Disciplinary action in the form of a severe reprimand. Reprimand at work: consequences, grounds and procedure for issuance

For committing a disciplinary offense, i.e. for guilty non-fulfillment or improper fulfillment by the employee of his job duties, three types of penalties can be applied to it (Article 192 of the Labor Code of the Russian Federation):

Remark (less strict measure of responsibility);

Reprimand (more stringent measure of responsibility);

Dismissal.

Federal laws, charters and regulations on discipline that apply to certain categories of employees (for example, for state and municipal employees, customs and prosecutors) may also provide for other disciplinary sanctions (Article 193 of the Labor Code of the Russian Federation).

For ordinary organizations, the list of these penalties is exhaustive, therefore, the employer does not have the right to apply other types of punishment to employees (fines, deprivation of bonuses, etc.). If such facts are revealed by the Federal Labor Inspectorate, then the organization may be held administratively liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of labor legislation.

The penalties listed in Art. 192 of the Labor Code of the Russian Federation, can be applied not only in the order in which they are indicated in Labor Code RF. Therefore, taking into account the severity of the offense committed, its consequences, the personality of the offender, etc. the employer can immediately reprimand the employee (rather than a remark) or even dismiss him (if there are sufficient grounds). But for each violation, only one penalty can be applied (Article 193 of the Labor Code of the Russian Federation), i.e. for absence from work for more than four hours, both a reprimand and dismissal cannot be applied to an employee at the same time. At the same time, bringing an employee to liability for a particular offense (for example, for damage to the organization's property) does not deprive the employer of the opportunity to apply a disciplinary sanction at the same time. This conclusion follows from Art. Art. 192 and 248 of the Labor Code of the Russian Federation, according to which bringing to liability is not a disciplinary sanction.

For more information on bringing to liability, see "Guide to Personnel Issues. Material Liability of an Employee".

Violations for which penalties may be applied

Disciplinary sanctions are applied in case of non-performance or improper performance by the employee of his duties (Article 192 of the Labor Code of the Russian Federation). At the same time, these obligations must be fixed in the employment contract, job description or in the local regulations of the employer. This means that before starting the procedure for bringing an employee to liability, you need to make sure that the employee was familiar with the document, the provisions of which he violated. Familiarization of the employee with these documents is recorded by his signature (with the date) on the relevant document.

Thus, the application of the penalty is possible:

For the commission by the employee of actions expressly prohibited by the employment contract, job description, local act;

For failure to perform the necessary actions expressly provided for by these documents;

For the commission of actions not prohibited by the employment contract, but arising from the meaning of observing labor discipline.

Examples of such actions could be:

Failure to perform a labor function;

Failure to comply with the instructions of the head;

Violation of labor discipline (lateness, absence from the workplace without good reason, refusal to undergo a medical examination, refusal to teach the basics of labor protection, being at the workplace in a state of intoxication, etc.);

Committing guilty actions (theft, embezzlement, damage, etc.) in relation to the property of the employer, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses (clause "d" part 6 article 81 of the Labor Code of the Russian Federation).

Situation from practice

Is it possible to apply a disciplinary sanction to an employee who is late for work by an hour by confusing the start time of the shift established by the shift schedule?

Penalty can be applied only if the employee is properly familiar with the shift schedule.

According to part 4 of Art. 103 of the Labor Code of the Russian Federation, shift schedules are brought to the attention of employees no later than one month before they are put into effect. In this situation, the seller can be held liable only if he is familiar with the shift schedule a month before it is put into effect against signature. In the case when the schedule is posted in an open place (without the signature of the employees on familiarization with it), the seller cannot be held liable.

Thus, if the employer familiarized the employee with the schedule within the time limits established by law, then the application of the penalty is lawful.

Registration of the fact of committing a disciplinary offense by an employee

The first thing to do in order to correctly apply a penalty to an employee is to document the misconduct (action or inaction) that is a violation of labor duties or discipline and for which it is planned to apply a penalty. In practice (depending on what kind of violation the employee committed), this fact is usually documented by the following documents:

A memorandum (for example, if the employee fails to complete the assigned task or when the employer's resources (Internet, copier, etc.) are used for personal purposes);

Act (for example, in the absence of a workplace or in case of refusal to undergo a medical examination);

By the decision of the commission (based on the results of an investigation into the fact of damage to the employer or the fact of disclosure of confidential information).

The listed documents can confirm the misconduct both individually (for example, the decision of the commission) and in the aggregate (for example, in the absence of an employee at the workplace during the working day, as a rule, a memorandum is drawn up first, and then an act). The obligation to familiarize the employee with these documents is not established by the Labor Code of the Russian Federation.

Obtaining explanations from the employee who committed the violation

Before issuing an order to apply a disciplinary sanction, a written explanation must be requested from the employee (Article 193 of the Labor Code of the Russian Federation). Thus, the employee is given the opportunity to specify good reasons of his offense. The Labor Code of the Russian Federation does not specify in what form the employer must request this explanation. Therefore, if the employee is ready to submit an explanatory note, a written requirement can not be drawn up. If the situation is clearly of a conflict nature, then it is better to issue this requirement in writing and hand it over to the employee against signature. If the employee refuses to sign the demand, it is necessary to draw up an appropriate act.

The Labor Code of the Russian Federation gives the employee two business days to submit explanations, which are counted from the date following the day the claim was made. If after this period the employee has not provided an explanation, then an appropriate act is drawn up (Article 193 of the Labor Code of the Russian Federation). If there is such an act and a document indicating that an explanation was requested from the employee, a disciplinary sanction can be applied without explanatory note employee (Article 193 of the Labor Code of the Russian Federation).

Situation from practice

When is it necessary to draw up an act stating that the employee did not provide an explanation for the violation of discipline?

An act of refusal to give explanations must be drawn up after two working days from the date of presentation of the relevant requirement to the employee.

According to Art. 193 of the Labor Code of the Russian Federation, an act stating that the employee did not provide an explanation for the fact of the committed violation of discipline is drawn up after two working days from the date of presentation of this requirement. Accordingly, if the claim is made on Monday, then the first day will be Tuesday, and the second day will be Wednesday. At the same time, by virtue of the specified norm, the second day must expire. Thus, if no explanations were received before 24 hours on Wednesday, then on Thursday, an appropriate act can be drawn up. If the employee submits an explanatory note further actions employers depend on what causes of misconduct are indicated in it. If the employer considers them respectful, then disciplinary action is not applied. Otherwise, the explanatory note becomes one of the grounds for applying a remark or reprimand.

Execution of an order for the application of a penalty

After receiving an explanatory note or drawing up an act stating that after two working days the employee did not provide an explanation, an order can be issued to apply a reprimand or remark. At the same time, the question of what kind of punishment to apply in this case The employer decides for himself. In such a situation, it is necessary to take into account the circumstances of the misconduct, its consequences, the reasons cited by the employee, etc.

There is no unified form of such an order, so the organization develops it independently. The order must include the following information:

Surname, name, patronymic of the employee;

The position of the employee to whom the penalty is applied;

Structural unit where the employee works;

The misconduct committed by the employee, with references to the violated clauses of the contract or job description and to documents confirming this violation;

The circumstances of the misconduct, the degree of its severity and the guilt of the employee;

Type of imposed disciplinary sanction (remark or reprimand).

As a basis for issuing an order, the details of the act, memorandum or other document fixing the misconduct, the employee's explanatory note or the act of refusing to provide explanations are indicated.

The order is announced to the employee against signature within three working days from the date of its issuance, not counting the time the employee was absent from work. If the employee refuses to read the document, an appropriate act is drawn up.

It is possible to issue an order to apply a disciplinary sanction only if no more than six months have passed from the day the misconduct was committed, and no more than one month has passed since the day it was discovered (Article 193 of the Labor Code of the Russian Federation). In this case, the day when the misconduct was discovered is the day when this misconduct became known to the immediate supervisor of the employee. And it does not matter whether this leader has the right to apply a reprimand or remark (paragraph 34 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

These terms are extended in the following cases:

If a violation is discovered as a result of the audit, the audit is financially -economic activity or an audit, then the period counted from the moment the misconduct was committed increases to two years (Article 193 of the Labor Code of the Russian Federation);

If the employee's misconduct became the basis for initiating a criminal case, then the time of proceedings on it is not taken into account when calculating the period that has elapsed since the misconduct was committed (Article 193 of the Labor Code of the Russian Federation);

If the employee was sick, was on vacation, then the time the employee was ill, on vacation, as well as the time required to take into account the opinion of the trade union organization, is not taken into account when calculating the monthly period counted from the moment the misconduct was discovered (Article 193 of the Labor Code of the Russian Federation).

Registration of a work book when announcing a remark or reprimand

An entry on a disciplinary sanction is not made in the work book (Article 66 of the Labor Code of the Russian Federation), except in cases where dismissal is a disciplinary sanction.

Registration of a personal card when announcing a remark or reprimand

It is not necessary to make a record of a disciplinary sanction on a personal card. But if necessary (to ensure internal accounting) this information can be reflected in section 10 "Additional information".

The consequences of applying a penalty to an employee

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

Not to pay incentive payments to the employee in full or in part, if local regulations provide that these payments are not made in the presence of outstanding disciplinary sanctions;

In case of repeated (within a year) violation of labor discipline, dismiss the employee (part 5 of article 81 of the Labor Code of the Russian Federation).

For more information about dismissal for repeated non-performance of labor duties, see the section "Dismissal for repeated non-performance of labor duties" of this material.

Responsibility of the employer for violation of the procedure for applying the penalty

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

Removal of penalty

Removal of the disciplinary action means that the employee is considered not to have disciplinary action. Such withdrawal may occur automatically or at the initiative of the employer.

1. Automatic withdrawal of penalty

The penalty applied to the employee (reprimand or remark) is automatically removed after a year, provided that during this year the employee was not subjected to a new disciplinary sanction (Article 194 of the Labor Code of the Russian Federation). At the same time, the employer should not draw up any documents, since the Labor Code of the Russian Federation does not require this.

If the employee commits a new offense during the year, for which a new penalty is applied to him, then the period for lifting the penalty begins to be counted again from the moment the order is issued to apply the penalty for a new offense. Accordingly, after a year, if the employee does not commit new misconduct, he will be considered without penalties.

Situation from practice

Is a violation of labor discipline considered repeated if the employee was transferred to another position before the second misconduct?

According to Part 1 of Art. 194 of the Labor Code of the Russian Federation, if within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have a disciplinary sanction. The employer also has the right, on his own initiative, to remove a previously imposed disciplinary sanction from the employee before the expiration of the year (part 2 of article 194 of the Labor Code of the Russian Federation). The Labor Code of the Russian Federation does not establish that a transfer to another position, another job with the same employer is considered a circumstance that exempts an employee from a previously imposed disciplinary sanction. Accordingly, if 12 months have not passed since the application of the first disciplinary sanction and during the same period the employee violates labor discipline again, such a violation will be considered repeated. The employer will have every reason to dismiss such an employee due to the employee's repeated failure to fulfill his labor duties without good reason (clause 5, part 1, article 81 of the Labor Code of the Russian Federation).

2. Registration of the removal of the penalty ahead of schedule at the initiative of the employer

The employer has the right to remove the penalty from the employee before the expiration of a year from the date of its application, and he can do this as own initiative, and at the request of the employee himself, his immediate supervisor or a representative body of employees (Article 194 of the Labor Code of the Russian Federation).

Removal of the penalty is issued by order. There is no unified form of this order, so the organization develops it independently. The order must specify:

Surname, name, patronymic of the employee;

The position of the employee and the structural unit;

Grounds for removing the disciplinary sanction;

The date the charge was withdrawn.

It is necessary to familiarize the employee with the order against signature.

If an employee has committed guilty or unlawful acts against the property of the employer, or has violated the norms of internal regulations or labor discipline, the employer has the right to punish him. Such a punishment is called a disciplinary sanction, and the guilty action itself is a disciplinary offense.

According to Art. 192 of the Labor Code of the Russian Federation, the employer has the right to punish the employee as follows:

• give him a formal reprimand;
• give him a reprimand or a severe reprimand;
• dismiss by making an appropriate entry in the work book.

A disciplinary sanction in the form of a remark is the most “common” type of disciplinary sanction. It is imposed for misdemeanors of "mild severity", that is, when the violation of the norms of labor discipline or the damage caused is insignificant. For example, if the employee improperly performed his labor duties for the first time. Prior to this, he had not noticed this. To apply a remark on this basis, the employee must be familiar with the job description when hiring. Acquaintance is confirmed by the signature of the new employee. He must also be familiar with the Internal Regulations and regulations on labor discipline.

Before imposing a disciplinary sanction in the form of a remark, the employer must make sure that the employee is at fault for the misconduct. That is, he must establish a causal relationship between the misconduct and the fault of the employee.

To do this, he must request written explanations from the employee. This is done through the act of requesting written explanations. The employee must submit an explanatory note to the employer in writing no later than 2 working days from the date of receipt of the act. The act must be signed for receipt.

In the explanatory note, the employee can provide the employer with evidence of his innocence or give good reasons for which this disciplinary offense was committed. The Labor Code of the Russian Federation does not indicate what is a good reason, this will be decided by the employer himself. But, as judicial and personnel practice shows, a good reason can be:

• employee illness;
• violation by the employer of working conditions;
• lack of materials for work and more.

If the employer deems the reason valid, then he should not issue a reprimand to the employee. If there is no reason at all, or it is disrespectful, the employee issues an order to issue a disciplinary sanction in the form of a remark.

On the order, the employee must put his signature. This means that he is familiar with the order. This is done in case of challenging the remarks in court. If the employee refuses to sign the order, the employer must draw up an appropriate act.

The remark is valid for 1 year from the date of issue of the order. But it can be withdrawn ahead of schedule:

• at the written request of the employee;
• at the sole request of the employer;
• at the written request of the head of the structural unit;
• at the written request of the trade union body, if any, at the enterprise.

Attracting employees to disciplinary responsibility for committing disciplinary offenses in accordance with Article 22 of the Labor Code of the Russian Federation is law, and not the obligation of the employer, therefore, he is free to use or not use it. However, using the right granted to him, the employer must be guided by the norms 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 the personnel officer, when applying disciplinary sanctions, must remember, know and follow, like commandments.

Let's talk about them.

"Remember the essence"

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

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

• conscientiously fulfill their labor duties assigned to him by the employment contract;
• follow the rules of the internal work schedule organizations;
• 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 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.

This wording of the norm gives grounds to conclude that disciplinary sanctions can only be applied for non-performance or improper performance of those labor duties that are related with the performance of a labor function and are directly specified in the employment contract, and all other duties (for example, observe labor discipline, comply with 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 the specified norm implies the entire set of labor duties of the employee assigned to him within the framework of labor relations, and not just the labor function. Most often, the obligations of the employee listed in the second part of Article 21 of the Code are fully reproduced in the text 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 a disciplinary sanction, one cannot ignore the following question. Cases of bringing an employee to disciplinary liability for acts not related to the performance of labor duties still take place. Thus, employers often apply disciplinary sanctions for " misbehavior dishonoring honor labor collective» in the wake of 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 task.

Disciplinary action may be taken only for non-fulfillment or improper fulfillment of labor duties, that is, duties due to the existence of labor relations 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 civil servants. For example, in accordance with Article 41.7 of the Law of the Russian Federation of January 17, 1992 No. 2202-I “On the Prosecutor’s Office Russian Federation”(as amended on 05.10.2002) the basis for imposing disciplinary sanctions on prosecutorial employees is not only their failure to perform or improper performance of their official duties, but also the commission of misconduct that discredits the honor of a prosecutorial employee.

In the local regulations of organizations, disciplinary offenses are divided into two groups in order to determine the schemes for applying disciplinary sanctions:

• failure to perform or improper performance of duties stipulated by employment contracts, official and production (by profession) instructions;
• violation of labor discipline, that is, a violation of the rules of conduct that are mandatory for all employees, defined in accordance with the Labor Code of the Russian Federation, federal laws, a collective agreement, agreements, an employment contract, local regulations of the organization, as well as non-compliance of employees with these rules.

As already noted, any differentiation of disciplinary sanctions depending on what takes place - non-fulfillment of labor duties or their improper fulfillment - 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 made it. Guilt in law is understood as the mental attitude of a person in the form of intent or negligence to his unlawful behavior and its consequences. Guilt in the form of intent means that the person foresaw the unlawfulness of his behavior and the possibility of negative consequences, wished or allowed them and consciously, deliberately 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 of no 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 a disciplinary sanction can be applied to an employee, it is necessary to establish the presence of guilt. The most common are disputes regarding being late for work due to transport problems, bad weather conditions which the employee is not able to foresee, even if he wishes. The courts have repeatedly recognized the application of disciplinary sanctions for absenteeism as unlawful due to the fact that there was no fault of the employee in his absence from the workplace for more than 4 hours in a row during the working day. For absenteeism to qualify as absenteeism, it must be due to bad reasons. Whether the reason given by the employee is valid is determined by the employer. However, the point of view of the court does not always coincide with the opinion of the employer. Thus, the administrative detention of an employee, carried out on legal grounds, was recognized by the court as a good reason for the absence of an employee, and his dismissal for absenteeism was unlawful.

The list of circumstances, as well as the reasons for the absence of an employee at the workplace, giving the employer grounds for applying disciplinary sanctions, was determined by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. . as of November 21, 2000). Primarily, absenteeism without good reason is equated :

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 about the termination of the contract, as well as before the expiration of the 2-week notice period;

b) leaving work without a valid reason by a person who has concluded an employment contract for a certain period, before the expiration of the contract;

c) the presence of an employee without valid reasons 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 labor duties, must perform the assigned work;

d) unauthorized use of days off, as well as unauthorized leave on vacation (basic, additional). At the same time, it should be taken into account that the use of rest days by an employee is not absenteeism in the case when 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 the transfer, made in compliance with the law.

Not considered absenteeism:

• absenteeism of the employee at social events;
• evasion of the employee from performing actions not related to labor duties;
• the refusal of the employee to start work to which he was transferred in violation of the law;
• the presence of an employee, 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 the application of disciplinary sanctions due to the innocence of the employee also take place in relation to other disciplinary offenses. AT judicial practice there were decisions when the improper performance of official duties was not recognized as a disciplinary offense for the reason that the incorrect wording of duties did not allow determining how the employee should perform 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 question is natural, is it possible to bring an employee to disciplinary responsibility during the probationary period? After all, the employee is just hired with 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 probationary period. Basically, disputes about dismissal under Article 71 of the Labor Code of the Russian Federation are based on the fact that a violation of labor discipline is called an unsatisfactory test result, and first of all, being late. The position of the workers boils down to the fact that the test was assigned to them in order to check their business qualities, qualifications, and being late does not indicate that their knowledge and professional quality prevent them from doing their assigned work. To avoid such disputes, employers should not only keep a record of all violations of labor discipline, but also apply disciplinary sanctions in a timely manner.

"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 he was not responsible modern conditions economic development.

We do not know anything about punishment with rods in the nineties of the last century, but the “reduction of salaries” took place at every turn. It was denoted by a capacious word - "fine". Fines were introduced not only by small and medium-sized, but also by large enterprises, which declared law-abidingness as the main corporate value. Often, bonus deductions were prescribed in the internal labor regulations or the staff regulation in the section "Disciplinary responsibility". Transfers to a lower-paid job or a lower position were also considered an effective measure to combat non-fulfillment of official duties, non-fulfillment of norms, 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 remarks could be greater than that of punishment. Conversations and persuasions, it seems, are not disciplinary sanctions to be fixed, but with their help it is also possible to influence an employee who improperly performs his duties, ignores labor discipline, etc. However, in order for all these oral "warnings", "stating" 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, which were issued orally and did not provide for detailed fixation, and, consequently, compliance with labor laws.

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 for free disposal of the size wages, and a simplified procedure for dismissal, were dispersed as orders were issued by the state labor inspectorate. They finally disappeared after the introduction of the Labor Code of the Russian Federation, which directly prohibited employers from inventing new disciplinary sanctions.

So, once again we turn 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 allowed (Part three of Article 192).

If you - commercial organization, stop trying to find federal laws that supplement the list of types of disciplinary sanctions. With regard to Article 192 of the Labor Code of the Russian Federation, among the federal laws expanding the list of types of disciplinary liability, or, in legal language, regulating the procedure for bringing to special disciplinary liability, the first should be called the federal law dated July 31, 1995 No. 119-FZ “On the fundamentals of the public service of the Russian Federation” (as amended on November 7, 2000). Along with measures of general disciplinary responsibility (remark, reprimand, dismissal), its article 14 provides for a warning about incomplete service 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 demotion in class rank, deprivation of the badge "For impeccable service in the prosecutor's office of the Russian Federation", deprivation of the badge "Honorary worker of the Prosecutor's office of the Russian Federation". In fact, all of the above special types disciplinary sanctions are to some extent reproduced in other federal laws dedicated to civil servants.

Considering that by introducing your own “Regulations on Discipline” you automatically extend the norm of part two of Article 192 of the Labor Code of the Russian Federation to yourself, you are committing nothing more than a legal mistake. It has been "stretching" since 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 industries National economy for certain categories of employees, charters and regulations on discipline apply. 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. This gap is filled in the Labor Code of the Russian Federation - it is established that the charters 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 forbids the employer to adopt a local normative act specifying the internal labor regulations in terms of disciplinary liability and calling it a “regulation”. However, it will not be subject to parts two and three of Article 192 of the Labor Code of the Russian Federation, and therefore, it should only provide for penalties established by the Labor Code of the Russian Federation.

Among the disciplinary statutes and provisions provided for by this norm, in particular, include:

• Regulations on employee discipline railway transport(approved by Decree of the Government of the Russian Federation of August 25, 1992 No. 621 (as amended on May 24, 2002);
• Charter on the discipline of workers of the fishing fleet of the Russian Federation (approved by the Decree of the Government of the Russian Federation of September 21, 2000 No. 708);
• Charter on the discipline of maritime transport workers (approved by Decree of the Government of the Russian Federation of May 23, 2000 No. 395);
• Charter on the discipline of employees of organizations with especially hazardous production in the field of the use of atomic energy (approved by Decree of the Government of the Russian Federation of 10.07.1998 No. 744);
• The disciplinary charter of paramilitary 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).

So that inventions do not continue, we pay attention to the following points.

1. Penalties . In jurisprudence, a fine is understood as one of the types of liability expressed in a monetary amount that is subject to recovery from a person who has committed a crime or offense and is imposed within the limits provided for by criminal law, legislation on administrative offenses, tax and customs legislation, other branches of legislation. The authorities and their officials are authorized to impose fines, the jurisdiction of which provides for the authority to resolve legal disputes and resolve cases of offenses, assess the acts of subjects of law in terms of their legality or illegality. The exception is civil law relations, in which a fine is understood as one of the types of forfeit, that is, a sum of money established by law or contract, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of an obligation.

The desire of the employer to introduce a system of fines is often due not to the fact that the employee does not fulfill the duties or performance standards at all, but to the fact that the duties are performed improperly - not in full, untimely or formally, the performance does not meet the specified standards, etc. The indignation of employers that in most European countries the reduction of wages is legalized, but not in Russia, is not entirely justified. According to Article 8 of the ILO Convention on the Protection of Wages (dated July 1, 1949 No. 95), deductions (deductions) from wages are allowed to be made 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 does limit 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 the third part of Article 155. It directly establishes that in case of non-fulfillment of labor standards (official duties) through the fault of the employee, payment of the normalized part of wages is made in accordance with the amount of work done. So far, this norm seems suitable only for the material impact on workers and subject to labor rationing. With regard to employees whose job responsibilities are very difficult to account for, recommendations for its application have not yet been fully developed. In order for part three of Article 155 of the Labor Code of the Russian Federation to become a working one, and its application to be lawful, in job descriptions for employees, production instructions for workers, it is necessary to determine the mechanism for accounting for the performance of duties, and also to comply with 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 do not attribute these actions of the employer to disciplinary sanctions and, moreover, do not call them fines.

2. Deprivation of bonuses or "deprivation of bonuses." This is a more legalized form of material impact on the employee. However, it does not apply to disciplinary measures.

Back in 2000, the Legal Department of the Ministry of Labor of Russia, 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 non-payment of a bonus to a violator of labor discipline is not a disciplinary sanction. In each specific case, such issues are resolved in the manner prescribed by the current regulation 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 "salary", 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, various kinds of bonuses are included in it. In order for the bonus to really meet the criteria for “incentive payments”, in the regulation on bonuses or the regulation on remuneration, in another local regulatory legal act regulating remuneration issues, a list of grounds for its payment should be defined and a system of their accounting should be described. But to paint for what misconduct the bonus is not paid should not be - according to legally significant signs, the actions of the employer will be subject to disciplinary measures against the employee.

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

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

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

What conclusions can be drawn from the above?

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

a) may be applied simultaneously with disciplinary sanctions;

b) their application is not taken into account when an employee is dismissed for repeated non-performance of labor duties.

3. Warning, reprimand. Despite the fact that a warning as a legal means of influence refers to measures of administrative responsibility, the requirement for compliance with its features, 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 "disciplinary warning". Along with the concept of "warning", such a form of influence as "put in sight" is used. In fact, these are equivalent concepts - an employee who has committed a misconduct is warned that if he commits a misconduct again, he will be “put in sight”, “put under control”, etc. "Censure", at its core, is a concept of the same kind. A censure is a statement in which the speaker expresses a negative assessment of the employee's act, his behavior, in order to cause a negative emotional reaction in the latter.

Such measures of influence, as a rule, are introduced in organizations whose management does not seek to "chop off the shoulder" and dismiss them for minor infractions. In case of a frivolous violation of labor discipline, for example, a smoke break before lunch break, an educational conversation is held with the employee; the employee is warned that if he commits a similar misconduct again, he will be subject to disciplinary liability in the manner prescribed by the Labor Code of the Russian Federation. At the same time, in local regulations, these activities are often referred to as corporate disciplinary actions.

Do not neglect the law and call a spade a spade. Warning, censure, etc. can be considered disciplinary action. impact but not to disciplinary measures responsibility and not to the types of disciplinary penalties. In the theory of personnel management, disciplinary influence is understood as tools of both positive influence on personnel (encouragement) and negative influence (penalties, team reaction, etc.). Warning and censure lie in the field of education of employees, which has no 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, to form respect for the rules adopted in the organization.

The form of fixing and recording such measures of influence on the employee can be both oral and written.

In general, warning, censure, etc. are a kind of analogue of the measures of public influence provided for by Article 138 of the previously existing 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 public influence as a comradely remark, a public reprimand .

Provided that local regulations provide for the possibility of making a decision on issuing a warning to the employee, on his reprimand by the work team, these acts must detail all the mechanisms. If a written record of such measures is kept, it must be remembered that in the case when, upon the commission of a disciplinary offense, the employer limited himself to a censure and there is written confirmation of this, then the application of a disciplinary sanction for the same offense may be recognized as unlawful. To such a situation, by analogy, the courts can apply the provision of paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 No. 16 “On Certain Issues of the Application of Legislation by the Courts of the Russian Federation in the Resolution of Labor Disputes”, according to which, if the employer, instead of applying disciplinary action to the employee penalty referred the issue of his violation of labor discipline to the consideration of the labor collective, by the decision of which social measures 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 use the right granted to him to bring the employee to disciplinary responsibility. Therefore, it is necessary to revise your local regulations with regard to the mechanism for applying disciplinary measures in conjunction with disciplinary sanctions. Remember that, since the Labor Code of the Russian Federation does not contain rules governing the application of public influence measures, your local regulations will be carefully studied by the court, the state labor inspectorate.

"Remember Deadlines"

According to the third part of Article 193 of the Labor Code of the Russian Federation, a disciplinary sanction is applied no later than 1 month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, and the time required to take into account the opinion of the representative body of employees. Part four of the same article establishes that a disciplinary sanction cannot be applied later than 6 months from the date of the misconduct, and based on the results of an audit, audit of financial and economic activities or an audit, later than 2 years from the date of its commission; the specified time does not include the time of criminal proceedings.

It is impossible to be late with the application of disciplinary sanctions. Deadlines must always be remembered. It is with the verification of compliance with the established deadlines that state labor inspectorates and courts begin to consider disputes related to bringing to disciplinary responsibility.

Let us analyze the above norms 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 the third part 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 to work by the immediate supervisor of the employee in the system of recording the attendance of work at the checkpoint is debatable. In this case, the record of the employee's attendance at work is kept by a special employee who records the time of the employees' arrival and, accordingly, is the first person who detects a violation of labor discipline. The same can be said about the employees of the personnel department, who, by the regulation on the department and (or) job descriptions, may be empowered to exercise control over discipline in various forms(checks of workplaces, etc.). In this case, it is 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 immediate supervisor of the employee. Thus, the resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 No. 16 “On Some Issues of the Application of Legislation by the Courts of the Russian Federation in the Resolution of Labor Disputes” determines that the day when a misconduct is discovered, from which the month period begins, is considered the day when the person to whom the employee is subordinate, it became known about the misconduct, regardless of whether it is endowed 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 absenteeism of an employee. In order to formally meet the deadlines established by part three of Article 193 of the Labor Code of the Russian Federation, as well as to find out the reasons for the employee’s long absence from work, logically, the starting point should come from the last, and not from the first day of absenteeism. This legal position can also be traced in court decisions. At the same time, this is possible only in the event of the end of the misconduct, that is, the employee's appearance at work. How to proceed in the event of a long 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, only the time of illness of the employee or his stay on vacation is not included in the monthly period for the application of a disciplinary sanction; absence from work for other reasons, including in connection with the use of rest days (days off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the course of the specified period. Vacation interrupting the course of a month should include all holidays provided by the employer in accordance with applicable law, including annual (basic and additional) holidays, holidays in connection with studying at educational institutions, short-term holidays 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 is not included in the monthly period when it comes to the application of a disciplinary sanction in the form of dismissal against a member of a trade union.

How to record the fact of committing a misdemeanor? After all, before the issuance of an order (instruction) of the employer on the application of a disciplinary sanction, much can change (the exact date of the offense, its essence, etc. will be forgotten). The documents listed in the next section of this publication can be used to fix the date and substance of a disciplinary offense.

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, a monthly period is calculated from the date of entry into force of the verdict, which establishes the employee's guilt in stealing other people's property, or the decision of the competent authority to impose on the employee for this offense administrative penalty. With regard to the last act - the decision 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 flow 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 another's property, embezzlement, deliberate destruction of property or damage to property. It does not apply to other offenses;
• if the same misconduct, 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 an administrative offense case has been initiated, then the month period begins from the moment the misconduct is discovered, and the employer is not charged with linking the application of a disciplinary sanction to the decision to bring to administrative responsibility. For example, an inspection of the store, conducted by officials of the control and supervisory authorities, revealed such an offense as the failure to use a cash register when selling goods to customers. A protocol was drawn up on an administrative offense under Article 14.5 of the Code of Administrative Offenses of the Russian Federation. However, this offense is also a disciplinary offense, since the obligation to use a cash register is assigned to the seller by his employment contract, production (by profession) instruction. If the employer waits for the decision of the control and supervisory authority, then he risks missing the monthly period established by Article 193 of the Labor Code of the Russian Federation, since the terms for investigating and considering an administrative offense case established by Articles 28.7 and 29.6 of the Code of Administrative Offenses of the Russian Federation are equal to one and a half months and may be in case the complexity of the cases under consideration was 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 in the process of investigating and considering a misconduct, the period for imposing a disciplinary sanction will expire before a decision is made to impose an administrative penalty. When applying disciplinary action in cases similar to the example described, it should be remembered that as a result of the investigation and consideration administrative offense the absence of guilt of the employee can be established, and then he will have grounds for applying to the court, the state labor inspectorate.

Part four of Article 193 of the Labor Code of the Russian Federation establishes that a disciplinary sanction cannot be applied later than 6 months from the date of committing misconduct, and based on the results of an audit, audit of financial and economic activities or an audit - later than 2 years from the date of its commission; the specified time 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 dismissal of the employee, there can be no talk of disciplinary liability.

At the same time, the employer has the right to apply a disciplinary sanction to the employee even when, before committing this misconduct, he submitted an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the term of notice of dismissal. This follows from paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 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 day the disciplinary offense was committed corresponds to the one-month period from the day the misconduct was discovered as follows. If the misconduct 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 misconduct was discovered on October 1, then the 6-month period from the date of its commission has expired, and, therefore, the employer cannot exercise his right to bring the employee to disciplinary responsibility. The exception is cases when the misconduct is detected as a result of an audit, audit of financial and economic activities or an audit. Then the term for applying a disciplinary sanction is increased to 2 years from the date of the misconduct. At the same time, the one-month limitation provided for by part three of Article 193 of the Labor Code of the Russian Federation must still be taken into account.

"Be Meticulous"

Scrupulous fixation of the facts of committing disciplinary offenses is necessary. First, in order not to forget about exact date their commission and nature, and secondly, in order to have a documentary basis for issuing an order (instruction) by the head of the organization on the application of a disciplinary sanction, if the immediate supervisor of the employee is not empowered to apply disciplinary sanctions.

Personnel practice has developed two approaches to the execution of documents confirming the fact of committing a disciplinary offense:

• on the fact of non-performance or improper performance of labor duties stipulated by the employment contract, the immediate supervisor of the employee draws up a submission on bringing the employee to disciplinary liability;
• on the fact of violation of labor discipline, non-compliance with the rules of internal labor regulations, an act is drawn up.

The authority to apply disciplinary sanctions is delegated to the heads of structural divisions by a relatively small number of organizations. As a rule, these employees are entitled to send representations to the head of the organization (deputy head of the organization for personnel) on bringing their subordinate employees to disciplinary responsibility. The expediency of preparing such a presentation is explained by the fact that only the immediate supervisor of the employee can determine whether the employee properly performs, for example, his job duties. Practitioners proceed from the fact that in order to confirm the fact of non-performance or improper performance of functions, it is not necessary to involve other employees, and therefore it is not advisable to draw up an act. As an example of representation, the form given in the section "PAPERS" can be used. Notify the head of the organization about the commission of a disciplinary offense by an employee, his immediate supervisor can also by sending a memorandum. And only if he wants to protect himself from accusations of bias, as well as distribute the burden of his responsibility to other employees, the fact of committing a disciplinary offense can be fixed with the help of an act.

It is desirable to draw up an act in case of detection of violations of labor discipline, detection of facts of non-compliance with the rules of internal labor regulations. So, if control over labor discipline is carried out by employees of the personnel department, and during inspections of workplaces, 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 misconduct it will be correct to reflect in the act signed by several employees (exemplary forms of acts, as well as samples 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 the labor legislation establishes a ban on entering information about disciplinary sanctions in 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 submissions, acts and other documents that served as the basis for issuing the order, is filed in the employee’s personal file. The instruction on office work in the organization may provide that the order (instruction) on the application of a disciplinary sanction is directly placed in a personal file or compiled into a separate file “Orders for personnel ( personnel)».

Since for orders (instructions) on penalties, in comparison with other orders for personnel, more short term storage (only 5 years), practice has developed a different way of entering into the personal file information about the application of a disciplinary sanction to an employee - by maintaining a sheet (sheet, card) of rewards and penalties, which is stored in the employee’s personal file throughout his work in the organization. Such a document was necessary for the personnel service to determine the possibility of encouraging 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 were not applied to the employee. The Labor Code of the Russian Federation does not contain a ban on encouraging 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, for the timely removal of disciplinary sanctions, etc. It would be more correct to call such a document a “penalty sheet”, 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 explanations"

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

The employee can state his explanations in various ways.

Primarily - in an explanatory note . It is desirable 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 coherent and logical, it is practiced to use template forms in which the employee is asked to fill in columns (lines, cells) designed to answer the questions: what are the reasons (motives) for committing a disciplinary offense, does the employee consider himself guilty of misconduct, if not, then who, in the opinion of the employee, should be brought to disciplinary responsibility. An explanatory note is addressed either to the head of the organization, or to his deputy for personnel, or to the head of the personnel department, or to the head of the structural unit in whose staff the employee is included. To whom specifically - should be determined in the local regulations of the organization.

The second option for obtaining explanations is fixing the employee's explanations in an act drawn up on the fact of committing a disciplinary offense , by certifying the explanations by the employee with his signature.

According to the second part of Article 193 of the Labor Code of the Russian Federation, the employee's refusal to give an explanation is not an obstacle to the application of a disciplinary sanction. However, it does not at all follow from this that if the employee refused to explain the reasons for his behavior, then the employer can safely apply a disciplinary sanction. Rejection must be recorded- either in an act drawn up on the fact of committing a disciplinary offense, or in a separate act on refusal to give explanations. In the first case, after setting out the essence of the misconduct and the signatures of the originator and those present, a note is made that the employee refused to provide explanations, and the persons participating in the preparation of the act put their signatures again.

One of the most difficult situations in personnel practice is a long absenteeism. The employee does not appear at work, does not provide any information either about himself or about the reasons for his absence. The employer suffers losses - the work is not performed, it is impossible to dismiss the employee, because the reasons for the absence are unclear, and it does not allow hiring a new employee staffing. In this case, the employer can only be advised one thing: to send a letter with a notification to the employee’s known place of residence or location, in which they demand an explanation from him about the reason for the long absence from work and warn that if, within a certain period of time, from he does not receive a response, then the employer will exercise his right to apply a disciplinary sanction, up to 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 on the reinstatement of those dismissed for a long absence from work, the courts resolved this issue in different ways: there were also cases of reinstatement, since the employee long time was absent due to temporary incapacity for work, and there was no opportunity to notify the employer, and cases of recognizing the lawful dismissal for a long absenteeism of an employee who did not appear at work.

If there are doubts about the veracity of the information received from the employee as a result of his explanations, the personnel department checks them. For example, an HR inspector can call the DEZ at the employee's place of residence and find out if there was a malfunction. plumbing equipment which the worker cited as the reason for his delay. If an employee, in support of the reason for his absenteeism, presented a certificate of temporary disability, but there are doubts about its authenticity, a specialist in the personnel department can contact a special division of the FSS of Russia that monitors the legality of issuing certificates of disability.

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

"Don't overdo it"

According to part five of Article 193 of the Labor Code of the Russian Federation only one disciplinary sanction may be applied for each disciplinary offense .

A situation is unacceptable when an employee is first subjected to one disciplinary sanction for committing one disciplinary offense, for example, a reprimand, and then another for the same offense. If, for example, an employer for the appearance of an employee at work on April 7, 2003 in a state of intoxication reprimanded the employee and issued an appropriate order, then he is not entitled to apply to the same employee for the same disciplinary offense (that is, for appearing at work on April 7, 2003 years in a state of intoxication) the second disciplinary sanction, for example, to dismiss the 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 for a long period of time. If, having discovered a disciplinary offense, the employer applied a disciplinary sanction, but this disciplinary offense continues (this particular offense, and not the next one, even if it is similar), 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 of December 22, 1992 No. 16 “On Certain Issues of the Application by the Courts of the Russian Federation of the Legislation in the Resolution of Labor Disputes” (as amended on November 21, 2000), a new disciplinary sanction may be applied to an employee, including dismissal on the appropriate grounds.

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

Another thing is re-offending. Under such is understood a misdemeanor committed repeatedly after a certain time after the suppression of a similar misconduct. Let's take the same example. After announcing a remark to him for the late preparation of reports for the first quarter, the employee prepared 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 misconduct. 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 does not matter in principle whether a similar offense has been committed or another. By the way, here employers need to be careful. The named norm provides that the grounds for dismissal are only repeated failure to perform duties in conjunction with a disciplinary sanction, but not repeated improper performance of labor duties. This wording already now allows employees to defend their case in courts, referring to the fact that they only improperly performed 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 legislation does not prohibit the employer for the same offense to bring the employee to both disciplinary and material liability . If the purpose of the first is to stop the misconduct, then the purpose of the second is to compensate for the damage caused to the employer, including as a result of the misconduct. This follows from the sixth part of Article 248 of the Labor Code of the Russian Federation: “damage is compensated regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.” When bringing an employee to disciplinary and financial liability at the same time, the employer must comply with the requirements established by both Chapter 30 and Chapter 37 of the Labor Code of the Russian Federation.

In the same way, it is not bound by a ban on the use of such a measure of material influence on an employee for failure to perform or improper performance of labor duties, as deprivation of the bonus or reduction of its size . If a disciplinary sanction was applied to the employee (for example, a remark) and if, in accordance with the local regulatory act of the organization (for example, the provision on bonuses or the regulation on remuneration), this affects the amount of the bonus or its payment as a whole, then the deduction or payment of the bonus in a smaller amount cannot be considered as a second disciplinary sanction (see the commandment "Do not invent").

It is not a disciplinary sanction and suspension from work produced according to the rules established by Article 76 of the Labor Code of the Russian Federation. The employer has the right to apply a disciplinary sanction to an employee who has not been through his (the employee's) fault in in due course mandatory periodic medical examination, and at the same time obliged to remove him from work. The same actions can (in relation to the application of a disciplinary sanction) and are obliged (in relation to suspension) to be taken if the employee, through his own fault, has not undergone training and testing of knowledge and skills in the field of labor protection in the prescribed manner. The employer must remove the employee who appeared at work in a state of alcoholic, narcotic or toxic intoxication; however, the suspension will not prevent him from bringing the employee to disciplinary responsibility.

"Do not exceed"

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

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

• an individual who is an employer;
• management bodies of a legal entity (organization) or persons authorized by them in the manner prescribed 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 responsibility is usually vested in sole executive body, that is, the head of the organization (general director, director, president, etc.). This right is enshrined either in the constituent documents or in other local regulations of the organization (for example, in the regulation on CEO, regulations on material and moral incentives for personnel), as well as in an employment contract with the head of the organization.

By order on the distribution of duties, the head of the organization may transfer the authority to bring employees to disciplinary responsibility to his deputy for personnel or another official .

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

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

"Be Fair"

Part three of Article 135 of the earlier 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, the previous work and 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 clarifications 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 misconduct, the circumstances of its commission, the previous characteristics of the employee and his behavior should be taken into account when determining a measure of disciplinary responsibility 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 severity of the offense committed, the circumstances under which it is done, the previous work and the behavior of the employee "- that is, in fact, to return the previously withdrawn norm. In the explanatory note to the draft law, 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 responsibility. According to 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 an employee can be, for example, dismissed for minor violations labor discipline, although the application of such a disciplinary sanction 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 the right. 29 reviews of legislative (representative) and 50 reviews of higher executive bodies were received for the bill state power subjects of the Russian Federation.

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

On the contrary, the Government of the Russian Federation considered the adoption of this bill inexpedient. As the main argument for such a position, the opinion is given that the establishment of a specific list of circumstances that must be taken into account when bringing an employee to disciplinary liability will narrow the range of issues investigated by the employer when determining the reasons that led to the commission of a disciplinary offense. As follows from the opinion of the Committee on Labor and Social Policy of the State Duma of the Russian Federation on the draft law, 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, it follows from the explanatory note that the concept of the draft law is not to establish an exhaustive list of circumstances to be taken into account, but in the need to legally oblige the employer to make more objective decisions when bringing employees to disciplinary responsibility. When finalizing the draft law for the second reading, amendments may be made to it in order to expand the specified list or make it open.

In the official response of the Government of the Russian Federation, it is rightly noted that before applying a disciplinary sanction, the employer must request an explanation from the employee in writing. Indeed, having received the employee's explanation, 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 obligation of the employer 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 indicated that the severity of the misconduct committed, the circumstances under which it was committed, as well as the previous work and behavior of the employee, as well as other circumstances of the case, should be taken into account by state labor inspectorates or labor dispute authorities when appealing against the imposed disciplinary sanction by the employee. It seems that this argument cannot be considered justified either, since these bodies in their activities should 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 on the inconsistency of the penalty applied by the employer.

In view of the foregoing, the Committee on Labor and Social Policy of the State Duma of the Russian Federation supported the draft federal law "On the Introduction of Amendments and Additions to Article 193 of the Labor Code of the Russian Federation" and recommended State Duma accept it on first reading.

Whether or not additions 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 under which it was committed, the previous work and behavior of the employee, the employer should remember about justice. And also that the court will still check whether the employer took into account the indicated circumstances, and if not, it will strongly recommend that the employer reconsider its decision, especially if it resulted in dismissal (itself to replace one disciplinary sanction with another, as well as dismissal with another disciplinary measure, the court does not has the right, since the imposition of 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 Certain Issues of Application by the Courts of the Russian Federation of Legislation in Resolving Labor Disputes” ).

"Finish by the rules"

The decision of the employer to apply a disciplinary sanction to the employee must be expressed in order (instruction) of the employer . Within three working (and 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 an appropriate basis, then the order (instruction) is drawn up in accordance with the unified form No. T-8 - on the termination of the employment contract with the employee. In this case, in the lines "grounds for dismissal" a reference is made to a clause and an article of the Labor Code of the Russian Federation, and in the line "Basic" the documents that document the fact of detection of a disciplinary offense (act, explanatory note, etc.) are listed.

Since a unified form of a general order (instruction) on the application of a disciplinary sanction in the form of a remark 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 a disciplinary offense;
• the type of penalty applied;
• documents confirming the commission of a disciplinary offense;
• documents containing explanations of the employee.

In the order (instruction) on the application of a disciplinary sanction, one can also cite summary employee's explanation.

One of the essential points in the design this document is the endorsement of the project by the head of the legal service or the lawyer of the organization. The sighting must be preceded by a check of the order (instruction) for compliance with the legislation of the applied disciplinary sanction, compliance with the deadlines for bringing to disciplinary responsibility. The head of the legal service or the lawyer of the organization must familiarize himself with all the materials relating to the disciplinary offense, as well as the explanations of the employee for whom the order (instruction) on the application of a disciplinary sanction is being prepared. Approximate form an order to apply a disciplinary sanction is given in the section "PAPERS" (p. 55).

"Make no mistake"

When counting or summing up disciplinary sanctions, one cannot be mistaken.

Employers' attention has already been drawn to the fact that neither the deprivation of bonuses and the legitimate reduction of wages, nor censures and other inventions are disciplinary sanctions. Therefore, their summation is illegal and unreasonable. It is impossible to deprive the bonus (produced, of course, legally) as the first penalty and, when an employee commits one disciplinary offense during the year, apply paragraph 5 of Article 81 of the Labor Code of the Russian Federation.

Another thing to pay 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 an engineer in the quality control department 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, expressed in the failure to provide the employees of the department with OKC stamps. Can the 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 performance of a labor function within a specific and specific position, but on ensuring the diligence and conscientious attitude of the employee to work in general. Transfer to another position, to another job with the same employer does not entail the cancellation of a disciplinary sanction. It does not matter that it was imposed for non-performance 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 a disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered without disciplinary action . Therefore, before determining whether another misconduct gives grounds to believe that there is a repeated failure to perform duties, one should look at the orders for personnel (personnel) on the application of disciplinary sanctions, an extract from the order (order) on the application of a disciplinary sanction in the employee’s personal file, “sheet Penalties” or another record of penalties to determine whether the previously imposed disciplinary sanction has not become invalid.

A disciplinary sanction can also be removed from an employee. According to the second part 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 their own initiative. The employer, based on his own observations of the employee, may issue an order (instruction) to lift a disciplinary sanction for the employee's impeccable behavior, high performance and other positive characteristics. As a rule, the personnel department is entrusted with monitoring the behavior of an employee after a disciplinary sanction has been imposed on him. He will in this case act as 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 the previously committed disciplinary offense, proved himself on the positive side, increased the quality and performance of his work. Why shouldn't he himself turn to the employer with a request to take into account the merits to the organization and “forget” about the previously committed misconduct? He must state his request in writing in the form of an application addressed to the head of the organization or the person whose administrative act imposed a disciplinary sanction;

3) at the request of the immediate supervisor of the employee. The direct supervisor's initiative is expressed in a document entitled "petition" or "representation";

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

A petition for the removal of a disciplinary sanction from 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 considered by the employer.

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

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

"Do not 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 (labor dispute commission and court). Any restriction of the employee's right to appeal through local regulations, individual acts (employee's receipts that he will not complain, etc.) is void.

It has already been noted earlier that, for example, a court considering a labor dispute on the unlawfulness of dismissal for committing a disciplinary offense cannot replace dismissal with another type of penalty. However, by recognizing the employer’s decision as unlawful, he thereby limits last deadline application of other disciplinary action. So, if a disciplinary sanction was applied by a person who was not authorized to bring employees of the organization to disciplinary responsibility, and as a result of the consideration of the case in court or in the commission on labor disputes, the inspection of the state labor inspectorate, it will be canceled, then the employer risks missing the deadlines allotted by the Labor Code 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 against the actions of their immediate supervisors. Such a ban on jurisdictional bodies (court, federal labor inspectorate) is illegal, and in relation to higher officials of the organization, it only limits the ability 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 penalties: "more or less strict remarks", "reprimands with inclusion in the service record" and "reprimands without inclusion in the service record", "deduction from salary", "deduction from the time of service of various periods", "moving 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, since they were provided for persons who were public service. As for free-hired workers, for marriage, failure to meet production standards, lateness and other violations, the employer established penalties on his own, of which the smallest was a deduction from earnings, and the most common was dismissal.

Until 1863 (the reforms of Alexander II), corporal punishment was applied not only to serfs, but also to hired workers, apprentices, and apprentices. Their rights in Russian factories and factories were not regulated by any acts until 1886 (until the introduction of the decree “On Supervision of Factory Industry Establishments and on Mutual Relations between Manufacturers and Workers”). However, cases of punishment of workers with whips and rods took place until the end of 1905. Only with the first Soviet decrees were corporal punishment finally abolished, and education by conviction was proclaimed as the main method of dealing with violators of discipline. Over time, the Soviet state revised such a loyal attitude towards disciplinary offenses, and in 1940 (June 26) the Decree of the Presidium of the Supreme Soviet of the USSR "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 good reason, workers and employees of state, cooperative and public enterprises and institutions are brought to trial and, by the verdict of the people's court, are punished by corrective labor at the place of work for a period of up to 6 months with deductions from wages of up to 25%. The people's judges, who considered such cases alone (without the participation of people's assessors), were instructed to resolve them within no more than 5 days and to carry out the sentences in these cases immediately. In addition, directors of enterprises and heads of institutions were brought to justice for evading prosecution of persons guilty of absenteeism without good reason. By the way, being late for more than 20 minutes was also equated to absenteeism. Judicial liability in the form of corrective labor was abolished only in 1956.

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

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

The transfer to a lower-paid job “lasted” among the measures of disciplinary responsibility 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 in line with the norms of the Convention. Transfer to a lower-paid job as a disciplinary sanction, that is, in order to maintain labor discipline, meets the criteria for forced labor set forth in the said Convention. In the new Labor Code of the Russian Federation, there is not a word about transfer as a measure of disciplinary responsibility. Moreover, Article 4 of the Code directly prohibits forced labor, that is, the performance of work under the threat of any punishment (violent influence), including in order to maintain labor discipline. It should be noted here that, in accordance with separate charters and regulations on discipline, transfer to another, lower-paid job or another, lower position for up to 3 months is still possible, but only with the consent of the employee.

Severe reprimand is an informal but regularly used expression in personnel management. At the same time, it is undesirable to allow such wording in official orders. Why? Let's consider further.

How does the strict reprimand of the Labor Code of the Russian Federation interpret?

concept "severe reprimand" not in the provisions of the Labor Code of the Russian Federation. This is an informal term, usually used for emotional impact on an employee (“I will announce to you severe reprimand, Ivanov!”), who committed this or that misconduct. The Labor Code uses a slightly different concept - a reprimand, which is a kind of disciplinary sanction, which the employer can apply along with a remark or dismissal (Article 192 of the Labor Code of the Russian Federation).

Any interpretation of the term "reprimand" in the Labor Code of the Russian Federation, however, is not given. If we follow the generally accepted meaning of this word, such a disciplinary measure can be understood as an expression by the employer of extreme dissatisfaction with the actions of a subordinate. Reprimanding may be one of the reasons for dismissing an employee - if he subsequently allows repeated violation their duties (clause 5, article 81 of the Labor Code of the Russian Federation).

IMPORTANT! Take out to the employee severe reprimand- means to apply against him a disciplinary measure that does not exist from the point of view of the law. If on the basis severe reprimand fire a person, he can challenge his dismissal in court and, quite likely, win the case.

How to properly reprimand?

The reprimand is carried out by the employer within the framework of the following algorithm:

1. It is necessary to record the fact that an employee committed a misconduct. As a rule, this is done through the preparation by his immediate supervisor of a memorandum addressed to the head of the company.

2. The manager, in turn, must send a notification to the employee who committed the misconduct about the need to give a written explanation for the actions he committed and wait 2 days until he writes an explanatory note or ignores the corresponding order.

3. If the employee did not write an explanatory note, it is necessary to draw up an act about this.

4. Upon drawing up an act on the failure to provide an explanatory note, and also if the employee wrote an explanatory note, but the explanations given by him did not suit the manager, an order is issued on behalf of the latter to reprimand the employee.

The relevant order must include:

• Name of the organization;
• date and place of drawing up the document;
• the name of the type of document is “Order”, the name of the document is “On the announcement of a reprimand” (the phrase "severe reprimand" it is undesirable to use in the document);
• a description of the misconduct committed by the employee, an indication that its commission is the reason for the reprimand;
• resolutive subheading "I order", the text of the reprimand indicating the full name. and position of the employee;
• the names and dates of the documents attached to the order (memorandum, notice of the need to provide an explanatory note, the actual explanatory note, an act of non-provision of it - if any).

The order to issue a reprimand also indicates F.I.O. and the position of the head of the company, put his signature. It is advisable to record in the order the fact that the offending employee got acquainted with him - by affixing his signature in the document, indicating the full name.

Results

reprimand or, informally, severe reprimand- a legal form of disciplinary action, which may be one of the grounds for dismissal of an employee who performs his work poorly. Taken out severe reprimand(and on papers, just a reprimand) by issuing an order by the head of the company, the preparation of which is preceded by a number of other mandatory procedures, such as documenting the fact of a misconduct, demanding an explanatory note, studying it, followed by interpretation of the explanation (or drawing up an act on its non-provision).

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A reprimand is a fairly strict measure of disciplinary action that can serve as one of the factors for dismissal and therefore requires an exceptionally correct approach by the employer to its application. 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 notice and dismissal, in accordance with the provisions of Art. 192 of the Labor Code of the Russian Federation is a kind of disciplinary sanction. At the same time, the management of the enterprise must clearly understand what the employee can be reprimanded for. 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 dismissal of an employee (clause 5, article 81 of the Labor Code of the Russian Federation) for repeated failure to perform 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, a fact that indicates at least a single failure by the employee to fulfill his duties. 2 reprimands, as long as they are legal (how to ensure they comply with this, we will discuss later), give the employer the right to fire the employee. But only if they are issued for various misconduct (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 adoption has more psychological than legal significance. The employee who received rebuke, recorded in a personal file, it is likely that he will want to rehabilitate himself in the eyes of the employer and begin to work better.

How to issue a reprimand for improper performance of official duties

Formal reprimanding is a legal fact, so this procedure must be properly formalized. The Labor Code of the Russian Federation and other federal legal acts do not contain a regulation that would determine how rebuke, 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 non-performance (or incorrect performance) by the employee of his duties. Most often, this is done by sending a memorandum to the director of the company by the immediate supervisor of the employee who committed the misconduct. You can also record a misconduct with the help of an act that is drawn up by a commission formed by the head of the company in order to assess the actions of the employee.
• Secondly, the employer, before issuing a reprimand, must give the employee the opportunity to explain his actions. To do this, you must send a notification to the employee about the submission of an explanatory note.
• Thirdly, the employer needs to wait 2 days - that 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 an appropriate act. Further (and also in the event that an explanation is presented, but the arguments of the employee do not look convincing), it is already possible to issue a reprimand.

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

The order for 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, an explanatory note itself, or an act of failure to submit it;
• indicate the dates and titles of the relevant documents.

The reprimand must be signed by:

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

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

Information about issuing to an employee reprimand can be recorded in a personal file.

Is it possible to announce a reprimand without a comment and is it issued for absence from the workplace

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 a little higher in the list of punishments. A reasonable question arises: should a remark precede the reprimand, or can it be bypassed?

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 fault of the employee is in the violation and what kind of sanction he deserves.

So, for absence from work, a remark can be issued if there were good reasons for missing work time, a reprimand can be issued if this was done deliberately without substantial grounds, and even dismissal is possible when such a violation is of a systemic nature.

Only one invariable principle should be observed here: one violation - one type of punishment.

What is the time frame for reprimand?

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. The specified period may be extended if the employee is absent from work due to being on sick leave or on vacation (including training).

The deadline for an employer to issue a reprimand is 6 months. True, if a misconduct is revealed during an audit (for example, an audit), a reprimand can be issued after no more than 2 years have passed from the established moment of committing this misconduct.

Sample reprimand for improper performance of official duties

In order not to create a new document every time and not to remember how this or that information is given in it, it is better for a company to use a ready-made template. We present on the site one of the versions of the document. The management will have to take this sample as a basis before reprimanding the employee and, if necessary, changing the wording and surname of the offending employee, print the necessary order.

How can an employer cancel a reprimand?

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

Very simple. All that is required in order to cancel the 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 for the removal of a reprimand.

An employee is considered to have a disciplinary sanction upon its issuance for exactly 1 year, if during this time he does not commit other misconduct, followed by other disciplinary sanctions (Article 194 of the Labor Code of the Russian Federation). In this regard, there is another option to withdraw reprimand from an employee - wait for it to be automatically cancelled.

Legal consequences of a reprimand at work for an employee

According to Art. 66 of the Labor Code of the Russian Federation, data on reprimands are not recorded in the work book. As a last resort, the personnel department may (but is not obliged) to enter information about the reprimand in 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 sanctions were applied to a 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 keeping the current job. And in this case, it will be useful for him to pay attention to 1 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 perform official duties. Including misconduct, for which the employee received a reprimand. 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 the misconduct of the employee, the employer can, according to the established scheme, take out rebuke 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 in his hands and he will immediately have the right to dismiss the employee. So employees who once committed a misconduct, to which the employer seems to have turned a blind eye, should not provoke the authorities to issue an already official disciplinary sanction - it can have direct legal consequences for them in the form of dismissal.

Reprimand to an employee: legal consequences for the employer

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

• firstly, write out an impressive fine to the company on the basis of paragraph 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation;
• and secondly, to annul the order for a severe reprimand.

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

Dismissal on the basis of a strict reprimand, other non-existent disciplinary sanctions, as well as when a reprimand is issued outside the regulatory framework, can be challenged in court by an employee with a high probability of success. As a result, the court may order 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

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

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

• sources fixing misconduct (memorandum, act of the commission);
• notification of the employee about the need to draw up an explanatory note;
• in case of non-submission of an explanatory note - an act on this;
• in case of refusal to sign an order for reprimand by the employee - also the corresponding act.

Rebuke should not be called a severe reprimand, otherwise the labor inspectorate or the court will cancel the order to issue it.

Rebuke must be justified. It can be issued due to the employee's failure to fulfill only those duties that are fixed in the provisions of the documents endorsed by the employee, such as labor contract, job description, company labor regulations.

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