Time for disciplinary action. Circumstances that may suspend the one-month period for imposing a disciplinary sanction. Duration of validity and removal of disciplinary sanctions

Disciplinary action is the legal right of an employer to apply it to an employee for misconduct, that is, for failure to fulfill his duties or their improper performance.

The procedure for applying such an action, as well as the established deadlines, are regulated by Articles 192 and 193 of the Labor Code of the Russian Federation. Moreover, their incorrect application or imposition after the expiration of the prescribed period will lead to the loss of such right by the employer. In this article we will look at the period during which a penalty can be applied and how much time the Labor Code of the Russian Federation provides for appealing it.

What is the deadline for applying disciplinary action?

Based on the Labor Code, it is possible to determine how long the period of time is during which a penalty can be imposed and applied. The legislative period is set at 1 month for its application from the moment the violation is discovered.

It is important to remember that this period can be extended if the employee is on sick leave or on vacation. In this case, the maximum period of time for application cannot exceed 6 months from the date of commission of the offense.

There are exceptions to this rule, since there are cases when violations are related to the economic or financial spheres of the enterprise. Determining a violation in this case takes a longer period of time, for example, due to an audit or audit. Therefore, the penalty may be up to 2 years. After it is imposed and the corresponding order is entered, the employer is required to present it to the employee for review within 3 days.

An important nuance is that a disciplinary sanction can be imposed only after requiring an explanatory statement from the employee. He can either present it, which will help him avoid punishment, or refuse, then the employer should draw up an act regarding such an action.

After what period cannot a disciplinary sanction be imposed on an employee?

Despite the penalties applied, be it a reprimand, reprimand or dismissal, exceeding the time limits established by law is prohibited. Its use cannot be declared after a one-month or extended six-month period.

Violation of the deadlines established in the Labor Code of the Russian Federation, firstly, deprives the employer of the right to disciplinary action, and secondly, entails administrative liability. Therefore, it is necessary to observe not only the order of application, but also take into account the time during which punishment can be announced.

How long is the duration of a disciplinary sanction?

The validity period of a disciplinary sanction cannot exceed 1 year from the date of its issuance. This validity period is established by Article 194 of the Labor Code of the Russian Federation. At the end of its completion, additional acts and documents should not be drawn up; withdrawal occurs automatically. This provision applies when the employee continues to work at the enterprise. If there is a dismissal, then the situation is somewhat different.

Involvement in disciplinary liability is a reason for entry in the personal file, and an order is also issued within the organization. The dismissal is recorded immediately in the work book and does not disappear anywhere after the expiration of the punishment. There is no liability in connection with the termination of the employment relationship.

Consequently, dismissal has no statute of limitations. Therefore, each case must be considered separately, as it may have its own nuances.

Labor Code of the Russian Federation deadline for appealing a disciplinary sanction

Any punishment is subject to appeal, including disciplinary punishment. To do this, the employee goes to court, the labor inspectorate or the labor dispute commission. In this case, there must be valid reasons, such as improper registration, violation of the established time, lack of an explanatory note, etc.

To file a request for an appeal, the employee has 3 months to do so, and if the reason was dismissal, then this period should not exceed 1 month. The submitted application is a basis for checking the personnel activities of the enterprise. If during it it is established that the punishment was unlawfully imposed, it will be removed from the employee.

Deadline for lifting a disciplinary sanction from an employee

Removal of the established punishment is possible after a year from the moment it was imposed. A prerequisite is the absence of repeated prosecution of the employee. The employer should not have any complaints about him, then the withdrawal occurs automatically.

In addition, on the basis of Part 2 of Art. 194 of the Labor Code of the Russian Federation, as an incentive, the employer may establish early withdrawal of punishment in the following cases:

• improving the quality of employee work;
• employee request;
• manager's petition;
• union demand.

It is also necessary to remember that only early withdrawal of punishment is possible; its extension is not provided for by law. To do this, it is also necessary to issue an appropriate order giving the right to do so.

Thus, it is possible to announce a disciplinary sanction within a month, or in some cases it is possible for 2 years. The main thing is to comply with all the norms and prerequisites established by law.

• What are the deadlines for applying disciplinary action?
• What circumstances can suspend the period for imposing a penalty?
• How is disciplinary action applied during an employee’s vacation and illness?
• What are the validity and repayment periods of foreclosures?
• What is the difference between canceling a foreclosure and removing it?

What is meant by the terms of application, validity, repayment and revocation of a disciplinary sanction? What are the features of calculus? duration of disciplinary action? Are there exceptions to the rules? Let's look at it in this article. You will also find a sample order for disciplinary action.

Action of disciplinary action

The list of disciplinary sanctions under the labor legislation of the Russian Federation is closed. Employer cannot independently create and apply penalties that are not provided for by law. There are only 3 possible punishments:

• comment;
• rebuke;
• dismissal.

We can talk about the timing of disciplinary action in several aspects. Firstly, this is the period of time during which the employer has the right to punish an employee for committing misdemeanor Secondly, the validity period of a disciplinary sanction does not apply to dismissal. But the reprimand and reprimand will be removed from the employee after a certain period. Labor legislation also uses the term “term for lifting a disciplinary sanction.”

How to apply disciplinary action to an employee while maintaining his loyalty

The magazine "General Director" tells how not to kill an employee's motivation after punishment for a disciplinary offense.

How are the timing of disciplinary action calculated?

A disciplinary sanction can be applied to an employee no later than 1 month from the moment the misconduct is discovered. In this case, the employer is given a month to apply the penalty, and not to decide on its application. Within a month, the employer must make a decision, issue an order to impose a penalty and actually apply the chosen measure of liability. The same rule applies to reprimands and reprimands.

The moment of discovery of the misconduct is the day when the immediate supervisor learned that his subordinate violated job description, terms of the employment contract or other act regulating labor discipline in the company. In this case, it does not matter who will make the final decision on the application of liability measures, the immediate supervisor or another higher official.

Circumstances that may suspend the one-month period for imposing a disciplinary sanction

The period for applying disciplinary liability is suspended by the following objective circumstances:

• employee illness;
• any kind employee leave(annual basic and additional, educational, at your own expense, child care);
• It takes time to take into account the opinion of the trade union if the company has a trade union.

This list is closed. If the offender is absent from work for other reasons, this does not interrupt the monthly period.

In any case, no more than 6 months should pass from the moment of violation to apply a penalty. The exception is disciplinary offenses that were discovered during an inspection by an auditor, auditor or other inspection person. In this case, the employee can be held accountable if no more than 2 years have passed since the violation. The indicated periods - 6 months and 2 years - do not include the time of criminal proceedings. However, employee illness and vacations are not suspended by these deadlines.

If the company management has established the fact disciplinary offense, when 6 months or 2 years have already passed since the commission, it will be impossible to hold the employee accountable.

How to apply disciplinary action during an employee’s illness or vacation

Let's consider several situations in which the general rules on the timing of disciplinary action will have nuances.

For example, an employer initiated disciplinary proceedings before an employee fell ill, but the employee left for sick leave. How can a manager issue an order for disciplinary action during this period?

If the employer clarified all the circumstances of the violation before the employee’s illness, received an explanation or recorded in an act a refusal to explain and plans to apply a sanction in the form of a reprimand or reprimand, then he has the right to issue an order to impose a disciplinary sanction during the period of illness. When the employee returns to work, he must be familiarized with the order within 3 working days.

Who can be disciplined

In the article in the electronic magazine "General Director" you will learn what actions of an employee can be punished for, and how to collect evidence of a violation.

The second situation is that the employer has carried out all the necessary procedures before the employee is sick, that is, he has found out the circumstances of the misconduct, received an explanation or recorded in an act a refusal to explain and, based on the information received, plans to fire the offender.

In this case, it is recommended to postpone the issuance of the order until the employee returns to work. This is due to the fact that, as a general rule, it is impossible dismiss an employee at the initiative of the employer during illness.

If the manager did not have time to establish all the circumstances of his misconduct before the employee’s illness, receive explanations and perform other mandatory procedures, then the issuance of the order should be postponed until the end of the sick leave and the offender returns to work.

If the employee disclosed trade secret while on maternity leave. The penalty can be applied when the vacation ends, if the deadline for bringing disciplinary action has not passed.

The employer, when assigning responsibility, must request written explanations from the employee. The latter is not obliged to provide explanations during vacation. It is impossible to recall an employee from parental leave at the initiative of the employer.

The legislation allows the employer to hold the employee accountable immediately after the vacation, when the employee returns to work and an explanation can be demanded from him.

How is an order to apply a disciplinary sanction issued?

The order is issued by the manager after he has clarified the circumstances of the offense and collected all the documents: reports, acts, explanatory notes. The form of the order depends on the type of disciplinary sanction. At employee punishment With a remark or reprimand, the order is issued in any form. If an employee is punished by dismissal, then an order to terminate the employment contract must be drawn up using the unified form No. T-8, approved by a resolution of the State Statistics Committee, or using a form independently developed by the enterprise and approved in a local act. In this case, there is no need to issue an additional order for punishment in the form of dismissal.

The document must indicate:

• the reason for issuing the order;
• type of penalty: reprimand or reprimand.

Within 3 working days after the order is issued, the manager is obliged to familiarize the employee with it against signature. The time an employee is absent from work is not included in the three-day period. If the employee refuses to sign the order, it is necessary to read the order orally to him and draw up a statement of refusal to sign the document in any form in the presence of 2 witnesses.

Duration of validity and removal of disciplinary sanctions

As a general rule, disciplinary action is valid for 1 year. If during this period the employee does not commit new violations, then the penalty will be canceled. This means that the employee is considered to have no longer committed a disciplinary offense and has not received a penalty. Repayment occurs automatically; the employer does not need to issue anything additional.

The law also allows for early (before the expiration of one year) removal of foreclosure. The manager can do this under the following circumstances:

• on personal initiative;
• at the request of the offending employee;
• according to a memo from the employee’s immediate supervisor;
• at the request of a trade union or other representative body of the labor collective.

If the employer agrees to lift the penalty early, he puts his positive resolution on one of the above-mentioned application documents and transmits the information to HR department. And then the corresponding order is prepared.

What you should pay attention to:

• The employee writes an application for early repayment, and the representative body of the team or the immediate supervisor writes a petition in which he must indicate how the employee has improved, what tasks he has completed, what results he has achieved in his work.
• In the order to lift the penalty, the manager may indicate not the current, but a future date for lifting the penalty.
• The manager can cancel the penalty early if within 1 year it turns out that the employee was not at fault for the offense committed. In this case, an order is issued in any form to cancel the disciplinary sanction. In this case, the employee has the right to appeal the previously made decision and demand moral compensation from management for unlawful prosecution.

Disciplinary action most often involves punishing an employee of an organization for violating disciplinary rules.

Penalty is intended to ensure compliance with certain rules that guarantee safety and productivity.

Failure by an employee to comply with rules and job responsibilities entails serious consequences.

Types of disciplinary sanctions are:

• rebuke;
• comment;
• dismissal.

Deprivation of work is possible only on appropriate grounds strictly specified in the laws. Reprimand and reprimand are softer forms of warning.

Disciplinary punishment in the form of a reprimand

A reprimand is one of the most gentle types of punishment.

Applicable when an employee fails to perform or improperly performs his or her job duties.

Guilt is recognized not only in case of intentional violation, but also in case of negligence.

A standard example of such an offense is showing up to work late.

A reprimand is issued not only for lateness, but also for absenteeism, refusal to perform duties, or failure to comply with discipline.

Usually, a remark is the first warning to an employee of an organization.

To formalize a disciplinary sanction in the form of a remark, it is necessary to document the violation or failure to perform functions by the employee. Prosecution is impossible if the documents are incorrectly executed.

Disciplinary action in the form of a reprimand

A reprimand from an employer is issued in the form of an order.

Legally, a reprimand is a more severe punishment than a reprimand, but softer in contrast to.

Often in practice, a disciplinary sanction in the form of a reprimand differs little from a reprimand and carries with it similar consequences.

However, the employee must be aware that a reprimand is issued for more serious misconduct.

If another reprimand occurs within a year, the employee can easily be fired.

In practice, it is almost impossible to appeal dismissal in court if there are 2 reprimands in 1 year.

In organizations with a developed system of incentive payments, penalties may be separately provided for an employee who violates labor rules.

In this case the employee is partially or completely deprived of bonuses or salary bonuses.

Dismissal due to violation of labor discipline

Particularly serious offenses may result in disciplinary action in the form of dismissal.

The employee’s guilt must be proven by the company administration.

Non-compliance with the rules must be dealt with systematically.

In addition, the employee must have previously received disciplinary punishment.

The decision to dismiss may be challenged. To do this, you must submit the relevant documents. For example, a medical certificate of illness can play this role.

When removing from office, the following violations are taken into account::

• participation in events that discredit the honor and dignity of the leadership;
• insubordination, immoral acts;
• ignoring instructions and refusing to follow management orders;
• making official secrets and valuable information public;
• not performing all of the work, dishonest performance of duties;
• damage or enterprises;
• unauthorized leaving the workplace before the end of the working day, constant tardiness and absenteeism;
• violation of labor protection norms and rules, which caused serious consequences. See more about work injury;
• appearing at the workplace in a state of drug or alcohol intoxication.

Procedure for applying disciplinary sanctions

Penalties can be brought within 1 month from the date of discovery of a violation of discipline.

Standard processing times may be subject to change.

If a violation is discovered as a result of an audit, audit, or financial inspection, the period of punishment is 2 years from the date of commission of the offense.

See what to do if you are accused of a shortage.

The above deadlines do not include the time period for conducting a criminal case for an offense committed, vacation or illness, as well as the time spent taking into account the opinion of the trade union.

The employee is not liable six months after the violation has been committed.

The documentation procedure must be followed.

To begin with, the employer must receive a report, memorandum or other document indicating the facts of the violation.

All deadlines are counted from the date of consideration by the head of the document.

After that an explanatory note is taken from the employee, which must be written within two working days. If you refuse to write an explanatory note, a corresponding act is drawn up.

It is worth noting that refusal to issue an explanatory document does not affect the application of punishment.

The explanatory note must indicate the reasons for the offense. The assessment of the arguments is at the discretion of the employer.

If the manager decides that the facts given in the explanatory note do not justify the employee’s action, a reprimand, reprimand or dismissal occurs.

Drawing up an order for disciplinary action

If the organization provides certain forms for processing documentation, then when drawing up an order it is necessary to take into account the forms approved in the regulations.

An order for disciplinary action is drawn up on the company's general letterhead.

The text should consist of 2 parts – stating and administrative.

The administrative part must begin with the verb “I order.”

Also in the text there must be a clause “grounds”.

Below is a sample of a standard order.

Duration of disciplinary action

The recovery period is 1 year. If during the specified period of time the employee does not receive comments and reprimands, then he belongs to the category of employees who do not have disciplinary sanctions.

Violation of the rules of conduct in the labor sphere is considered repeated, even if the employee has taken another position and the period of punishment has not expired.

Appealing a disciplinary sanction

The appeal occurs on two grounds.

First base– material, determining the illegality of the decision.

Second base- violation of procedure.

The material basis in each individual case may be different. For drinking tea outside of lunchtime, one boss can fire you, while another can only reprimand you.

Courts usually consider the following circumstances:

• personal qualities, attitude to work, availability of rewards and penalties, length of work;
• connection with duties (it is impossible to punish an employee for refusing to perform work not provided for by duties);
• reasons for the action (an attempt to prevent an accident, the behavior of colleagues);
• presence of intent;
• the absence or presence of harmful consequences on the behavior of the team or the production process;
• proportionality of punishment and the offense committed.

Disciplinary sanctions can successfully improve the legal situation in an organization.

The employee is given the opportunity to correct his behavior, since there are 2 levels of warnings, each of which is a call for an employee of the organization.

First, a reprimand is issued, then a reprimand, and only then does dismissal occur. Each employee can challenge dismissal or other punishment. For this purpose there is a Labor Dispute Commission and courts.

Frequently asked questions regarding disciplinary action

Can an employer deprive a bonus for a disciplinary offense and at the same time impose a reprimand?

For committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply a disciplinary sanction in the form of a reprimand (Article 192 of the Labor Code of the Russian Federation).

In accordance with Article 191 of the Labor Code of the Russian Federation, the employer rewards employees who conscientiously perform their job duties (including bonuses).

An employee who has committed a disciplinary offense is no longer conscientiously performing his job duties (until the disciplinary sanction is lifted). This gives the employer the right not to reward such an employee (to deprive him of bonuses).

Thus, deprivation of a bonus is a consequence of a disciplinary offense. It is not a disciplinary sanction.

That's why the employer has the right to reprimand and at the same time deprive of bonuses and its size does not matter.

According to the conclusion of an employment contract, an employee not only acquires a certain list of rights, but also bears a number of responsibilities, for example, to conscientiously fulfill his labor duties assigned to him by the employment contract; comply with internal labor regulations; observe labor discipline, etc. Failure or improper performance by an employee, through his fault, of the labor duties assigned to him is a disciplinary offense (), for which a disciplinary sanction is imposed. Let's consider their types and features of application.

For committing a disciplinary offense, the employer has the right to impose a disciplinary penalty. However, it is necessary to take into account the gravity of the offense committed and the circumstances under which it was committed. Therefore, you should carefully consider the procedure for imposing a disciplinary sanction, because As a rule, the result of inaccurate or incorrect execution of documents justifying the application of a disciplinary sanction is the emergence of a labor dispute.

In cases where the employee perceives a violation of his labor rights in the actions of the employer, he has the right to file an application with the state labor inspectorate without any time limit. And for the resolution of individual labor disputes - to the labor dispute commission and (or) to the court within the time limits established by law (Articles 386 and 392 of the Labor Code of the Russian Federation).

The article provides for a simple procedure for applying disciplinary sanctions for such violations. At the same time, not all employers manage to avoid mistakes and violations in the procedure established by law. Moreover, in most cases, employers do not take into account the fact that the main criteria for the legality of imposing a disciplinary sanction are the sequence of actions of the employer and the availability in full of all documents confirming the fact of the disciplinary action, as well as indicating the legality of the employer’s actions in applying this sanction.

Types of disciplinary sanctions and application features

The current legislation, namely -, regulates that for committing a disciplinary offense, i.e. Failure to perform or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

1) remark;

2) reprimand;

3) dismissal for appropriate reasons.

In accordance with Art. 192 of the Labor Code of the Russian Federation, this list is not exhaustive, because Federal laws, charters and regulations on discipline may provide for other disciplinary sanctions for certain categories of employees.

For example, Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation” for committing a disciplinary offense, that is, for failure or improper performance by a civil servant through his fault of the official duties assigned to him, a warning may be issued for incomplete official compliance.

The legislation clearly states that the application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted. From which it follows that there are two types of disciplinary liability: general, provided for by the Labor Code of the Russian Federation, and special, which is borne by employees in accordance with the charters and regulations on discipline.

Therefore, organizations cannot independently impose any additional disciplinary sanctions (the provided list is exhaustive), however, in practice, referring to Art. 192 of the Labor Code of the Russian Federation, employees are often given a disciplinary sanction: “severe reprimand” or “reprimand with warning,” although such categories are not provided for by the Labor Code of the Russian Federation, as well as the application of various fines, deprivation of allowances and additional payments. Similarly, it would be illegal, for example, to transfer an employee as a disciplinary sanction to a lower-paid position.

For each disciplinary offense, only one disciplinary sanction can be applied (Article 193 of the Labor Code of the Russian Federation).

In addition, when imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account. However, as practice shows, disciplinary measures applied by employers do not always objectively correlate with the committed act. As a result, when resolving labor disputes, the court recognizes the unfoundedness of the decision made by the employer.

Keep in mind that when considering cases, the courts are guided by the fact that the employer must provide evidence indicating not only that the employee committed a disciplinary offense, but also that when imposing a penalty, the severity of this offense and the circumstances in which it was committed were taken into account. committed (Part 5 of Article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee and his attitude towards work.

If, when considering a case on reinstatement at work, the court comes to the conclusion that misconduct actually occurred, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied (clause 53 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application courts of the Russian Federation of the Labor Code of the Russian Federation", hereinafter referred to as Resolution No. 2).

Arbitrage practice.Thus, the court, resolving a dispute about reinstatement at work, came to the conclusion that the disciplinary measure applied to the plaintiff did not correspond to the severity of the offense alleged by the defendant, was unfair and unfounded. At the same time, the court considered that the defendant did not provide evidence that the disciplinary sanction in the form of dismissal was commensurate with the gravity of the offense committed, in the defendant’s opinion. By a court decision, the plaintiff was reinstated at work, and the defendant’s average earnings for the period of forced absence and the amount of compensation for moral damage were recovered from the defendant in her favor (decision of the Dzerzhinsky District Court of Perm dated January 22, 2014 in case No. 2-133-14).

When applying a disciplinary sanction, the employer should also take into account the level of guilt of the employee, including: whether any harm was caused to him, what external factors prompted the employee to take a certain action, whether there was intent in his actions. It is equally important to take into account the general characteristics of the employee: experience, achievements, personal and business qualities, professionalism, health.

In any case, the decision to impose a disciplinary sanction provided for by the Labor Code of the Russian Federation is made by the employer, who has the right, and not the obligation, to do so as provided by law. Therefore, in some cases it is quite appropriate to limit yourself to a verbal warning, personal conversation, etc.

It should also be understood that disciplinary sanctions can be imposed by managers and other officials vested with appropriate powers on the basis of documents (organization charter, local regulations, etc.).

The special liability provided for in discipline regulations and statutes applies to all employees who are subject to them. At the same time, direct employers themselves do not have the right to make any additions or changes to them. The difference between these regulations is the presence of more stringent penalties for certain categories of workers. As an example, we can cite Decree of the President of the Russian Federation of November 10, 2007 N 1495 “On approval of general military regulations of the Armed Forces of the Russian Federation,” namely, the Charter of the Internal Service, the Disciplinary Charter and the Charter of the Garrison and Guard Services of the Armed Forces of the Russian Federation.

Sequence of actions when applying disciplinary sanctions

The procedure for applying disciplinary sanctions is regulated by Art. 193 of the Labor Code of the Russian Federation, which states that before applying a disciplinary sanction, the employer must request a written explanation from the employee. But a written explanation, as a rule, is provided in response to any circumstances, therefore, despite the fact that the Labor Code of the Russian Federation does not contain a requirement to document the fact of a violation, it is necessary to do this, because From the day the misconduct is discovered, the period allotted to the employer for applying a disciplinary sanction begins to run.

The fact of a disciplinary offense by an employee can be recorded by drawing up an official or memorandum from the official to whom the employee is subordinate, regardless of whether this person has the right to impose penalties or not. Of course, in the optimal version, it is better to familiarize the employee with it under his personal signature, thereby further reinforcing the legality of his actions.

Also, the fact of a disciplinary offense can be recorded in the form:

Act (absence from work, refusal to undergo a medical examination, etc.);

Conclusions of the commission (based on the results of an internal investigation).

If an employee is asked to provide a written explanation orally, a situation may arise when the employee denies that the employer has fulfilled his obligation under Art. 193 of the Labor Code of the Russian Federation, and indeed requested a written explanation. Therefore, it is recommended to require an explanation of the circumstances of the violation committed by the employee in writing. To provide a written explanation to the employee, the legislation of the Russian Federation provides two working days.

Some employers make a mistake and issue an order to impose a disciplinary sanction on the day a written explanation is requested, which should not be done, because this action of the employer can be challenged by the employee in court.

The Labor Code of the Russian Federation does not provide for any special requirements for the employee’s explanation, with the exception of written form and deadlines for submission, therefore it can be drawn up arbitrarily in the form of an explanatory note to the employer.

Please note that this is a right, not an obligation of the employee. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. Rather, such a rule is provided in order to give him the opportunity to express his own view of the event, explain the reasons for the disciplinary offense, and present reasoned facts in his defense. This is one of the guarantees that the imposition of a penalty will be lawful.

If after two working days an explanation is not provided by the employee, then if there is a firm intention to apply a disciplinary sanction against the employee, an act on the employee’s refusal to give an explanation should be drawn up, with which the employee must be familiarized with a personal signature (if a refusal to familiarize is made, a corresponding note is made in this same document).

In paragraph 23 of Resolution No. 2, it is explained that when considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

Therefore, when imposing a disciplinary sanction, it is necessary to check the following circumstances:

Is the disciplinary offense grounds for imposing a disciplinary sanction;

Are there really no valid reasons for non-fulfillment or improper performance of labor duties;

Are the employee’s culpable unlawful actions (inaction) related to the performance of his job duties;

Are certain job responsibilities provided for by any local regulatory act or other document and is the employee familiarized with it under his personal signature;

Is the disciplinary measure applied to the employee provided for by the legislation of the Russian Federation;

Have the deadlines and procedures for imposing disciplinary sanctions been observed?

Does the official who signs the order (instruction) on bringing to disciplinary liability the right to apply a disciplinary sanction against the employee;

Has the employee’s previous behavior and his attitude towards work been taken into account?

Only if all the above conditions are met can the application of disciplinary action be lawful.

Time limits for applying disciplinary action

On the application of a disciplinary sanction, an order (instruction) of the employer is issued, which contains information about the specific disciplinary offense of the employee. The employee must be familiarized with this order (instruction) with a personal signature. The refusal to sign should be recorded in the relevant act.

According to Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction can be applied to an employee no later than one month from the date of discovery. The day when the misconduct was discovered, from which the period for applying a disciplinary sanction is calculated, is considered to be the day when the employee’s immediate supervisor became aware of the misconduct committed, which is confirmed by the relevant document (an official or memo, act, commission conclusion, etc.).

The designated period for applying a disciplinary sanction does not include the period when the employee was absent from work due to illness or was on leave (regular, educational, paid or without pay - clause 34 of Resolution No. 2), as well as the time required for taking into account the opinion of the representative body of workers. Here we are talking about the motivated opinion of the representative body of employees when terminating an employment contract. Absence from work for other reasons does not interrupt the specified period.

In case of long-term absenteeism, when the reason for the employee’s absence is not known for certain and he may not be aware of the imposition of a penalty, it is advisable to begin calculating the monthly period from the last day of absenteeism, from the day before the employee appears at work.

In any case, the application of a disciplinary sanction after six months from the date of commission of the offense is not allowed, and based on the results of an audit, inspection of financial and economic activities or an audit - after two years from the date of its commission (Article 193 of the Labor Code of the Russian Federation). The specified time limits do not include the time of criminal proceedings.

The application of a new disciplinary sanction to an employee, including dismissal, is also permissible if the failure or improper performance, through the fault of the employee, of the work duties assigned to him continued, despite the imposition of a disciplinary sanction. At the same time, it must be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the offense, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the notice period for dismissal (clause 33 of Resolution No. 2).

In practice, employers often apply disciplinary sanctions to employees when the period for their application has already expired, thereby allowing a violation of the legislation of the Russian Federation, which leads to the recognition of the disciplinary sanction as illegal.

Arbitrage practice.The employee filed a lawsuit against the employer to declare the order to impose a disciplinary sanction on her in the form of a reprimand illegal and to cancel it.

The court concluded that the employee was brought to disciplinary liability in violation of the one-month period established by law. Evidence of suspension of this period on the grounds specifiedPart 3 Art. 193The Labor Code of the Russian Federation was not included in the case materials and they were not presented to the court. The court was critical of the defendant’s arguments that he had met the six-month deadline for bringing the plaintiff to justice, since the provisionsPart 4 Art. 193The Labor Code of the Russian Federation is applied in cases where the disciplinary offense could not be detected within the month established by Part 3 of Art. 193 of the Labor Code of the Russian Federation to bring an employee to disciplinary liability.

In this regard, the court decided to declare illegal and cancel the order to impose a disciplinary sanction on the employee in the form of a reprimand, to recover money in favor of the employee to compensate for moral damage (decision of the Lermontov City Court of the Stavropol Territory of the city of Lermontov dated 02/09/2012 in case No. 2-19/2012).

Please note: information about penalties is not entered into the work book, except in cases where the disciplinary sanction is dismissal (Article 66 of the Labor Code of the Russian Federation).

The concept of disciplinary offense

We think it would be useful to clarify what constitutes a disciplinary offense, since practice shows that employers often interpret it erroneously. So, a disciplinary offense is a culpable unlawful failure or improper performance by an employee of his assigned job duties (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, regulations, technical rules, other local regulations, orders, other organizational and administrative documents of the employer, etc.).

Only such failure to perform or improper performance of labor duties is considered guilty when the employee’s act is intentional or careless. Failure to perform or improper performance of duties for reasons beyond the employee’s control (for example, due to lack of necessary materials, disability, insufficient qualifications) cannot be considered a disciplinary offense. For example, the legislation of the Russian Federation does not provide for the right of the employer to recall him from vacation early without the employee’s consent, therefore the employee’s refusal (regardless of the reason) to comply with the employer’s order to go to work before the end of the vacation cannot be considered as a violation of labor discipline (clause 37 of Resolution No. 2) .

Only such illegal actions (inaction) of an employee that are directly related to the performance of his job duties can be recognized as a disciplinary offense. Thus, an employee’s refusal to carry out a public assignment or violation of the rules of behavior in public places cannot be considered a disciplinary offense.

Violations of labor discipline, which are disciplinary offenses, clause 35 of Resolution No. 2 include, among other things:

a) the absence of an employee from work or the workplace without good reason.

It must be borne in mind that if the employment contract concluded with the employee or the employer’s local regulatory act does not stipulate the specific workplace of this employee, then in the event of a dispute arising over the issue of where the employee should be when performing his job duties, It should be assumed that, by virtue of Part 6 of Art. 209 of the Labor Code of the Russian Federation, a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer;

Arbitrage practice.The director of the institution explained that the employee was not at the workplace, which is his office, at the time specified in the dismissal order.

Taking into account the provisions of the employee’s job description submitted to the court by the defendant, the court accepted the plaintiff’s explanations that the office was not his only workplace. The absence of an employee from the workplace for some time, which is not his only one, is not absenteeism. The possibility of an employee being in other premises of the employing organization, as well as outside the territory of the institution, may be due to his official duties.

Thus, the court came to the conclusion that it was necessary to recognize the dismissal order as illegal and satisfy the employee’s request for reinstatement at work (decision of the Leninsky District Court of Kostroma dated May 26, 2010 in case No. 2-568/2010).

b) refusal of an employee, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure (Article 162 of the Labor Code of the Russian Federation), because By virtue of the employment contract, the employee is obliged to perform the labor function defined by this contract and to comply with the internal labor regulations in force in the organization (Article 56 of the Labor Code of the Russian Federation).

It should be borne in mind that refusal to continue work in connection with a change in the terms of the employment contract determined by the parties is not a violation of labor discipline, but serves as a basis for termination of the employment contract under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Art. 74 Labor Code of the Russian Federation;

Arbitrage practice.An MDOU teacher for refusing to work on a shift schedule with other groups of children and in another building after applying disciplinary sanctions in the form of a reprimand and reprimand was dismissed from work on the grounds provided forclause 5, part 1, art. 81Labor Code of the Russian Federation.

The court concluded that disciplinary sanctions, including dismissal from work, were illegal and subject to cancellation. By the court's decision, the teacher's claim against the preschool educational institution for the cancellation of the disciplinary sanction, reinstatement at work, payment for forced absence and compensation for moral damage was satisfied in full (decision of the Ust-Kulomsky District Court of the Komi Republic dated December 2, 2011 in case No. 2-467/2011).

c) refusal or evasion without good reason from a medical examination of workers in certain professions, as well as refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work.

Also, a violation of labor discipline should be considered a refusal by an employee, without good reason, to conclude an agreement on full financial responsibility for the safety of material assets, if the fulfillment of duties for servicing material assets constitutes the employee’s main job function, which was agreed upon when hiring, and in accordance with According to the current legislation, an agreement on full financial liability can be concluded with him (clause 36 of Resolution No. 2).

Please note that the application of a disciplinary sanction can be recognized as legal in cases of non-fulfillment or improper performance of labor duties by an employee only when he has been familiarized with each of the local acts establishing the relevant duties under his personal signature, because This requirement is provided for in Art. 22 Labor Code of the Russian Federation.

Therefore, courts often overturn disciplinary sanctions against employers due to the lack of familiarization of the employee with the document that he violated.

Arbitrage practice.During the hearing, the court found that when applying for a job, the employee signed only an employment contract and an agreement on full financial responsibility. The job description was approved only in 2012, and disciplinary sanctions were imposed for disciplinary offenses committed by the employee in 2011.

The court concluded that when applying a disciplinary sanction in the form of a reprimand, the employer could not be guided by the job description, since when concluding the employment contract, the employee was not familiar with it, and his job responsibilities were not established. Referring toletterRostruda dated 08/09/2007 N 3042-6-0, the court indicated that a job description is not just a formal document, but an act that defines the tasks, qualification requirements, functions, rights, duties and responsibilities of the employee.

By a court decision, bringing an employee to disciplinary liability was declared illegal (definitionSamara Regional Court dated July 30, 2012 in case No. 33-6996).

Dismissal as a disciplinary measure

The most severe, extreme disciplinary measure is dismissal. Thus, in cases of application of a disciplinary sanction in the form of dismissal, employees often challenge the actions of the employer if:

There were valid reasons for absence from work during working hours;

The employee is not familiarized with the dismissal order or other local acts of the employer under his personal signature;

The procedure provided for in Art. 193 of the Labor Code of the Russian Federation, including violation of the deadlines for bringing the employee to disciplinary liability;

The employee is dismissed for a violation for which he has already been subject to a disciplinary sanction (note that only one disciplinary sanction can be applied for each disciplinary offense, i.e., the employee cannot be reprimanded and fired at the same time for one violation).

As an example, let’s take a closer look at one of the grounds for dismissal of employees, related to disciplinary sanctions. Thus, upon dismissal for repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction (Clause 5, Part 1, Article 81 of the Labor Code of the Russian Federation), the following conditions must be met:

The employee, without good reason, failed to perform or improperly performed his job duties;

For failure to fulfill labor duties earlier (no later than the calendar year), a disciplinary sanction has already taken place (an order has been issued);

At the time of his repeated failure to fulfill his labor duties without good reason, the previous disciplinary sanction had not been removed or extinguished;

The employer took into account the employee’s previous behavior, his previous work, attitude to work, circumstances and consequences of the offense.

Employers often make the mistake of believing that a previous disciplinary sanction alone is sufficient to subsequently dismiss an employee.

Arbitrage practice.The court found that the employee was dismissed from his position due toclause 5, part 1, art. 81Labor Code of the Russian Federation for repeated failure to fulfill labor duties without good reason. At the same time, the employer does not indicate in the order for which specific violation of labor duties the disciplinary sanction in the form of dismissal was applied (which labor duties were again not fulfilled). This order contains only references to previously applied disciplinary sanctions.

As a result, the court concluded that the employee was subject to disciplinary liability in the form of dismissal for the same actions for which he had previously been subject to disciplinary liability. And since the employer did not prove what new disciplinary offense (committed after a disciplinary sanction was applied to the employee) served as the basis for the dismissal of the plaintiff, the employer had no grounds for terminating the employment contract with him underclause 5, part 1, art. 81Labor Code of the Russian Federation.

The employer's argument about his right to dismiss an employee due toclause 5, part 1, art. 81The Labor Code of the Russian Federation, in the presence of two disciplinary sanctions, without waiting for him to commit a new disciplinary offense, is erroneous, based on an incorrect interpretation of the norm of paragraph 5 of part 1 of Art. 81 Labor Code of the Russian Federation. Within the meaning of this norm, for the dismissal of an employee on this basis, there must be a reason in the form of a disciplinary offense committed by the employee after a disciplinary sanction was applied to him.

In the present case, the employer dismissed the employee for the same offenses for which he had previously been subject to disciplinary sanctions in the form of reprimands and reprimands. Under such circumstances, the dismissal of an employee on this basis could not be recognized as legal, and he was subject to reinstatement (decision of the Meshchansky District Court of Moscow dated January 16, 2013 in case No. 2-512/2013).

Thus, if errors made by the employer are identified, the state labor inspectorate can bring the employer to administrative liability, and by a court decision, the employee can be reinstated at work, and the average earnings for the period of forced absence, as well as the amount compensation for moral damage. Therefore, when deciding to impose a disciplinary sanction on an employee, all conditions provided for by law must be observed and the established procedure must be strictly followed.

The labor activity of any citizen involves the fulfillment of the official duties assigned to him and compliance with the work schedule, as well as ensuring the safety of the employer’s property. Failure to comply with these rules may subject the employee to disciplinary action. This type of liability is provided only for violations related to citizens’ work activities.

In this regard, employees who have committed such offenses as:

• Neglect of official duties;
• Partial or complete failure to perform the work assigned to the worker;
• Violation of the labor regulations established by the company;
• Causing damage to the property of the enterprise, including failure to take the necessary actions to prevent damage;
• Disclosure of information related to commercial or other secrets;
• Failure to comply with safety rules and operating instructions for equipment and machinery;
• Refusal to undergo training or advanced training, if provided for the position held by the employee.

This list is not exhaustive, since each field of activity has its own specifics and features of the implementation of work activities. Therefore, the enterprise has the right to independently establish the types of offenses for which a disciplinary sanction may be imposed on an employee. It must be enshrined in local acts or constituent documents of the company so that management has the opportunity to bring the employee who violates them to justice.

Not all actions of a worker can be regarded as violations. In this case, it is necessary to focus on local regulations and the employment contract concluded with a specific employee. These documents clearly indicate the functions of the employee, his duties and rights. Refusal to perform work not assigned to the employee by these documents is not considered a misdemeanor. It is also not a violation:

• Failure to comply with personal requests and instructions of the manager;
• Refusal to take part in public works (subbotniks, demonstrations, etc.);
• Failure to fulfill additional duties, if they are not provided for in the employment contract;
• Refusal to carry out orders that violate current legislation, even if they are formalized by order;
• Conducting a strike, if it was organized in accordance with the procedure established by law.

The validity period of a disciplinary sanction is 1 year from the date of execution of the relevant order. If another offense is committed during this period, for which another penalty is imposed on the employee, the period of validity of the penalty is extended until the end of the next penalty.

Before issuing an order, the management of the enterprise must conduct an internal investigation, during which it is necessary to request written explanations from the employee. In addition, other documents can be drawn up (memos, protocols, acts, etc.). They are all taken into account when deciding whether to impose a disciplinary sanction on an employee.

Types of disciplinary sanctions

In accordance with the provisions of the Labor Code, three types of disciplinary sanctions can be applied to an employee: reprimand, reprimand and termination of employment relations. The choice of a specific sanction depends on the severity of the offense committed and is determined by the employer. In some cases, when deciding whether to impose a penalty, the opinion of the trade union body may be taken into account.

Only one disciplinary sanction may be imposed on an employee for the same offense. However, this does not deprive the employer of the opportunity to hold him financially liable if this is provided for by current legislation or local regulations of the enterprise itself.

The decision to hold the employee accountable must be made within a month after the misconduct was discovered. This time is not taken into account when the worker is on vacation or absent due to illness. But the final decision must be made no later than 6 months from the date of the offense.

The most severe disciplinary sanction is termination of the employment relationship, therefore its application is possible only if the misconduct committed by the employees is incompatible with further work in this position. Violations that may result in the most severe disciplinary action include:

1. Absenteeism, including absence from the place of work for more than 4 hours without good reason;
2. Gross violation of the internal rules of the enterprise, labor regulations and work ethics;
3. Actions that resulted in injury to employees of the enterprise;
4. Damage to the property of the enterprise, as well as theft of property or funds (of the employer or other employees);
5. Committing an offense that worsens the image of the company, discrediting its name (even if these actions do not directly affect the labor process and were committed outside the enterprise);
6. Dissemination of classified information, including those related to trade secrets;
7. Refusal to fulfill the duties assigned to the employee by the employment contract;
8. Participation in an illegal strike organized in violation of current legislation.

The Labor Code also provides for the possibility of using other measures of influence on guilty employees, which can be established both by industry regulations and by local and constituent documents. For example, for the military there are three more types of disciplinary sanctions:

• Imposing a severe reprimand;
• Issuing a warning about incomplete compliance with the position held;
• Demotion in rank (for civil servants, this item can be replaced by transfer to another lower-paid position).

Regardless of what measure of influence was applied to the worker, he has the right to appeal the penalty to the State Labor Inspectorate, the commission for the settlement of labor disputes, or in court. If the company’s management committed serious violations of the procedure for bringing an employee to disciplinary liability or errors in completing the necessary documentation, then the law will be on the employee’s side.

In this case, the penalty may be completely removed from him or the entry about him in the documentation may be changed. If an employee was dismissed on this basis, then the court has the right to restore him to his previously occupied position and oblige the management of the enterprise to pay compensation to the victim for the entire period of forced downtime.

Duration of disciplinary action under the Labor Code of the Russian Federation

After a decision is made to impose a disciplinary sanction on an employee and the corresponding order is issued, its validity period is 1 year. According to Article 194 of the Labor Code of the Russian Federation, after this time, it is automatically removed if the workers have not received another penalty. In this case, the personnel department employees and the employee himself do not need to take any action.

If, before the disciplinary sanction is lifted, the employee receives another one, then the employer, for its part, can take two paths:

1. Extend the validity period of the foreclosure;
2. Terminate the employment relationship if there is a repeated violation.

The employer, for its part, has the right to prematurely remove a disciplinary sanction from an employee or shorten its duration. However, this does not apply to situations where, by decision of the employer, such a measure of influence as termination of the employment contract was applied to the offending employee.

In this case, the management of the enterprise issues a dismissal order, and the personnel employee makes a corresponding entry in the employee’s personal file and his work book. Unlike other measures of influence, dismissal is the only penalty that is recorded in the labor report.

If an employee does not agree with the dismissal or believes that it was carried out in violation of the current legislation, then he has the right to appeal to the labor dispute commission or court. By their decision, he can be reinstated. At the same time, after dismissal, disciplinary liability is actually removed and if the employee gets a job in the same company, but in a different position, then he is considered to have no penalties.

The right of the organization’s management to independently remove penalties

The right of the enterprise management to remove a penalty from an employee before the end of its validity period is enshrined in Part 2 of Article 194 of the Labor Code of the Russian Federation. This can happen if during this time the employee has established himself as a responsible employee, properly fulfilled his job duties, and did not violate labor regulations and work ethics.

It is not only the employer who can initiate the lifting of a disciplinary sanction. An employee who has received a disciplinary sanction has the right to contact the management of the enterprise with a request for advice. The worker’s immediate supervisor, as well as the trade union organization, can also petition for the removal of the punishment. However, the final decision on this issue is made only by the employer.

In accordance with the norms of the current labor legislation, the management of the enterprise has the opportunity only to shorten the duration of the disciplinary sanction, but not to increase it. Such a decision must be formalized by an order for the enterprise, which states from which employee the penalty is removed. Since this document does not have a unified form, it is drawn up in a free form or one that was adopted at a particular enterprise.

Consequences of expiration of a disciplinary sanction

Until the punishment imposed on the employee is lifted, the commission of a new offense may entail more serious consequences. In addition to extending the period of validity of the penalty, repeated disciplinary action in accordance with clause 5, part 1, article 81 of the Labor Code of the Russian Federation is a sufficient basis for terminating the employment relationship with the employee. In this case, the decision on the relevance of applying this type of disciplinary sanction is made by the employer based on the specifics of the offense committed. If the violation prevents the employee from further performing his job duties, he may be dismissed.

If a repeated offense was not committed, then upon expiration of the penalty period it will be lifted. Since a record of its imposition is made only in the worker’s personal file, no additional paperwork is required in this case, unlike in cases of early removal of a punishment. In such situations, the management of the enterprise issues an appropriate order for the enterprise.

After the end of the disciplinary sanction imposed on the employee, consequences for repeated misconduct cannot be applied to him (for example, dismissal under clause 5, part 1, article 81 of the Labor Code of the Russian Federation). However, the presence of lifted penalties may be taken into account when determining the type of disciplinary punishment for subsequent violations of labor discipline or other offenses.

If other measures of influence not provided for by the Labor Code of the Russian Federation were applied to the employee, then the procedure for their imposition and the period of validity may differ. It is established in the relevant industry regulations or constituent documents of a particular enterprise.