of job duties gives the employer the right to bring the employee to disciplinary liability.

Not only the employer, but also the employee himself is interested in the need for high-quality performance of the labor function - due to the imposition of such an obligation on him by legislative provisions, primarily by the norms of the Labor Code of the Russian Federation. Moreover, the employee is subject to the requirements of local regulations adopted by the employer and the norms of the employment contract.

In theory and practice, disciplinary action is understood as a measure of administrative and legal responsibility for intentional failure to perform or improper performance of labor functions, usually entailing adverse consequences for the person who committed such actions.

The general basis for bringing to disciplinary liability is the commission of a disciplinary offense by the employee. According to Art. 192 of the Labor Code of the Russian Federation and paragraph 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” No. 2 of March 17, 2004 (hereinafter referred to as PPVS of the Russian Federation No. 2 of March 17, 2004) disciplinary offense - failure to fulfill labor duties or improper execution through the fault of the employee of the labor duties assigned to him (violation of legal requirements, obligations under the employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.). Consolidating the definition is necessary to distinguish a disciplinary offense from crimes, torts and administrative offenses.

Based on the definition enshrined in the law and judicial practice, we can identify the conditions for the legality of bringing to disciplinary liability.

What is general and special liability?

According to labor law, an employer can apply in relation to

There are two types of disciplinary liability for the offending employee: general and special.

All employees with whom an employment contract has been concluded may be subject to general liability.

General and special disciplinary liability have a number of differences.

• Firstly, the subject of responsibility: in the first case, these are all employees and employers, regardless of the form of their labor relations, and in the second, a narrow list of positions.
• Secondly, the sources of legal acts: general responsibility is regulated by the general provisions of the Labor Code of the Russian Federation, special responsibility - by certain regulations or special legislation.

Conditions for the legality of bringing to disciplinary liability

The fact of committing a disciplinary offense

Art. 192 of the Labor Code of the Russian Federation establishes the concept of a disciplinary offense, which gives impetus to the formulation of conditions for imposing disciplinary sanctions. Accordingly, the first condition is the fact of committing a disciplinary offense, which can be expressed in action or inaction.

The action must be specifically described. Indication in the order in accordance with Art. 192, 193 of the Labor Code of the Russian Federation, a general phrase about the application of a disciplinary sanction in the form of a remark in connection with the failure or improper performance by an employee, through his fault, of the labor duties assigned to him without specifying exactly what unlawful actions (inaction) he committed, deprives the person subject to disciplinary liability , the opportunity to object to the employer’s arguments, and the court - the opportunity to assess the circumstances that served as the basis for bringing the employee to disciplinary liability (Decision of the Onega City Court dated February 26, 2019 in case No. 2-120/2019).

Illegality of an employee’s actions or inaction

The second condition recognizes the illegality of the employee’s actions or inaction, which implies non-compliance of the employee’s behavior with laws, other regulatory legal acts, including internal labor regulations, regulations and charters on discipline, job descriptions, etc., as well as the terms of the employment contract. In other words, it is possible to bring an employee to disciplinary liability only if the job duties, which, in the opinion of the employer, are not performed or are performed improperly by the employee, are clearly established in regulatory legal or local acts, and, in addition, the employee was familiar with them. This conclusion is confirmed by judicial practice.

For example, the Decree of the Perm Regional Court dated May 14, 2014 in case No. 33-4192 declared the order to impose a penalty illegal, since in the absence of a job description and official familiarization with one’s official duties, it is impossible to establish the terms of reference of the plaintiff employee and charge him with failure to fulfill duties . In addition, the employee’s existence of certain responsibilities could be confirmed by other documents, for example, in this case, an order to include this employee in the project implementation group, but the materials of the said case contained only an order in which there was no information about the plaintiff employee.

Also, by the Decision of the Blagoveshchensk City Court of the Amur Region dated January 30, 2019 in case No. 2-854/2019, it was noted that disciplinary sanctions can only be applied for failure to perform or improper performance of labor duties assigned to the employee by the employment contract, internal labor regulations, job descriptions, regulations , orders of the employer.

Employee's fault

The third condition for bringing to disciplinary liability is the employee’s guilt, that is, the employee’s mental attitude towards the act he commits. At the same time, according to judicial practice, guilt has the forms of intent and negligence.

Intentional guilt presupposes a certain volitional decision (action or inaction) aimed at violating established rules of behavior. Carelessness as a form of guilt occurs when the employee does not foresee the consequences of his unlawful action, although he should have foreseen; or when he foresees such consequences, but frivolously hopes to prevent them (Decision of the Okhotsk District Court of the Khabarovsk Territory dated March 13, 2019 in case No. 2-50/2019).

At the same time, the courts indicate that failure to perform or improper performance of duties for reasons beyond the control of the employee (for example, due to lack of necessary materials, due to insufficient qualifications of the employee, due to his illness, etc.) cannot be considered guilty. .

So, for example, by the Decree of the Lipetsk Regional Court dated December 26, 2005 in case No. 33-2065/2005, the employee was reinstated in his position, since the employer was to blame for the occurrence of surpluses at the time of the inventory, who did not provide the workshop with dust-proof scales and other means necessary for proper execution labor responsibilities.

In addition, the employer must provide evidence of the plaintiff’s culpable unlawful behavior, and the order imposing a disciplinary sanction must contain a clear and understandable statement of the employee’s guilt in the alleged disciplinary offense and an indication of the violation of specific job duties provided for in the job description or employment contract, which the employer puts into the concept of failure to perform or improper performance of one’s official duties (Decision of the Onega City Court dated February 26, 2019 in case No. 2-120/2019).

Causal relationship between the employee’s guilty actions and the harmful consequences that occur

The fourth condition for applying a disciplinary sanction is a causal connection between the employee’s guilty actions and the harmful consequences that occur.

In the Decision of the Central District Court of the city of Togliatti, Samara Region dated February 20, 2019 in case No. 2-6346/2018, a disciplinary sanction was applied to the employee in the form of a reprimand for a disciplinary offense - improper implementation of administrative and functional management of the activities of the department of urban planning activities - which resulted in improper conduct of general log of work at the site. However, the court did not consider the employee’s act to constitute a disciplinary offense and overturned the employer’s decision to impose a disciplinary sanction.

According to the court, the employer did not provide evidence of a cause-and-effect relationship between the act, expressed in the improper implementation of administrative and functional management of the department’s activities, and the consequences in the form of improper maintenance of a general journal. Moreover, the court found that management functions were not fixed in any regulatory or local act.

Thus, when bringing an employee to disciplinary liability and imposing a penalty, all elements must be present. If at least one of them is missing, the employee has the right to appeal the employer’s decision in pre-trial and/or judicial proceedings.

Essence

Disciplinary liability is a specific type of legal liability, the implementation of which occurs in the process of implementation of labor relations by the parties.

It consists in the right of the employer to apply penalties provided for by law against the employee.

Disciplinary liability is a kind of negative reaction of the employer to the actions of a subordinate that go beyond the rules established by labor legislation. It implies certain negative consequences for him, which are, first of all, educational in nature.

The right to apply this type of liability rests entirely with the employer. He can not only decide whether to punish an employee, but also choose a specific measure of influence on him.

An important condition for this is the presence of grounds, that is, guilt on the part of the employee. The general basis for the application of this type of liability is the commission of a disciplinary offense. Depending on its severity, a specific punishment can be chosen.

A disciplinary offense is an employee’s actions (or inaction) that result in a violation of labor laws or internal company rules. It may also be failure to fulfill or perform at an inadequate level his direct duties.

As a result of committing an offense, an employee can cause certain harm to the company, both organizational and material. In the latter case, we may be talking about the application of not only disciplinary, but also material liability.

What must be considered when determining disciplinary action?

Taking into account the specifics of the relationship between employer and employee, as well as the breadth of possible disciplinary offenses and facts influencing its commission, the legislator established a number of circumstances that must be taken into account by the employer when imposing a certain disciplinary sanction on the employee.

In such circumstances, according to Art. 192 of the Labor Code of the Russian Federation includes the severity of the offense committed, the circumstances under which it was committed, as well as the previous behavior of the employee and his attitude to work. If the employer does not take into account these facts, the court may declare the order to impose a disciplinary sanction illegal, even in the case where a disciplinary offense has occurred.

The legislation does not explain what exactly is included in these circumstances. However, based on the analysis of judicial practice, certain conclusions can be drawn.

Many questions arise regarding what is meant by the severity of the offense committed. As a rule, judicial practice is based on the nature of the labor functions performed by the employee and the number of employees involved in the production process. So, for example, in the Appeal ruling of the Krasnoyarsk Regional Court dated March 13, 2013 in case No. 33-2309, when determining the severity of the offense, the court indicated that the act committed by the employee (established as a result of a medical examination, the employee’s appearance at work with signs of alcohol intoxication - the smell of alcohol from mouth) created a threat to life and health for him and other workers, the risk of causing property damage and other serious consequences, since the area where he worked was classified as a hazardous industry.

In the Decision of the Novoilinsky District Court of the city of Novokuznetsk dated November 27, 2015 in case No. 2-1941/2015, the severity of the offense also refers to the degree of danger of the function performed, the possibility of its influence on the life and health of other people. Moreover, the courts take into account the nature and quantitative criterion of the harmful consequences that have occurred, for example, the death of five people as a result of a traffic accident due to the fault of an employee (Decision of the Pravoberezhny District Court of the city of Lipetsk dated February 27, 2019 in case No. 2-3304/2018).

When applying a disciplinary sanction, one cannot ignore the circumstances under which the disciplinary offense was committed. Thus, the cassation court declared illegal the dismissal of a citizen for transferring a work of service to a scientific library, the exclusive right to which belongs to the employer. According to the cassation court, the lower courts did not take into account that, according to the employee’s testimony, the transfer of the result of intellectual activity corresponded to the established practice of transferring varieties of cultivated plants to other scientific institutions. Moreover, the employee acted based on the knowledge that an agreement on scientific and technical cooperation was concluded between the employer and the library where the work was transferred (Resolution of the Primorsky Regional Court dated 02/11/2019 in case No. 44G-16/2019).

Since the law does not establish a clear list of circumstances that must be taken into account, they are considered in each case individually, depending on the nature of the work, work schedule, actions of other employees, etc.

By the decision of the Industrial District Court of Khabarovsk dated July 26, 2019, in case No. 2-115/2019, the employer’s order to impose a disciplinary sanction in the form of a reprimand was canceled. In this decision, the court indicated that the employer did not take into account several factors influencing the employee’s commission of misconduct:

• due to the fault of the depot of the city of Vladivostok, there was an understaffing of conductor workers, and therefore the plaintiff was forced to increase overtime hours, which resulted in incorrect placement of personnel;
• the plaintiff acted in accordance with the instructions of the head of the reserve to prevent disruption of train departures;
• for the period for which the penalty was imposed, the plaintiff performed the functions of other employees.

The court noted that these circumstances could not but lead to a decrease in the quality of the plaintiff’s work.

When studying the circumstances influencing the application of a disciplinary sanction, it should be said that the courts often point to the obligation of employers to take into account the behavior of the employee prior to the commission of a disciplinary offense and his attitude towards work. Obviously, this provision was introduced in order to minimize losses for the employee, taking into account the unequal relationship with the employer.

So, for example, an employee who committed absenteeism, but at the same time worked conscientiously, regularly stays late at the workplace, is repeatedly called upon to perform his official duties on holidays and weekends, and has bonuses and rewards for conscientious work, cannot be fired. This position is based on judicial practice, which notes that given the totality of the above facts that positively characterize the employee, dismissal is too severe a form of punishment (Resolution of the St. Petersburg City Court dated March 27, 2019 in case No. 44G-86/2019).

Speaking about the circumstances taken into account when determining the type of disciplinary sanction, it is worth pointing out that the employer in each case must explore the possibility of applying the least severe type of disciplinary sanction to the employee. In this article, we will dwell on the most pressing and problematic issues that arise in connection with the choice of each type of penalty.

The concept of disciplinary offenses and legal norms

The concept of a disciplinary offense and the procedure for holding an employee accountable for committing them are spelled out in the Labor Code in Art. 192. Also in this case, it is worth following Resolution No. 2 of the Plenum of the Supreme Court.

A disciplinary offense is an unlawful, guilty violation of labor or service discipline by an employee, for which disciplinary liability is provided. A disciplinary offense can be understood as an employee’s violation of the provisions of a job description, internal regulations or labor discipline.

In Art. 21, 189 of the Labor Code states the employee’s obligation to comply with these rules, and Art. 22, 191 provides for the employer’s right to reward an employee for the conscientious performance of his duties; Art. 22, 192, on the contrary, provides for punishment of employees if they fail to perform or perform improperly.

Also, on the issue of disciplinary offenses, it is necessary to take into account the provisions of Art. 81 of the Labor Code, which contains grounds for termination of an employment contract as a form of disciplinary action.

The possibility of simultaneously bringing an employee to disciplinary and financial liability is stipulated in Article 248 of the Labor Code of the Russian Federation. The duration of a disciplinary sanction is established in Art. 194 Labor Code of the Russian Federation. The maximum time limits given to the employer for penalties for committing a disciplinary offense by an employee are given in Art. 193 Labor Code of the Russian Federation.

The concept of disciplinary offense for certain categories of persons is specified in special laws. So, for example, according to Art. 28.3 Federal Law-76 “On the status of military personnel” it is not allowed to classify actions under orders and in necessary defense as misdemeanors.

Also, the internal regulations of the enterprise can be devoted to the definition and classification of offenses and the procedure for imposing penalties.

Types of disciplinary sanctions

The mildest penalty is a reprimand, which is most often applied for minor one-time violations of the organization of the labor process. Judicial practice contains the following examples of offenses that resulted in the application of a reprimand:

• failure to comply with the requirements of the order to comply with the job description (Appeal ruling of the Nizhny Novgorod Regional Court dated August 12, 2014 in case No. 33-6561/2014);
• improper organization of the work process / work department (Decision of the Khanty-Mansiysk District Court dated December 18, 2013 in case No. M-4075/2013);
• failure to comply with job description (Decision of the Pervomaisky District Court of the city of Murmansk dated February 27, 2019 in case No. 2-833/2019);
• lateness (Decision of the Sverdlovsk District Court of Belgorod dated February 13, 2019 in case No. 2-987/2019).

Certain difficulties in labor relations are associated with the use of such penalties as a reprimand. This type of disciplinary action requires a written form. Often, when issuing a reprimand, employers enshrine it in the order for disciplinary action as a “severe reprimand”, “reprimand with entry”, etc. However, according to legislation and judicial practice, such a disciplinary sanction is not provided for by the Labor Code of the Russian Federation, and therefore should be declared illegal ( Decision of the Ilishevsky District Court of the Republic of Bashkortostan dated March 25, 2013 in case No. 2-118/2013).

One of the most common and strict types of penalties is termination of an employment contract or dismissal on the grounds provided for in Art. 81 Labor Code of the Russian Federation. Let's focus on those that require the most attention.

How to correctly issue an order to punish a violator?

The procedure for applying punishment will comply with legal requirements if a number of rules are observed:

• Before being allowed to work, a new employee must be familiarized with all the standards of conduct and duties that he must perform, on receipt.
• The employee’s clear fault must be seen in the misconduct committed.
• Each violation, when detected, is immediately documented.
• The employee is given 2 working days to submit his explanation of what happened in writing. He can refuse this. Then they draw up an act of refusal to provide explanations.
• A decision on collection can be made no later than 1 month from the date of discovery of the offense and before the expiration of 6 months (and for financial violations - 2 years) from the date of its commission. These periods do not include some periods during which the employee is absent from work (Article 193 of the Labor Code of the Russian Federation).
• The employee is presented with the order of punishment against receipt no later than 3 working days from the date of its preparation. If you refuse to sign it, an act is drawn up.

When drawing up an order on disciplinary liability, you can create a sample yourself; be guided by the regulations. But it is better to use the recommendations contained on our website.

To learn how to correctly draw up an order to punish an employee, read the material “Order on Disciplinary Sanction - Sample and Form.”

One-time gross violations

Let's consider one-time gross violations of labor duties by an employee, established by clause 6, part 1, art. 81 Labor Code of the Russian Federation.

Absenteeism

One of these violations is truancy, the definition of which is established by subsection. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. According to the clarification of clause 39 of the RF PPVS No. 2 dated March 17, 2004, absenteeism is also considered an employee’s unauthorized departure on vacation.

To justify the absence of grounds for dismissal for absenteeism, the employee must prove a valid reason for a long absence from the workplace. For example, in one of the cases, the plaintiff indicated that his absence from work in the period from 12/04/2018 to 12/07/2018 was explained by his being near his mother, providing assistance and caring for her, and the court demanded evidence of the circumstances referred to by the plaintiff (Decision of the Leninsky District Court of the city of Izhevsk of the Udmurt Republic dated February 19, 2019 in case No. 2-3085/2018).

Upon dismissal under sub. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the presence of outstanding disciplinary sanctions may be taken into account, although such a fact is not mandatory for dismissal. Thus, at the time of absenteeism, the employee had an outstanding disciplinary sanction in the form of a reprimand for improper performance of official duties for the total volume of work to be performed and provided for by the Characteristics of the work of a cleaner of production and office premises of department 415 (Decision of the Korolevsky City Court of the Moscow Region dated 02/21/2018 case No. 2-4223/2017).

Appearing drunk

Subp. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation defines as a one-time gross violation the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication.

Based on the provisions of clause 42 of the RF PPVS No. 2 of March 17, 2004, when resolving disputes related to the termination of an employment contract under this subclause, the courts must keep in mind that on this basis, employees who were at the place of work during working hours can be dismissed work duties in a state of alcohol, drug or other toxic intoxication. It does not matter whether the employee was suspended from work due to this condition (Decision of the Central District Court of Tula dated 02/07/2018 in case No. 2-3430/2017).

Possible ways to confirm the state of intoxication:

1. Medical examination. Order of the Ministry of Health of Russia dated December 18, 2015 No. 933n approved the Procedure for conducting a medical examination for intoxication (alcohol, drugs or other toxic). Clause 3 of this Procedure provides for the availability of a special license from the medical organization (its separate structural unit) conducting the relevant medical examination.
2. External signs of intoxication (presence of one or more signs, including the smell of alcohol on the breath).
3. Witness's testimonies. Thus, in one of the cases, witness S.A.A. explained that S.S.S. compared to Petrov M.Yu. was heavily intoxicated, and indicated that both one and the other had a strong alcoholic odor from their breath. Witness S.A.A. confirmed that the employees were asked to undergo examination at a drug treatment clinic, but Petrov refused, just as he refused to sign the report at all. Thus, from the totality of the evidence presented, including the explanations of witnesses, the court comes to the conclusion that the fact that M. Yu. Petrov was intoxicated at the court hearing was confirmed. The court has no reason not to trust the testimony of witnesses K.P.G., K.O.E., S.A.A. and M.V.N., these witnesses were warned of criminal liability, their testimony is consistent with each other, not contradict and are confirmed by objective evidence - an act, an explanatory report (Decision of the Voroshilovsky District Court of the city of Volgograd dated November 3, 2015 in case No. 2-3784/2015).

It must be taken into account that dismissal on this basis can also follow when the employee during working hours was in such a state not at his workplace, but on the territory of this organization or on the territory of a facility where, on behalf of the employer, he had to perform a labor function.

Disclosure of secrets

Subp. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation calls a one-time gross violation of labor duties the disclosure of a secret protected by law (state, commercial, official, etc.) that has become known to an employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee.

Dismissal on this basis may be considered lawful if the following conditions are present:

• the obligation not to disclose such a secret is expressly provided for in the employment contract with the employee;
• the employment contract or annex to it specifies exactly what specific information containing a commercial or other secret protected by law the employee undertakes not to disclose;
• a secret protected by law was entrusted (became known) to the employee in connection with the performance of his labor function;
• information that, in accordance with the employment contract, the employee undertakes not to disclose, according to the current legislation, can be classified as information constituting a commercial and other secret protected by law.

Immoral act

Clause 8, part 1, art. 81 of the Labor Code of the Russian Federation establishes that an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work.

The Labor Code of the Russian Federation does not contain a definition of an immoral offense and does not establish any criteria on the basis of which the offense of a person performing educational functions can be recognized as immoral. Thus, any violation of moral principles and generally accepted norms of behavior in society can be considered an immoral offense, and the employer is given the opportunity to independently resolve this issue depending on the specific circumstances of the case.

By virtue of clause 46 of the RF PPVS No. 2 of March 17, 2004, when considering cases of reinstatement at work of persons whose employment contract was terminated due to their committing an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81 Labor Code of the Russian Federation), courts should proceed from the fact that on this basis it is permissible to dismiss only those employees who are engaged in educational activities (teachers, teachers of educational institutions, vocational training supervisors, teachers of children's institutions), regardless of where the immoral offense was committed - according to place of work or at home.

In judicial practice, fights, drinking alcohol in a public place, appearing at work or in public places in a state of alcoholic or drug intoxication that offends human dignity, and unworthy behavior in everyday life are considered as grounds for dismissal (Decision of the Kumertau City Court of the Republic of Bashkortostan dated November 12, 2018 in case No. 2-2407/2018; Decision of the Kobyaisky District Court of the Republic of Sakha (Yakutia) dated November 8, 2018 in case No. 2-315/2018).

Responsibility

An employee who has violated legal norms or labor discipline rules may be subject to various types of liability depending on the severity of the offense. Thus, an employee can be brought to criminal liability only by a court decision, and to administrative liability - by order of supervisory authorities vested with the appropriate powers. Bringing an employee to disciplinary liability is within the competence of the employer.

Responsibility for disciplinary offenses comes in the form of disciplinary sanctions . According to Art. 192 of the Labor Code, three types of disciplinary sanctions are possible: reprimand, reprimand or dismissal.

Certain categories of employees face other types of such disciplinary action. For example, civil servants or police officers may be severely reprimanded under Art. 57 FZ-79 of 2004 or Art. 41.7 Federal Law No. 2201-1 of 1992. For prosecutors and customs officials, disciplinary offenses are fraught with a warning about incomplete official compliance under Art. 50 FZ-342 or clause 32 of FCS Order 31658 of 2008.

It is worth emphasizing that the Labor Code does not allow the use of forms of disciplinary sanctions that are not provided for by federal laws, charters and regulations on discipline under Part 4 of Art. 192 TK. Therefore, imposing fines on employees for disciplinary offenses is contrary to the law.

At the same time, an employee who has committed a disciplinary offense may be legally deprived of bonuses and other incentive payments. Or their size is subject to reduction if this is stipulated in the local regulations of the employer.

The employer himself has the right to decide what punishment to apply to the employee for the offense he has committed. Moreover, it must be commensurate with its gravity, the circumstances of its commission under Part 5 of Art. 192 of the Labor Code and the employee’s previous behavior, his attitude towards the performance of work duties.

The most common measure of liability is a reprimand.

Dismissal is the most severe form of punishment and is used in cases of gross violation of labor duties. In clause 6, part 1, art. 81 of the Labor Code states when it is permissible to dismiss an employee, even if he has committed an offense once. This list includes:

1. Absenteeism.
2. Showing up at work under the influence of alcohol or drugs.
3. Disclosure of state, official or commercial secrets , including through disclosure of personal data.

It is also possible to dismiss an employee if he has repeatedly failed to fulfill his job duties, and provided that a disciplinary sanction has been applied to him during the last year and at the time of the repeated offense it has not been removed or extinguished. It does not matter what form the first penalty took: a reprimand or a reprimand.

It is also not necessary that we are talking about the same misconduct: for example, only about the employee being late or exclusively about poor quality work. Violations can be different.

Procedure for applying disciplinary action

Before imposing disciplinary action, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

If the employer does not request an explanation, this will be the basis for declaring the decision to impose disciplinary liability illegal, which is confirmed by judicial practice (Determination of the Leningrad Regional Court dated November 7, 2012 in case No. 33-4929/2012).

It should be noted that the form in which the employer must request an explanation from the employee is not established by labor legislation. However, in order to be able to prove compliance with the procedure for applying a disciplinary sanction, such a requirement must be presented to the employee in writing and signed.

If an employee refuses to give an explanation, the employer must draw up a protocol about this, then the employee’s failure to provide an explanation will not be an obstacle to applying a disciplinary sanction.

Do not forget about the deadlines for applying penalties, since they are strictly formalized by the Labor Code. According to the Labor Code of the Russian Federation, the period for applying a disciplinary sanction is 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.

Situations arise when an offense was committed at one time, it was discovered at another, and a report about it was drawn up late. For example, this happened to an employee who was fired for absenteeism a year after she committed a disciplinary offense. The court declared such dismissal illegal and reinstated her at work (Appeal ruling of the Moscow Regional Court dated April 17, 2013 in case No. 33-8729/2013).

Moreover, it is important to draw the attention of employers and employees that only one penalty can be applied for each offense. So, for example, by the decision of the Kormilovsky District Court of the Omsk Region dated February 24, 2016 in case No. 2-118/2016, the court declared the dismissal order illegal due to a violation of the principle of Art. 193 of the Labor Code of the Russian Federation - for each disciplinary offense only one disciplinary sanction can be applied. In this case, the employee was reprimanded for violating the legislation on municipal service, and subsequently he was fired for the same thing.

After the employer has decided to bring the employee to disciplinary liability, in accordance with Art. 193 of the Labor Code of the Russian Federation, he must provide it to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work.

If the employer did not do this, the decision to impose a penalty may be considered illegal. For example, by the decision of the Industrial District Court of the city of Khabarovsk, Khabarovsk Territory dated January 30, 2019, in case No. 2-266/2019, the employee was reinstated at work. One of the grounds for recognizing the dismissal order as illegal was the violated procedure for familiarizing with the order.

From the analysis of legislation and judicial practice, we can conclude that employers often neglect the rules and procedures for bringing an employee to disciplinary liability.

However, due to the fact that labor legislation is strictly formalized, in order to avoid labor disputes and violations of rights and legitimate interests, it is necessary to strictly adhere to the established rules.

In particular, you need to remember:

• An employee can only be attracted for violating a job obligation that is strictly specified in an employment contract or other local act regulating labor activity;
• the employee’s actions must necessarily contain elements of an offense;
• when imposing a disciplinary sanction due to the employee’s weak position in labor relations, circumstances mitigating the employee’s liability must be taken into account;
• When applying a penalty, the employer must strictly follow the procedure for imposing the penalty. Otherwise, even if there was a violation, but the order was violated, the court will side with the employee and cancel the decision to impose a penalty.

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Disciplinary liability: concept and types of penalties. Disciplinary proceedings

In the course of their professional activities, employees often commit certain violations of labor discipline, which may constitute a disciplinary offense.

To suppress and prevent such offenses, the employer must be aware of possible disciplinary measures and the procedure for imposing it on an employee: when there is the right to dismiss him, and when it is necessary to limit himself to a less severe punishment. Issues of applying disciplinary sanctions are proposed to be considered in this article. Disciplinary sanctions In general, liability in labor law is the obligation of a participant in a social-labor relationship to suffer the adverse consequences of committing an action or inaction that causes harm to another participant in the legal relationship. A type of liability applied within the framework of labor law is disciplinary liability, which is understood as the obligation of an employee to answer for a disciplinary offense committed by him and to bear the penalties provided for by labor legislation. The basis for bringing to disciplinary liability is the commission of a disciplinary offense. In accordance with Art. 192 of the Labor Code of the Russian Federation, a disciplinary offense can be defined as the failure or improper performance by an employee, through his fault, of the labor duties assigned to him. The object of a disciplinary offense, that is, those social relations that are violated as a result of its commission, is the internal labor regulations. According to the object, disciplinary offenses can be divided into four groups: – encroachments on the full use of working time (absenteeism, tardiness); – encroachments on the careful and proper use of the employer’s property; – encroachments on the order of management of production processes in the organization (failure to comply with orders, instructions); – encroachments that create a threat to the life, health, morality of an individual employee or the entire workforce (violation of labor protection rules). On its objective side, a disciplinary offense can be expressed in the unlawful failure or improper performance by an employee of his labor duties, that is, it can be either an action or an inaction. In some cases, for the emergence of an offense, the presence of consequences in the form of harm and, accordingly, a causal connection between the act and the consequences is required. As for the subjective side, there must be guilt, in any form - intent or negligence. Failure by an employee to fulfill labor duties for reasons beyond his control is not a labor offense. The subject of a disciplinary offense is always the employee. Unlike a crime, a disciplinary offense is not characterized by a social danger, but is a socially harmful act. As a consequence, it entails the application of disciplinary measures. Article 192 of the Labor Code of the Russian Federation provides for the following types of disciplinary sanctions: – reprimand; – reprimand; – dismissal for appropriate reasons. At the same time, it is indicated that federal laws, charters and regulations on discipline for certain categories of employees may also provide for other disciplinary sanctions. The application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline, that is, local regulations, is not permitted. All disciplinary measures are imposed by the employer. The most severe, extreme disciplinary measure is dismissal. It is possible in the following cases: 1) repeated failure by an employee to fulfill work duties without good reason , if he has a disciplinary sanction ( clause 5 of Article 81 of the Labor Code of the Russian Federation ); 2) a single gross violation of labor duties by an employee ( clauses 6 , 9 and 10 of Article 81 , clause 1 of Article 336 and Article 348.11 of the Labor Code of the Russian Federation ), namely: – absenteeism (absence from work without good reason for more than four hours in a row during the working day); – appearing at work in a state of alcohol, drug or other toxic intoxication; – disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties; – committing at the place of work theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, official, body authorized to consider cases of administrative offenses; – determination by the labor safety commission or the labor safety commissioner of a violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences. In addition, dismissal is possible under clauses 7 and 8 of Part 1 of Art. 81 of the Labor Code of the Russian in cases where guilty actions giving grounds for loss of trust and an immoral offense, respectively, were committed by an employee at the place of work and in connection with the performance of his job duties. Separate grounds for dismissal at the initiative of the employer are provided for the heads of the organization, his deputies and the chief accountant ( clauses 9 and 10 of Article 81 of the Labor Code of the Russian Federation ): - making an unfounded decision that entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization; – one-time gross violation of labor duties. The procedure for applying disciplinary sanctions The procedure for bringing to disciplinary liability is regulated by Art. 193 Labor Code of the Russian Federation . Based on labor legislation, the following stages of disciplinary proceedings can be distinguished. Initiation of disciplinary proceedings. The employer interviews witnesses and gets acquainted with the proposal to bring the employee to disciplinary liability, received from a person who does not have the right to impose disciplinary measures. The employer must request a written explanation . If after two working days the employee has not provided the specified explanation, then an act of refusal to give written explanations is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. The manager’s choice of a specific method of influencing the offender and making a decision. When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account. The following rules must be observed: - 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 necessary to take into account the opinion of the representative body of employees. The day the misconduct was discovered is the day when the immediate supervisor became aware of the misconduct, regardless of whether he had the right to apply disciplinary measures; – a disciplinary sanction cannot be applied later than six months from the date of commission of the offense , and a penalty based on the results of an audit, inspection of financial and economic activities or an audit – later than two years. The specified time limits do not include the time of criminal proceedings; – for each disciplinary offense only one disciplinary sanction can be applied . Issuing an order (instruction) and bringing to disciplinary liability. The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the order (instruction) against signature, then a corresponding act is drawn up. A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes. Removal of disciplinary action. A disciplinary sanction is valid for one year from the date of application . 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 to have no disciplinary sanction, that is, it is automatically removed (without any special orders). The employer, before the expiration of a year from the date of application of a disciplinary sanction, has the right to remove it from an 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 (early removal of a disciplinary sanction). A corresponding order is issued regarding the early lifting of a disciplinary sanction. Circumstances that need to be checked when imposing a disciplinary sanction When imposing a disciplinary sanction, it is necessary to clarify the following circumstances: - what the offense was expressed in and whether this can be a basis for imposing a disciplinary sanction; – whether the offense was committed without good reason; – whether the performance of actions that the employee did not perform (performed improperly) was within the scope of his duties and what document provided for these duties; – whether the employee is familiar with the local act, which stipulates the corresponding responsibilities, against signature; – whether the disciplinary measures applied to the employee are provided for by law or regulations or charter on discipline; – whether the terms and procedure for imposing disciplinary sanctions have been observed; – whether the penalty was imposed by the same official. Disciplinary action can only be imposed by the supervisor. Other persons can impose penalties only on the basis of documents that specifically state such powers. Features of bringing to disciplinary liability the head of the organization, the head of the structural unit, their deputies at the request of the representative body of employees The employer is obliged to consider the application of the representative body of workers about the violation by the head of the organization, the head of the structural unit, their deputies of labor legislation and other acts containing labor law, collective conditions contracts, agreements and report the results of its consideration to the representative body of workers. If the violation is confirmed, the employer must apply disciplinary action to the head of the organization, the head of the structural unit, and their deputies, up to and including dismissal. Dismissal as a disciplinary measure Cases where a disciplinary offense may lead to dismissal are clearly regulated. In practice, it happens that an employer tries to fire an unwanted employee on these grounds. This may lead to the dismissal being declared illegal and, accordingly, compensation to the employee for forced absence. Let's consider when a disciplinary measure such as dismissal can be applied in more detail. Clause 5 of Art. 81 of the Labor Code of the Russian Federation provides for termination of an employment contract for repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction . Dismissal on this basis will be lawful if the following circumstances exist simultaneously: 1) the employee has a disciplinary sanction for the last working year, it has not been removed or repaid, there is an order (instruction) to impose a disciplinary sanction; 2) the employee committed a disciplinary offense, that is, a labor offense - did not fulfill his labor duties without good reason; 3) the employer requested from the employee a written explanation of the reasons for the labor offense no later than one month from the date of discovery of the offense and six months from the date of its commission (two years for an audit); 4) the employer took into account the employee’s previous behavior, his many years of conscientious work, and the circumstances of the offense. The dismissal order in this case must indicate as a basis the numbers and dates of orders on previously imposed disciplinary sanctions, the essence of the offense, the date and circumstances of its commission, consequences, absence of valid reasons, absence (presence) of an explanation from the employee. It is also necessary to make a reference to documents confirming the commission of the offense. The dismissal of trade union members is carried out taking into account the opinion of the trade union. Other disciplinary measures cannot be applied. Clause 6 of Art. 81 of the Labor Code of the Russian Federation provides as a basis for dismissal the commission of a single gross violation of labor duties by an employee and indicates five possible options for such violations. The list is exhaustive and is not subject to broad interpretation. For all five subparagraphs of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, the terms and rules for imposing disciplinary sanctions must be observed ( Articles 192 and 193 of the Labor Code of the Russian Federation ). In paragraph 6 of Art. 81 of the Labor Code of the Russian Federation provides for the following grounds for dismissal. Firstly, this is absenteeism ( paragraph “a” ), that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as absence from the workplace without good reason for more than four hours in a row during a working day (shift). Thus, the Labor Code of the Russian Federation has given a more stringent definition of absenteeism than it was before. Dismissal on this basis can be made, as stated in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated April 17, 2004 No. 2 ( clause 39 ), for the following violations: a) leaving work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer on termination of the employment contract, as well as before the expiration of the two-week warning period (see Article 80 of the Labor Code of the Russian Federation ); b) absence from work without good reason, that is, absence from work throughout the entire working day (shift), regardless of the length of the working day (shift); c) the employee stays outside the workplace without good reason for more than four hours in a row during the working day; d) unauthorized use of time off, as well as unauthorized going on vacation (main, additional). Often, dismissal for absenteeism is associated with the employee’s refusal to start work to which he has been transferred. But if the transfer to another job was carried out in violation of the transfer rules, such a refusal cannot be qualified as absenteeism. When the court reinstates an employee who was illegally dismissed for absenteeism, payment for forced absenteeism is made from the day the dismissal order is issued: only from this time is absenteeism forced. Usually, the court considers valid reasons for an employee’s absence from the workplace to be confirmed by documents or testimony: – illness of the employee; – delay of transport in case of an accident; – passing exams or tests without proper registration of study leave; – floods and fires in the apartment and other circumstances. Subparagraph “b” of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation provides for such grounds for dismissal as appearing at work in a state of alcohol, narcotic or other toxic intoxication . An employee who appears at any time of the working day (shift) in a state of intoxication, the employer is obliged to suspend from work on that day (shift). The removal of an employee is formalized by order. If the employee was not suspended from work, evidence of this basis is a medical report, a report drawn up at that time, witness testimony and other evidence under the Code of Civil Procedure of the Russian Federation. In any case, it is necessary to draw up an act on the commission of such a disciplinary offense, as required by the general rules for bringing to disciplinary liability. Subparagraph “c” of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation introduced a new basis for dismissal, classified as gross violations - disclosure of secrets protected by law (state, commercial, official, etc.) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee. An employer can fire an employee for a one-time offense of this kind. Since the vast majority of employees do not know what is considered a commercial or official secret, much less any other secret, employers can abuse this basis for dismissal. Therefore, additional clarification is required on this issue - in particular, are all employees of the organization responsible for the non-disclosure of commercial or official secrets or only those whose employment contracts indicate the corresponding condition, whether what is specified in the organization’s charter is a secret protected by law, etc. d. Subclause “d” of clause 6 of Art. 81 of the Labor Code of the Russian Federation contains such grounds as the theft (including small) of someone else’s property at the place of work, its embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of the relevant administrative body (police, for example). If there are no such documents, and there is only, say, a report from a watchman about an attempt to remove production products, the employee cannot be fired on this basis, otherwise the court, when considering a dispute over dismissal, will reinstate him at work, that is, the fact of theft must be established by the competent authorities. The month for dismissal in this case is calculated from the moment the court verdict enters into force or a decision of another competent authority. Subparagraph "d" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, as a basis, is provided for the establishment by the Commission on Labor Protection or the Commissioner for Labor Protection by the employee of labor protection requirements, if this violation entailed grave consequences or obviously created a real threat to the onset of such consequences . Graceful consequences include an accident in production, accident, disaster. But the consequences indicated here or the obviously real threat of their occurrence should prove the employer in court when considering the dispute in court. In addition to the already named, paragraph 7 of Art. 81 of the Labor Code of the Russian Federation enshrines the ability to dismiss an employee directly serving cash or commodity values ​​for the performance of guilty actions that give the basis for the loss of trust in him by the employer . On this basis, only an employee who directly serves monetary or commodity values ​​can be dismissed, regardless of what type of liability (limited or complete) is assigned to him. On the vast majority, these are the so -called financially responsible persons (according to the law or under the contract), that is, sellers, cashiers, warehouses, etc. (cannot be attributed to them: they protect the material values ​​located under the castle). The employer must prove the distrust of the employee with facts (acts on leaps, carrying, shortage, etc.). Clause 8 Art. 81 of the Labor Code of the Russian Federation provides for the dismissal for the commission by an employee performing educational functions, an immoral misconduct , incompatible with a continuation of this work. Amoral is an an misconduct that contradicts the generally accepted morality (the appearance in public places is in a state of intoxication, obscene abuse, a fight, humiliating human dignity behavior, etc.). The misconduct can be committed in everyday life (for example, the teacher beats his wife, tortures his children). It should be noted that the training and auxiliary personnel on this basis cannot be dismissed. It is necessary to establish the fact of misconduct and circumstances that impede labor activity. Clause 9 of Art. 81 of the Labor Code of the Russian Federation establishes the employer’s right to dismiss the heads of the organization (branch, representative office), their deputies and chief accountants for their adoption of an unreasonable decision, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization . However, the unreasonableness of the solution is a subjective concept, and in practice it is evaluated by the employer (single -handed or collegial). If the employee by his decision prevents possible more harm to the property of the organization, such a decision cannot be considered unreasonable. If the situation indicated in paragraph 9 of the situation occurs, the employer must prove the guilt of the employee in a labor dispute. Dismissal on the specified basis is a disciplinary sanction, therefore, the previously described rules should be observed under it. Clause 10 of Art. 81 of the Labor Code of the Russian Federation considers as the basis of the dismissal of the heads of organizations (branch, representative office), their deputies, chief accountants one -time gross violation of their labor duties . It is also a disciplinary dismissal in which the rules of Art. 193 of the Labor Code of the Russian Federation . The question of whether the violation is rude is decided by the court, taking into account the specific circumstances of the case. At the same time, the obligation to prove that such a violation in reality took place and was rude, lies on the employer. In accordance with paragraph 49 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of 17.03.2004 No. 2 as a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should, in particular, should regard the failure to fulfill the duties assigned to these persons, which could entail the causing harm to the health of workers or causing property damage to the organization. Clause 1 of Art. 336 of the Labor Code of the Russian Federation establishes the right to dismiss the teacher for repeated during the year a gross violation of the charter of the educational institution . In addition, as athletes who committed a disciplinary offense athletes for sports disqualification for a period of six or more months , as well as for the use, including single, doping means and (or) methods identified during doping control in the manner established in accordance with federal laws ( Article 348.11 of the Labor Code of the Russian Federation ).

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Dismissal of an employee: employer mistakes and judicial practice

14.07.20

Documentation

IMPORTANT! Recommendations for registering the fact that an employee has committed a disciplinary offense from ConsultantPlus are available here

Any disciplinary offense must be documented. The employee has the right to appeal to the labor inspectorate, bodies that consider individual labor disputes, and the employer will have to prove his point of view on the basis of these documents.

The fact of a disciplinary offense is reflected in a memo addressed to the head of the company. In addition to the most negative fact, it should contain:

• time;
• link to the document whose provisions have been violated;
• consequences of irresponsible actions.

If the immediate supervisor of a negligent employee reports, he may recommend some form of disciplinary action.

Next, you need to obtain an explanation from the employee regarding the disciplinary offense in writing. If he refuses, an act recording the refusal is required, in which case the penalty can still be applied.

Then an order regarding the penalty and the procedure for its application is issued. The employee must sign the document indicating that he is familiar with the contents. The refusal here is recorded in the same way - by an act signed by three or more witnesses who are not personally interested in the application of the penalty.

Information about the punishment incurred may be reflected in the employee’s personal card, but this is not necessary. With the exception of the most severe - dismissal, disciplinary sanctions are not included in the work book.

Features of conducting an official investigation in case of violation of labor discipline by an employee.

Controversial situations and nuances

Let us note several important nuances of disciplinary offenses and the application of penalties for them.

You cannot be fined for disciplinary offenses, but an employee can be deprived of bonuses if such a measure is contained in the LNA (app. definition of the Supreme Court of the Republic of Tatarstan, No. 33-11761/2013 dated 09/26/13).

Can unethical behavior be punished? The judges believe that it is possible (Moscow City Court, ruling No. 33-8753/2012 of 04/10/12). The chances of receiving a disciplinary sanction are especially high if there is a LNA that establishes the norms of corporate ethics of the company.

A similar opinion was expressed by the Ministry of Labor (letter No. 14-2/B-888 dated 09/16/16). Rude, derogatory language in the workplace towards a client is unacceptable. At the same time, there is also extensive judicial practice when judges do not recognize unethical behavior of an employee in relation to management as such, but define it as the exercise of the right to freedom of speech (Article 29 of the Constitution of the Russian Federation, S-P City Court decision No. 33-5330 dated 08 /04/13).

Important! For violating the procedure for applying penalties, the employer himself may be punished with a fine in the amount of 1 to 5 thousand rubles. A fine for the organization is from 30 to 50 thousand rubles. In case of repeated violation, the amounts increase (Article 5.27 of the Administrative Code).

The most important

1. Negligent performance or neglect of job duties is called a disciplinary offense. Disciplinary liability is established for such an act. The list of disciplinary punishments in the Labor Code of the Russian Federation is closed. The most severe is dismissal.
2. In addition, there are penalties relating to certain groups of workers. They are established by special regulations, Federal Laws.
3. Documentation of the disciplinary offense is mandatory. It includes a memo, written explanations from the employee and an order to impose a penalty.
4. Violation of the procedure and deadlines for applying a penalty (Article 193 of the Labor Code of the Russian Federation) makes it illegal. Along with disciplinary penalties, other penalties may be applied for violation of labor laws.