Why is a reprimand given? Punish, but not fire: disciplinary sanctions and their application

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

Let's talk about them.

"Remember the essence"

According to part one of Article 192 of the Labor Code of the Russian Federation, disciplinary sanctions are applied for committing a disciplinary offense. The latter refers to the failure or improper performance by an employee, through his fault, of the labor duties assigned to him. In jurisprudence, a misdemeanor is not only a guilty act, but also an unlawful act of a person capable of delinquency (in this case, an employee).

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

• conscientiously fulfill his labor duties assigned to him by the employment contract;
• comply with the internal labor regulations of the organization;
• observe labor discipline;
• comply with established labor standards;
• comply with labor protection and occupational safety requirements;
• treat the property of the employer and other employees with care;
• immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the employer’s property.

This formulation of the norm gives grounds to conclude that disciplinary sanctions can only be applied for failure to perform or improper performance of those job duties that are associated with the performance of labor functions and are directly indicated in the employment contract, and all other obligations (for example, to observe labor discipline, fulfill labor protection requirements, etc.) remain outside the scope of part one of Article 192 of the Labor Code of the Russian Federation. These conclusions have no basis, since this norm implies the entire set of labor responsibilities of an employee assigned to him within the framework of labor relations, and not just the labor function. Most often, the employee’s responsibilities listed in part two of Article 21 of the Code are fully reproduced in the text of the employment contract, and thus ambiguities are eliminated: for non-fulfillment or improper fulfillment of any of them, disciplinary sanctions may be applied to the employee.

Analyzing the essence of disciplinary action, one cannot ignore the following question. Cases of bringing an employee to disciplinary liability for actions not related to the performance of work duties still occur. Thus, employers often apply disciplinary sanctions for “inappropriate behavior that disgraces the honor of the work collective” after bringing an employee to administrative responsibility, for example, for petty hooliganism, other offenses not related to the employee’s work activity and committed by him outside working hours and outside the employer’s assignment .

Disciplinary action may be taken only for failure to perform or improper performance of labor duties, that is, duties conditioned by the existence of an employment relationship between employee and employer. Meanwhile, exceptions to this rule are possible, and they are provided for by federal laws in relation to certain categories of government employees. For exam- duties, but also committing offenses that discredit the honor of a prosecutor.

In local regulations of organizations, disciplinary offenses for the purpose of determining schemes for applying disciplinary sanctions are divided into two groups:

• non-fulfillment or improper fulfillment of duties stipulated by employment contracts, job and production (by profession) instructions;
• violation of labor discipline, that is, violation of the rules of conduct mandatory for all employees, determined in accordance with the Labor Code of the Russian Federation, federal laws, collective agreements, agreements, employment contracts, local regulations of the organization, as well as disobedience of employees to these rules.

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

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

One of the qualifying signs of a disciplinary offense is guilt the employee who committed it. In law, guilt is understood as a person’s mental attitude, in the form of intent or negligence, to his unlawful behavior and its consequences. Guilt in the form of intent means that a person foresaw the illegality of his behavior and the possibility of negative consequences, desired or allowed them and consciously, intentionally did not take measures to prevent them; in the form of negligence - a person foresaw the possibility of harmful consequences of his action or inaction, but frivolously counted on their prevention or did not foresee the possibility of such consequences, although he should and could have foreseen them. For the institution of disciplinary responsibility, the form of guilt is not of fundamental importance. However, the theory of law, as well as the codes of the Russian Federation, have not found a more successful definition of guilt, except by revealing the essence of its forms.

Before applying disciplinary action to an employee, it is necessary to establish the existence of guilt. The most common are disputes regarding lateness to work due to transport problems, bad weather conditions, which the employee is not able to foresee, even if he wishes. The courts have more than once found the application of disciplinary sanctions for absenteeism to be unlawful due to the fact that the employee was not to blame for his absence from the workplace for more than 4 hours in a row during the working day. In order for absence from work to fall under “truancy”, it must be due to for unjustifiable reasons. Whether the reason given by the employee is valid is determined by the employer. However, the court’s point of view does not always coincide with the employer’s opinion. Thus, the administrative detention of an employee, carried out on legal grounds, was recognized by the court as a valid reason for the employee’s absence, and his dismissal for absenteeism was unlawful.

The list of circumstances, as well as the reasons for the employee’s absence from the workplace, giving the employer grounds for applying disciplinary sanctions, was determined by Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” (as amended . on November 21, 2000). First of all, equated to absenteeism without a good reason :

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

b) abandonment of work without a good reason by a person who has entered into an employment contract for a certain period before the expiration of the contract;

c) the employee stays without good reason for more than 4 hours during the working day outside the territory of the enterprise, institution, organization or outside the territory of the facility, where he, in accordance with his job duties, must perform the assigned work;

d) unauthorized use of days off, as well as unauthorized departure on vacation (main, additional). It must be taken into account that the use of rest days by an employee is not considered absenteeism in the case where the employer, contrary to the law, refused to provide them, and the time the employee used such days did not depend on the discretion of the employer.

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

The following are not considered absenteeism:

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

Disputes about the legality of applying disciplinary sanctions due to the employee’s innocence also occur in relation to other disciplinary offenses. In judicial practice, there were decisions when improper performance of official duties was not recognized as a disciplinary offense for the reason that the incorrect formulation of duties did not make it possible to determine how the employee should fulfill these duties, and therefore, the employee’s guilt could not be considered established.

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

"Don't invent"

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

We know nothing about punishment with canes in the nineties of the last century, but “salary reductions” took place at every step. It was designated by a capacious word - “fine”. Fines were imposed not only by small and medium-sized enterprises, but also by large enterprises that declared law-abidingness as the main corporate value. Often, deprivation of bonuses was prescribed in the internal labor regulations or personnel regulations in the “Disciplinary Liability” section. Transfers to a lower-paid job or a lower position were also considered an effective measure to combat failure to fulfill official duties, failure to comply with standards, and violation of labor discipline.

It cannot be said that all employers were so bloodthirsty. There was another category - loyal and progressive, who believed that the effect of persuasion, educational conversations and oral comments could be greater than that of punishment. Conversations and persuasion do not seem to be disciplinary sanctions subject to recording, but with their help they can also influence an employee who improperly performs his duties, ignores labor discipline, etc. However, in order for all these verbal “warnings” and “appearances” not to be forgotten, accounting was still required, as well as a description of the schemes for using each of them. So disciplinary sanctions were included in local regulations, imposed orally and not providing for detailed recording, and therefore, compliance with labor legislation.

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

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

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

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

If you are a commercial organization, stop trying to find federal laws that complement the list of types of disciplinary sanctions. In relation to Article 192 of the Labor Code of the Russian Federation, among the federal laws that expand the list of types of disciplinary liability, or, in legal terms, regulating the procedure for bringing to special disciplinary liability, the first should be called the Federal Law of July 31, 1995 No. 119-FZ “On the Fundamentals of the Russian Civil Service Federation" (as amended on 07.11.2000). Along with measures of general disciplinary liability (reprimand, reprimand, dismissal), its Article 14 provides for a warning about incomplete official compliance, as well as a still severe reprimand. In the Law of the Russian Federation “On the Prosecutor’s Office of the Russian Federation,” the list of disciplinary sanctions is supplemented by a reduction in class rank, deprivation of the badge “For impeccable service in the Prosecutor’s Office of the Russian Federation,” and deprivation of the badge “Honored Worker of the Prosecutor’s Office of the Russian Federation.” In fact, all of the listed special types of disciplinary sanctions are, to one degree or another, reproduced in other federal laws dealing with civil servants.

Considering that by introducing your own “Regulations on Discipline” you automatically apply to yourself the norm of part two of Article 192 of the Labor Code of the Russian Federation, you are committing nothing more than a legal error. It “stretches back” from the time of the Labor Code of the RSFSR, when the nature of such documents as charters and regulations on discipline was not defined. Part two of Article 130 of the Labor Code of the Russian Federation only provided that in some sectors of the national economy, statutes and regulations on discipline apply to certain categories of workers. The new owners of industry-forming enterprises used this norm in their own way and adopted charters and regulations in the form of local regulations. The Labor Code of the Russian Federation fills this gap - it is established that statutes and regulations on discipline for certain categories of workers are approved by the Government of the Russian Federation in accordance with federal laws (part five of Article 189). Even now, no one prohibits an employer from adopting a local regulatory act that specifies the internal labor regulations regarding disciplinary liability and calling it a “regulation.” However, it will not fall under the provisions of parts two and three of Article 192 of the Labor Code of the Russian Federation, and therefore should only provide for penalties established by the Labor Code of the Russian Federation.

The disciplinary statutes and regulations provided for by this norm, in particular, include:

• Regulations on discipline of railway transport workers (approved by Decree of the Government of the Russian Federation of August 25, 1992 No. 621 (as amended on May 24, 2002);
• Charter on discipline of workers of the fishing fleet of the Russian Federation (approved by Decree of the Government of the Russian Federation of September 21, 2000 No. 708);
• Charter on discipline of maritime transport workers (approved by Decree of the Government of the Russian Federation dated May 23, 2000 No. 395);
• Charter on discipline of employees of organizations with particularly hazardous production in the field of atomic energy use (approved by Decree of the Government of the Russian Federation of July 10, 1998 No. 744);
• Disciplinary charter of militarized mine rescue units in transport construction (approved by Decree of the Government of the Russian Federation of July 30, 1994 No. 879) and others.

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

To prevent inventions from continuing, let us pay attention to the following points.

1. Fines . In jurisprudence, a fine is understood as one of the types of liability, expressed in a sum of money, which is subject to recovery from the person who committed a crime or infraction and is assigned within the limits provided for by criminal law, legislation on administrative offenses, tax and customs legislation, and other branches of legislation. Bodies and their officials whose jurisdiction provides the authority to resolve legal disputes and resolve cases of offenses, assess the actions of subjects of law from the point of view of their legality or illegality are authorized to impose fines. The exception is civil law relations, in which a fine is understood as one of the types of penalties, that is, a sum of money established by law or contract that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of the obligation.

The employer’s desire to introduce a system of fines is often due not to the fact that the employee does not fulfill duties or production standards at all, but to the fact that the duties are performed improperly - not in full, untimely or formally, production does not meet the specified standards, etc. The indignation of employers that in most European countries wage reductions are legalized, but in Russia they are not, is not entirely justified. According to Article 8 of the ILO Convention on the Protection of Wages (01.07.1949 No. 95), deductions (deductions) from wages are permitted under the conditions and within the limits prescribed by national legislation or determined in a collective agreement or in a decision of an arbitration body. Russian labor legislation really limits the cases and grounds for deductions from wages. However, many employers still have not read the Labor Code of the Russian Federation to the end and have not discovered the norm contained in part three of Article 155. It directly establishes that in case of failure to fulfill labor standards (job duties) due to the fault of the employee, payment of the standardized part of the salary is made in accordance with with the amount of work performed. So far, this norm seems suitable only for material impact on workers and subject to labor rationing. In relation to employees whose job responsibilities are very difficult to account for, recommendations for its use have not yet been fully developed. In order for part three of Article 155 of the Labor Code of the Russian Federation to become working, and its application to be lawful, in job descriptions for employees and production instructions for workers, it is necessary to define a mechanism for recording the performance of duties, as well as to fulfill the requirements of Article 163 of the Labor Code of the Russian Federation.

It is advisable to describe in detail the scheme for applying the third part of Article 155 of the Labor Code of the Russian Federation either in the internal labor regulations, or in the regulation on payment or other act, but at the same time not classify these actions of the employer as disciplinary sanctions, much less call them fines.

2. Deduction of bonuses or “deprivation of bonuses”. This is a more legalized form of material influence on the employee. At the same time, it does not apply to disciplinary measures.

The Legal Department of the Ministry of Labor of Russia back in 2000, in its letter dated July 31, 2000 No. 985-11, explained that the legislation does not contain the concept of “deprivation” of a bonus; The legislation proceeds from the fact that failure to pay a bonus to a violator of labor discipline is not a disciplinary sanction. In each specific case, such issues are resolved in the manner established by the current regulations on bonuses in the organization. This legal position is also true in relation to the Labor Code of the Russian Federation. However, it is necessary to pay attention to the definition of the concept of “wages” contained in Article 129 of the Labor Code of the Russian Federation, from which it follows that wages are remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation and incentive payments; therefore, it also includes various types of bonuses. In order for a bonus to truly meet the criteria for an “incentive payment”, the regulations on bonuses or regulations on remuneration, or other local regulatory legal act regulating issues of remuneration, should define a list of grounds for its payment and describe the system for recording them. But it is not necessary to describe for which offenses the bonus is not paid - for legally significant reasons, the employer’s actions will be subject to disciplinary measures against the employee.

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

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

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

What conclusions can be drawn from the above?

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

a) can be applied simultaneously with disciplinary sanctions;

b) their use is not taken into account when dismissing an employee for repeated failure to fulfill job duties.

3. Warning, censure. Despite the fact that a warning as a legal means of influence refers to measures of administrative liability, the requirement for its compliance with the characteristics enshrined in the Code of Administrative Offenses of the Russian Federation is not as strict as in relation to a fine; especially if it is specified as “a warning about the application of disciplinary measures.” Along with the concept of “warning”, such a form of influence as “put on sight” is used. In fact, these are equivalent concepts - an employee who has committed an offense is warned that if he commits an offense again, he will be “put on notice”, “put under control”, etc. “Censure”, at its core, is a concept of the same kind. Blame is understood as a statement in which the speaker expresses a negative assessment of the employee’s action, his behavior, with the aim of causing a negative emotional reaction in the latter.

Such measures of influence, as a rule, are introduced in organizations whose management does not seek to “cut from the shoulder” and fire people for minor offenses. In case of a minor violation of labor discipline, for example, taking a smoke break before the lunch break, an educational conversation is held with the employee; the employee is warned that if a similar offense is committed again, he will be subject to disciplinary action in the manner prescribed by the Labor Code of the Russian Federation. At the same time, in local regulations these events are often called corporate disciplinary sanctions.

Do not neglect the law and call things by their proper names. Warning, reprimand, etc. can be considered disciplinary measures impact, but not to disciplinary measures responsibility and not to types of disciplinary penalties. In the theory of personnel management, disciplinary action is understood as instruments of both a positive influence on personnel (encouragement) and a negative one (sanctions, team reaction, etc.). Warning and censure are in the field of employee education, which does not have any legal consequences. Their main goal is to show the employee that he has shortcomings, to help overcome negative traits in behavior and communication with people, and to develop respect for the rules accepted in the organization.

The form of recording and recording such measures of influence on an employee can be either oral or written.

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

Provided that local regulations provide for the possibility of making a decision to issue a warning to an employee or to censure him by the work collective, all mechanisms must be spelled out in detail in these acts. If a written record of such measures is kept, it must be remembered that in the case where, upon committing a disciplinary offense, the employer limited himself to censure and there is written confirmation of this, then the application of a disciplinary sanction for the same offense may be considered unlawful. To such a situation, the courts, by analogy, can apply the provision of paragraph 29 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes,” according to which, if the employer, instead of applying disciplinary action to the employee, penalties referred the issue of his violation of labor discipline to the consideration of the labor collective, by the decision of which social sanctions were applied to the employee, he does not have the right to subject the violator to disciplinary action for the same offense, since he did not take advantage of the right granted to him to bring the employee to disciplinary liability. Therefore, you should review your local regulations regarding the mechanism for applying disciplinary measures in conjunction with disciplinary sanctions. Remember that since the Labor Code of the Russian Federation does not contain norms regulating the procedure for applying measures of social influence, your local regulations will be carefully studied by the court and the state labor inspectorate.

"Remember the deadlines"

According to part three of Article 193 of the Labor Code of the Russian Federation, disciplinary sanction is applied no later than 1 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. Part four of the same article establishes that a disciplinary sanction cannot be applied later than 6 months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than 2 years from the date of its commission; the specified time frame does not include the time of criminal proceedings.

With the application of disciplinary sanctions, it is impossible to be late. You must always remember about deadlines. It is with verification of compliance with established deadlines that state labor inspectorates and courts that consider disputes related to disciplinary action begin.

Let us analyze the above provisions of Article 193 of the Labor Code of the Russian Federation and determine from what moment the calculation of the monthly period begins. Based on the wording of part three of Article 193 of the Labor Code of the Russian Federation, the period is counted from the moment detection offense, it does not matter how it was discovered. For example, the obligation to detect lateness for work by the employee’s immediate supervisor in the system of recording work attendance at the checkpoint is controversial. In this case, the employee’s attendance at work is recorded by a special employee who records the time of employees’ attendance and, accordingly, is the first person to detect a violation of labor discipline. The same can be said in relation to personnel department employees, who, by the regulations of the department and (or) job descriptions, may be given the authority to exercise discipline control in various forms (workplace inspections, etc.). In this case, it will be these workers who will record the fact of violation of labor discipline.

But, at the same time, in most cases, the person who has the opportunity to detect a disciplinary offense is the employee’s immediate supervisor. Thus, the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” determined that the day of detection of the misconduct, from which the month period begins, is considered the day when the person in service the employee is subordinated, it became known about the commission of an offense, regardless of whether it is vested with the right to impose disciplinary sanctions or not.

Neither the Labor Code of the Russian Federation nor other acts of labor legislation contain an explanation of how to count the monthly period in the event of a long absence of an employee. In order for the deadlines established by part three of Article 193 of the Labor Code of the Russian Federation to be formally met, as well as to find out the reasons for the employee’s long absence from work, logically, the starting point should begin from the last, and not from the first, day of absenteeism. This legal position can also be seen in court decisions. However, this is only possible if the misconduct ends, that is, the employee shows up for work. How to act in case of long-term absenteeism and fulfill the requirements of Article 193 of the Labor Code of the Russian Federation is explained in detail below.

By virtue of the law, the monthly period for applying a disciplinary sanction does not count only the time the employee is ill or on vacation; absence from work for other reasons, including in connection with the use of days of rest (time off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the flow of the specified period. Vacation that interrupts the course of a month should include all vacations provided by the employer in accordance with current legislation, including annual (main and additional) vacations, vacations in connection with training in educational institutions, short-term vacations without pay, and others.

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

How to record the fact of committing an offense? After all, before the employer issues an order (instruction) to apply a disciplinary sanction, a lot can change (the exact date of the offense, its essence, etc. will be forgotten). To record the date and substance of the disciplinary offense, the documents listed in the next section of this publication can be used.

When applying a disciplinary sanction in the form of dismissal under subparagraph “d” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation, the monthly period is calculated from the date of entry into force of the sentence that established the employee’s guilt in theft of someone else’s property, or the resolution of the competent authority to impose penalties on the employee for this offense administrative penalty. Regarding the last act - the resolution of the body authorized to draw up protocols on administrative offenses - there are several features that must be taken into account:

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

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

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

At the same time, the employer has the right to apply a disciplinary sanction to the employee even if, before committing this offense, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the notice period for dismissal. This follows from paragraph 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes.”

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

"Be scrupulous"

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

HR practice has developed two approaches to the preparation of documents confirming the commission of a disciplinary offense:

• upon failure to perform or improper performance of labor duties stipulated by the employment contract, the employee’s immediate supervisor draws up a proposal to bring the employee to disciplinary liability;
• on the fact of violation of labor discipline, non-compliance with internal labor regulations, a report is drawn up.

A relatively small number of organizations delegate the authority to apply disciplinary sanctions to heads of structural units. As a rule, these employees are given the right to submit representations to the head of the organization (deputy head of the organization for personnel) about bringing the employees subordinate to them to disciplinary liability. The expediency of preparing such a presentation is explained by the fact that only the employee’s immediate supervisor can determine whether the employee, for example, is properly performing his job duties. Practitioners proceed from the fact that to confirm the fact of non-fulfillment or improper performance of functions, it is not necessary to involve other employees, and therefore, it is inappropriate to draw up a report. As an example of presentation, the form given in the “PAPERS” section can be used. His immediate superior can also notify the head of the organization that an employee has committed a disciplinary offense by sending a memo. And only if he wants to protect himself from accusations of bias, and also distribute the burden of his responsibility to other employees, the fact of committing a disciplinary offense can be recorded using an act.

It is advisable to draw up an act in the event of detection of violations of labor discipline, identification of facts of non-compliance with internal labor regulations. So, if control over labor discipline is carried out by employees of the personnel department, and during workplace inspections they revealed facts of being late for work, leaving the workplace during the working day, absenteeism, appearing at work in a state of intoxication, etc., then such offenses it would be correct to reflect it in an act signed by several employees (approximate forms of acts, as well as examples of their completion, are given in the “PAPERS” section).

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

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

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

"Listen to the explanation"

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

The employee can present his explanations in various ways.

First of all - in the explanatory note . It is advisable that this document be drawn up by the employee in any form by hand. However, in a number of organizations, in order for the explanations to be harmonious and logical, they practice the use of template forms in which the employee is asked to fill out columns (rows, cells) intended to answer the questions: what are the reasons (motives) for committing a disciplinary offense, does the employee consider himself guilty of the misconduct; if not, then who, in the employee’s opinion, should be subject to disciplinary action. The explanatory note is addressed either to the head of the organization, or his deputy for personnel, or the head of the personnel department, or the head of the structural unit that includes the employee. Who specifically should be defined in the local regulations of the organization.

The second option for obtaining explanations is to record the employee’s explanations in an act drawn up upon the commission of a disciplinary offense , by certifying the employee’s explanations with his signature.

According to part two of Article 193 of the Labor Code of the Russian Federation, an employee’s refusal to give an explanation is not an obstacle to the application of disciplinary action. However, it does not at all follow from this that if an employee refuses to explain the reasons for his behavior, then the employer can safely apply disciplinary action. The refusal must be recorded- either in an act drawn up upon the commission of a disciplinary offense, or in a separate act on refusal to give explanations. In the first case, after stating the essence of the offense and the signatures of the compiler and those present, a note is made that the employee refused to provide explanations, and the persons involved in drawing up the act once again put their signatures.

One of the most difficult situations in personnel practice is long absences. The employee does not show up for work and does not provide any information about himself or the reasons for his absence. The employer suffers losses - the work is not completed, it is impossible to fire the employee, since the reasons for the absence are unclear, and the staffing table does not allow hiring a new employee. In this case, the employer can be advised only one thing: to send a notification letter to the employee’s known place of residence or location, in which he is required to explain the reason for his long absence from work and warn that if within a certain period of time from does not receive a response, the employer will exercise its right to apply disciplinary sanctions, up to and including termination of the employment contract under subparagraph “b” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation. It should be noted here that when considering cases of reinstatement at work of those dismissed for long absence, the courts resolved this issue differently: there were cases of reinstatement, since the employee was absent for a long time due to temporary disability, and there was no opportunity to notify the employer, and cases of recognition as lawful dismissal for long absence of an employee who never showed up for work.

If there are doubts about the veracity of the information received from the employee as a result of his explanations, the HR department checks them. For example, a human resources inspector may call the employee's home health department and find out whether there was a plumbing malfunction that the employee cited as the reason for his tardiness. If an employee has submitted a certificate of temporary incapacity to work to justify the reason for his absenteeism, but there are doubts about its authenticity, a HR specialist can contact a special unit of the Federal Social Insurance Fund of Russia, which monitors the legality of issuing certificates of incapacity for work.

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

"Don't overdo it"

According to part five of article 193 of the Labor Code of the Russian Federation For each disciplinary offense, only one disciplinary sanction can be applied .

It is unacceptable for an employee to be subject to one disciplinary sanction, for example a reprimand, for committing one disciplinary offense, and then another for the same offense. If, for example, an employer reprimanded the employee for appearing at work on April 7, 2003 while intoxicated, and issued a corresponding order, then he does not have the right to apply a disciplinary offense to the same employee for the same disciplinary offense (that is, for appearing at work on April 7, 2003). year under the influence of alcohol) a second disciplinary sanction, for example, dismissing an employee under subparagraph “b” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation. By reprimanding the employee, the employer exercised his right to choose the type of disciplinary sanction, and he has no right to change his decision.

Another thing is a continuing disciplinary offense, that is, an offense that continues over a long period of time. If, upon discovering a disciplinary offense, the employer applied a disciplinary sanction, but this disciplinary offense continues (it is this offense, and not the next one, even a similar one), then in accordance with the explanations of the Supreme Court of the Russian Federation (paragraph 32 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation when resolving labor disputes” (as amended on November 21, 2000), it is permissible to apply a new disciplinary sanction to an employee, including dismissal on appropriate grounds.

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

Repeated offense is another matter. This is understood as an offense committed again after a certain time has passed after the suppression of a similar offense. Let's take the same example. After being reprimanded for untimely preparation of reports for the first quarter, the employee prepared the reports within the time limits established by the order (instruction) on the application of disciplinary action. When preparing reports for the second quarter, the employee again violated the deadlines for preparing reports, that is, he committed a similar offense. In this case, the employer cannot use the above clarification of the Supreme Court of the Russian Federation.

As for repeated disciplinary offenses, for the application of paragraph 5 of Article 81 of the Labor Code of the Russian Federation, it is not of fundamental importance whether a similar offense was committed or another. By the way, employers need to be careful here. This provision provides that the basis for dismissal is only repeated failure to fulfill duties in conjunction with disciplinary action, but not repeated improper performance of job duties. This formulation already allows employees to defend their case in the courts, citing the fact that they only improperly fulfilled their duty, and therefore, there are no grounds for dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation.

The law does not prohibit an employer for the same offense bring the employee to both disciplinary and financial liability . If the purpose of the first is to suppress the misconduct, then the purpose of the second is to compensate for the damage caused to the employer, including as a result of the commission of the misconduct. This follows from part six of Article 248 of the Labor Code of the Russian Federation: “compensation for damage is made regardless of the employee being brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer.” When bringing an employee to disciplinary and financial liability at the same time, the employer must fulfill the requirements established by both Chapter 30 and Chapter 37 of the Labor Code of the Russian Federation.

In the same way, he is not bound by the prohibition on the use of such measures of material influence on an employee for failure to perform or improper performance of labor duties, such as deprivation of bonus or reduction in its size . If a disciplinary sanction was applied to an employee (for example, a reprimand) and if, in accordance with a local regulatory act of the organization (for example, a regulation on bonuses or regulations on wages), this is reflected in the amount of the bonus or its payment in general, then deboning or paying the bonus in a smaller amount cannot be considered a second disciplinary sanction (see the commandment “Thou shalt not invent”).

Suspension from work is not a disciplinary sanction. , carried out according to the rules established by Article 76 of the Labor Code of the Russian Federation. The employer has the right to apply disciplinary sanctions to an employee who, through his (the employee’s) fault, has not undergone a mandatory periodic medical examination in the prescribed manner, and at the same time is obliged to remove him from work. The same actions can (in relation to the application of disciplinary sanctions) and must be taken (in relation to removal) if the employee, through his own fault, has not undergone training and testing of knowledge and skills in the field of labor protection in the prescribed manner. The employer must suspend an employee who appears at work in a state of alcohol, drug or toxic intoxication; however, the suspension will not prevent him from bringing the employee to disciplinary liability.

"Don't exceed"

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

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

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

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

By order on the distribution of responsibilities, the head of the organization can delegate the authority to bring employees to disciplinary liability to his Deputy for Personnel or other official .

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

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

"Be Fair"

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

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

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

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

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

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

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

In addition, it is stated that the severity of the offense committed, the circumstances under which it was committed, as well as the employee’s previous work and behavior, as well as other circumstances of the case, must be taken into account by state labor inspectorates or labor dispute resolution bodies when an employee appeals the imposed disciplinary sanction. It seems that this argument cannot be considered justified, since these bodies in their activities must be guided only by the law. The absence in the law of an indication of the need to take into account the above circumstances will not allow making decisions about the inadequacy of the penalty applied by the employer.

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

Whether or not amendments will be made to the Labor Code of the Russian Federation obliging, when applying a disciplinary sanction, to take into account the severity of the offense committed, the circumstances in which it was committed, the previous work and behavior of the employee, the employer should remember fairness. And also that the court will still check whether the employer took into account these circumstances, and if not, it will strongly recommend that the employer reconsider its decision, especially if it resulted in dismissal (the court does not independently replace one disciplinary sanction with another, as well as dismissal with another sanction). has the right, since imposing a disciplinary sanction on an employee is the competence of the employer with whom the employee has an employment relationship (part two of paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” ).

"Do it according to the rules"

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

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

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

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

The order (instruction) on the application of a disciplinary sanction can also contain a brief summary of the employee’s explanations.

One of the essential points in the preparation of this document is the approval of the project by the head of the legal service or the organization’s lawyer. The approval must be preceded by a check of the order (instruction) for compliance with the legislation of the applied disciplinary sanction and compliance with the deadlines for bringing to disciplinary liability. The head of the legal service or the organization’s lawyer must familiarize himself with all materials relating to the disciplinary offense, as well as the explanations of the employee for whom the order (instruction) to apply a disciplinary sanction is being prepared. An approximate form of an order to apply a disciplinary sanction is given in the “PAPERS” section (page 55).

"Make no mistake"

When counting or summing up disciplinary sanctions, one cannot make mistakes.

Previously, the attention of employers has already been drawn to the fact that neither the deprivation of bonuses and lawful reduction of wages, nor reprimands and other inventions are considered disciplinary sanctions. Consequently, their summation is unlawful and unfounded. It is impossible to deprive a bonus (produced, of course, on legal grounds) as the first penalty and, if the employee commits one disciplinary offense during the year, apply paragraph 5 of Article 81 of the Labor Code of the Russian Federation.

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

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

"Remember forgiveness"

In accordance with part one of Article 194 of the Labor Code of the Russian Federation, if within a year from the date of application of the disciplinary sanction the employee is not subject to a new disciplinary sanction, then he is considered without disciplinary action . Therefore, before determining whether another offense gives grounds to believe that there is a repeated failure to fulfill duties, you should review the orders for personnel (personnel) on the application of disciplinary sanctions, an extract from the order (instruction) on the application of a disciplinary sanction in the employee’s personal file, “sheet penalties" or another document recording penalties to determine whether the previously imposed disciplinary sanction has lost its force.

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

1) on your own initiative. The employer, based on his own observations of the employee, can issue an order (instruction) to lift a disciplinary sanction for the employee’s impeccable behavior, high performance indicators and other positive characteristics. As a rule, the HR department is entrusted with monitoring the behavior of an employee after a disciplinary sanction has been imposed on him. In this case, he will be the initiator of the removal of the disciplinary sanction;

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

3) at the request of the employee’s immediate supervisor. The initiative of the immediate manager is expressed in a document entitled “petition” or “representation”;

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

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

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

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

"Don't forbid"

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

It was previously noted that, for example, a court considering a labor dispute about the illegality of dismissal for committing a disciplinary offense cannot replace dismissal with another type of penalty. However, having recognized the employer’s decision as unlawful, he thereby limits the latter to the terms of application of another disciplinary sanction. Thus, if a disciplinary sanction was applied by a person not authorized to bring the organization’s employees to disciplinary liability, and as a result of consideration of the case in court or in a labor dispute commission, or an inspection by the state labor inspectorate, it is canceled, then the employer risks missing the deadlines allotted by the Labor Code of the Russian Federation for the application of disciplinary sanctions.

In order for the disciplinary procedure to be manageable at the employer level, the latter should not prohibit employees from appealing the actions of their immediate superiors. Such a prohibition in relation to jurisdictional bodies (courts, federal labor inspection) is illegal, and in relation to higher officials of the organization - it only limits the opportunity to resolve the dispute without leaving the organization.

From the history of disciplinary responsibility

Institute disciplinary responsibility in pre-revolutionary Russia included various measures disciplinary collection: “reprimands more or less severe”, “reprimands with entry into the service record” and “reprimands without entry into the service record”, “deduction from salary”, “deduction from service time of various periods”, “movement from a higher position to a lower one” , “removal from office” and “dismissal from office”. It should be noted that in the overwhelming majority they were linked to criminal liability, as they were provided for in relation to persons in the public service. As for free-hire workers, the employer established penalties independently for defects, failure to comply with production standards, tardiness and other violations, of which the least was a deduction from earnings, and the most common was dismissal.

Until 1863 (the reforms of Alexander II), corporal punishment was used not only against serfs, but also against hired workers, journeymen, and students. Their rights in Russian factories and factories were not regulated by any acts until 1886 (before the introduction of the decree “On the supervision of factory industry establishments and on the mutual relations of factory owners and workers”). However, cases of punishing workers with whips and rods occurred until the end of 1905. Only with the first Soviet decrees was corporal punishment finally abolished, and education through persuasion was proclaimed as the main method of dealing with discipline violators. Over time, the Soviet state reconsidered such a loyal attitude towards disciplinary offenses, and in 1940 (June 26) the Decree of the Presidium of the Supreme Soviet of the USSR was issued “On the transition to an 8-hour working day, to a 7-day working week and on the prohibition of unauthorized departure of workers and employees from enterprises and institutions." This act established judicial (!) liability: “for absenteeism without a valid reason, workers and employees of state, cooperative and public enterprises and institutions are brought to trial and, by a verdict of the people’s court, are punished by corrective labor at the place of work for up to 6 months with deduction from wages.” fees up to 25%." People's judges who considered such cases individually (without the participation of people's assessors) were ordered to resolve them within no more than 5 days and to carry out sentences in these cases immediately. In addition, directors of enterprises and heads of institutions were also brought to justice for failing to bring to trial those guilty of absenteeism without good reason. By the way, being more than 20 minutes late was then equivalent to absenteeism. Judicial liability in the form of correctional labor was abolished only in 1956.

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

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

Transfer to a lower-paid job “lasted” as a disciplinary measure until 1992 (until amendments and additions were made to the Labor Code of the RSFSR by Law of the Russian Federation of September 25, 1992 No. 3543-I). Having ratified ILO Convention No. 105 on the Abolition of Forced Labor (Federal Law No. 35-FZ of March 23, 1998), Russia had to bring national legislation into line with the standards of the Convention. Transfer to a lower-paid job as a disciplinary measure, that is, for the purpose of maintaining labor discipline, meets the criteria for forced labor set out in the said Convention. There is not a word in the new Labor Code of the Russian Federation about transfer as a measure of disciplinary liability. Moreover, Article 4 of the Code directly establishes a ban on forced labor, that is, performing work under the threat of any punishment (forceful influence), including for the purpose of maintaining labor discipline. It should be noted here that, in accordance with certain charters and regulations on discipline, transfer to another, lower-paid job or another, lower position for a period of up to 3 months is still possible, but only with the consent of the employee.

A reprimand is a fairly strict disciplinary measure that can serve as one of the factors for dismissal and therefore requires an extremely correct approach from the employer to its application. Let's consider the main nuances of the procedure for reprimanding an employee, as well as possible legal consequences for the employee and the employer.

Does Article 192 of the Labor Code of the Russian Federation define a reprimand as a type of disciplinary sanction?

A reprimand, along with measures such as reprimand and dismissal, in accordance with the provisions of Art. 192 of the Labor Code of the Russian Federation is a type of disciplinary sanction. At the same time, the management of the enterprise must clearly understand why an employee can be reprimanded. The practical significance of a reprimand can be expressed in 2 main aspects:

• Firstly, a reprimand as a disciplinary sanction may be one of the legal grounds for the dismissal of an employee (Clause 5 of Article 81 of the Labor Code of the Russian Federation) for repeated failure to fulfill duties in the presence of a disciplinary sanction. At the same time, a reprimand, on the one hand, is a disciplinary sanction, and on the other hand, it is a fact that indicates at least a one-time failure by the employee to fulfill his duties. 2 reprimands, provided that they are legal (how to ensure their compliance with this, we will consider later), give the employer the right to dismiss the employee. But only if they were issued for various offenses (Article 193 of the Labor Code of the Russian Federation).
• Secondly, a reprimand can be considered as one of the measures to improve production discipline. From this point of view, its imposition has more psychological than legal significance. An employee who has received a reprimand recorded in his personal file will most likely want to rehabilitate himself in the eyes of the employer and will begin to work better.

How to reprimand for improper performance of official duties

The official issuance of a reprimand is a legal fact, so this procedure must be properly formalized. The Labor Code of the Russian Federation and other federal regulations do not contain regulations that would determine how a reprimand is issued, but, based on practice, this action is recommended to be carried out according to the following algorithm:

• First, the employer must document the fact of the employee’s failure (or incorrect performance) of his duties. Most often, this is done by sending a memo to the director of the company by the immediate supervisor of the employee who committed the misconduct. An offense can also be recorded using a report drawn up by a commission formed by the head of the company to evaluate the employee’s actions.
• Secondly, the employer, before issuing a reprimand, must give the employee the opportunity to explain the actions he committed. To do this, it is necessary to send the employee a notice of the submission of an explanatory note.
• Thirdly, the employer needs to wait 2 days - this is how much time the employee has to draw up an explanatory note (Article 193 of the Labor Code of the Russian Federation). If he does not do this, the employer should draw up a corresponding act. Further (and also in the event that an explanation is presented, but the employee’s arguments do not look convincing), a reprimand can already be issued.

A reprimand is issued by issuing an order signed by the head of the company.

The order to issue a reprimand must:

• indicate that all the documents that we mentioned above are attached to it: a memorandum of misconduct (or an act of the commission), a notice of the need to submit an explanatory note, the explanatory note itself or an act of failure to submit it;
• indicate the dates and names of the relevant documents.

The order to issue a reprimand must be signed by:

• head of the company;
• by the employee himself within 3 days from the date of drawing up the order.

If the employee refuses to sign the document, it will be necessary to draw up a report about this (Article 193 of the Labor Code of the Russian Federation).

Information about the reprimand of an employee can be recorded in the personal file.

Is it possible to reprimand without reprimand and is it issued for absence from work?

A remark is also a disciplinary sanction, but is considered a milder sanction, since Art. 192 of the Labor Code of the Russian Federation is slightly higher in the list of punishments. A reasonable question arises: should a reprimand be preceded by a reprimand, or can it be avoided?

Labor legislation does not rank punishments according to the degree of guilt and does not establish a strict sequence for their imposition. Therefore, the employer himself has the right to assess how great the employee’s guilt in the violation is and what sanction he deserves.

Thus, a reprimand may be issued for absence from work if there were valid reasons for missing work time, a reprimand may be issued if this was done deliberately without significant grounds, and even dismissal is possible when such a violation is systemic in nature.

Here only one constant principle should be observed: one violation - one type of punishment.

When is a reprimand issued?

A reprimand, like any other disciplinary sanction, must be issued by the employer within a month after the employee’s misconduct is revealed. The company has no right to punish the employee later. This period may be extended if the employee is absent from work due to being on sick leave or on vacation (including study).

The maximum period within which an employer has the right to issue a reprimand is 6 months. However, if a misconduct is revealed during an audit (for example, an audit), a reprimand can be issued no more than 2 years from the established date of the commission of this misconduct.

Sample reprimand for improper performance of official duties

In order not to create a new document every time and not remember how this or that information is presented in it, it is better for the company to use a ready-made template. We present one version of the document on the website. Before reprimanding an employee, management will have to take this example as a basis and, if necessary, changing the wording and surname of the offending employee, print the required order.

How can an employer cancel a reprimand?

It happens that the employer comes to the conclusion that the employee was punished unlawfully and wants to remove the reprimand from him. How can I do that?

Very simple. All that is required to cancel a reprimand is to issue an appropriate order from the head of the company. It can be drawn up at any time (Article 194 of the Labor Code of the Russian Federation). The employee himself or his immediate superior can also apply to have the reprimand lifted.

An employee is considered to have a disciplinary sanction after it has been issued for exactly 1 year, if during this time he does not commit other offenses, followed by other disciplinary sanctions (Article 194 of the Labor Code of the Russian Federation). In this regard, there is one more option for removing a reprimand from an employee - wait for its automatic cancellation.

Legal consequences of a reprimand for an employee at work

According to Art. 66 of the Labor Code of the Russian Federation, data on the reprimand are not recorded in the work book. As a last resort, the personnel service may (but is not obligated to) enter information about the reprimand into the employee’s personal card, which is an internal document. So the new employer, as well as any other entity, most likely will not know that any disciplinary action has been taken against the person.

This means that from the point of view of relations with the new employer (or some other persons legally independent of the current employer), the presence of a reprimand at work will not have significant legal consequences for the employee.

But the employee may be interested in maintaining his current job. And in this case, it will be useful for him to pay attention to one nuance.

In accordance with paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, the employer has the right to dismiss an employee if he repeatedly fails to fulfill his official duties. This includes an offense for which the employee was reprimanded. The nuance is that the employer can use the following interesting mechanism for applying the norms of paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, taking into account the provisions of Art. 193 of the Labor Code of the Russian Federation, establishing a one-month period for issuing disciplinary sanctions.

Having discovered an employee’s misconduct, the employer can, according to the established scheme, reprimand him and immediately issue a new order - for some other offense within a month’s prescription (if, of course, there was such an offense).

It turns out that the employer will have 2 proven facts of violation of labor discipline and he will immediately have the right to dismiss the employee. So employees who have once committed an offense to which the employer seems to have turned a blind eye should not provoke their superiors to impose an official disciplinary sanction - it may have direct legal consequences for them in the form of dismissal.

Reprimanding an employee: legal consequences for the employer

A reprimand is a legal fact, and it must be correctly executed. Many people forget that, for example, the Labor Code of the Russian Federation does not provide for any severe reprimands. The employer has no right to officially use this phrase. If he nevertheless gives the employee a severe reprimand, then the labor inspectorate (if the employee complains there) can:

• firstly, impose an impressive fine on the company based on clause 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation;
• and secondly, to cancel the order imposing a severe reprimand.

In addition, the employer has the right to impose any disciplinary sanction, including a reprimand, only if the employee fails to perform or performs his job duties incorrectly. However, these responsibilities must be recorded somewhere: in a contract, job description, labor regulations. And if the employer for some reason did not familiarize the employee with his duties against signature, then he does not have the right to reprimand for their failure to fulfill them.

Dismissal on the basis of a severe reprimand, other non-existent disciplinary sanctions, as well as when the reprimand is issued outside the regulatory framework, can be successfully appealed by the employee in court with a high probability of success. As a result, the court may oblige the employer to reinstate the person at work. And immediately. If the company does not do this, it will have to pay the employee a salary for the time that he was absent from the workplace, although by virtue of a court decision he should have been present (Article 396 of the Labor Code of the Russian Federation).

Results

Issuing a reprimand is an official procedure, fixed at the level of a local document (in an order from the head of the company), on the application of an appropriate disciplinary measure against an employee.

However, the issuance of this order must be properly formalized by the authorities by preparing a documentary base, including:

• sources recording the misconduct (memo, commission act);
• notifying the employee of the need to draw up an explanatory note;
• in case of failure to provide an explanatory note - a statement about this;
• in case of refusal to sign the order of reprimand by the employee, also the corresponding act.

A reprimand should not be called a severe reprimand, otherwise the labor inspectorate or court will cancel the order issuing it.

The reprimand must be justified. It can be issued due to the employee’s failure to fulfill only those duties that are recorded in the provisions of documents endorsed by the employee, such as an employment contract, job description, or company labor regulations.

You can learn about other important aspects of modern personnel management from our articles:

A reprimand is one of the types of disciplinary sanctions that are applied in the field of labor law. Having received a reprimand, the employee is obliged to report his illegal actions and bear penalties in accordance with legal norms.

A disciplinary offense is an employee’s failure to fulfill his direct labor duties or improper performance. A reprimand is applied by the employer in specific cases. The most severe measure the employer can choose is dismissal. For example, for absenteeism.

As a rule, only two types of disciplinary action are often applied to employees: reprimand and dismissal. The decision remains with the employer. Although, according to Art. 149 of the Labor Code (Labor Code), he must take into account the following factors:
- degree of guilt of the employee;
- amount of damage;
- the circumstances that led to the commission of the offense;
- personal.

The legislator provides for dismissal as the most extreme sanction applied to an employee.

The reprimand should motivate the employee to properly perform his job duties, and, remembering the threat of dismissal, he should not commit any more offenses in the future.

A reprimand is a non-material punishment. For the guilty employee, issuing a reprimand carries specific material consequences:
- according to Art. 151 of the Labor Code, the employee cannot count on various incentive measures throughout the entire period of validity of the reprimand;
- a reprimand is considered grounds for depriving an employee of bonuses and incentive payments;
- the presence of a reprimand on an employee affects the determination of the level of qualifications;
- according to clause 3 of Art. 40 of the Labor Code, a reprimand can become a real reason for dismissing an employee.

What is a remark

A reprimand is a type of disciplinary sanction. An employer can apply it to an employee for failure to perform job functions. An employee may intentionally or through negligence commit an offense. The usual one is being late for work.

A reprimand is applied to the guilty person within the appropriate time frame: within six months from the date of the offense, within a month from the date the violation was discovered.

An employee cannot be punished for failure to perform labor functions if he was not legally registered for this position.

If an employee has repeatedly received disciplinary sanctions throughout the year, the employer can rightfully fire him.

What is the difference between a reprimand and a remark?

There are no characteristic differences between a reprimand and a remark.

In Art. 192 of the Labor Code of the Russian Federation (Labor Code), penalties are arranged in the following sequence: reprimand, reprimand, dismissal. This allows us to believe that a reprimand is the “mildest” of disciplinary sanctions, and dismissal is the most severe, which is provided for by law for labor relations.

The Labor Code of the Russian Federation says nothing about the difference between a reprimand and a reprimand.

These two types of disciplinary actions have the same terms, application procedures and consequences for both sides of labor law.
In clause 5, part 1, art. 81 of the Labor Code of the Russian Federation states that an employee can be fired for repeated failure to fulfill his labor functions without good reason, and it does not matter what type of penalty, reprimand or reprimand, was applied to him previously.