home Auditorium 8 Procedure for conducting official proceedings. Official proceedings and the nuances of its conduct

Procedure for conducting official proceedings. Official proceedings and the nuances of its conduct

An internal document recording the circumstances of a disciplinary offense and the presence of its elements is an act of internal investigation, or an act of internal inspection.

The presence of such a document in the event of litigation with an employee or an inspection will allow one to prove compliance with the requirements of Art. 192-193 of the Labor Code of the Russian Federation. This means that there are certain nuances that the drafter of the act and the head of the organization must take into account when conducting an internal investigation and preparing the corresponding act. We will talk about them in this article. If you have any difficulties, you can use the help of a duty lawyer.

By the way, pay attention to the local acts of the organization. Perhaps the form of the official investigation report at the enterprise has been approved. If not, you can develop one based on our example.

An example of an official investigation report

I CONFIRM:

LLC "Kuvshinka"

CEO

Bratchikov Rodion Konstantinovich

Compiled by the commission:

Chairman: Head of HR Department P.R. Malakhov

Members of the commission:

Fact of violation: failure by administrator Sinitsina Anastasia Vladimirovna to fulfill assigned duties to notify the migration unit of the Main Directorate of the Ministry of Internal Affairs of Russia for the Krasnodar Territory in Gelendzhik about the arrival of foreign citizens at a place of temporary stay within 24 hours (violation of Article 20 of the Federal Law “On Migration Registration of Foreign Citizens and Persons stateless" dated July 18, 2006 No. 109-FZ).

As a result of the internal investigation, the following was revealed:

Having studied the materials, namely: Internal labor regulations, the job description of the hotel administrator, the materials of the case of an administrative offense, the explanations of A.V. Sinitsina, the commission comes to the following conclusions:

In the actions of Sinitsina A.V. contains a disciplinary violation, expressed in the improper performance by the employee, through his fault, of the labor duties assigned to him, as a result of which the employer suffered damage in the amount of 400,000 rubles.
Involve Sinitsina A.V. to disciplinary liability and apply disciplinary action in the form of a reprimand.

Chairman of the commission:

ETC. Malakhov

Members of the commission:

Occupational safety specialist S.S. Vykhina

Leading legal adviser D.V. Fedoseeva

I have become familiar with the official investigation report:

Sinitsina A.V.

What to do before drawing up an official investigation report

An official investigation report is drawn up in cases of damage to the employer due to the actions of an employee or detection of violations of labor discipline. Such a document must also be drawn up if you intend to fire an employee for absenteeism.

An internal investigation or inspection is initiated by a resolution of the head - the first person of the organization. The composition of the commission is approved by order, and the inspection period is limited to 30 calendar days. The members and the chairman of the commission must familiarize themselves with the order. By the way, these should be persons not associated with the incident.

The commission collects and studies documents related to the incident, and requests explanations from the employee (mandatory). In case of refusal, a corresponding Act is drawn up (similar to). Based on the results of the inspection, an Internal Investigation Report is drawn up, which is signed by all members of the commission and the employee in respect of whom it was carried out ().

What is included in the official investigation report

The commission for conducting an internal investigation must establish the following facts:

whether damage was caused to the company, whether there was an incident or violation of labor discipline by the employee
the circumstances under which it happened
consequences of the incident and the cause-and-effect relationship between the actions of the employee (workers) and the damage caused
whose fault, what was it expressed in
circumstances mitigating or aggravating liability (fact of previous violation of labor discipline, etc.)
conclusion of the commission: whether the fact of violation by the employee of his duties has been established. The type of disciplinary sanction can be established separately by order of the manager at his discretion, or can be expressed in an act of internal investigation.

An internal investigation is an event that is carried out if an incident occurs at an enterprise: for example, an accident or theft of material assets. Let's consider the algorithm for conducting an internal investigation and samples of documentation that needs to be prepared during the work.

Employers must conduct an internal investigation in case of violation of labor discipline and other incidents. For example, if a shortage or leak of information constituting a trade secret is detected. Such an event is necessary to identify the perpetrators and apply disciplinary measures to them, as well as withhold from them the losses caused to the company. Most likely, a special commission will have to investigate facts of employees’ evasion from medical examinations, passing exams on labor protection, safety precautions and operating rules, as well as refusal to conclude an agreement on the employee’s full financial responsibility, if this is provided for by his main job function.

If the amount of the offense is insignificant, for example, when submitting internal reports, it is not necessary to conduct an investigation. It is enough to simply take a written explanation from the person whose guilt is already obvious and then act according to the law. But if the situation is ambiguous or the organization has suffered significant damage, it is impossible to do without creating a commission and conducting an internal investigation.

Situations in which an internal investigation is necessary

Below is a basic list of possible offenses for which the employee is personally responsible:

absenteeism or absence from work;
showing up to work drunk or under the influence of drugs;
causing serious material damage;
abuse of authority.

Now let's look at the algorithm for conducting an official investigation. The procedure should begin with recording the fact of a violation.

Step 1. Recording a violation

There is no unified document that must be drawn up when a fact is discovered that gives rise to an official investigation. In practice, such a fact is usually recorded in a memo by the person who discovered it. This document is drawn up on behalf of the employee to his immediate superior or the head of the organization. In such a note you need to indicate:

last name, first name, patronymic and position of the employee who discovered the violation;
the circumstances under which the violation was committed or discovered;
date and time of the event.

When receiving information about illegal actions of an employee from third parties or even directly from law enforcement agencies, it is not necessary to draw up a report. In addition, if the reason for starting an internal investigation was the loss of inventory items or funds identified as a result of the inventory, a corresponding act must be attached to the note. Based on these documents, the employer creates a commission to identify the culprit.

Step 2. Creation of a commission and its tasks

The expediency of all measures necessary within the framework of the event, as well as the degree of guilt of the person whose actions became the subject of the proceedings, is determined by a specially created commission.

The commission is formed by order of the enterprise from competent employees who are not interested in the outcome of the proceedings. If the organization has special services, such as security or internal audit, then their representatives will form the majority of such a commission. In their absence, the personnel service takes over such functions.

As a rule, the commission should include three people. The order must indicate the names and positions of the members of the commission, the purpose and date of its creation, the period of its validity (it may not be limited to a specific case), as well as the powers with which it is vested. Typically, the tasks of such a commission include the following.

Determining the circumstances of the incident, including time, place and manner.
Identification of property that has been or could be damaged.
Inspection of incident sites (if necessary).
Determination of the cost of caused (or possible) damage based on the fact under investigation.
Identification of the persons directly responsible for the act.
Collecting evidence of the guilt of these persons and establishing its degree for each of them (if there are several culprits).
Determination of the causes and conditions conducive to the commission of an offense.
Collection and storage of documentary materials of the investigation.

The competence of the commission includes the right to demand explanations from all employees suspected of misconduct.

A commission can be created even if the company has not yet suffered direct damage, but the employee’s actions could lead to similar consequences. The commission may be permanent and renew its work if necessary.

The order for the organization on the creation of the commission must be familiarized with the signature of all its members. A sample order to conduct an internal investigation (sample) should look something like this:

Step 3. Gather information and evidence

The procedure for conducting an internal investigation is not directly defined in labor legislation, therefore in each organization it must be regulated by internal rules and internal regulations (orders, instructions, regulations). That is, the commission may receive the right to interview employees and study any accounting documents if the management of the enterprise decides so.

Although such an event is a purely internal matter of each organization and only its employees and management can take part in it, help You can involve third-party specialists if this is necessary to clarify the facts related to the incident. For example, to determine the degree of intoxication and the severity of the error made by the employee when making calculations according to the estimate. This is usually necessary when the qualifications of the company’s specialists are not sufficient to draw professional conclusions. In this case, a separate order is issued for the enterprise. The following may act as contract experts:

In addition, inquiries may be made to government agencies and third parties as part of the investigation. They are obliged to provide the necessary information if it is not secret. All collected materials must be attached to the case as evidence in the same way as acts, certificates and memos drawn up by members of the commission during the investigation. After all, any sample of an official investigation against an employee, especially if it concerns a shortage, can be considered as a matter of transferring investigation data to law enforcement agencies.

Step 4. Obtaining employee explanations

Before the completion of the internal investigation and the issuance of an order to impose disciplinary sanctions on the perpetrators, it is imperative to request an explanation from employees. This is provided for by the provisions of Art. 193 of the Labor Code of the Russian Federation and confirmed by the position of the Supreme Court of the Russian Federation (clause 47 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). The form of such an explanation can be arbitrary, since it is not regulated by labor legislation. It is better to request an explanation in writing. This is especially necessary if the situation is of a conflict nature and the chances of obtaining an explanation are small. The request must be given to the employee against signature. If he refuses to sign, a corresponding act is drawn up. However, if the employee refuses to provide explanations on the basis Article 51 of the Constitution of the Russian Federation, which states that a person is not obliged to testify in relation to himself or his loved ones, directly in the text of the explanatory note, such an act need not be drawn up.

The employee has 2 working days from the date of receipt of the request to prepare an explanatory note. If an explanation is not provided, it is necessary to draw up another act - about refusal to give explanations. It must be signed by the chairman of the commission and several of its members (at least 2 people). After the investigation is completed, the explanatory note itself or a document indicating that an explanation was requested from the employee may serve as the basis for taking disciplinary measures against those responsible, up to and including dismissal.

Step 5. Commission meeting, consideration of circumstances

After the commission has collected and summarized all the information, it must hold a meeting. There, authorized persons will report:

whether there was a violation (causing damage) and what it consisted of;
circumstances, time and place of the incident;
consequences of the violation and the amount of damage caused;
reasons for the misconduct;
the degree of guilt of each of the accused in the incident;
mitigating and aggravating circumstances.

Step 6. Creation of an official investigation report

The results of the commission's work must be reflected in a special act summarizing the results of the investigation. In particular, this document should make it clear:

culpable actions committed by the employee;
the circumstances of such actions;
type and amount of damage caused;
the degree of guilt of the employee;
possible punishment for the guilty person;
proposals to prevent similar situations in the future.

The act must be signed by all members of the commission. If one of the commission members has a special opinion about what happened, he cannot refuse to sign the act. However, he has the right to draw up a separate document stating his position and attach it to the materials.

If, in order to establish the volume and amount of material damage caused, an inventory was carried out, its inventory should be attached to the documents of the official investigation. Documents of third-party institutions and organizations related to the case (court decisions, inspection reports, protocols, etc.) can also be attached to the act and referred to in the text.

A sample conclusion of an internal investigation should look like this:

The employee against whom an internal investigation was carried out must be familiarized with all the results against himself against his signature. If the investigation was carried out against several persons, they must be familiarized with the materials separately, taking into account the protection of personal data.

Timing of internal investigation

The period for conducting an internal investigation according to the Labor Code () should not exceed 1 month from the discovery of the event that served as its cause. Usually the deadline is specified in the order itself. It should be noted that there is a statute of limitations for holding an employee liable, which does not include:

employee's sick time;
the length of time the employee is on vacation;
the time required to take into account the opinion of a trade union or other representative body of workers.

In total, it is possible to bring the culprit to disciplinary liability no later than six months (and in cases related to corruption - three years). After this period, it will no longer be possible to prosecute. Based on the results of an audit, inspection of financial and economic activities or an audit, this period is no more than two years from the date of commission or discovery of the offense. These periods do not include the period of criminal proceedings (if it has been opened).

Conducting an internal investigation in case of unforeseen situations is necessary for many reasons, the first is to ensure the legality of imposing a disciplinary punishment on the guilty person.

Such an investigation is carried out only after major incidents; in order to reason with a petty hooligan, a preventive conversation is enough.

The purpose of the investigation is twofold:

Establishing the truth to impose a fair punishment on the guilty;
Collection of documentary evidence to protect the company from lawsuits.

You can learn how to correctly prepare documents for an internal audit here:

The legislative framework

The rules of the investigation process are regulated by Art. 189 Labor Code of the Russian Federation. Art. 193 of the Labor Code of the Russian Federation indicates the period necessary to conduct an investigation.

Labor Code of the Russian Federation Article 193. Procedure for applying disciplinary sanctions
Before applying disciplinary action, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.
Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.
Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees.
A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.
For each disciplinary offense, only one disciplinary sanction can be applied.
The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up.
A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

Based on Part 3 of Art. 247 of the Labor Code of the Russian Federation, the employee has the right to familiarize himself with all the data of the investigation.

Art. 195 of the Labor Code of the Russian Federation indicates options for holding an official accountable, up to and including dismissal.

Labor Code of the Russian Federation Article 195. Bringing to disciplinary liability the head of the organization, the head of the structural unit of the organization, their deputies at the request of the representative body of workers
The employer is obliged to consider the application of the representative body of employees about the violation by the head of the organization, the head of the structural unit of the organization, their deputies of labor legislation and other acts containing labor law, the terms of the collective agreement, agreement and report the results of its consideration to the representative body of employees.
If the fact of violation is confirmed, the employer is obliged to apply disciplinary action to the head of the organization, the head of the structural unit of the organization, and their deputies, up to and including dismissal.

Art. 248 of the Labor Code of the Russian Federation indicates the period for issuing an order for material recovery from the responsible person.

When and on what grounds is an investigation conducted?

It is carried out if it becomes necessary to recover material damage from the offending employee.

The purpose of such an event is to establish the cause of the damage, this will make it possible to prevent similar situations in the future by performing preventive measures in a timely manner.

Important: this process is carried out to take strict measures in case of selfish abuse of official duties and opportunities.

In addition to identifying abuse of official position, the special commission determines:

Failure to undergo a medical examination;
Lack of knowledge regarding safety precautions;
Lack of a signed liability agreement;
Lack of qualification courses and other shortcomings.

In this case, it is necessary to comply with all norms of preserving human freedoms:

Perpetrators and witnesses can be summoned for questioning, but only of their own free will - coercion is unacceptable;
It is also prohibited to conduct searches of employees and workplaces;
Demand a refund of damage without a thorough check;
Forced polygraph test.

Notice to provide a written explanation for the investigation.

Who should participate in the investigation?

A specially created commission is involved in carrying out this event based on the order of the chief.

Typically, authorized persons include employees:

Security services;
Legal Department;
Audit Department;
Human Resources Department;
Accounting.

Important: the head of the enterprise or the immediate supervisor of the accused are also required to take an active part in the investigation, but do not have the right to be members of the commission.

In total, the commission must consist of 3 persons, the head of the security service.

Rules for conducting an official investigation

Important: according to legislative documents, an investigation must be carried out within 30 days from the issuance of a decree or decision.

In this case, it is necessary to take into account the following points:

Submission of a memo by an employee counts one month from the moment it is submitted to management;
In total, the investigation must be carried out no later than 6 months, since after this period the disciplinary sanction loses its legal force;
The investigation may drag on for such long periods due to the illness of the accused, his vacation, or his training, as a result of which the investigation is postponed.

Important: before starting an investigation or during it, it is necessary to request a written explanation from the employee, which he must provide within 2 days of receiving the notification.

If there is no document during this period, an act of refusal to provide an explanation is drawn up.

Act on official investigation.

What documents are generated

The entire investigation mechanism starts with a report or a drawn up statement of shortages, etc. It is such documents that are the basis for an investigation, and deadlines must be observed, otherwise the culprit will have the opportunity to appeal against the actions of management in court.

Important: it is on the note that the manager must put his resolution, after which the case is launched, and the document is registered; it is from the day it is entered in the registration journal that the countdown for the inspection begins.

Consumer complaint;
Information from citizens;
Auditor's report. You will learn how a personnel audit of an organization is carried out.

The commission also has the right to use various working documentation to aggravate the employee’s guilt or to justify him - various invoices, checks, and other primary documents.

Results of the investigation

The report on the results of the investigation must necessarily consist of several sections:

Introduction - indicates the fact of the offense, its grounds and date of commission, the deadline for completing the inspection, the composition of the commission;
Descriptive part – evidence is given in detail;
Conclusion - the perpetrators are indicated, whether they have previous outstanding penalties, and whether they committed an offense.

In addition, the act must contain a list of materials used, copies of which must be attached.

The document is signed by all members of the commission. Next, it is assigned a registration number. The document must be certified by the manager with his signature, and the company’s seal must also be affixed.

Important: for documentation, create a separate folder in which they are filed; an inventory of papers is attached on top.

Conclusion

After all activities are completed, the employer is obliged to make a decision regarding punishment; according to legal requirements, this can be a reprimand, reprimand or dismissal, as a last resort.

An appropriate order is issued regarding disciplinary punishment, indicating the guilty person and the measures taken.

If a misdemeanor has caused great losses to the enterprise, then all materials are transferred to the authorized bodies for compensation for damages.

The rules for conducting an internal investigation at an enterprise are discussed in this video:

An official investigation is a serious procedure that does not apply to minor disciplinary offenses. If an employee has done something serious, there is a need to clarify all the circumstances of the events that occurred. The employer must understand the reasons and motives for the actions of the offending employee in order to make the only correct decision regarding him.

In what situation is an investigation necessary?

In the Russian Labor Code there is no precise definition of the term “internal investigation”, but there is a clear procedure for applying disciplinary action. It cannot be imposed on an employee without reason.

That is, the fact of guilt itself must be proven. To do this, it is necessary to collect explanations from employees, assess the scale of the damage caused, and understand whether there was malicious intent in the employee’s actions. The set of all these activities is called “internal investigation” or “internal inspection” if the guilty person is a civil servant.

Serious disciplinary offenses requiring verification by the employer include the following acts:

Absence from work.
Causing material damage.
Abuse of official position.

For an offense committed against an employee may be subject to disciplinary action up to and including dismissal or an order has been issued to compensate for the damage caused. In order for these actions on the part of the employer to be justified, it is necessary to conduct an internal investigation.

General procedure

The employer has the right to punish the employee only after following a certain procedure precisely described in Article 193 of the Labor Code of the Russian Federation. If even one point of the protocol is violated, the accused employee will be able to appeal the penalty in court and bring the enterprise administration to justice.

All people involved in the proceedings must adhere to certain principles:

it is necessary to objectively evaluate the available facts. personal hostility or attachment cannot influence the progress of the inspection;
Until the employee's guilt is proven, he is considered innocent. and guilt can be proven only after the presentation of irrefutable evidence;
all actions of the appointed commission must be carried out in strict accordance with internal orders, instructions or instructions.

The head of the enterprise is obliged to act strictly within the law, using the following step-by-step instructions:

issue an order to initiate an internal investigation. An order cannot be issued without reason. To issue an order to conduct an internal investigation, information about the existence of a misconduct must first be received. It is obtained from the following sources:
a written statement from the guilty employee;
memo from the immediate supervisor;
complaints from clients or subagents of the organization;
memos from employees of the organization;
an inventory act indicating the presence of a shortage;
report drawn up by an audit firm.
appointment of commission members who are responsible for the progress of the audit;
obtaining a written explanation from the offending employee. The violator gives explanations based on the notification received, which can be sent to him by registered mail or delivered in person. The text of the document usually sets out the questions that the employee who has violated discipline must answer. He is given 2 days to respond in writing. If you refuse to provide explanations, you must draw up a report.

All further actions depend on whether the guilty person gives or does not give explanations and how the members of the commission interpret them.

If it is decided that a violation of labor discipline occurred for good reasons, then the investigation will end there, as evidenced by the corresponding act.

In case of absence from work

In order to consider an employee’s absence from the workplace absenteeism for 4 or more hours, there must be certain reasons. Until they are clarified, it is considered that the worker was absent due to unclear circumstances. If there are no valid facts, and the failure to appear entailed serious consequences and disrupted the normal functioning of the enterprise, the employee may receive a reprimand or dismissal from work. And for this there must be serous grounds that can only be obtained during the investigation.

First, the fact of the employee’s absence from the workplace must be recorded. A memo can be written by either the immediate supervisor or any employee of the organization. After appearing, the employee can give an explanation for his misconduct. The following reasons are considered valid:

Illness of the employee or members of his family. This circumstance must be confirmed by the relevant document: a certificate from a medical institution or a sick leave certificate.
Delays due to lack of transport. For example, skids on the road caused a temporary stop in bus service.
The presence of unforeseen circumstances beyond the control of the employee. For example, on the way to work, an employee’s personal vehicle was involved in an accident.

Based on Article 81 of the Labor Code of the Russian Federation, if an employee was not present at the workplace for the whole day, this can be considered absenteeism. To record this fact, it is necessary to draw up a corresponding act on the day of failure to appear.

The document is drawn up in free form. Its purpose is to record and confirm the fact of the employee’s absence. You can create several documents throughout the working day. When drawing up an act, it is important to record not only its date, but also the time of drawing up. The document is signed by team members of at least three people.

If the employee does not show up the next day, this must be recorded in the following act.

In case of material damage

Material damage to an enterprise can be caused due to negligence or malicious intent. On the part of the employee, the loss to the enterprise is caused as follows:

In this situation, first of all it is necessary to determine the amount of damage. In case of theft, this can be done by drawing up an inventory report. Breakdown or damage to equipment will require additional expertise. The same need arises when damage is caused by non-compliance with safety regulations. For example, an employee left work and forgot to turn off the heating device, resulting in a fire. Only an expert commission can determine the extent of the loss.

Very it is important to understand the motivation for actions. Since it is important to understand whether the offense is ordinary irresponsibility or is of a malicious nature.

Abuse of authority

Abuse of power refers to the use of one's own position to obtain additional benefits. Wherein the interests of the enterprise itself and its employees may suffer. A striking example of such abuse is the conclusion of a supply agreement at inflated prices with the receipt of a certain amount of “premium” from the counterparty.

Such violations not always easy to identify. Very often the assistance of professional auditors or auditors is required. Without the help of independent experts, it will be difficult to find out whether the price of a product being sold is understated or the premises are being rented out at a reduced cost.

Maximum terms

Legislation Exactly one month is allotted for the investigation. The period is determined from the date of issue of the order. This is established by Article 192 of the Labor Code of the Russian Federation.

The duration of the proceedings may be increased if during the period the “accused” employee was on vacation or absent due to illness.

The period cannot be extended by more than 6 months.

If the commission has not made conclusions before the deadline expires, an employee cannot be subject to disciplinary action, even if subsequently the final conclusion will not be in his favor.

If the commission has discovered a sufficient number of facts proving the guilt of the employee, punishment can be applied to him within 6 months from the date of execution of the final act.

Who is involved in the review?

An official investigation carried out by a commission appointed by the head of the enterprise. In large companies, this is entrusted to security or internal audit employees. If the enterprise does not have such personnel, any responsible team members can be assigned to study the situation.

The main thing is that these employees were not personally interested in the outcome of the proceedings and could give an objective assessment of the collected facts. Therefore, it is impossible to invite close friends or relatives of the offending employee, as well as those who have personal hostility towards him, to the commission.

Another basic rule - members of the commission should not be in any way connected with the disciplinary offense. The composition of the group is determined by the corresponding order, which all members become familiar with upon signature.

There is no point in forming a group of employees who are categorically against participating in the proceedings. Otherwise, the situation will not be analyzed with complete care. A secretary is assigned to the group, who will clearly monitor the correct preparation of all necessary documentation.

Registration of investigation results

After receiving and processing all information on the incident, a commission meeting takes place. Members must clearly answer the following questions:

Has there been a violation of labor discipline and what is it expressed in?
What was the cause of the offense?
What was the nature of the actions of the guilty person?
What consequences did the offense have for the organization as a whole?
The presence of circumstances that remove or alleviate guilt.
The presence of facts aggravating the offense.

These points are clarified through discussion. All theses and arguments are recorded in the protocol. After the end of the debate, the commission begins to draw up a final act, which consists of three parts:

Introductory part. It is descriptive. It describes the offense itself and the time it was committed. Information about the members of the commission and their positions must be entered. The basis for the initiation of an internal investigation and the timing of its conduct are indicated.
The second part sets out the actions that the commission members took to obtain facts confirming or refuting the employee’s guilt.
Conclusion. At the end, the commission must draw reasoned conclusions.

All collected documents must be attached to the act. It can be:

memos or memos;
orders;
conclusion of an expert or audit commission;
inventory acts;
and other documents confirming the guilt of the employee.

Not only the act, but also all annexes to it must be signed by the members of the commission. The document must be registered in a journal, where it is assigned a serial number and publication date. Then the act is certified by the signature of the director of the organization and the seal.

Only on the basis of an “indictment” can an employer decide to dismiss an employee who has committed a serious disciplinary offense. With others circumstances, dismissal may be considered illegal.

If the guilty employee does not consider the charges brought against him to be fair and does not trust the results of the internal investigation, he can always defend his rights in court. For an employer, an official investigation report, drawn up in accordance with all the rules, is a powerful argument for the legitimacy of its own actions.

This video talks about the main mistakes an employer makes when applying disciplinary sanctions.

Conducting an official investigation in case of detection
commission of a gross disciplinary offense by a military personnel
in the form of performance of official duties
intoxicated

As practice shows, one of the most common violations of military discipline is the performance of military service duties while under the influence of alcohol, drugs, or toxic substances, which in themselves lead to the commission of other gross disciplinary offenses and crimes *(1).

Performing military service duties while intoxicated is one of the gross disciplinary offenses of military personnel*(2). However, par. 3 tbsp. 7 of the Internal Service Charter of the Armed Forces of the Russian Federation determines that military personnel who voluntarily brought themselves into a state of narcotic or toxic intoxication are not recognized as performing military service duties. But the basis for bringing to disciplinary liability arises when one appears drunk at work, regardless of whether the serviceman is performing the duties of military service or not *(3).

The decision by the commander (chief) to impose a disciplinary sanction on a subordinate must be preceded by a trial. It is carried out in order to identify the perpetrators, identify the causes and conditions that contributed to the commission of the offense.

During the proceedings, the commander (chief) establishes:

Whether there was actual misconduct;

Where, when, under what circumstances and for what purpose was it committed;

What did he say;

The presence of guilt in the action (inaction) of specific persons and the degree of guilt of each in the event of an offense committed by several persons;

What are the consequences of the offense;

Circumstances mitigating and aggravating the responsibility of the guilty person;

The reasons and conditions that contributed to the commission of the offense.

It is important to note that imposing a disciplinary sanction on a soldier who is intoxicated, as well as obtaining any explanations from him, are postponed until he sobers up. In these cases, if necessary, a serviceman can be placed in a guardhouse or in a temporary detention cell for up to one day (except for officers), after which a decision is made on his responsibility *(4).

The official hearing is carried out orally or in writing in any form personally by the commander or an official appointed by him.

However, this provision may provide a serviceman who has committed a gross disciplinary violation in the form of performing military service duties while intoxicated (hereinafter referred to as a serviceman who has committed a gross disciplinary violation), the opportunity to appeal the penalty imposed by the commander, which was preceded by an oral hearing.

In order to avoid appealing against a “deserved” punishment, the commander, in the author’s opinion, should order proceedings in the form of an administrative investigation in writing to document the fact that the serviceman committed a disciplinary offense.

Thus, in accordance with paragraph 94 of the Manual on legal work in the Armed Forces of the Russian Federation, approved by order of the Minister of Defense of the Russian Federation in 2001, No. 10, administrative investigation means, in particular, the activities of the commander (chief) to establish the factual circumstances of the commission by a serviceman misdemeanors (offences).

To hold a serviceman accountable for committing a gross disciplinary violation, it is necessary to confirm the fact that he is intoxicated. This action can be carried out both at the time it is detected that a serviceman is intoxicated, and after he has sobered up.

To confirm the intoxication of a serviceman at the time of detection of his committing the specified gross disciplinary violation, the commander should order him to go to a medical center to have a doctor determine the degree of intoxication.

A question may arise about the legality of such an order. It should be noted that according to para. 3 tbsp. 7 of the Internal Service Charter of the Armed Forces of the Russian Federation, military personnel who voluntarily brought themselves into a state of narcotic or toxic intoxication are not recognized as performing military service duties. The commander (chief) is not a specialist in the field of medicine and cannot independently determine the degree of intoxication of a serviceman, but, having sufficient grounds to believe that the serviceman is intoxicated (see Appendix 1), to establish this fact, the commander has the right to resort to medical assistance personnel of the unit (organization). Only after this can a serviceman be recognized as not performing military service duties and having committed a gross disciplinary offense.

Order of the Ministry of Internal Affairs of the USSR "On approval of the Regulations on the medical sobering-up center at the city regional internal affairs agency and the Instructions for providing medical care to persons delivered to medical sobering-up stations" dated 01/01/01 N 106 distinguishes three degrees of intoxication and separately the state of coma:

Average;

Heavy.

This order also lists the clinical features of the degrees of alcohol intoxication, *(5) using which the doctor will be able to assess the degree of intoxication of the serviceman:

A mild degree of intoxication is characterized by hyperemia of the skin, increased heart rate, breathing, and talkativeness. Speech becomes loud, movements are jerky and sweeping. Attention is quickly distracted, the pace of thinking accelerates, and inconsistency and superficiality prevail. Along with increased motor activity, there is a violation of fine coordination movements. The emotional state in a mild degree of intoxication is changeable. Fun can come under the influence of an insignificant reason, easily give way to irritability, resentment, and then again be replaced by the previous state. After various periods of time from the onset of intoxication, high mood is gradually replaced by lethargy and indifference. Motor activity gives way to relaxation, thinking becomes slower. The state of fatigue increases, and the desire to sleep appears. After a mild degree of intoxication, the memory of the entire period of intoxication is retained;

The average degree of intoxication is characterized by more severe changes in behavior. Movements are uncertain. The possibility of performing relatively simple coordination actions is reduced. Speech becomes blurred and loud, as the threshold of auditory perception increases. Slowing down the associative process makes it impossible to select or replace a difficult word. There are frequent repetitions of the same thing. Ideas are formed with difficulty, and their content is monotonous. Attention switches slowly, only under the influence of any strong stimuli. The ability to critically evaluate the actions of both one’s own and those around them is sharply reduced. This contributes to the emergence of various kinds of conflicts, which are aggravated by the intoxicated person’s overestimation of his own personality, as well as the easily occurring disinhibition of drives and desires, making it easier to realize them. As intoxication deepens, behavior is increasingly determined by random, fragmentary ideas and impressions. Intoxication turns into deep sleep. Memories of events, both recent and distant, are vague;

A severe degree of intoxication is expressed by gross disturbances in the orientation of the intoxicated person in the surrounding environment. Does not understand the meaning of the questions asked; speech consists of separate words. Cannot move independently. The skin is pale, moist, cold. The pupils are dilated and react sluggishly to light. The pulse is frequent, weak filling, blood pressure is low. Breathing is shallow and slow. Reduced response to pain and temperature stimuli. As intoxication increases, stupor may develop, then coma.

For drinking alcohol or being intoxicated;

For drinking alcohol at work;

In case of injuries associated with intoxication;

In cases where the state of intoxication can be regarded as gross negligence of the victim, contributing to the occurrence or increase of harm, and may entail full financial liability for the harm caused in connection with the performance of work duties, etc.).*(8)

The disciplinary charter of the Armed Forces of the Russian Federation provides for liability for being in a state of intoxication, therefore it is permissible to conduct such an examination at the direction of the commander (chief).

The day after the serviceman sobers up, his blood and urine contain alcohol. During the examination, depending on the amount of alcohol consumed, the conclusion may contain the following results*(9):

The conclusion “The fact of alcohol consumption has been established, no signs of intoxication have been identified” is issued if there is convincing evidence confirming the fact of alcohol consumption, but in the absence of a clear clinical picture of alcohol intoxication. This condition is characterized by: scleral hyperemia, impaired coordination tests, a faint odor of alcohol or the smell of breath.

In these cases, a test with a Mokhov-Shinkarenko indicator tube (sobriety control) and the Rappoport reaction will be weakly positive, and the alcohol content in biological media ranges from 0.022% to 1%;

With a mild degree of alcohol intoxication, changes in mental activity are insignificant. There is an increase in vegetative-vascular reactions - skin hyperemia, scleral injection, increased sweating, tachycardia, increased blood pressure, rapid breathing, as well as nystagmus, dilated pupils; disturbance of the motor sphere - changes in gait, staggering when walking with quick turns, instability in the simple and sensitized Romberg position, inaccuracy in performing precise movements and coordination tests.

With a mild degree of alcohol intoxication, the alcohol content in biological media ranges from 1 to 2%;

With an average degree of alcohol intoxication, more pronounced changes in mental activity are observed - incorrect assessment of the situation, lethargy or agitation, aggression, dysarthria, drooling.

Vegetative-vascular disorders manifest themselves in the form of hyperemia or pallor of the skin and mucous membranes, increased heart rate, breathing, blood pressure fluctuations, and sweating. Dilation of the pupils, sluggish photoreaction, nystagmus, unsteadiness of gait, instability in the Romberg position, distinct disturbances in coordination tests, decreased tendon reflexes, and pain sensitivity are observed. The alcohol content in biological media in these cases ranges from 2 to 3%;

In severe cases of alcohol intoxication, there is a disturbance of orientation, lethargy, drowsiness, low accessibility to contact, misunderstanding of the meaning of questions, tachycardia, arterial hypotension, pallor of the skin and mucous membranes, weak reaction of the pupils to light, nystagmus, a sharp disturbance in gait, inability to stand independently and perform purposeful actions , suppression of tendon reflexes, decreased corneal reflexes. The pupils are dilated, but when transitioning into an alcoholic coma, the pupils may be constricted. The alcohol content in biological media in these cases ranges from 3 to 4%.

The medical report is attached to the materials of the official proceedings.

In addition, an explanation is taken from a serviceman who has committed a gross disciplinary offense, in which he indicates the reasons, circumstances, time, place and other conditions that contributed to his committing such a violation of military discipline. Explanations of witnesses may also be added to the materials of the official proceedings.

If a serviceman who has committed a gross violation of military discipline refuses to give written explanations, the following measures must be taken:

1) invite the serviceman to give a written refusal to provide explanations and attach it to the investigation materials;

2) in case of repeated refusal, invite two or more witnesses (military personnel) who are not subordinate to the violator;

3) again invite the serviceman to write an explanation or refusal to give an explanation;

4) after the refusal of the serviceman, draw up an act of certification of the refusal (see Appendix 2), signed by the invited persons, and attach the act to the materials of the official proceedings.

Based on the results of the work, the person who conducted the official proceedings draws up a conclusion on the results of the official proceedings (see Appendix 3).

After drawing up a conclusion on the results of the official investigation, the fact of alcohol consumption by the serviceman is considered confirmed, and the commander (chief) has sufficient grounds to bring such a serviceman to disciplinary liability.

When deciding on the choice of punishment for a serviceman corresponding to the gravity of the offense committed, the following are taken into account:

The nature of the offense;

The circumstances under which it was committed;

Its consequences;

Previous behavior of the perpetrator;

The length of his military service and the degree of knowledge of the procedure for performing service.

The severity of the disciplinary sanction increases if the offense was committed while on combat duty (combat service) and in the performance of other official duties or if it resulted in a significant violation of order * (10).

If a serviceman does not agree with the penalty imposed on him, he has the right to appeal this decision in the manner established by Russian legislation.

In addition, a serviceman has the right to appeal the actions of the commander (superior) in the event of an unlawful imposition of a penalty, as well as in the event of non-compliance with the above procedure for the investigation.

The above procedure, if followed, ensures the indisputability of the fact that the serviceman is intoxicated and serves as confirmation of the legality of the actions of the commander (chief). When a serviceman applies to the court to resolve a contradiction that has arisen (see Appendix 4), the court will refuse to satisfy his application, as it will establish that the contested decision or action was made or performed in accordance with the law within the powers of the commander (chief) and the rights or freedom of a citizen were not violated*(11).

As practice shows, the command of military units, when holding servicemen accountable, neglects to comply with the above conditions, and this often entails a violation of the rights of servicemen.

Assistant commanders of military units for legal work are recommended to develop instructions on the procedure for conducting official proceedings when identifying facts of military personnel being intoxicated based on the materials presented in this article.

Annex 1

Criteria,
in the presence of which there are sufficient grounds to believe that
the driver of the vehicle is intoxicated and
subject to referral for medical examination 12
(criteria 1 - 6 may be grounds for the commander
(supervisor) if suspicions arise regarding the condition
serviceman to refer him to a doctor)

1. The smell of alcohol on your breath.

2. Unstable posture.

3. Speech impairment.

4. Pronounced trembling of the fingers.

5. A sharp change in the color of the skin of the face.

6. Behavior inappropriate to the situation.

7. The presence of alcohol in the exhaled air, determined by technical means of indication, registered and approved for use for medical purposes and recommended for conducting a medical examination for intoxication.

Appendix 2

Act
certification of refusal to give explanations regarding the fact of committing
gross disciplinary offense

─────────

" " 200 Ensk

── ───────────── ─

We, the undersigned, hereby certify that in our

presence upon the fact of his commission

─────

(military rank, full name of the serviceman)

gross disciplinary offense " ",

────────────────────────────────

(specify which one)

refused to give:

Written explanation;

Written refusal to give an explanation.

──

(position, rank, surname, initials of the witness)

──────────────────────

(position, rank, surname, initials of the witness)

Appendix 3

I approve

Commander of military unit 00000

─────────────────────────────────

(military rank, signature,

─────────────────────────────────

first name initial, surname)

──── ──────────────── ──────

Conclusion N

about the results of the official proceedings

1. When the violation is committed

────────────────────────────────────────────

(day, month, year and time)

─────────

(while performing military service duties or not)

2. The official who conducted the investigation

──────────────────────────

─────────────────────────────────────────────────────────────────────────

(military position, military rank, full name)

3. Date of investigation: -

───────────────── ─────────────────

(started) (finished)

4. Information about the violator of military discipline:

military rank

─────────────────────────────────────────────────────────

────────────────────────────────────────────────────────────────

────────────────────────────────────────────────────────────────────

surname

────────────────────────────────────────────────────────────────

Date of Birth

──────────────────────────────────────────────────────────

military position

──────────────────────────────────────────────────────

(name of military position, date of appointment)

place of military service

───────────────────────────────────────────────────

(military unit, division, address)

since when in the Armed Forces of the Russian Federation

──────────────

5. Eyewitnesses to the fact of violation of military discipline:

─────────────────────────

(F.I.O., military position, military rank, place of service, address)

6. Circumstances and conditions for violation of military discipline:

──────────────

7. Reasons that contributed to the violation of military discipline:

8. Materials confirming the fact that the serviceman is in a state of

alcohol, drug or toxic intoxication

─────────────────

9. Officials who committed violations (failed to ensure compliance)

requirements of the Disciplinary Charter of the Armed Forces of the Russian Federation

(military position, military rank,

FULL NAME. persons indicating the specific requirements violated)

10. Proposed measures and timing for their implementation to eliminate the causes and

conditions for violation of military discipline

────────────────────────────────────

11. Conclusions and suggestions:

────────────────────────────────────────────────

Conducted the investigation

────────────────────────────────────────────────────

(military rank, signature, first name initial, last name)

Applications:

────────────────────────────────

Appendix 4

───────────────────────────────────────────────────────

(name of court)

Applicant: ,

─────────────────────────────────────────────

(Full Name)

residing at:

───────────────────────────────────

Interested person: (commander of military unit 00000)

───────────────────────────────────

───────────────────────────────────────────────────

(postal code and full address)

State duty: 100 rubles

Statement
on challenging unlawful actions of officials,
related to the imposition of disciplinary sanctions

I am doing military service

─────────────────────────────────

contract in military unit 00000 for positions,

────────────────────────────────────

(specify position)

── ─────── ─

By order of the commander of military unit 00000 dated "" 200,

── ──────── ─

disciplinary action in the form of

──────────────────────────────────────────

──────────────────────────────────────────────────────────────────────

(nature of violation of military discipline set out in the order)

I consider the imposition of a disciplinary sanction to be unlawful for the following reasons:

reasons:

──────────────────────────────────────────────────────────────

(list the circumstances on the basis of which the plaintiff

considers the imposition of a disciplinary sanction unlawful)

Based on the above in accordance with Art. 258 Code of Civil Procedure of the Russian Federation

1. Oblige the commander of military unit 00000 to cancel the unlawfully imposed

I was subject to disciplinary action by order N dated "" 200

───── ── ───── ──

───────────────────────────────────────────────────────────────────

(type of disciplinary action)

2. As part of pre-trial preparation, I ask you to request from military unit 00000:

1) a copy of the order imposing a disciplinary sanction on me;

───────────────────────────────────────────────────────────────

(other documents relevant to the case)

Applications:

2. Copies of statements according to the number of defendants;

3. Other documents relevant to the case

"__" ________ 200__ Signature_________________

Associate Professor, Department of Military Administration,

*(1) Order of the Minister of Defense of the Russian Federation “On measures to prevent drunkenness and alcoholism among military personnel of the Armed Forces of the Russian Federation” dated January 1, 2001 N 440; Directive of the Minister of Defense of the Russian Federation "On urgent measures to combat drug abuse and illicit trafficking in the Armed Forces of the Russian Federation" dated January 1, 2001 N D-32.

*(2) Appendix 5 to the Disciplinary Charter of the Armed Forces of the Russian Federation.

*(3) On some legal issues arising in connection with the use of alcohol by military personnel and their intoxication in other cases // Law in the Armed Forces. 2002. N 2. P. 7.

*(4) Article 90 of the Disciplinary Charter of the Armed Forces of the Russian Federation;

*(5) Appendix No. 2 to the Instructions for the provision of medical care to persons delivered to medical sobering stations (Appendix No. 2 to the order of the USSR Ministry of Internal Affairs dated January 1, 2001 No. 106).

*(6) Order of the Ministry of Health and Medical Industry of Russia “On the organization of departments (wards) for emergency drug treatment” dated 01.01.01 N 256.

*(7) Kovalev of a serviceman who is intoxicated in a guardhouse or in a temporary detention cell as a disciplinary measure // Current problems of legal support for military service in the Armed Forces of the Russian Federation: Russian military legal collection NS.

*(8) Temporary instructions on the procedure for medical examination to establish the fact of alcohol consumption and intoxication (approved by order of the Deputy Minister of Health of the USSR on September 1, 1988 N 06-14/33-14). This Instruction does not apply on the territory of Russia in terms of medical examination for the state of intoxication of persons driving vehicles. In relation to these persons, Decree of the Government of the Russian Federation dated 01/01/01 N 930 and order of the Ministry of Health and Social Development of Russia dated 01/01/01 N 308 apply.

*(9) Order of the Moscow Government Health Committee “On the Instructions on the procedure for medical examination to establish the fact of alcohol consumption and intoxication in the institutions of the Moscow Health Committee” dated 01/01/01 N 340.

*(10) Article 87 of the Charter of the Internal Service of the Armed Forces of the Russian Federation.

*(11) Clause 4 of Art. 258 of the Civil Procedure Code of the Russian Federation.