What is a disciplinary offense under the Labor Code of the Russian Federation? What is meant by a disciplinary offense - a list of gross violations. Examples of the use of penalties

The Labor Code of the Russian Federation in Articles 192-195 establishes the procedure for bringing employees to disciplinary liability. At the same time, the rules regarding the procedure for applying disciplinary sanctions can be specified in local regulations. For example, the internal labor regulations may define the types of documents and the procedure for their provision when imposing a disciplinary sanction on an employee, and specify the persons who have the right to demand an explanation from the employee regarding the fact of the offense committed.

The concept of a disciplinary offense is given in Part 1 of Art. 192 of the Labor Code of the Russian Federation), namely, failure to perform or improper performance by an employee, through his fault, of the labor duties assigned to him.

The decision to impose disciplinary liability is preceded by an official hearing or qualification of a violation (disciplinary offense). And to this it should be added that the qualification of a disciplinary offense means the establishment of identity between the circumstances of the act, its content and the elements of the disciplinary offense.

In order to determine whether a disciplinary offense has been committed by an employee, it is advisable to analyze its composition - a set of objective and subjective signs that characterize the act as a violation of labor duties. It includes four elements: object, objective side, subjective side, subject.

The object of a disciplinary offense is what the offender encroaches on. Objects include the rights and obligations of the parties to the employment contract, the interests of the employer, the property of the organization or employee, internal labor regulations, etc.).

The main responsibilities of employees are listed in Part 2 of Art. 21 Labor Code of the Russian Federation. By means of this norm, the employee is also assigned responsibilities arising from the internal labor regulations and the employment contract.

In addition, in paragraph 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, as amended on December 28, 2006 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”) (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2) cases are indicated employee behavior that may be considered a disciplinary offense:

The absence of an employee without good reason from work or the workplace (where the 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 (Part 6 of Article 209 of the Labor Code of the Russian Federation) for more than four hours in a row;

Refusal by 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), since by virtue of an employment contract, the employee is obliged to perform the labor function determined by this contract, 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 changes in the terms of the employment contract 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 conditions of Art. 74 Labor Code of the Russian Federation;

Refusal or evasion without good reason from a medical examination of workers in certain professions, as well as an employee’s 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;

The employee’s refusal to enter into an agreement on full financial liability) if the performance of duties for the maintenance of material assets is the main job function of the employee, which was agreed upon when hiring.

But paragraph 19 of the above-mentioned Resolution of the Plenum says that by virtue of para. 5 hours 1 tbsp. 219, part 7 art. 220 of the Labor Code of the Russian Federation, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except for cases provided for by federal laws, until such danger is eliminated, or from performing heavy work and work with harmful or dangerous working conditions not provided for in the employment contract.

For some categories of employees, the Labor Code of the Russian Federation stipulates its reasons for imposing disciplinary sanctions. In particular, teachers, teachers of educational institutions and educators of children's institutions are subject to dismissal by virtue of paragraph 1 of Art. 336 of the Labor Code of the Russian Federation, if twice within a year they grossly violated the charter of an educational institution or committed an immoral act at their place of work (clause 8 of Article 81 of the Labor Code of the Russian Federation).

It should be noted that the employer must have written evidence confirming that the employee is familiar with his job responsibilities. This, as noted above, is familiarization with the VTR; the employee must also be familiarized with the job description for the position held or the work performed, against signature. One of the evidence confirming the range of duties assigned to the employee is the employment contract concluded with him. Proof of non-fulfillment of the assigned task, which is part of the employee’s labor function, allows us to draw a conclusion about the failure to fulfill the labor duties assigned to him and, as a consequence, the commission of a disciplinary offense. When presenting claims to an employee regarding improper performance of labor duties, it must be proven what specific actions the employee did not perform that he should have performed in accordance with his labor function).

When analyzing the object of a disciplinary offense, a completely logical question arises: is it possible to bring an employee to disciplinary liability for violating labor duties if management’s instructions were expressed orally? In principle, there is no prohibition on verbally assigning responsibilities to an employee. Thus, the immediate supervisor can give him mandatory instructions regarding the performance of a particular operation that is part of the employee’s job function. But in this situation, in the event of a dispute, the question of evidence of the assignment of the corresponding duty to the employee will inevitably arise. In practice, reliable evidence is usually recognized as a signature from the employee stating that he has read the document stipulating one or another of his duties. That is why, in particular, among the main responsibilities of the employer in Art. 22 of the Labor Code of the Russian Federation also refers to the obligation to familiarize workers, upon signature, with the adopted local regulations directly related to their work activities).

On its objective side, a disciplinary offense can be expressed in the unlawful failure or improper performance by an employee of his labor duties, that is, it can be either an action or an inaction. Action and inaction are united by one concept - “misconduct”. In some cases, for the emergence of an offense, the presence of consequences in the form of harm and, accordingly, a causal connection between the act and the consequences is required)

The subjective side is the employee’s attitude towards his action in the form of guilt. A disciplinary offense covers only the culpable failure or improper performance by an employee of his or her job duties. Guilt must be proven by the employer. As a general rule, it is possible both in the form of intent and in the form of negligence. The Labor Code of the Russian Federation, unfortunately, does not contain criteria for establishing forms of guilt. Here it is necessary to turn to the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) and adapt the relevant rules to labor law. Yes, Art. 25 of the Criminal Code of the Russian Federation distinguishes between direct and indirect intent, and Art. 26 of the Criminal Code of the Russian Federation divides negligence into frivolity and negligence.

Direct intent occurs if the employee:

a) was aware of the public danger of his actions or inaction;

b) foresaw the possibility and inevitability of socially dangerous consequences;

c) wanted their attack.

Indirect intent occurs when the employee:

a) was aware of the social danger of his behavior;

b) foresaw the possibility of socially dangerous consequences;

c) did not want to, but consciously allowed these consequences or was indifferent to them.

Frivolity occurs if the employee:

a) foresaw the possibility of socially dangerous consequences of his actions (inaction);

b) without sufficient grounds, he arrogantly hoped to prevent these consequences.

Negligence means that the employee:

a) did not foresee the possibility of socially dangerous consequences of his actions (inaction);

b) with the necessary care and foresight, should and could have foreseen these consequences.

If it follows from a specific situation that the employee was not aware and could not be aware of the harmfulness of what he was doing (not doing) and the consequences of it, then he is considered innocent.

The subject of a disciplinary offense is always the employee, and bringing the employee to disciplinary liability is possible from the moment an employment contract is concluded with him. The conclusion of an employment contract is allowed with persons who have reached the age of sixteen years.

In cases of receiving general education, or continuing to master the basic general education program of general education in a form of education other than full-time, or leaving a general education institution in accordance with federal law, an employment contract can be concluded by persons who have reached the age of fifteen years to perform light labor that does not cause harm. their health.

With the consent of one of the parents (guardian) and the guardianship authority, an employment contract can be concluded with a student who has reached the age of fourteen to perform light labor in his free time from school that does not harm his health and does not disrupt the learning process.

In cinematography organizations, theaters, theatrical and concert organizations, circuses, it is allowed, with the consent of one of the parents (guardian) and the permission of the guardianship and trusteeship authority, to conclude an employment contract with persons under the age of fourteen to participate in the creation and (or) performance (exhibition) ) works without harming health and moral development.

It should be noted that only those violations for which disciplinary measures are expected to be applied are considered disciplinary offenses. If legal liability measures are applied to an employee for violations in the sphere of labor, specified, for example, in the Criminal Code of the Russian Federation, in the Code of Administrative Offenses of the Russian Federation, then such acts are regarded as crimes or administrative offenses.

Only if all the listed components of a disciplinary offense are present can we say that it actually takes place. If at least one of the elements of the offense is missing, then there is no disciplinary offense itself.

In the science of labor law, the following types of disciplinary offenses are distinguished: ongoing, repeated, terminated).

A continuing disciplinary offense is an offense that continues over a long period of time. If, having discovered a disciplinary offense, the employer applied a disciplinary sanction, but this disciplinary offense continues (this particular offense, and not the next one, even a similar one), then a new disciplinary sanction can be applied to the employee (including dismissal on appropriate grounds).

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

Repeated disciplinary offense is an offense committed again after a certain time has passed after the suppression of a similar offense. For example, an employee, after being reprimanded for being late for work, arrives on time for some time, but after some time he is late for work again. In this case, both offenses are regarded as two separate ones, for each of which the employer can impose a disciplinary sanction in case of guilty actions of the employee.

Discontinued misdemeanor. If an employee has committed a disciplinary offense (for example, made an error in a report), independently discovers it and uses all the methods available to him to eliminate the error and minimize or eliminate the negative consequences of his misconduct, then this, undoubtedly, should be regarded as a mitigating circumstance and be the basis for non-application of a disciplinary sanction to the employee or its mitigation.

According to the object, disciplinary offenses can be divided into four groups:

Encroachments on full use of working time (absenteeism, tardiness);

Encroachments on the careful and proper use of the employer’s property;

Encroachments on the order of management of production processes in the organization (failure to comply with orders, instructions);

Encroachments that create a threat to the life, health, morality of an individual employee or the entire workforce (violation of labor protection rules).

Failure to fulfill or improper fulfillment of labor obligations by an employee is qualified as disciplinary offense. Practice shows that many managers do not distinguish between a disciplinary offense and an administrative offense. This causes confusion when it comes to disciplining an employee.

Disciplinary action can be considered the most complex, from a legal point of view, means of ensuring labor discipline. This is especially true for dismissal for disciplinary violations. A dismissed employee often files a claim in court, demanding reinstatement at work and payment of related compensation: forced absence and moral damages. To ensure that the court does not have grounds to declare a disciplinary sanction illegal, the procedure for imposing it must be carried out in accordance with legal norms.

A disciplinary offense is the failure to perform (or improper performance) of labor duties specified in the employment contract, caused by the guilty actions of the employee.

During inspections or labor dispute litigation, the employer will have to prove:

that the employee is guilty of failing to fulfill his job duties;
that the subsequent penalty procedure was carried out in compliance with all legal norms and rules.

This procedure consists of the following steps:

Recording a disciplinary offense.
Explanatory documents, or an act of the employee’s refusal to write them.
The actual imposition of disciplinary action.

Acts of refusal to give written explanations or to attest with a signature the fact of familiarization with the order on the entry into force of a disciplinary sanction are drawn up at each stage. The acts are drawn up by officials whose competence includes documenting disciplinary offenses. If the enterprise does not provide special positions for this purpose, the acts are drawn up by the head of the unit or an employee of the personnel department.

Disciplinary action: reprimand, reprimand or dismissal

What are the different types of disciplinary offenses?

Disciplinary offenses are divided into:

lasting;
repeated;
removed;
discontinued.

A continuing disciplinary offense is a disciplinary offense that was not stopped by the initial disciplinary action. It is important to distinguish a continuing offense from a repeated one, i.e. the next one, even if it is similar to the first one. Continued disciplinary action may result in further disciplinary action, including dismissal.

A continuing disciplinary offense is considered to be an offense that has not been corrected by the culprit after the initial disciplinary action. For example, an employee who has received a reprimand for violating a work deadline, despite this, continues to regularly violate the same work deadlines, the offense is considered ongoing, i.e. not stopped with help. disciplinary action. In this situation, the employer can exercise its right to disciplinary action for a continuing disciplinary offense, provided that the guilty actions of the employee who violates the delivery deadlines are proven.

Repeated disciplinary offense is a secondary disciplinary violation, similar to the one for which the employee previously received a disciplinary sanction, and which was stopped by this sanction. Let's consider this situation using the example of being late. An employee who is late for work receives a reprimand, after which he arrives on time for quite a long time, but then is late again without a good reason. Such disciplinary offenses are considered as two separate episodes, for each of which a penalty can be imposed.

CEO speaks

Alexander Elin, General Director of the audit company "Audit Academy", Moscow

We try not to abuse disciplinary sanctions, although, of course, internal company regulations allow their use. I deal with the guilty employee in the following way - I give him a task that exceeds in importance those that he performed previously. This method almost always achieves the main goal - to stop further disciplinary violations! The employee begins to feel his worth and tries not to violate discipline anymore.

The reason for a fine or reprimand is most often repeated violations, especially if they cause financial losses to the company.

Removed disciplinary sanction – a disciplinary sanction has a one-year validity period. If during the year no more disciplinary sanctions were imposed on the employee, the previous penalty is considered lifted (Article 194 of the Labor Code of the Russian Federation, part 1). This point is important to consider when determining whether a new offense is repeated. Before defining it as such, read the documents recording disciplinary sanctions and make sure that the previously imposed penalty has not expired due to the statute of limitations.

The employer has the right to remove a disciplinary sanction from an employee early (Article 194 of the Labor Code of the Russian Federation, Part 1). This may happen:

At the initiative of the manager. If the punished employee demonstrates proper performance of official duties, high quality of work, and adherence to discipline, the employer can issue an order to early lift the disciplinary sanction, based on its own observations (or information provided by the personnel department, which, as a rule, is charged with monitoring the behavior of the offender employee).
At the request of the employee. If an employee is trying to correct the consequences of his negative behavior, which led to a disciplinary action, and demonstrates high-quality work and impeccable discipline, he can himself apply for early removal of the penalty. The request is made in writing, in the form of an application addressed to the person who signed the act of disciplinary action.
On the initiative of the head of the department. The head of the structural unit, under whose direct subordination the offending employee is, can submit to management a “petition” or “representation”, which contains a proposal to lift the penalty from the subordinate, since the person has realized his mistakes and no longer gives any reason to consider himself a violator of discipline.
At the initiative of the workers' representative body. The representative body of employees may send to the employer a “petition” or “representation”, similar to that drawn up by the head of a structural unit, or the minutes of a meeting of the labor collective (if the decision on the petition was made at the meeting).

The final decision (regardless of who initiated the early lifting of the disciplinary sanction - the employee himself, his immediate superior or the workforce) is made by the employer or the person who signed the administrative act imposing the disciplinary sanction. In case of a positive decision, the authorized person issues the corresponding administrative document - an order or instruction. Based on this order, the relevant information is entered into personnel records.

Canceled misconduct - a misconduct is considered terminated when the employee who committed it makes every effort to eliminate the negative consequences of his mistake or shortcoming; this can (and should) be regarded by management as a mitigating circumstance. Such behavior of the offending employee may serve as a basis for mitigating the penalty (in some cases, even refusing to apply the penalty).

Types of disciplinary sanctions are prescribed in Article 192 of the Labor Code of the Russian Federation. These include reprimand, reprimand and dismissal. Please note that dismissal requires compliance with a number of additional conditions. The employer has the right to apply any disciplinary sanction provided for by law. Other types of penalties are possible only taking into account federal laws or specific statutes and regulations regulating the discipline of special categories of employees.

20 ways to punish an employee without resorting to monetary fines

In an article in the electronic magazine “General Director”, your colleagues tell you what measures they take to respond to employee misconduct and violations of discipline.

Fines and other deductions from wages for lateness, non-compliance with the dress code, or other misconduct, which some employers use, are illegal and inappropriate.

If the employee’s misconduct is qualified as a gross violation of labor duties (clause 6 of Article 81 of the Labor Code of the Russian Federation), the employee can be dismissed immediately. In this case, no prior disciplinary action is required. Gross violations include: going to work while intoxicated, absenteeism, and disclosing trade secrets.

According to the Labor Code of the Russian Federation, the employer has the right to choose any legally established type of disciplinary sanction. Some types of disciplinary offenses require two types of responsibility - disciplinary and material. The purpose of disciplinary liability is to suppress the act, the material purpose is to compensate for the material damage that the company or enterprise suffered as a result of this disciplinary violation. This procedure is regulated in part 6 of Article 248 of the Labor Code of the Russian Federation: “compensation for damage is made regardless of the employee being brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer.” If a disciplinary and material penalty is simultaneously imposed on an employee, the employer is obliged to comply with the provisions of Chapters 30 and 37 of the Labor Code of the Russian Federation.

Suspension from work for violating Article 76 of the Labor Code of the Russian Federation is not a disciplinary sanction. Simultaneously with suspension from work for failure to timely undergo a periodic medical examination, training or testing of knowledge and skills in the field of safety, the employer has the right to impose a disciplinary sanction on the employee. For example, removing from work a person who appears at the workplace in a state of intoxication is the direct responsibility of the employer. But at the same time, he has the right to impose a disciplinary sanction on the employee.

Each employer has the right to apply disciplinary sanctions to its employees, in accordance with Part 1 of Article 22 of the Labor Code of the Russian Federation. The employer can be an individual or a legal entity (Part 4, Article 20 of the Labor Code of the Russian Federation). The rights and obligations of an employer - a legal entity are implemented by management bodies or persons authorized by management bodies. The procedure for their actions is regulated by laws and regulations, constituent documents and regulations of the organization.

Typically, the right to bring subordinates to disciplinary liability is vested in the executive body represented by the head of the organization (president of the company, general director, director, etc.). This right is enshrined in the manager’s employment contract, in the constituent documents and other regulations (regulations) of the company. Examples of such regulations are the “Regulations on the General Director”, “Regulations on moral and material incentives for personnel”, etc.

The sole executive body (head) of an organization can delegate these powers to a subordinate official, for example, a deputy for personnel. If there are job descriptions, they may establish a similar right for certain officials.

Heads of structural units are granted the right to impose penalties on their subordinates extremely rarely. As a rule, line managers who directly supervise the work of personnel have the right to send official or report documentation to the person entitled to impose disciplinary sanctions, containing proposals to subject a particular employee to punishment. It is they who most often initiate the imposition of disciplinary sanctions, since they are the main witnesses to the employee’s improper performance of his official duties and other violations of labor discipline.

A disciplinary sanction imposed on an employee by a person who does not have such a right will be canceled by the labor dispute commission, state inspection or judicial authority. If an unlawful (albeit deserved) penalty is canceled, the employer may not have time to apply a similar disciplinary sanction to the offending employee, since he may miss the deadlines allotted by the Labor Code of the Russian Federation for applying disciplinary sanctions.

The practitioner tells

Maryana Dorozh, Leading Legal Advisor of the Telecom-Service IT group of companies, Moscow

I do not recommend rushing to apply disciplinary action. Thus, an employee who is absent for more than four hours may refer, for example, to a complex medical examination involving a blood test. This right is given to the employee by law. You also need to take into account that there is no statutory deadline for filing an application for leave without pay. Therefore, the employee can do this upon returning to the workplace. Thus, it may turn out that there is nothing to punish the employee for.

When planning to fire an employee for theft, remember that even if your security service, including non-departmental ones, recorded the theft of property, this will not be grounds for dismissal. The security service does not have the right to make decisions on imposing disciplinary sanctions.

How to properly punish for a disciplinary offense

Step 1. Recording the employee’s misconduct

A violation committed by an employee must have all the signs of a disciplinary offense (Article 192 of the Labor Code of the Russian Federation), which is defined in the article as failure to perform or improper performance of work duties assigned to the employee (due to the employee’s fault). The employer must have one hundred percent confidence that all the signs and circumstances of such actions by the employee are present:

Certain actions (or refraining from performing certain actions) are the employee’s legal duty. If there is a need for litigation, the employer will have to prove that this action is indeed the direct labor responsibility of this particular employee.
The labor obligation specified in the employment contract was not fulfilled or was performed improperly. As evidence of this fact, documents must be presented (for example, a schedule for cleaning the premises, which does not contain the required signature of the performer, a time sheet, etc.) and testimony of witnesses. Improper performance of duties is determined by the situation (for example, after cleaning, the floor is covered with dirty puddles, therefore, the cleaning was done improperly), or by documentation (if the duties of the secretary, according to the job description, include delivering correspondence to the manager immediately after receipt, and it was delivered after three hours)
The employee’s behavior was unlawful (inconsistent with the law and the obligations enshrined in the employment contract). The manager does not have the right to impose disciplinary sanctions on an employee for lawful behavior. For example, an employee who fails to comply with the manager’s instructions to withdraw from legal annual leave should not be held accountable by law (Article 125 of the Labor Code of the Russian Federation). This also applies to refusal to divide annual leave into several parts and other similar situations.
The unlawful act must be directly related to the performance of job duties. Illegal behavior not related to work duties (disturbing public peace, evading public assignments, etc.) is not subject to disciplinary action.
The employee’s action (or inaction) must be intentional or careless, i.e. guilty.

If there are good reasons for non-fulfillment of duties, the disciplinary sanction imposed on the employee will be unlawful. The list of valid reasons is as follows:

disability (confirmed by a medical certificate);
call to law enforcement agencies, court, military registration and enlistment office;
natural or man-made disasters (floods, snowfalls, road accidents);
lack of necessary conditions and materials for work.

In order for a disciplinary sanction to be qualified as lawful, all of the above circumstances must be present. In the absence of one or more circumstances, the disciplinary sanction imposed on the employee will be considered illegal, and the employee’s behavior will not be regarded in court as a disciplinary offense.

Let's give an example. If an employee refuses to comply with the manager’s order, claiming that these actions are not his responsibility, it is necessary to find out whether this is really the case and how lawful the manager’s order is. The employer does not have the right (according to Article 60 of the Labor Code of the Russian Federation) to require employees to perform work that goes beyond the scope of the employment contract (except for specially provided cases regulated in the Labor Code of the Russian Federation and some federal laws). If the manager’s order really contradicts the employment contract, the employee’s actions cannot be regarded as a disciplinary offense.

It happens that an employee is mistaken in good faith, believing that he has reason not to comply with management orders. In this case, before subjecting him to disciplinary action, those authorized to apply disciplinary sanctions are obliged to explain to the employee the inconsistency of his position and warn him of the consequences - if he insists on his incorrect assessment of the situation, he will be subject to a legal disciplinary sanction.

Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 analyzes judicial practice in the field of labor disputes related specifically to the imposition of disciplinary sanctions, and indicates which cases should be qualified on the basis of the provisions of the Labor Code of the Russian Federation as a disciplinary offense. These include:

Absence of an employee from the workplace for 4 hours during the working day (without good reason). Absence from the workplace is considered not only the absence of an employee from work at all, but also his presence in a place other than that determined by his main work function.
Direct refusal without good reason to perform labor duties in a situation where labor standards change in accordance with Article 162 of the Labor Code of the Russian Federation. Since the employment contract provides for compliance with local internal labor regulations (Article 56 of the Labor Code of the Russian Federation), as well as compliance with established labor standards (Article 21 of the Labor Code of the Russian Federation), such employee behavior can be regarded as a disciplinary offense. But, if there have been significant changes in working conditions that resulted in the employee’s refusal to perform duties, this cannot be regarded as a violation of labor discipline, but is grounds for termination of the employment contract (clause 7, part 1, article 77 of the Labor Code of the Russian Federation) . The procedure for terminating an employment contract is established in Article 73 of the Labor Code of the Russian Federation.
Evasion or refusal of mandatory regular medical examination (for workers of certain professions), refusal and evasion of training and passing mandatory operating and safety permits, if they are carried out during working hours.
Refusal of an employee whose main job function (agreed upon hiring) is the maintenance of material assets from concluding an agreement on full financial liability (without good reason).

Step 2. Demand an explanation from the employee

Before deciding to impose a penalty, the manager is obliged to familiarize himself with the employee’s explanations. The explanation must be in writing.

There are several forms of written explanation. The best option is an explanatory note, drawn up by hand, in any form. In some organizations (mainly where it is difficult for the majority of personnel to describe events in writing in a coherent and logical manner), stencil forms are used, where lines (columns, cells) must be filled in that answer the questions:

What was the reason (motive) for committing this offense?
Do we admit that the employee is guilty of committing this offense?
If the employee considers himself innocent, who, in his opinion, is guilty and should be punished?

The addressee of the explanatory note is determined by the local regulations of a particular organization - the head of the organization, the head of the HR department, the head of a structural unit, etc.

Another possible explanation is to draw up an act on the fact of a disciplinary violation, record the circumstances of the case in it and certify this act with the signature of the employee who committed the disciplinary violation.

The fact that an employee refuses to give an explanation cannot be an obstacle to imposing a disciplinary sanction on him (Part 2, Article 193 of the Labor Code of the Russian Federation). However, the application of a disciplinary sanction without explanatory documents received from the offending employee may be challenged in court. If an employee refuses to write an explanation, an act of refusal should be legally drawn up, in the presence and signatures of disinterested witnesses.

Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 (clause 53) expressed the following legal position. Constitutional principles: legality, guilt, fairness, proportionality, equality, humanism - must be observed in cases of disciplinary action being taken against an employee.

The employer's representative will have to provide evidence that he took into account when imposing the penalty:

severity of the violation;
circumstances surrounding the offense committed;
the employee’s behavior before he committed a disciplinary offense;
the attitude of the offending employee towards work, which he demonstrated before committing the offense.

If the court decides that the employee’s dismissal was carried out without taking into account these circumstances (although a disciplinary violation will be recognized as having been committed), the dismissed employee’s claim for reinstatement and payment of appropriate compensation may be satisfied.

Step 3. Imposition of punishment for a disciplinary offense

The fact of imposing a disciplinary sanction is expressed in the issuance of an appropriate order and the obligatory familiarization with it of the offending employee (under signature). It is advisable to serve the order in front of witnesses, so that if the employee refuses to sign the issued order, an act will be drawn up recording the employee’s refusal to sign.

Typical mistakes made in the process of imposing disciplinary sanctions

The main rule is “one offense - one penalty.” If an employee continues to violate labor discipline, it is permissible to impose a new disciplinary sanction on him (including dismissal under the relevant article). To do this, his actions must be classified as a continuing offense. However, in the case of a one-time violation (for example, being “late” for the start of the working day by 4 hours or more), for which the employee was reprimanded, it is considered that the employer has already exercised his right to choose a punishment. He does not have the right to impose another, more severe punishment on the offender for the same act, for example, to dismiss him under Article 81 of the Labor Code of the Russian Federation (subparagraph “a”, part 6). However, if the employee continues to be “late” for 4 or more hours, the employer has the right to consider this offense to be ongoing and impose a new penalty on the employee, including dismissal under this article.
To record guilty actions, it is necessary to obtain a written explanation from the offending employee before the penalty is announced. If an explanation is requested after a penalty has been announced, the penalty is considered unlawful, even if in fact a disciplinary violation has taken place and the employee is truly guilty. If the violator refuses to give a written explanation of his actions, it may be replaced by an act of refusal. The act must record: the calendar date, place and reason for drawing up the act. The act is signed by an authorized person and several disinterested persons as witnesses (the employer’s task is to ensure the presence of such witnesses when trying to obtain an explanation from the offending employee). As mentioned above, an employee’s refusal to give explanations cannot serve as an obstacle to the lawful (in compliance with all necessary procedures) imposition of a penalty.
What matters is the time that elapses between the discovery of the violation and the imposition of a penalty. The day of detection is the date when the subordinate’s misconduct was discovered by his immediate superior. A penalty may be considered lawful if imposed within a month after the discovery of the violation. This period does not include the time the employee is absent due to illness or vacation. Other reasons for absence are not considered valid, including the employee’s free days that he received for overtime work. A disciplinary sanction cannot be imposed for an offense discovered more than 6 months after it was committed. In the event that a violation is revealed as a result of an inspection (audit, audit, financial and economic), the statute of limitations is extended to 2 years. The time of criminal proceedings is not included in the specified time limits.
An employee who has been subjected to disciplinary action must be familiarized (with signature) with the relevant order (instruction) within no more than three working days. Failure to comply with the three-day deadline may serve as grounds for a legal appeal against the penalty. Refusal to sign does not prevent the punishment from coming into force and is replaced by an act signed by an authorized person and disinterested witnesses.
If, nevertheless, the case comes before the courts, it is important for the employer, on his own initiative, to provide evidence of the legitimacy of his position, documents confirming the fact that the employee committed a disciplinary offense, and that the penalty was imposed in compliance with all necessary procedures. Otherwise, a positive court decision may be canceled by a higher authority with the wording “due to insufficient examination of the circumstances.”
The documents submitted by the employer to the court must not contain contradictions. To do this, you should pay attention to filling out related documents throughout the history of the labor conflict. It happens that the employee’s lateness is not noted in the timesheet (although he is regularly late), and subsequently the employee refers in court to the timesheet, which indicates the full number of working hours, although other documents - explanatory and reporting notes, orders, entries in the work book - indicate other

Evidence at trial is:

Written testimony.
Documents: acts, contracts, business correspondence, certificates, court orders and related applications in any format (originals, faxes, documents received by e-mail).
Audio and video recordings or other material evidence.
Expert opinions.

Administrative offense and disciplinary offense: what is the difference

A disciplinary act in some cases may simultaneously constitute an administrative offense. Torts of this kind are called administrative-disciplinary offenses.

The difference between a disciplinary offense and an administrative offense is determined by the type of social relations the illegal act is aimed at. Disciplinary offenses violate the internal (labor) regulations of a particular organization (enterprise) and labor discipline at a particular enterprise. This kind of social relationship is not the object of an administrative offense.

Occupational safety requirements that a manager should know

CEO speaks

Mikhail Plynsky, General Director of the electrical engineering company Faber, Orel

Like many others, our company has experienced cases of employees violating labor discipline. Lateness, absenteeism, drunkenness, theft, idleness during the working day. While there were no more than 30-40 people on our staff, problems were solved through ordinary educational conversations - either personally with the culprit, or at a general meeting of the team. When the business began to grow rapidly, we were faced with the need to significantly expand our staff, without being able to carefully select candidates. Instead, we developed a certain scale of violations, according to which we assessed the severity of the offense and the harm it brought to the company, and in accordance with it, we chose a preventive measure. Minor delays were ignored. For absenteeism or prolonged lateness, they were reprimanded and required an explanatory note. Drunkenness in the workplace was grounds for immediate dismissal. These measures did not carry any educational load; they were purely sanitary - they freed the team from unreliable elements.

Over time, we realized that it was time to change our approach. It is necessary not to react to violations that have already occurred, and to minimize the very possibility of disciplinary violations. This is only possible in an enterprise with a well-developed work culture. We began to form a work culture at our enterprise, introducing the Harzburg management system. To a large extent, we succeeded. I will list the means we used that allowed us to achieve high labor discipline.

Round table meetings. Such meetings are attended by senior staff from various departments, who together analyze problematic situations. The decisions made at such meetings are put into practice with the assistance of higher-level management. Such meetings increase the loyalty of employees to management and the company as a whole, since they feel important, significant, and take a real personal part in the management of the company in which they work.

Cooperation between managers and ordinary employees of different departments. Previously, employees of related departments did not show any initiative to cooperate with each other. They are now willing to share their experiences and often find effective (often original and innovative) cost-effective solutions that benefit the entire company. As an example. We have several production sites that employ workers of various specialties (mechanics, painters, welders). At one of the meetings, employees of various departments agreed on the joint use of labor resources (depending on production needs and workload of workers). We cross-trained employees from different departments and developed a reassignment scheme for “transitioning” workers.

Variable component of wages. This is an extremely effective means of combating drunkenness, laziness and other manifestations of sabotage! The payment of each employee is determined not only by his personal results, but also by the aggregate performance of his colleagues in the department. We have introduced a system for calculating the variable component of salaries. Monetary rewards are calculated using the point-factor method.

For each employee, labor efficiency (S) is determined, which takes into account three factors:

degree of plan implementation (A);
quality of work (B);
labor discipline (C).

Each employee’s personal compliance with these conditions is assessed on a five-point scale. Different factors have different significance, so the final formula looks like this: S = 2.5A + 1.5B + C. This formula determines the percentage of the employee’s bonus from the size of the bonus fund. And the size of the bonus fund depends on the production of the entire division (section). That is, the employee’s personal salary indicators depend on the performance of the unit and at the same time influence them.

Selection of candidates based on job profile. The profile requirements for each position that we have compiled have recorded the basic requirements for candidates for specific vacancies. This measure allowed us to more carefully select job candidates and, consequently, improve the quality of personnel.

Automated time tracking. Our company has introduced a separate access system equipped with turntables and magnetic locks. They are installed at all entrances - to the general territory of the enterprise, to workshops, to office premises. Thus, we were able to control not only the arrival and departure times of each employee, but also where exactly the employees were located during the work shift. The main checkpoint is equipped with monitors with photographs of employee passes entered into them, and security ensures that it is the pass holder and no one else who passes through the turnstile. We also made a collective decision and installed a video surveillance system (recordings are stored for 180 days and are constantly available to an authorized employee). Combining video surveillance systems and separate access allows us to analyze the involvement in the work process of any of our employees.

Disciplinary offense- one of the concepts used in labor legislation. What is meant by this definition, how it differs from other offenses and how an employer can react to it, you will learn from our article.

How does a disciplinary offense differ from other types of violations?

If there are rules, then, accordingly, there may be those who break them. The norms and rules established in society are divided into groups that are regulated by separate legal institutions. Depending on what branch of legislation the committed offense belongs to, it can be classified either as a crime or as a misdemeanor. In this case, the offense can be administrative, disciplinary or civil.

An employee, while at his workplace, may well commit any of the above offenses. However, a disciplinary offense has one characteristic feature that is unique to it: it, unlike others, is firmly connected with the performance of labor duties.

What liability does an employee’s employer have the right to hold for committing a violation?

An employee who has violated the law or labor discipline rules, depending on the severity of the offense, may be subject to different types of liability. Accordingly, different persons/organizations have the right to hold accountable.

Thus, an employee can be held criminally liable only by a court decision, and administratively by a decision of the authorized bodies or their officials. Only the employer has the right to punish for a disciplinary offense.

This happens by issuing an appropriate order approved by the head of the organization (or the head of the department, if such powers are vested in him by a local act), and familiarizing the violator with it. At the same time, the employer, even before punishing an employee for a disciplinary offense, must request a written explanation from the person who committed it in order to decide on the imposition of punishment and the choice of specific sanctions, taking into account all the circumstances.

True, in some cases it can be problematic to correctly classify an offense committed by an employee. If we take, for example, the division of criminal and administrative liability, then in the Code of Administrative Offenses of the Russian Federation the legislator often uses the wording “if such an action does not contain a criminal offense.”

The line between administrative and disciplinary offenses or a crime by an official is somewhat blurred. As a result, the employer sometimes has to wait until the competent authorities refuse to initiate a criminal case or an administrative offense case on the basis of the absence of signs of their commission, and only after that independently bring the employee to disciplinary liability.

How many sanctions can be applied for each disciplinary offense?

The Labor Code of the Russian Federation has an immutable rule enshrined in Part 5 of Art. 193, which states that only one penalty can be imposed for one disciplinary offense. That is, it is impossible, for example, to reprimand an employee and fire him under Art. 81 Labor Code of the Russian Federation. The employer will have to wait until the employee commits the next disciplinary offense - only this can serve as a basis for dismissal in this case.

And it doesn’t matter whether the offense is such that in itself it can serve as a reason for dismissal, and whether the law has a mandatory condition regarding the repetition of the violation. If the employer initially chose a reprimand instead of dismissal, then so be it. The period for bringing disciplinary action is limited to 6 months from the date of its commission and 1 month from the date of its discovery.

However, situations often occur in life when an employee’s violation of work duties also causes damage to the employer. For example, Ivanov, while intoxicated, did not follow the line, as a result of which defective parts were stamped. And what should an employer do in this situation?

For such cases, it is envisaged to bring the employee to financial liability, within the framework of which the employee is fully or partially compensated for the damage caused to him. At the same time, it is important to distinguish between material and disciplinary responsibility, since these are different concepts and they have different reasons for their occurrence. Thus, if a disciplinary offense serves as the basis for damage, the employee can be punished both disciplinary and financially (i.e., according to separate procedures).

Signs of disciplinary offense

In order to be able to talk about the fact of committing a disciplinary offense, the violation must have the following characteristics:

A violation is expressed in the failure to perform (or improper performance) of labor duties by a specific employee.
The obligations that were violated were imposed on the employee within the framework of labor legislation, an employment contract or other local acts of the organization.
The violation is recognized as a culpable act (or omission). The form of guilt does not matter.

Moreover, all these signs must be present. That is, the absence of even one of them deprives the employer of the opportunity to talk about a disciplinary offense and hold the employee accountable for this type of violation. However, it is important to remember that there is no such sign as negative consequences for the employer in the above list. In other words, the manager can reprimand an employee for absence from the workplace even if this did not affect the production process in any way.

Types of disciplinary offenses

There is no special part in the Labor Code of the Russian Federation where possible disciplinary offenses and specific punishments for them would be described. In Art. 192 of the Labor Code of the Russian Federation, which defines a disciplinary offense, lists only the types of sanctions.

At the same time, the most serious types of violations are mentioned in the text of the Labor Code of the Russian Federation even as possible grounds for dismissal. According to Art. 81 of the Labor Code of the Russian Federation, the following are recognized as such:

Failure by an employee to fulfill job duties, expressed by:

in the absence of an employee at the workplace;
refusal to continue working after changes in labor standards;
evading medical examination or training when this is a mandatory condition for admission to work.

Absenteeism.

Showing up to work drunk.

Disclosure of a secret that became known as part of the performance of job duties.

Committing an immoral act.

Submitting false documents when applying for a job.

However, even for these disciplinary offenses, other types of punishment may be imposed if the manager decides so. After all, it is he who is authorized to determine sanctions for committing a disciplinary offense - and his choice must be motivated, because otherwise the employee will be able to challenge it.

Other examples of disciplinary offenses are scattered throughout the text of the Labor Code of the Russian Federation, but may well be specified in local acts of the organization.

Conclusion

So what did we find out?

A disciplinary offense occurs only within the framework of labor relations.
For violation of rules and regulations, the employee is held accountable by the manager. However, if the act contains signs of an administrative offense or crime, punishment for it can also be imposed by a court or other competent authority (but within the framework of administrative or criminal liability).
In addition to penalties, the employer can apply monetary sanctions to the violator working for him - of course, if there are grounds for bringing him to financial responsibility.

Any management must monitor compliance with labor regulations, reward conscientious employees and apply penalties for every serious disciplinary offense. What do you need to know so that such a collection is not considered illegal? About this in our material.

Characteristics and types

Offenses of an administrative, civil or disciplinary nature have a negative impact on the economic performance of the enterprise. Therefore, managers try to maintain order in the work team.

In practice, confusion often arises between a disciplinary and an administrative offense. What is a disciplinary offense by an employee? This is failure to fulfill or improper performance of labor duties through his fault (Article 192 of the Labor Code of the Russian Federation). It has 3 features:

During inspections or legal proceedings, it is necessary to prove that the violation occurred through the fault of the employee, and the procedure for imposing a penalty was carried out in compliance with the law.
Only the employer has the right to punish a subordinate, and not authorized bodies, bailiffs, etc.
Liability is not provided for every violation.

When analyzing a disciplinary offense and its characteristics, the following types can be distinguished:

Discontinued	This is when a subordinate makes an effort to correct the consequences of a wrongdoing. For example, he made a mistake in the report and is doing everything possible to prevent an unfavorable outcome. Management should regard such actions as a mitigating circumstance and reduce the punishment.
Ongoing disciplinary offense	A violation that was not stopped by the primary penalty. For example, a subordinate was reprimanded for being late for work, but continues to arrive at the wrong time. The peculiarity is that management has the right to apply a new penalty and even terminate the employment relationship.
Repeated	The employee commits the offense again some time after the suppression. In such situations, violations are considered separately. That is, for each disciplinary offense a separate penalty can be applied.
Filmed	Punishment for failure to comply with labor discipline, the period of imposition of which exceeds 1 year. According to Part 1 of Art. 194 of the Labor Code of the Russian Federation, it will be considered withdrawn. When considering whether a violation is repeated, the statute of limitations must be checked. Please note that management has the right to early release from penalties.

When can you punish the offender?

Below are the most common examples of disciplinary offenses for which penalties can be imposed:

poor quality work;
unreasonable refusal to perform labor duties;
violation of job description;
failure to comply with internal regulations;
failure to comply with labor standards, etc.

A mandatory condition for applying a sanction: the violation occurred solely through the fault of the employee, while his job duties are specified in the employment contract, the Labor Code of the Russian Federation or an internal document of the enterprise.

It is interesting that the signs of a disciplinary offense under the Labor Code of the Russian Federation say nothing about its negative consequences for the employer. This means that you can reprimand an employee even if his absence did not affect the production process.

It is important that the law does not provide for liability:

for violations not related to the performance of work duties;
for offenses for which the employee is not at fault.

Also, punishment for a disciplinary offense is not applied if there is no causal connection between the negative consequences and violations on the part of the employee.

What to do when labor discipline is violated

What punishment should an employer choose?

Based on Art. 193 of the Labor Code of the Russian Federation, only one punishment can be applied for one disciplinary offense. Labor legislation provides for 3 options:

comment;
rebuke;
termination of employment relations.

Remember: You cannot, for example, issue a reprimand and terminate the contract at the same time.

The most severe penalty is dismissal for disciplinary misconduct. It is used:

Situation	Explanation
For violations that are not stopped by the primary penalty (continuing)	When the wrongful act is repeated, the employer has the right to terminate the contract on his own initiative
For serious offenses	Labor legislation directly provides for cases where cooperation is terminated without warning. These are the grounds for dismissal for disciplinary misconduct: · absenteeism; · showing up at work while intoxicated; · refusal of honey. examinations; · disclosure of trade secrets; · forgery of documents during employment, etc.

The legislation of the Russian Federation provides for clearly established rules and norms of behavior, violating which a citizen commits an offense or a crime, depending on whether this action belongs to a particular area of offenses.

Misdemeanors, in turn, are of several types: civil, administrative, disciplinary.

The main feature of a disciplinary offense is that it is closely related to labor relations.

To understand what a disciplinary offense is, you must first understand the concept of labor discipline.

When hiring an employee, the employer imposes certain obligations on him, for the high-quality and conscientious fulfillment of which he undertakes to pay a monetary reward -.

In order for an employee to clearly understand his job responsibilities and follow established standards of behavior during the work process, it is important for the boss to competently organize labor discipline within the team.

Labor discipline is regulated by the following documents:

labor code of the Russian Federation;
employment contract;
collective agreement;
regulations on labor protection rules;
by order of the organization's management.

Failure to perform or dishonest performance of one’s job duties without a good reason, as well as violation of the rules in the above documents is a disciplinary offense.

A disciplinary offense must meet the following three points:

Violation or failure to fulfill labor obligations that were imposed on the employee in accordance with the law, employment contract, and other official documents.
A recorded violation is expressed in the dishonest performance by a specific employee of official duties or in their complete disregard.
An action or inaction defined as a disciplinary offense and found guilty.

The absence of even one of these signs in an employee’s action deprives the employer of the opportunity to talk about a disciplinary offense.

What constitutes disciplinary offences?

Punishment can be applied to an employee if:

a fact was recorded;
the employee expressed disagreement with changes in labor standards, and therefore refused further work activities;
the specialist refused to undergo a medical commission (for professions where this is mandatory);
the employee did not want to undergo training or advanced training when further work activities are impossible without it;
the employee expressed disagreement to sign in the case where his work is closely related to the maintenance of valuable items.

Gross violations of labor discipline include:

absenteeism;
being at the workplace in a state of drugs or;
immoral behavior;
presenting false documents to the employer;
recorded fact;
non-compliance with labor safety rules, resulting in serious consequences;
repeated violations of labor discipline;
an unreasonably made decision, as a result of which the company suffered significant damage;

What is not considered a disciplinary offense?

An employer does not have the right to impose on an employee if:

the employee, without giving any reason, refused to go to work until the end of his vacation;
the specialist refused to perform work that did not meet labor protection requirements and could pose a health hazard;
the employee did not agree to perform hard work not provided for in the employment contract;
the employee did not fulfill his duties for reasons beyond his control;
the employee failed to fulfill a public order;
The employee refused further work for the following reason:
the employee refused to comply with the employer’s illegal demands.

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Penalties

The Labor Code provides for the following penalties for violators of order in the team:

An employee can be punished only once for one disciplinary offense.

Such acts are also regulated by the terms of engagement: 6 months from the moment the offense was committed and 1 month from the time the violation was discovered by management.

When choosing a punishment for an offending employee, the employer has the right to personally consider the circumstances and details of the incident and make a decision.

Dismissal is the harshest measure. If there is the slightest doubt, it would be better for the employer to get by with a reprimand, so as not to waste time on legal proceedings in the future.

The quality of work performed by employees and, accordingly, the productivity and success of the company depend on the organization of labor discipline in the work team. Therefore, it is important to approach the issue of developing a system of rules in the workforce with full responsibility.

It is worth noting that labor discipline provides not only punishment for failure to fulfill official obligations, but also encouragement for conscientious work.