Penalty for violation of labor discipline: grounds, registration. How to punish an employee for repeated violation of labor discipline

Each employee is obliged to fulfill the official duties assigned to him, which are prescribed in the employment contract and job description. Otherwise, he may be brought to a special type of legal liability, which is called disciplinary.

Definition

The obligation of the employee to be punished for violation of the rules of the organization, conditions employment contract or job description is disciplinary responsibility. The Labor Code of the Russian Federation indicates that the commission of a misconduct by an employee, which proves the fact that he neglects the official powers entrusted to him, will serve as the basis for bringing to it.

Main Aspects

If an employee fails to fulfill his duties, then in this case there is a disciplinary responsibility. The Labor Code of the Russian Federation provides for the application of one of three types of penalties to an employee:

Comment;

Rebuke;

Dismissal.

This may show partial or complete non-fulfillment of official duties by a citizen. It is divided into two types:

General, when a person breaks the rules Labor Code;

Special, if those rules that are established by the management of the organization and fixed in the charter are not observed, but do not contradict the Labor Code of the Russian Federation.

Types of violations

There are several of them:

The use of office time by the employee at his own discretion, for example, absenteeism and lateness;

Disobedience to the management of the company, which includes failure to comply with orders and orders;

Improper operation of the organization's equipment;

Immoral behavior - coming to work in a state of intoxication, non-compliance with labor protection rules, etc.

AT this case the head of the enterprise has the full right to bring a person to such a type of punishment as disciplinary responsibility. The Labor Code of the Russian Federation provides for the application of a certain penalty, which can be in the form of:

Remarks;

reprimand;

Layoffs.

The last of these three is used extremely rarely, when the manager can no longer keep a person in the enterprise who neglects labor discipline for more than the first time. Therefore, bringing an employee to disciplinary responsibility in this case is simply a necessary measure so that he begins to treat his official duties more responsibly.

Procedure

For non-compliance with the job description and other conditions of service activities in the organization or disciplinary liability occurs. The Labor Code of the Russian Federation in this case establishes only three types of penalties that must be correctly applied so as not to violate the law.

Example: a citizen was late for work for three hours, citing the fact that he had been standing at the bus stop for a long time and could not wait for public transport. In this case, this will not be a good reason, because the rest of the employees, even without a personal car, came to the organization on time. The HR specialist, having discovered the absence of an employee, must do the following:

Draw up an act in the form (it must be signed by several persons);

Familiarize the employee with him against signature, and then make a note about it;

Register document.

Documentary evidence of a violation of labor discipline is drawn up as follows:

It is necessary to obtain from the immediate superior of the person who arrived at the organization late, and attach the drawn up act to it;

Register the received data in a special form and assign a number to the document.

Types of punishment

Article 192 of the Labor Code of the Russian Federation provides for the application of the following disciplinary sanctions to an employee who in bad faith performs the duties assigned to him:

Comment;

Rebuke;

Dismissal on certain grounds.

In this case, only the head will decide what punishment for violating the rules of the order can be assigned to a citizen. Dismissal is applied only in exceptional cases.

Such a disciplinary sanction, as a remark, can be applied to a citizen who does not perform his duties professionally enough, especially if this fact is confirmed by the client's complaint.

Example: an employee had to install double-glazed windows in the apartment of a regular window buyer, but due to the fact that he arrived later than the scheduled time, he could not complete all the work in one day. The client was dissatisfied and wrote a complaint. In this case, bringing the employee to disciplinary responsibility is simply inevitable, because he misconduct undermines the credibility of the organization.

The punishment in the form of a reprimand is considered more stringent. Usually it is used in the case when a person repeatedly neglects his official duties, for example, he is systematically late for a staff meeting, does not follow the instructions of the management, does not fully complete his work.

Last view disciplinary action here there will be a dismissal of an unscrupulous employee, but only objective reasons, which must be confirmed by the relevant act.

Example: a citizen did not come to work because he fell ill and reported this to the management. After leaving, he did not provide the chief with official confirmation of this fact, and there was no written explanation from him either. Accordingly, an act and an order were drawn up to bring the employee to disciplinary responsibility for absenteeism with further termination of the employment contract, which in this case is absolutely legal.

Non-compliance with work schedule

In this case, the neglect of the terms of the concluded contract and their unfair performance will be the main reason for the disciplinary liability of civil servants. Because compliance with the rules of the official schedule is their main duty.

The disciplinary responsibility of civil servants is to impose on them the following types of penalties:

Comment;

Rebuke;

Incomplete Compliance Warning;

Removal from office;

Dismissal for certain reasons (absence from the workplace, appearance in a state of intoxication, disclosure of legally protected secrets, destruction or theft of documents, other property).

In this case, the penalties for misconduct for these persons are provided federal laws, various acts of ministries and departments. In addition, the disciplinary liability of officials is one of the measures of state coercion, necessary to ensure that all employees in government bodies do not violate their professional duties and increase the level of intellectual abilities.

Peculiarities

Bringing an employee to disciplinary responsibility contributes to the formation of a certain framework of behavior for him and a more serious attitude to work, because otherwise he will simply cease to comply with the terms of the employment contract and the rules of the organization. In addition, a person begins to perform his official duties more efficiently.

It contains several types of disciplinary sanctions that the employer has the right to apply to an unscrupulous employee.

Any boss who wants to teach a delinquent employee a lesson must follow a few rules:

A notice, reprimand or dismissal may be appointed no later than one month from the date of discovery of the misconduct, taking into account the time of sick leave, vacation or other absence for a good reason, but no later than six months;

In each individual case, only one of the specified types of punishment may be applied to a person;

The employee has the right to appeal the decision of the management;

If during one year of labor activity a person did not commit violations, then, therefore, he no longer has a penalty.

Order

In the event that the head decided to apply to his subordinate for non-fulfillment official duties disciplinary sanction, this must be recorded in writing by issuing an order. After that, familiarize the employee with it against signature within three days.

The order to bring to disciplinary liability is issued as follows:

Name of company______________

00.00.00, city ___________ No. _______

"About _________"

Due to the fact that employee ___________ was seen at the workplace in a state of intoxication, I order:

announce severe reprimand;

Deprive the premium for April in the amount of _______

Reason: Art. 192.193 of the Labor Code, memorandum of the senior specialist of the sales department ________.

Director _________ (signature)

Familiarized with the order ___________ (decoding)

Foundations

For improper performance of official duties by an employee, the legislation provides for a certain type of punishment, which manifests itself in the form of the application of disciplinary sanctions. Of course, not every leader will punish a delinquent subordinate in this way, but, as practice shows, this method is the most effective, because not every boss can look at constant delays, an incomplete report or project, etc.

Violations committed by the employee work schedule regarded as grounds for disciplinary action. In addition, non-compliance by an employee with the terms of the contract and job description implies the presence of his guilt, which leads to punishment in the form of a remark, reprimand or dismissal.

Also, the manager should not forget that it is possible to hold an employee liable for violation of discipline only within one month and no later than six months.

What are the best measures to take

After an employee has violated the order of work in the organization with his illegal actions, the boss can apply disciplinary action against him. The Labor Code of the Russian Federation provides for it in the form:

Remarks;

reprimand;

Layoffs (last resort).

In practice, employers try to punish their subordinates financially. In order to avoid unnecessary trouble with the law, they do not document a person’s misconduct, because in case of incorrect actions of the management, responsibility is also provided. A disciplinary offense is simply not recorded in writing and an order is not drawn up.

In the event that a citizen, in the performance of official duties, commits an offense that affects the interests of not only the employer, but also other persons, he may be punished in the form of liability.

Example: an employee was hired by an enterprise as a driver and was transporting building materials to another contractor. Once he violated traffic rules and made an accident, thereby severely damaging the car of the employer and another driver. In this case, the employee will bear full financial responsibility.

Code of Administrative Offenses

What is the administrative punishment of an employee, not every boss knows, because this concept not provided for in the law. Nevertheless, there is such a responsibility for the leader himself, and it is indicated in Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. In this case, administrative punishment to the employer as an official can only be applied by state bodies.

Arbitrage practice

The citizen was brought to disciplinary responsibility for the fact that one time he arrived at work at the wrong time, explaining that he could not wait for public transport. It's been three hours since the start of the shift. In connection with this circumstance, the employer decided to dismiss him, not wanting to apply another disciplinary sanction. The Labor Code of the Russian Federation provides for the termination of an agreement with an employee only on legal grounds. The employee was forced to go to court.

It follows from the materials of the case that the manager did not even record the fact of the absence of the employee in the prescribed form, and also did not take a written explanation from him.

In addition, less than four hours had passed since the start of work, which means that the boss simply had no grounds for dismissing a citizen for absenteeism. Also, the manager illegally collected a fine from the employee for late submission of the report, which is completely contrary to the norms of the Labor Code.

In its decision, the court pointed out that administrative and disciplinary liability are completely inconsistent with each other and relate to different areas legislation. Therefore, the manager did not have the right to impose a fine on the employee. In addition, the very fact of the termination labor relations with an employee was illegal. The citizen was reinstated at work with payment of compensation.

You will learn:

• In what cases is disciplinary liability provided for violation of labor discipline.
• What measures of responsibility are provided for violation of labor discipline.
• What mistakes do managers make when applying disciplinary responsibility for violation of labor discipline.

Labor discipline and responsibility for its violation

Labor discipline is a set of rules of a particular company, which are binding on every employee, regardless of their position. The restrictions imposed by these rules may relate to corporate ethics, internal regulations, and concern labor protection issues.

The Labor Code of the Russian Federation obliges an employee to:

• comply with the rules established by the company;
• perform their duties in good faith;
• not violate labor protection rules and internal labor regulations;
• do not violate the rules set out in normative documentation company and not disclose trade secrets;
• take care of the equipment and other property of the company;
• in the event of a situation health threatening and people's lives, immediately report this fact to management.

Failure to comply with the above points is a violation of labor discipline.

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What types of violations of labor discipline are subject to disciplinary liability

Company employees can different ways violate labor discipline. The following criteria for violations can be distinguished:

• place;
• time and dates;
• the form;
• subject;
• way;
• volume.

Violations of labor discipline themselves can be of three types:

1. Technological, when an employee violates established rules and standards in process technology.
2. Regime, in which the regime of work and rest is violated.
3. Managerial, when there is a violation of subordination or coordination of management activities.

It is necessary to distinguish the types of violations of labor discipline from each other. For example, if an employee performs his duties poorly, which leads to the release of defective products, then such behavior is considered a technological disciplinary offense. If an employee has been absent for some time, then this is a violation of the regime. To find out the reasons for the violation of labor discipline, companies conduct internal investigations, collecting the necessary documentation.

From the point of view of the law, violations of labor discipline differ by objects. The main violations are the following:

1. Regular delays both at the beginning of the working day and after the lunch break. Leaving the workplace before the end of working hours.
2. Ignoring labor protection standards, which has led (or may lead) to an accident or accident.
3. Appearance at the workplace in a state of alcoholic, narcotic or toxic intoxication.
4. absenteeism.
5. Waste, theft or damage to company equipment and other assets.
6. Dishonest performance of duties.
7. Refusal to undergo medical examinations or training to improve qualifications.
8. Disclosure of trade secrets.
9. immoral acts.
10. Violation of subordination, in particular, complete disregard for the orders of the chief.
11. Deliberate failure to comply with orders or requirements of job descriptions.
12. Participation in activities that undermine the credibility of the company.
13. Providing false documents when applying for a job. In this case, you can consider the dismissal of an employee as a punishment. However, if an employee provided a false document of education, but at the same time his main duties do not require this level of education, then the dismissal of such an employee is impossible.

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Example

N. was fired due to the fact that during the employment he presented a fake diploma. N. did not agree with this decision and went to court, demanding reinstatement, as well as payment of compensation for moral damage and payroll for forced absenteeism. The court not only did not satisfy the claim, but also opened a criminal case, as it turned out that N. did not receive a diploma, about which the university notified him with a relevant certificate.

Separately, it is worth touching on some types of gross violation of labor discipline. We are talking about systematic absenteeism of working days, theft of company property, forgery of documents and the appearance in a state of intoxication.

It is necessary to understand the difference between liability and disciplinary offence. Material liability may occur or continue after the dismissal of the employee, if his actions during the performance of labor duties caused damage to the organization.

The following situations do not apply to violation of discipline:

1. The refusal of an employee to carry out orders that are not related to his job duties and are not a production necessity (if an employee refused to go to harvest potatoes, this is not a violation of labor discipline).
2. Refusal to work on weekends and holidays, with the exception of cases provided for by the Labor Code of the Russian Federation.
3. Refusal to work overtime.
4. Refusal of public works in the course of performance of the direct duties.

Violation of labor discipline will be only such situations in which the fault lies entirely with the employee of the company. If labor obligations were not performed for reasons beyond the control of the employee (or for good reasons), for example, due to poor work organization, bad conditions work, in view of low qualifications, then the fault of the employee is not here.

Measures of responsibility for violation of labor discipline

The Labor Code of the Russian Federation obliges employees of enterprises to observe labor discipline, and the employer - to familiarize employees with the rules of labor discipline against signature in advance, before the start of their immediate duties. Accordingly, the employee is liable for violation of labor discipline, the type of which is chosen by the employer, depending on the severity of the misconduct committed.

For an employee to be liable for violation of labor discipline, the following conditions must arise:

1. First of all, such a situation in which the employee is to blame will be considered a violation of labor discipline. Otherwise, if the employee is not at fault, then he cannot bear any responsibility. For example, if the seller sold a laptop and the buyer found a hidden defect in it, then the penalty imposed on the seller by the store administrator would be illegal, since he could not have known about hidden defects goods.
2. Second required condition for the onset of responsibility - this is the fact of non-performance or improper performance by the employee of his duties. We are talking about the duties that are spelled out in the employment contract and the internal regulations of the organization.

In the absence of any of these conditions, it cannot be considered that the employee has violated labor discipline.

If an employee skipped part or the whole working day, this fact should be displayed in the time sheet.

Labor legislation provides for disciplinary liability for violation of labor discipline of two types:

1. General, which is determined by the provisions of the Labor Code of the Russian Federation and documentation on the internal regulations of the organization.
2. Special, which is determined by the provisions on labor discipline of special groups of workers.

Responsibility for violation of labor discipline under Article 192 of the Labor Code of the Russian Federation is as follows:

• comment;
• rebuke;
• dismissal on certain grounds.

Comment will not cause serious consequences for the employee. But in the case of repeated misconduct, management may consider such violations to be systematic.

Rebuke- This is a more serious form of punishment for violation of labor discipline.

For correct design comments for violation of labor discipline, you need to draw up an act. This document describes the violation that occurred, an explanation of the employee and the remark itself are attached.

As such, the remark does not affect anything, but it is taken into account when committing other offenses. In the event of a repeated violation of labor discipline after the received remark, it will be possible to raise the issue of systematic violations. And for such an offense, the responsibility is much more serious.

Step 1: draw up an act of commission disciplinary offense.

An act is a mandatory document for fixing a misconduct, and it is drawn up in two copies. The direct supervisor of the violator draws up an act, and the presence of two witnesses is required. One copy of the act is handed over to the employee, the other copy goes to the company's management, which will decide on the degree of responsibility of the violator. Responsible for drawing up the act and its form must be prescribed in the regulatory documentation of the company.

Step 2: We demand an explanation from the employee.

The guilty employee is obliged to give an explanation for his violation. In this case, explanations are given in writing. If the employee refuses to explain, this must be recorded in the act. It is worth saying that the employee is not obliged to give explanations immediately, but he must do this within two days.

It is also necessary to remember that refusal to give explanations does not exempt from liability for the violation. The act, explanatory and report on the fact of violation from the immediate supervisor of the violator are transferred to the management of the company, which will decide on the punishment.

Step 3: We issue an order to impose a penalty.

The management of the company must carefully study the circumstances of the violation, review all the documents submitted and, after these operations, issue an order on violation of labor discipline. There is no single sample for such an order, but there are samples for reporting a violation of labor discipline. The document is drawn up in the form No. T-8 and T-8a. Be sure to include information about the violation and the penalty. In addition, a copy of the current regulations is attached to the order.

The order on the chosen measure of responsibility is endorsed by the management of the organization, the head of the personnel department and the immediate supervisor of the violator. The Labor Code of the Russian Federation does not allow making a note in the work book about the fact of a violation of discipline, unless the employee was fired for this reason. A copy of the order is filed in the personal file of the employee. The employee must be familiarized with the order on the measure of responsibility against the signature within three days from the date of its issuance.

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5 rules for the application of disciplinary responsibility

Absenteeism or showing up to work while intoxicated- a gross violation of labor discipline, for which liability may arise in the form of dismissal. However, this does not mean that it is not necessary to document this violation. If you do not fix each stage of bringing to responsibility for being drunk at the workplace, then the dismissed employee has every chance of reinstating his job through the court. Approximately one in three employee complaints relates to dismissal.

Rule 1: Do not fire an employee if he is on sick leave or vacation.

An employee of the STM-Service company took time off from work at 17:00 and was released by his superiors, but three hours later, at the end of the work shift, he was seen on the territory of the enterprise in a state of intoxication. Seven employees of the company confirmed that the worker in question had an unsteady gait, incoherent speech, and a strong smell of alcohol. One of the eyewitnesses said that the drunk worker had a basket of canned beer in his hand. It was found that the superiors of the employee did not let go, but suspended him from work, as he had been drinking alcohol since lunch. Nine empty and two full bottles of vodka were found in the production area where the worker worked, and other employees confirmed that their colleague had previously been seen drinking alcohol in work time. As a result, the employer decided to fire the violator. The next day, the employee took an unpaid leave and on the same day was dismissed by the company's management in accordance with subparagraph "b" of paragraph 6 of part 1 of Article 81 of the Labor Code of the Russian Federation. The dismissed employee went to court, which ruled that the fact that the employer was intoxicated was proven, but the dismissal was carried out in violation of the law, since the employee was on vacation. The company had to reinstate a negligent employee in his position and pay compensation in the amount of 54 thousand rubles for the time of forced absenteeism (appeal ruling of the Sverdlovsk Regional Court dated 08/09/2016 in case No. 33-13370/2016).

An employee can be fired in his absence only if he leaves due to own will. In such a situation, the day of dismissal will be considered the date specified in his application, even if the employee was on sick leave on that day. If the initiative comes from the company, then dismissal during sick leave or vacation is impossible (part 6 of article 81 of the Labor Code of the Russian Federation). You can fire an employee only after he appears at the workplace.

Rule 2: demand an explanation from the offending employee.

The chief accountant of Interunity did not appear at her workplace. Attempts during the day to contact the employee did not lead to anything, after which the management drew up an act of absence from the workplace, and a couple of weeks later the chief accountant was fired for absenteeism. The dismissed employee applied to the court with a demand to change the reason for dismissal to “of her own free will” and to pay compensation for non-pecuniary damage. The court satisfied the plaintiff's claims, arguing that the employer violated the procedure for using a disciplinary sanction - no explanatory note was taken. Attempts to get through to the employee cannot be considered explanatory (appeal ruling of the Moscow City Court of 09/06/2016 in case No. 33-34562/2016).

A written explanation must be taken from the employee before applying the disciplinary measure (Article 193 of the Labor Code of the Russian Federation). The requirement to give an explanatory note must also be made in writing. If an explanatory note is not received from the employee within two days, an appropriate act of refusal must be drawn up. And only after this procedure, you can proceed to the dismissal of the employee. If an employee provides an explanatory note, it is necessary to consider the reasons indicated in it. Valid reasons include: illness of the employee himself, illness or death of his close relatives, accidents, accidents in utility networks.

Rule 3: prove that the employee was at work at the time of the misconduct.

An employee of KVS International worked as an operator on a rotational basis. Returning from the watch, the worker used alcoholic drinks and was fined for being intoxicated at the airport. Upon learning of this, the company's management decided to fire him "under the article", believing that by such an act the employee violated the internal regulations of the organization. This regulation states that it is unacceptable for company employees to be intoxicated on the way to and from the place of work, as well as in company transport, airports and railway stations. However, the court did not consider such rules essential. For the employee, the day of going home was a non-working day, and the airport was not a place of work. The internal regulations of the organization cannot replace the legislation. As a result, the dismissed employee was reinstated and received compensation for forced absenteeism and moral damage (determination of the Moscow City Court dated December 1, 2016 No. 4g-13409/2016).

The dismissal of an employee is possible only if he consumes alcohol during working hours and at the same time is on the territory of the employer. This also includes those places that are associated with the work activity of the employee, whether it be an office, a business trip, or any other place where the employee performs his duties. labor functions. But the places of travel to and from work, as well as on a business trip and back, are not working.

Rule 4: prove that the employee committed a violation during working hours.

The Ural Assembly and Repair Complex company sent two employees (a repairman and an electric and gas welder) on a business trip to the Mayskoye factory for service. After finishing their shift, both workers drank in the factory dormitory, where they were discovered. The management of the factory insisted on a medical examination, which found both of them to be in a state of intoxication. This information reached the employer of the posted workers, who fired them when they arrived back. Both employees went to court, not denying that they had consumed alcohol, but after a work shift. The medical examination recorded intoxication in each of them at 22:14 and at 22:17, respectively.

The court clarified that during the rest, employees are free from labor obligations, and this time is given at their discretion. The workers were reinstated and received compensation for forced absenteeism (appeal ruling of the Sverdlovsk Regional Court dated October 19, 2016 in case No. 33-18514/2016).

It is not enough to prove the fact of intoxication, it is also necessary to prove that the employee was in this state during work. If the time was non-working, then the employer has no right to apply any measures of responsibility to the employee. For example, an employee appeared drunk after his shift. It is necessary to draw up an act of being in a state of intoxication, which will indicate the time and date, as well as describe the signs of intoxication. The act is signed by at least two people, for example, a personnel officer and the immediate supervisor of the employee. The employee is familiarized with this act under the signature, and if he refuses to do this, then an act of refusal must be drawn up. After that, the employee can be offered to undergo a medical examination.

Rule 5: Do not miss the allowable term for dismissal.

An employee of the company "T and K Products", holding the position of a driver, did not show up for work after his vacation. Three days later, he was suspended by management from work. Since the driver did not show up for work for two months, he was no longer paid. After that, the worker contacted labor inspection, and informed the employer in writing that he would not work until the receipt of the money due. The inspection ordered the company to repay the debt. The employer paid the driver the money due, and when he went to work, he was required to explain his two-month absence. When the employee refused to explain, he was fired for absenteeism.

The driver appealed to the court, and he took his side. The thing is that the dismissal order was issued three months after absenteeism, and in addition to this, the employer did not take measures to find out the reasons for his employee’s absenteeism. The first demands for an explanation were made only after the driver had started work. As a result, the company had to reinstate the employee in his position and pay him a salary for the time of forced absenteeism and compensation (appeal ruling of the Moscow City Court dated May 12, 2015 in case No. 33-14303 / 2015).

The legislation gives a month to apply a disciplinary sanction from the moment a violation of labor discipline is discovered (Part 3, Article 193 of the Labor Code of the Russian Federation). This period can be increased only if the employee is on sick leave or on vacation. Therefore, it is in the interests of the employer to find out the reason for the absence of the employee as soon as possible.

What mistakes do managers make when applying disciplinary responsibility for violation of labor discipline in relation to employees

Using dismissal as a measure of responsibility, managers sometimes make some mistakes, which we will outline below.

1. Absence or incorrect official documentation (memos, acts, orders). The dismissed employee was deprived of the opportunity to familiarize himself with the documents or was familiarized with them later than the required time.
2. The dismissal at the initiative of the employer occurred at the time when the dismissed employee was on vacation or on sick leave. Such a dismissal is illegal, as it contradicts the norms set forth in Article 81 of the Labor Code of the Russian Federation. The only exceptions are cases when the company is liquidated or the individual entrepreneur ceases to operate.
3. On the day of dismissal, the employee was not given work book, which is a violation of Article 84.1 of the Labor Code of the Russian Federation.
4. Dismissal of a pregnant employee. Such an action is illegal, since it is prohibited to dismiss pregnant women in accordance with Article 261 of the Labor Code of the Russian Federation, except in cases of liquidation of an enterprise or termination of an individual entrepreneur.
5. In the process of dismissal, the employee was not paid compensation for unused vacation or any other amount due to him.
6. In the case of dismissal for violation of labor discipline, official acts were not drawn up fixing violations. According to the norms described in Article 81 of the Labor Code of the Russian Federation, an order must be drawn up for each reprimand or remark. If there were no such orders, the court recognizes the dismissal as illegal, even despite the memoranda and explanatory notes.
7. In the event of dismissal for violation of labor discipline in the form of absenteeism or non-fulfillment of labor obligations, management did not consider the reasons for such violations. If the employee had good reasons, then the court recognizes the dismissal as illegal.
8. The employee was subjected to two penalties at once, for example, they were reprimanded and fired.

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Responsibility for violation of labor discipline in judicial practice

Example 1: the dismissal of employees for absenteeism brought losses to the organization.

The essence of the dispute was that the shareholder company filed a lawsuit against the head of the JSC with a claim for damages. The plaintiff held that the payment of benefits to laid-off workers was a loss. A number of employees who were made redundant and for absenteeism received benefits. The shareholder considered that the organization of such benefits by the director was illegal and resulted in material harm to the company.

The court of first instance partially satisfied the plaintiff's claim and ordered the director to compensate the shareholder for losses. Other requirements were not satisfied by the court. However, the Court of Appeal annulled the decision of the court of first instance, and the Court of Arbitration did the same. Thus, the shareholders' claim against the director was not satisfied.

Example 2: Voluntary dismissal excludes dismissal for absenteeism.

In this situation, the employee sued the head of the local state unitary enterprise. The head of this enterprise fired the plaintiff for absenteeism. However, the previously dismissed employee wrote a letter of resignation of his own free will, which was transferred to the personnel department of the organization. After submitting the application, the employee went on sick leave. Despite this, the manager drew up an act of absenteeism, he demanded an explanation from the employee, and after the employee refused to explain, he dismissed him for absenteeism. In court, the employee demanded to pay him a salary for the period of involuntary disability, change the wording of the reason for dismissal and pay compensation for moral damage.

The court of first instance dismissed the claim, but the Arbitration Court granted the claim.

Example 3: An employer must reliably keep records of the working hours of its employees.

If the organization has a time tracking system, then the data received from this system cannot contradict the information in the time sheet. If the data differ, then the management does not have the right to dismiss the employee, since they cannot objectively prove the fact of absenteeism.

One of the Moscow educational organizations dismissed the head of the department on the basis of Article 81 of the Labor Code. The manager considered that his subordinate was absent for several days at the workplace from 12 to 18 hours. This was confirmed by data from the automated access system and the rector's memos. However, the dismissed man pleaded not guilty and went to court.

The Presidium of the Moscow City Court considered the materials of the case and returned it for reconsideration to the court of first instance. It was found that on the days that the plaintiff allegedly skipped, the pass control system did not work, while the time sheet showed the presence of a dismissed employee at the workplace. This report card was signed not only by the dismissed person, but also by other responsible persons. These facts were accepted by the Court as strong evidence.

Internal regulations are approved at each enterprise. This document is considered a kind of instruction for employees, which spells out all the features of the work procedure - from the number of working hours to the procedure for calculating bonuses or disciplinary sanctions. Often employees violate these rules. What threatens non-compliance with the rules of labor regulations for employees and are the actions of the employer lawful in cases of fixing violations?

What is labor discipline?

Labor discipline is a set of rules developed by the enterprise in order to optimize the workflow. It is based on the duties of each employee prescribed in the legislation.

Article 21 of the Labor Code of the Russian Federation “Basic rights and obligations of an employee:

“The employee must:

• conscientiously fulfill their labor duties assigned to him by the employment contract;
• observe the rules of internal labor regulations;
• observe labor discipline;
• comply with established labor standards;
• comply with the requirements for labor protection and ensuring labor safety;
• take care of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees;
• immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property)”.

In addition to the basic requirements, the rules of labor discipline may indicate other duties of employees related to the specifics of the work of each organization. These include: compliance corporate ethics, keeping commercial secrets, breach of subordination, etc. In the event of a single violation of the schedule, an employee may be subject to disciplinary action as provided by law. Its type depends on the severity of the offense. The main violations of labor discipline include:

• non-compliance with labor protection rules resulting in an accident at work;
• absenteeism or systematic tardiness;
• appearing at work in a state of intoxication;
• immoral acts;
• theft work or personal property of employees;
• intentional failure to perform duties or their performance is not in full;
• falsification of legal documents;
• ignoring orders leader.

In private enterprises, the issue of choosing a disciplinary sanction is decided directly by the head. Punishment is considered the right of the leader, but not an obligation. Therefore, the employer independently decides on the appropriateness of imposing a disciplinary sanction. Systematic violation of labor discipline is considered as gross non-compliance with the rules and provides for more severe penalties, up to and including dismissal of the employee.

Types of disciplinary sanctions and their application

Disciplinary sanctions are aimed at improving the quality and organization of work. On the basis of an employment contract, employees are obliged to strictly comply with all requirements, since in case of violation of labor discipline in accordance with the Labor Code of the Russian Federation, the employee may be subject to penalties regulated by law.

“For the commission of a disciplinary offense, that is, non-performance or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

• comment;
• dismissal for appropriate reasons.

A disciplinary offense will be considered a misdemeanor committed only through the fault of the employee. The employer is obliged to require the implementation of all the rules only if the enterprise provides all the conditions for this. at the same time, each employee must be familiarized with the labor schedule, labor protection rules and his official duties, which is confirmed by his personal signature.

Article 81. Termination of an employment contract at the initiative of the employer

“The employment contract may be terminated by the employer in the following cases:

• repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction”.

Article 192 of the Labor Code of the Russian Federation. Disciplinary sanctions

“Disciplinary sanctions, in particular, include the dismissal of an employee on the grounds provided for in paragraphs 5, 6, 9 or 10 of the first part of Article 81, paragraph 1 of Article 336 or Article 348.11 of this Code, as well as paragraph 7, 7.1 or 8 of the first part of Article 81 of this Code in cases where the guilty actions that give grounds for the loss of confidence, or, accordingly, an immoral offense are committed by the employee at the place of work and in connection with the performance of his labor duties.

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

Disciplinary action may be taken based on memorandum. If the employer deems this insufficient reason, he may initiate disciplinary proceedings with the participation of labor collective. The result of the meeting of the commission will be an act with a decision on the type of disciplinary punishment.

Examples of violation of labor discipline

Practice knows many examples of violations of labor discipline. Most of them relate to non-gross offenses and are often limited to verbal remarks.

For example, worker Ivanov. A.A. violated the work schedule, arriving at work an hour later than the scheduled time without good reason. In this case, the employer may limit himself to an oral warning, which is issued in the form act of disciplinary offense. With systematic delays, Ivanov A.A. may be reprimanded, however, the law does not allow a reprimand immediately after the first offense.

A reprimand may result, for example, in the failure to fulfill his official duties by the warehouse manager V.V. Petrov, which entailed financial losses for the enterprise in the form of a failure to sign an agreement with suppliers. An employee may be issued regular or strict reprimand(at the discretion of the employer).

A one-time violation, entailing dismissal, may be the appearance of an employee at the workplace in a state of intoxication, theft of official property, or actions that provoked an accident or accident at work.

Any decision on disciplinary action may be appealed by the employee in court. Then the assistance of a professional lawyer competent in matters of the labor legislation of the Russian Federation will be relevant.

Penalties applied to an employee for violation of labor discipline are approved by Article 192 of the Labor Code of the Russian Federation. In the article, we will analyze on what grounds it is possible to issue a penalty for violation of labor discipline, and also consider a sample act on disciplinary action.

Punishment for violation of labor discipline under the Labor Code of the Russian Federation

Article 192 of the Labor Code of the Russian Federation provides for the following types of punishments applied by the employer for violation of labor discipline by an employee:

• comment;
• rebuke;
• dismissal.

The listed types of penalties are not self-exclusive and can be applied in any order, depending on the severity of the misconduct committed by the employee, as well as on the circumstances that influenced the violation committed by the employee.

In general, penalties for violation of labor discipline are applied in the following cases:

1. The actions that led to the accident. If the employee has committed actions that led to an accident, breakdown production equipment caused a threat to the life and health of other employees, then the employer has the right to bring the perpetrator to liability under the Labor Code of the Russian Federation.
2. Theft of employer property . The basis for the recovery may be the embezzlement of the company's funds, theft of production equipment, the use of the company's property and its damage.
3. Systematic violation of the labor schedule. An employee who is regularly late for work, leaves prematurely workplace at the end of the working day (shift), and also violates other requirements of the labor schedule.
4. Improper performance of work duties . The employer has the right to hold liable an employee who performs his labor duties in an improper form, incompletely (for example, underfulfillment of the plan), or in violation of the established technology.
5. Denial of compulsory education. The Labor Code of the Russian Federation provides for the obligatory passage of an employee to training in fire safety, as well as passing a medical examination in in due course. If the employee refuses to take the established measures, the employer has the right to apply penalties to the employee.
6. insubordination . Refusal to carry out the order of the head, direct disregard for his recommendations, as well as actions committed by an employee in order to undermine the authority of the head, may serve as a basis for holding the employee liable on the basis of the provisions of the Labor Code of the Russian Federation.

In addition, penalties may be applied to an employee who came to work in a state of alcoholic or drug intoxication. In this case, the employer does not need to prove the systematic nature of illegal actions. Also, for penalties, it is not necessary for the employee to commit actions that led to the accident, because being in the workplace in a state of intoxication in itself poses a threat to the work process, and in some cases to the safety of employees.

Is it possible to fine an employee for violating labor discipline

Paragraph 4 of Art. 192 of the Labor Code of the Russian Federation approved the inadmissibility of penalties in a form other than that provided for by the Labor Code of the Russian Federation, as well as federal labor laws. Thus, the employer is not entitled to collect fines or make other deductions from the employee's salary in connection with the violation of labor discipline by him.

At the same time, the employer can "punish" the employee financially if the employee's salary is paid with a variable part (salary + bonus / additional payment / bonus). In this case, the recovery is carried out on the basis of an employment contract, according to which the employer has the right not to pay the employee a bonus in case of violation of labor discipline, if there are necessary documentary evidence.

How to file a penalty for violation of labor discipline

Below is step-by-step instruction, which will help the employer to issue a penalty for violation of labor discipline.

Stage-1. Establishment of the fact of violation of labor discipline

The first stage of recovery is to establish the fact of violation of labor discipline by an employee. In the general procedure, this fact is determined on the basis of a memorandum drawn up by the head or colleague of the employee. The form of a memorandum is not established by law, so the manager can draw up a document in free form, indicating in it:

• Full name, position of the employee who violated labor discipline;
• fact of violation (description, date);
• information about other violations committed by the employee earlier;
• request for penalties (remark, reprimand, dismissal).

Stage-4. Getting explanations from an employee

After receiving the memorandum, the head of the company turns to the employee for an explanation as to the reasons for what happened. As a rule, a conversation with an employee is carried out in oral, followed by registration by the employee explanatory note.

Like a memorandum, an explanatory note is drawn up by an employee in free form addressed to the head of the enterprise. In the text of the document, the employee describes the reasons for the misconduct committed by him, if necessary, he supports the explanations with documents confirming the presence of good reasons (for example, a sick leave may be provided if he fails to show up for work).

The deadline for providing an explanatory note is before the expiration of 2 days from the date of issuing a memorandum regarding the identified violation.

Stage-3. Drawing up an act on violation of labor discipline

Based on the memorandum, other documents confirming the employee's violation of labor discipline, as well as the employee's explanatory note, the head of the company, in the presence of two authorized persons (employees of the company), draws up an act of violation of labor discipline.

In the text of the document, the employer describes the circumstances of the violation, as well as the employee's explanations. If the employee refuses to provide an explanatory note, this fact should be recorded in the act.

After drawing up the act, it is signed by the head, authorized persons who were present at the time of drawing up the document, as well as the employee in respect of whom the fact of violation of labor discipline was established (column "Familiarized").

The act is drawn up in 2 copies, one of which is transferred to the personnel department to be reflected in the personal file of the offending employee, the second copy is issued to the employee for review.

Stage-4. Issuing a disciplinary order

Based on the act, the manager issues an order to apply a penalty to an employee who has violated labor discipline. When determining the penalty (remark, reprimand or dismissal), the following is taken into account:

• systematic actions taken;
• the existence of other facts of violation by the employee;
• reputation of the employee (level of responsibility in the performance of work, professionalism, attitude of colleagues).

The order is the basis for the application of penalties (remark or reprimand) with subsequent reflection in the personal file (form T-2). An entry about a remark or reprimand is not entered in the work book.

If the head decided to dismiss the employee in connection with the committed misconduct, then on the basis of the order to apply a disciplinary sanction, a dismissal order is drawn up, followed by an entry in the work book.

Such actions may include, among others:

• reward for good work;
• application of disciplinary sanctions for misconduct.

Labor discipline and legislation The legislative basis for the norms on labor discipline is concentrated in the Labor Code of the Russian Federation. The Code contains a separate chapter on labor discipline (Chapter 30). It defines the basic requirements for measures to encourage employees, types of disciplinary sanctions, the procedure for applying and removing disciplinary sanctions against different categories workers. In addition, the norms of the code describe such violations of labor discipline, which may be followed by dismissal, as well as the procedure for documenting these violations. The features of the application of the requirements of the Labor Code were commented on by the Supreme Court of the Russian Federation in the resolution of the plenum "On the application of the Labor Code by the courts of the Russian Federation" dated March 17, 2004 No. 2.

Violation of labor discipline in the Labor Code of the Russian Federation: examples and consequences

Help in most general view PVTR usually include:

1. the general procedure for hiring, transferring to a new place and dismissal of employees;
2. the rights and obligations of employees and employers in relation to each other and other members of the team;
3. the procedure for the operation of the company and its individual divisions;
4. the mode of work and rest of various categories of employees of the company;
5. the procedure for applying penalties and incentives applied in the organization;
6. other issues regulating the rules for the implementation of labor activities at the enterprise.

The text of the developed document is being approved by the head of the company in the prescribed manner. If there is a trade union in the organization, it must also approve the draft document.

Labor discipline and responsibility for its violation

Types of violations of labor discipline Depending on the norms of the labor process, the following three types of violations of labor discipline by an employee are distinguished:

• technological (violation of technological standards);
• violation of subordination and coordination in the process of labor management (violations of management standards);
• violation of the regime of working hours and rest time (violation of regime norms).

Thus, the release of defective products through the fault of any employee will be a technological disciplinary offense, and, for example, absenteeism can be considered a violation of regime standards. Depending on the type of violation, the causes of the incident are investigated and the necessary documents are collected.

Violations of labor discipline

With systematic delays, Ivanov A.A. a reprimand may be issued, but the law does not allow a reprimand immediately after the first offense. A reprimand may result, for example, in the failure to fulfill his official duties by the warehouse manager V.V. Petrov, which entailed financial losses for the enterprise in the form of a failure to sign an agreement with suppliers. An employee may be issued a regular or severe reprimand (at the discretion of the employer).
A one-time violation, entailing dismissal, may be the appearance of an employee at the workplace in a state of intoxication, theft of official property, or actions that provoked an accident or accident at work. Any decision on disciplinary action may be appealed by the employee in court. Then the assistance of a professional lawyer competent in matters of the labor legislation of the Russian Federation will be relevant.

Violation of labor discipline

If the employee has provided an explanatory note, an act of violation and a memorandum from the immediate supervisor of the employee are attached to it. This package of documents is submitted to senior management in order to make a decision on recovery. The order to impose a penalty After studying the circumstances of the committed disciplinary offense and studying all the documents, the head of the enterprise issues an order on violation of labor discipline.

There is no standard form for such an order (except for the dismissal order, which is drawn up according to forms No. T-8 and No. T-8a, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1 “On approval unified forms primary accounting documentation for the accounting of labor and its remuneration"), but the document must reflect the disciplinary offense, the time and date of its commission, the type of penalty, and list the regulatory documents.

Disciplinary offense

• absenteeism;
• systematic lateness after a lunch break or to the beginning of the working day;
• unacceptable appearance- presence at the workplace in a state of intoxication (alcohol, narcotic or toxic);
• neglect of the rules of labor protection and safety, which led to an accident or accident;
• cases of theft of company property, its damage;
• improper level of performed obligations (low quality, non-compliance with established requirements);
• disclosure of trade secrets of the organization;
• non-compliance with subordination (disobedience to orders of higher employees, neglect of the hierarchy that has been established in the company);
• committing an immoral act.

Upon detection of the fact of non-compliance with the rules, an act of violation of labor discipline is drawn up.

Labor discipline or what to do with violators

Attention

Deprivation of a bonus as a punishment for violation of labor discipline An employer considering a disciplinary sanction for violation of labor discipline for an employee should keep in mind that deprivation of a bonus is not considered as such by the current legislation. This means that organizations are not prohibited from applying this type of sanction to employees who have committed this or that misconduct. However, this is only possible if such a measure is directly provided for by the regulation on remuneration or bonuses in force in the organization.

Find out which wording is better to use for these purposes in our material. Help Imposing a disciplinary sanction The specific type of sanction for violation of labor discipline is determined by the employer based on the characteristics of a particular situation and possible negative consequences employee behavior for the organization.

When imposing a disciplinary sanction, the gravity of the misconduct committed and the circumstances under which it was committed must be taken into account. Disciplinary punishment may be issued on the basis of a memo. If the employer considers this an insufficient reason, then he may initiate disciplinary proceedings with the participation of the labor collective.

The result of the meeting of the commission will be an act with a decision on the type of disciplinary punishment. Practice knows many examples of violations of labor discipline. Most of them relate to non-gross offenses and are often limited to verbal remarks.
For example, worker Ivanov. A.A. violated the work schedule by showing up to work an hour later than the scheduled time without a good reason. In this case, the employer may limit himself to an oral warning, which is drawn up in the form of an act on a disciplinary violation.

Violation of labor discipline example and consequences

The document is drawn up by the immediate supervisor of the employee in the presence of two witnesses in two copies (one immediate supervisor is transferred to the top management for a decision on the recovery, the other copy is transferred to the employee). The form of the act and the employees responsible for drawing up the act must be approved by the internal labor regulations of the enterprise. Explanations of the employee The employee is required to provide written explanations regarding the disciplinary offense committed by him (it is recommended to require an explanation in writing so that this fact is recorded).

Info

If the employee refuses to give explanations, this should be reflected in the act. The employee is given two days to provide explanations. It is worth mentioning that the refusal to write an explanatory note will not save the employee from imposing a penalty.

• observe labor discipline;
• comply with established labor standards;
• comply with the requirements for labor protection and ensuring labor safety;
• take care of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees;
• immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property)”.

In addition to the basic requirements, the rules of labor discipline may indicate other duties of employees related to the specifics of the work of each organization.
Responsibility for violation of labor discipline According to labor legislation, each employee is responsible for observing labor discipline at the enterprise and each employee must be familiar with the internal labor regulations, labor protection documents, job descriptions and other documents governing it labor activity, under the painting. In case of violation of labor discipline by an employee, the employer has the right to apply penalties at its discretion, depending on the severity of the misconduct. The order of recovery for a disciplinary offense Punishment for violation of labor discipline is established by the head of the enterprise on the basis of legislative norms and available information.
An act on the commission of a disciplinary offense When an employee commits any disciplinary offense, an appropriate act is drawn up.
On the Constitutional Court of the Russian Federation” dated July 21, 1994 No. 1-FKZ, a judge of the Constitutional Court may be subject to a disciplinary sanction in the form of:

• warnings;
• termination of authority.

The Labor Code of the Russian Federation prohibits the use of disciplinary sanctions that are not provided for by laws, charters or regulations. Violation of labor regulations and disciplinary liability in the form of dismissal The most significant punishment applied in case of violation of labor discipline is dismissal “under the article”. The fact is that a mark of a disciplinary sanction in the form of dismissal is entered in the work book, and dismissal for violation of labor discipline can permanently ruin a professional biography. However, fired labor offense is possible only if, in the presence of an imposed disciplinary sanction (remark or reprimand), a violation is again committed.