Labor discipline. Grounds and procedure for attracting disciplinary liability.

Labor discipline is obligatory for all employees to obey the rules of conduct determined in accordance with the Labor Code of the Russian Federation, other federal laws, collective agreement, agreements, local regulations, employment contract. The employer is obliged to create the conditions necessary for employees to comply with labor discipline.

In most cases, the work schedule is determined by the internal rules labor regulations, which are approved by the employer taking into account the opinion of the representative body of employees in the manner established by Article 372 of the Labor Code of the Russian Federation. For certain categories of workers (nuclear energy workers, railway transport etc.) there are statutes and regulations on discipline established by federal laws.

Every manager must be fluent in such methods of ensuring labor discipline as persuasion, encouragement, and coercion. The employer encourages employees who conscientiously perform their job duties: expresses gratitude, gives a bonus, awards a valuable gift, a certificate of honor, and nominates them for the title of the best in the profession (Article 191 of the Labor Code of the Russian Federation). Other types of incentives for employees for work are determined by a collective agreement or internal labor regulations, as well as charters and regulations on discipline. For special labor services to society and the state, employees can be nominated for state awards.

The basis for bringing an employee to disciplinary liability is the commission of a disciplinary offense. A disciplinary offense is understood as failure to fulfill or improper fulfillment by an employee through his fault of the duties assigned to him labor responsibilities (Part 1 of Article 192 of the Labor Code of the Russian Federation). An employee’s labor responsibilities are enshrined in legislation, an employment contract, internal labor regulations, job descriptions and other local acts. Disciplinary offenses, for example, include the absence of an employee without good reasons at work or workplace, the employee’s refusal to go to working hours special training and passing exams on labor protection, safety precautions and operating rules, if this is prerequisite permission to work, etc.

By general rule application disciplinary action- a right, not an obligation of the employer. The employer has the right to apply one of the following disciplinary sanctions:

- comment;

- reprimand;

- dismissal for appropriate reasons(in particular, in accordance with paragraphs 5, 6, 9 and 10 of Article 81 of the Labor Code of the Russian Federation).

Most employees can be subject to only those three penalties that are defined in Article 192 of the Labor Code of the Russian Federation. Apart from them regarding separate groups employees may be subject to penalties provided for by federal laws, charters and discipline regulations. The application of other disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted.

As the results of a study by the National Union of Personnel Officers (NSK) show, many Russian employers, not believing in the effectiveness of reprimands and reprimands and trying to avoid the “paper” procedure, prefer to punish their employees with rubles, that is, they use a system of fines. Since such a disciplinary sanction as a fine is not provided for by current legislation, the employer does not have the right to apply it to violators of labor discipline. This position is confirmed judicial practice. At the same time, it should be noted: if in local regulations If compliance with labor discipline is provided as a condition for bonuses, the employer has the right to deprive an employee who has a disciplinary sanction.

The procedure for bringing an employee to disciplinary liability is established by Art. 193 Labor Code of the Russian Federation. The employer, before applying any disciplinary sanction, must request a written explanation from the employee. If after two working days the specified explanation is not provided, then a corresponding act is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.

For each disciplinary offense the employer can apply only one disciplinary sanction. When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up.

A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

If within a year from the date of application of the disciplinary sanction the employee is not subject to a new disciplinary sanction, then he is considered to have no disciplinary sanction.

The employer, before the expiration of a year from the date of application of the disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.

1.1. To an employee of internal affairs bodies who has a disciplinary sanction imposed on him in writing by order of the head federal body executive power in the field of internal affairs or an authorized manager, an incentive measure can only be applied in the form early withdrawal disciplinary sanction previously imposed in writing.

2. To employees of internal affairs bodies holding positions in internal affairs bodies, appointment to and dismissal from which are carried out by the President Russian Federation, the incentive measures provided for in paragraphs 1 - and 9 of part 1 and part 2 of Article 48 of this Federal Law may be applied by the head of the federal executive body in the field of internal affairs and (or) an authorized head.

3. Disciplinary sanctions on an employee of internal affairs bodies are imposed by direct managers (supervisors) within the limits of the rights granted to them by the head of the federal executive body in the field of internal affairs, with the exception of transfer to lower position in internal affairs bodies and dismissal from service in internal affairs bodies of an employee holding a position in internal affairs bodies, appointment to and dismissal from which is carried out by the President of the Russian Federation. The head of the federal executive body in the field of internal affairs is obliged to inform the President of the Russian Federation about the imposition of a disciplinary sanction on an employee holding a position in the internal affairs bodies, the appointment and dismissal of which is carried out by the President of the Russian Federation.

4. The right to impose a disciplinary sanction granted to a subordinate manager (supervisor) also has the direct manager (supervisor). If it is necessary to impose a disciplinary sanction on an employee of the internal affairs bodies that the relevant manager (supervisor) does not have the right to impose, he petitions for the imposition of this disciplinary sanction before a superior manager (superior).

5. A superior manager (chief) has the right to change the disciplinary sanction imposed by a subordinate manager (chief) if it does not correspond to the gravity of the disciplinary offense committed by an employee of the internal affairs bodies.

6. A disciplinary sanction must be imposed no later than two weeks from the day when the direct manager (boss) or to the immediate supervisor(chief) became aware of a disciplinary offense committed by an employee of the internal affairs bodies, and in the case of an internal audit or initiation of a criminal case - no later than one month from the date of approval of the conclusion based on the results of the internal audit or the final decision on the criminal case. The specified periods do not include periods of temporary incapacity for work of the employee, being on vacation or on a business trip.

7. A disciplinary sanction cannot be imposed on an employee of internal affairs bodies after six months from the date of commission of a disciplinary offense, and based on the results of an audit or inspection of financial and economic activities - after two years from the date of commission of a disciplinary offense. The specified periods do not include periods of temporary incapacity for work of the employee, being on vacation or on a business trip, as well as the time of criminal proceedings.

8. Before imposing a disciplinary sanction, an explanation in writing must be required from the internal affairs officer who is being held accountable. If the employee refuses to give such an explanation, a corresponding report is drawn up. Before imposing a disciplinary sanction, by decision of the head of the federal executive body in the field of internal affairs or an authorized head in accordance with Article 52 of this Federal Law, an internal audit may be carried out.

9. An order from the head of the federal executive body in the field of internal affairs or an authorized head is issued to impose a disciplinary sanction on an employee of the internal affairs bodies. A disciplinary sanction in the form of a reprimand or reprimand may be announced publicly in orally. If an employee is temporarily incapacitated, or is on vacation or on a business trip, an order to impose a disciplinary sanction on him is issued after he has recovered, returned from vacation, or returned from a business trip. An employee is considered to be subject to disciplinary liability from the day an order is issued to impose a disciplinary sanction on him or from the day a reprimand or reprimand is publicly announced to him orally.

10. The order imposing a disciplinary sanction on an employee of the internal affairs bodies indicates other employees to whose attention this order must be brought to the attention.

11. The authorized manager is obliged to inform the employee of the internal affairs bodies, against receipt, within three working days of the order to impose a disciplinary sanction on him. The specified period does not include periods of temporary incapacity for work of the employee, his being on vacation or on a business trip, as well as the time required for the employee to arrive at the place of familiarization with the order imposing a disciplinary sanction on him or to deliver the specified order to the employee’s place of duty.

12. An act signed by authorized officials is drawn up regarding the refusal or evasion of an employee of the internal affairs bodies to familiarize himself with the order imposing a disciplinary sanction on him.

13. Incentive measures applied to an employee of internal affairs bodies and disciplinary sanctions imposed on him in writing are entered into the employee’s personal file. Incentive measures and disciplinary sanctions are taken into account separately.

14. A disciplinary sanction imposed on an employee of internal affairs bodies by order of the head of the federal executive body in the field of internal affairs or an authorized head is considered lifted after one year from the date of its imposition, if this employee was not subject to a new disciplinary sanction during the specified period, or the day of issuance of the order for incentives in the form of early lifting of a disciplinary sanction previously imposed on the employee. A disciplinary sanction announced publicly orally is considered lifted after one month from the date of its imposition.

With such a concept as labor discipline familiar to every employee who spent at least a few days of his life at work or for the benefit of the company. Each employee is obliged to remember the rules and try to comply with them as much as possible. Additional motivation compliance with basic rules - disciplinary action. It may entail penalties, no bonuses, and even layoffs.

Types of penalties for violations of order at the enterprise

Legal liability also includes disciplinary violations that occur in the event of a violation of order. This is expressed in the imposition of a fine on the employee who committed the offense. The employer has the right to impose penalties, and legally.

In this case, misconduct is the failure to perform basic duties in the workplace. There are at least 3 types of penalties for this:

the manager can make a remark;
a more severe punishment is a reprimand;
The most severe punishment for an employee is dismissal from the company.

The main reasons for imposing penalties on personnel

Making mistakes or misconduct is the main reason for punishment. An approved list of such errors in legislative framework does not exist. But there is a list of reasons for laying off workers in order to punish for failure to comply with the order. Misdemeanors may include:

absolute failure to fulfill, or illiterate performance of basic duties at work, or ignoring the instructions of the director, non-compliance with rules, violation established methods work;
inconsistency with the work schedule. This means that the employee is regularly late for work, thereby violating the work schedule.
showing up to work drunk;
theft of company property, as well as its damage.

When taking such actions, remember that this may be the main reason for your dismissal from your job.

Common reasons for foreclosures

There are at least two main reasons why employees lose part of their wages, or will be fired altogether.

Late for workplace. In order to determine how long a person was late for work, it is necessary to determine what time he should have been in his place. Specific time work must be recorded in the rules of the schedule. If the employee was not warned about this under his signature, then in no way can he be held accountable.
Inconsistency with the dress code. People have been discussing for a long time this problem, especially managers large companies, therefore, for non-compliance with the company’s dress code, an employee may face a serious fine or reprimand.

Download the form for reporting an employee being late for work.

Using foul language at work is not a reason for dismissal, regardless of who the disrespectful tone or phrase was directed at.

In general, it is very rare that, due to disciplinary violation people are fired from their jobs, most often this only ends with a fine or reprimand. But, if the manager still decides to fire you due to a minimal violation of the rules, immediately turn to the court for help.

Types of liability

It is worth highlighting special and general responsibility. The second option applies to employees who have entered into an employment contract with the organization. Special responsibility is established for certain categories of personnel working in individual industries economy.

The first type is due to the specifics of the work performed by the personnel, as well as the particularly severe consequences resulting from failure to fulfill duties at work. In accordance with the law, for making a mistake at work intentionally, the employer has the right not only to warn about the inadequacy of the position, but also to release from work at this place.

Features of administrative responsibility

This type differs from disciplinary in the type of penalties applied. It is worth noting that this type of penalty cannot be applied for non-compliance with standards and requirements. In this case, it does not matter at all where the offense was committed - on the territory of the enterprise where the citizen works or in any other place.

Attention! Before penalties are applied, the employer must require an explanation from the employee for inappropriate behavior. If the employee does not provide the paper within 2 days, the manager must draw up a report.

Based on this, the company owner has the opportunity to approve the collection. After that, it must be presented to the employee so that he signs - this must be done within 3 days. If the citizen refuses to do this, then the following act will need to be drawn up.

Penalty application period

The owner of the organization is able to apply punishment within 30 days from the moment the violation is discovered. Remember that punishment can be applied no later than half a year after the offense.

Attention! The penalty can be imposed not only on the employee. There is a special procedure and grounds for holding a manager accountable. This also applies to his deputies and assistants.

Is it possible to remove penalties from staff?

In accordance with the law, it will be removed after 12 months from the date of its application. But this applies only to those situations where there were no violations during last year. But the employer is able to do this earlier than in one year. To do this, the employee will need to independently talk to the director of the company. If a person for certain reasons does not want to do this, the manager can ask for him. Like imposition, removal is possible only after the corresponding order is issued.

Holding someone accountable is not a reasonable or legal action in all situations. If you are sure that you have been subjected to illegal actions, immediately go to the occupational safety service.

How to defend your own rights?

To complain about the unlawful actions of your own manager, you must create a complaint in writing. It can be drawn up independently in any form, in it you will need to indicate all the circumstances, as well as indicate all unlawful actions applied specifically to you.

If you work in large organization, we recommend convening a meeting to resolve labor disputes. But if such a meeting is initiated, it is necessary to notify the manager about it. After which a meeting should take place within a few days. This option of clarifying relations with management is possible, but if 3 months have not passed since being held accountable. These are the deadlines that were established in the legislative framework by government authorities.

If you are not satisfied with the decision of the commission, you can file a lawsuit. An appeal to this body is also considered relevant if the meeting was not convened and the management did not react to it in any way.

Lawyer Elena Ponomareva talks about disciplinary sanctions

The Labor Code of our country tells us what period of disciplinary action is applicable for which violation of order. The most relevant aspects of legislation related to this issue were established back in 2006, and since then no significant changes have been made. At the same time, practice shows that calculating the period for bringing disciplinary action under the Labor Code of the Russian Federation raises doubts and difficulties for many. The situation in some cases becomes so complicated that the conflict moves into the courts, where the possibility of applicability of a particular norm of disciplinary action is decided.

Features of the question

Most often, difficulties arise with an employer whose employee has committed an offense. It is not always clear how long the deadline for bringing to disciplinary liability under the Labor Code is, how much time an entrepreneur has to punish an employee, and how this can be done. Not everyone knows whether it is necessary to demand an explanatory statement from an employee if it was decided to apply exacting measures.

The law stipulates some specific requirements that apply to the paperwork accompanying the imposition of punishment and compliance with the deadline for bringing an employee to disciplinary liability. If you turn to a judge in a situation where the case was filed incorrectly, you can hardly count on the outcome of the hearing in your favor, so it is important to treat all aspects responsibly and file everything according to the rules.

Basic rules

Currently, the specifics and terms of bringing to disciplinary liability are determined by articles of the Labor Code under numbers 192, 193. It is here that it is stated that failure to fulfill the obligations assigned to the employee or performance of inadequate quality may be grounds for applying a penalty. An important caveat is the need to prove that the guilt for the misconduct lies with the employee himself. To punish a person, it is necessary not only to comply with the deadline for bringing disciplinary action, but also to resort only to measures permitted by law. These include a reprimand, reprimand, dismissal, if there are grounds for this that comply with the standards of current laws.

Special case

What to do if the employer is interested in the time frame for bringing military personnel to disciplinary liability? For certain special categories of citizens, specific laws have been introduced that regulate the specifics of interaction with them. In addition to the military, this applies to police officers, people holding positions in government agencies, as well as employees legal organizations. The specifics of penalties and the establishment of deadlines for bringing to disciplinary liability were entrusted to specialized federal laws. Also playing a role are the charters of organizations and disciplinary regulations adopted in a particular place and applying to strictly defined categories of workers.

At present, it is unacceptable to choose a period for bringing a police officer to disciplinary liability that is not specified in the Labor Code or other legal regulations, but is only introduced on the initiative of, for example, the immediate superior. Compliance with legal norms and guidelines must come first.

Features and Limitations

It is important not only to comply with the deadline for bringing to disciplinary liability, but also a number of specific points specified in the laws. In particular, if one deviation from the rules is identified, the guilty person can be punished for it once. Unacceptable re-overlay penalties for the same offense. When choosing a punishment, the head of the enterprise must pay special attention to how serious the offense was committed, as well as the circumstances that forced the employee to act in this way. In practice, there are many cases where, after a detailed examination of the particulars of the case, it was decided to completely abandon prosecution.

When observing the deadlines for bringing a lawyer to disciplinary liability, you need to remember that the employee (however, this is true for any area where the employee works) can send a request to appeal. The application is written to the government agency responsible for labor protection. You can contact those authorities that individually deal with labor conflicts.

Following the regulations

Current legislation establishes that the statute of limitations for bringing to disciplinary liability is one month. The countdown begins from the day when the fact of committing an offense was revealed. If the employee was sick or on vacation, this time period is not taken into account. It is also necessary to deduct the time it takes for the representative body of workers to make an informed decision on a conflict situation.

Certain restrictions are also imposed on the situation when the commission of an act contrary to the rules was discovered too late. According to the law, the statute of limitations for bringing to disciplinary liability is six months from the moment the event occurred. At the same time, special requirements apply to situations where a violation of the rules was discovered during a large-scale audit, inventory, or during a study of economic activities by auditors. In this case, the period for bringing civil servants to disciplinary liability is two years from the moment the event occurred. The period required for criminal proceedings, if necessary, is not taken into account when calculating the final day when statutory the deadline is expiring.

Features of calculating deadlines

As established in the Supreme Court resolution issued in 2004, the period for bringing civil servants and employees of private companies to disciplinary liability begins on the day when the fact of committing an offense was revealed. From this moment the month begins to count down. In this case, information about the commission of an act contrary to the established rules must officially reach the immediate superior to whom the offending employee is subordinate. Even if such an official, due to the nature of his employment, does not have the ability to impose disciplinary sanctions, the countdown of the time period starts at this very moment.

At the same time, the resolution contains a clarification regarding the impossibility of taking into account in this month the periods that the employee spent on sick leave. But absence for other reasons (for example, time off) does not need to be taken into account. There is no need for a special approach to calculating deadlines in a situation where an employee works on a rotational basis.

What about vacation?

As stated in the documentation issued by the Supreme Court, if an employee is on paid leave granted to him by the employer on grounds that fully comply with the current law, such a time period interrupts the month-long period provided for issuing a penalty based on the discovered fact of violation of discipline. Also, the interval is interrupted if the employee is on another vacation entitled to him according to our laws. This includes vacations associated with studying at a specialized institution, as well as temporary periods that the employer provides to the employee without retaining his salary for this time. If the employee has received additional leave, the monthly period is extended by this time period.

Features of question design

If a disciplinary offense has been identified, it must be immediately recorded officially in writing. Usually, an act of the established form is drawn up within the organization, which is signed by several employees of the company at once. Sometimes it is additionally necessary to prepare a report or memo and send it to the head of the enterprise in order to inform him of the fact that has occurred.

All documentation, as soon as it is ready, is sent to the chief manager of the company for resolution. The month begins to count from the moment the manager gained access to the documentation. He has the right to choose and apply a penalty within a specified period, taking into account the specifics of the situation.

Inspections and penalties

Quite often, the fact of violation of discipline is revealed by a large-scale audit carried out at the enterprise. In some cases, this is an internal check, but practice shows that more often it is initiated by external structures. These may be government bodies with appropriate powers responsible for supervision and control. If the audit reveals the fact of a violation by some employee of the company, then the period begins to count from the moment when the company received an act registering all the results of the event.

But if a violation of the rules was discovered during an internal audit, then they act in a slightly different way. It is customary to begin counting the month period from the moment when the report on the results of the inspection was drawn up, which officially documented the results obtained. It does not matter on what day the documentation was received for consideration by the head of the organization, since the key date is considered to be the date of acquaintance with the immediate superior of the employee who committed the offense. This point often causes some controversy, but numerous court cases in which the object of the proceedings was precisely this completely confirm the correctness of the interpretation of the Supreme Court ruling in the manner described.

Important points

Often, the inspection is organized in such a way that to record each individual violation of discipline within the enterprise, an internal document is issued, an act that is signed by the organization’s employees. You can also create an action certificate. The date from which the monthly countdown begins is the day on which the documentation was received directly by the manager of the employee who committed the violation of the rules.

Numerous examples of this approach to calculating deadlines are known from judicial practice our country, and in various regions of the country.

I'm not guilty!

The legislation establishes that before imposing punishment when a violation of discipline is discovered, the employee must first be required to write an explanatory note, and only after that any disciplinary measures must be applied. The employee writes such a document in writing, it is registered according to the rules of internal document flow. If an employee refuses to provide an explanation, this cannot be an obstacle to applying a penalty. The employee has two days to formulate a written explanation. If during this period no documentation was sent to the manager, the employees of the enterprise sign an act confirming this fact.

If an employee refuses to write an explanatory note, the fact of waiting two days still remains mandatory by law - the requirement is specified in the regulations of our country. If the employer refuses to maintain this time period and tries to impose a penalty on the employee before the established period, the very fact of imposing the penalty becomes illegal, and the employee has full grounds for filing an appeal to a special authority for protecting the interests of workers.

Deadlines are running out!

Two days, which are prescribed by law, is the period during which an employee can formulate an explanation for the offense committed and convey circumstances that can to some extent improve his situation. Everyone has the right to refuse to provide an explanatory note, but at the same time, you can change your decision within these two days. In some cases, the result of the penalty may even be the dismissal of the employee. If an employee has provided a written explanation of the reasons for the violation of the rules, this does not negate the possibility of applying the most severe form of punishment to him, that is, dismissal. At the same time, refusal to provide it does not become a reason for tougher punishment. It is important to remember that violation of discipline and the penalties imposed for it must be reasonably related to each other.

Do everything according to the rules

When an employer has requested an explanation from an employee regarding a discovered violation of discipline, it is necessary to prepare a draft order. After two days are given to the employee to think, he can sign the official document. The signature is affixed by the person who currently has the authority of the head of the organization. In the order in mandatory all the reasons that prompted the corresponding decision are spelled out in detail.

An order is issued only if the fact of violation of discipline can be confirmed. The basis for the document may be references to documentation, during the study of which errors were discovered that caused the imposition of a penalty.

The provisions of the Labor Code of the Russian Federation regulating the procedure for bringing to disciplinary liability have not been changed since 2006. Despite this, questions and legal disputes still arise regarding the application of certain legal norms on disciplinary sanctions. How long must an employee who has committed a disciplinary offense be held accountable? Is requiring an explanation from an employee mandatory for disciplinary action? What are the mandatory requirements for the procedure for issuing an order to impose a disciplinary sanction? What decisions do judges make when considering these issues?

General rules for bringing to disciplinary liability

The general rules for bringing to disciplinary liability are defined in Art. Art. 192 and 193 of the Labor Code of the Russian Federation.
Thus, for committing a disciplinary offense, that is, for failure 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 to him:
- remark;
- reprimand;
- dismissal for appropriate reasons.
In addition, federal laws, charters and regulations on discipline may provide for other disciplinary sanctions for certain categories of employees. The application of disciplinary sanctions not established by the Labor Code of the Russian Federation or other regulatory legal acts is not permitted.
For each disciplinary offense, only one disciplinary sanction can be imposed.
When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.
A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

Time limits for bringing disciplinary action

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees. This issue is discussed in more detail below.

In accordance with Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” the day of detection of the offense, from which the month period begins, is considered the day when the person to whom the employee is subordinated by work (service) became aware of the commission of an offense, regardless of whether it has the right to impose disciplinary sanctions. The Supreme Court of the Russian Federation clarified that the monthly period for applying a disciplinary sanction does not include the time an employee is ill, on vacation, or the time required to comply with the procedure for taking into account the opinion of the representative body of employees (Article 193 of the Labor Code of the Russian Federation). At the same time, the absence of an employee from work for other reasons, including in connection with the use of rest days (time off), regardless of its duration (for example, with a rotational method of organizing work), does not interrupt the flow of the specified period. It is also clarified that vacation that interrupts the flow of a month should include all vacations provided by the employer in accordance with current legislation, including annual (main and additional) vacations, vacations in connection with training educational institutions, leaves without pay.
If an employee commits a disciplinary offense, it must be recorded in writing. As a rule, a corresponding act is drawn up and signed by several employees of the organization. In some cases, official or memos are prepared to the manager about the employee committing a particular violation. These documents are sent to the manager. From the date of receipt by him specified documents and the month period for bringing the employee to disciplinary liability begins to count.
Also, violation of labor duties by employees of the organization may be revealed during the inspection.
Checks can be carried out against the subject entrepreneurial activity other organizations (for example, government agencies carrying out control and supervisory functions). If they identify any violations, the day they discover the misconduct committed by an employee of the organization being inspected will be the day they receive the report on the results of the inspection. In this situation, as a rule, there are no difficulties in determining the start date of the monthly period.
Otherwise, the issue of the day of discovery of the misconduct identified during an internal audit, that is, an audit conducted by a unit or authorized officials of the organization itself, is resolved.
As a general rule, the monthly period is calculated from the date of drawing up the act of such an inspection, which is quite logical, since this is how the results of the inspection are documented, including the violations identified. It does not matter when this act was received by the person exercising the powers of the employer: it is necessary that the act be received by the person to whom the employee who committed the violation is subordinate, which follows from Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2. This position is confirmed by materials of judicial practice. In the cassation ruling Supreme Court Chuvash Republic dated January 11, 2012 in case No. 33-102-12, the month period for bringing to disciplinary liability based on the results of an audit of financial and economic activities was calculated by the court from the day when the official who had the right to impose disciplinary sanctions received an act drawn up based on the results of the audit . Moreover, this person was the supervisor in relation to the employee who committed the violation.
If during the inspection any violations detected are recorded in separate documents (for example, acts, certificates individual actions), the date of discovery of the misconduct should be considered the day when such documents were received by the immediate supervisor of the offending employee, regardless of the date of receipt of the relevant documents. This position is confirmed in the materials of judicial practice, in particular in the Appeal ruling of the Yamalo-Nenets Court Autonomous Okrug dated October 21, 2013 in case No. 33-2307/2013. The court found that improper execution job responsibilities on the part of the employee brought to disciplinary liability (the head of the motor transport department), which resulted in a violation of operating hours accounting technology vehicles and issuing waybills approved by the local legal act. The head of the motor transport section is directly subordinate to the head of the ground support service, which follows from job description the last one. The fact of violations when filling out waybills became known to the employer’s officials on 04/04/2013, since the inventory of fuels and lubricants (fuels and lubricants) was carried out, among other things, according to the data contained in waybills. This circumstance follows from the act of removing the remaining fuel and lubricants dated 04/05/2013, signed by the head of the ground support service as the chairman of the commission. Accordingly, the period for bringing to disciplinary liability must be calculated from the specified date. However, the order to apply a disciplinary sanction was issued only on May 17, 2013, that is, outside the one-month period established by the legislator. Arguments appeal that the inventory was completed only on April 17, 2013 and the period for bringing disciplinary action should be calculated from that date were not taken into account by the court.
The date of discovery of the offense was similarly established in the Cassation ruling of the Oryol Regional Court dated January 11, 2012 in case No. 33-17. An internal audit was ordered at the OJSC into violations of credit activities by one of the branches, as a result of which the fact of illegal use of premises rented by the branch was revealed. According to the conclusion of the internal audit dated 09/08/2011, for six months starting from 02/10/2011, a third-party company was located on the territory of the additional office on the verbal order of a branch employee, who was subsequently brought to disciplinary liability, without formalizing contractual relations commercial organization. By order dated October 5, 2011, the specified employee was brought to disciplinary liability for failure to fulfill job duties, expressed in violation of the decision-making procedure in management real estate provided for by local regulatory legal acts.
The court found that the manager additional office On 05/06/2011, in a memo, he informed the director of the branch about this violation. Under these circumstances, since the director of the branch, who had the authority to bring employees to disciplinary liability, became aware of the commission of a disciplinary offense on 05/06/2011, and the order to bring the employee to disciplinary liability was issued only on 10/05/2011, the court came to the conclusion that the disputed disciplinary the penalty was applied in violation of Art. 193 of the Labor Code of the Russian Federation for a month. In addition, the court noted that the disciplinary offense was committed by the employee in February 2011, therefore, based on the provisions of Art. 193 of the Labor Code of the Russian Federation, disciplinary action could be applied no later than September 2011.

Requesting explanations from the employee

Before applying disciplinary action, the employer must request a written explanation from the employee. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action against him. If after two working days the employee has not provided the specified explanation, a corresponding act is drawn up.

Pay attention! If the employee does not give an explanation, two working days must pass from the day he committed the offense. This requirement is mandatory. Failure to comply will result in the application of a disciplinary sanction being declared illegal.

As the court indicated in the Appeal ruling of the Astrakhan Regional Court dated October 23, 2013 in case No. 33-3162/2013, from the analysis of Art. 193 of the Labor Code of the Russian Federation directly follows that the legislator has given the employee the right, within two working days from the date of requesting an explanation from him regarding the fact that he has committed a disciplinary offense, to provide a written explanation or to refuse to provide it. Therefore, a disciplinary sanction, including in the form of dismissal, can be applied to an employee only after receiving an explanation from him in writing or after the employee fails to provide such an explanation (refusal to provide it) after two working days from the date the explanation was requested.
If the issue of imposing a disciplinary sanction is resolved before the expiration of two working days after requesting a written explanation from the employee, the procedure for applying a disciplinary sanction in the form of dismissal is considered violated, and dismissal by virtue of Art. 394 of the Labor Code of the Russian Federation - illegal.
A different interpretation of these norms would mean that the employer does not have to comply with the deadline for the employee to provide an explanation and the possibility of the employer ignoring the requirements of Art. 193 Labor Code of the Russian Federation. Consequently, this would entail a loss of the meaning of these norms and a significant violation of the employee’s right to provide an explanation within the period established by law.
Also, the obligation to demand explanations when applying disciplinary sanctions is indicated in the Appeal Ruling of the Kemerovo Regional Court dated May 28, 2013 in case No. 33-4822. Thus, the appellate court found that the claims to challenge disciplinary sanctions were satisfied lawfully, since when bringing the plaintiff to disciplinary liability, the employer violated the procedure for applying a disciplinary sanction, in particular, did not require a written explanation from him, and therefore the order was declared illegal and subject to cancellation.

Drawing up an order to impose a disciplinary sanction

After requesting an explanation from the employee, an order (instruction) is prepared, signed by the person exercising the powers of the employer, to apply a disciplinary sanction with the obligatory indication of the grounds for bringing disciplinary action. IN Labor Code there is no direct indication of what should be reflected in the order this basis. However, from the definition of the concept of “disciplinary offense” given in Art. 192 of the Labor Code of the Russian Federation, it follows: there must be a failure to fulfill or improper performance of official duties, which, if necessary, the employer must be able to confirm. As a basis, the order may also make reference to a document that records violations committed by the employee.
Thus, in the Appeal ruling of the Arkhangelsk Regional Court dated July 22, 2013 in case No. 33-4289/2013, it was noted: the court of first instance reasonably proceeded from the fact that when applying a disciplinary sanction to the plaintiff for violating the deadlines for presenting writs of execution to the bailiff service, the employer did not submit evidence as a violation by the plaintiff of the provisions employment contract and job description, and his commission of the specified offense. Moreover, the court directly indicated that the appealed order on disciplinary action does not contain any indication of legal norms or clauses of local acts that, in the opinion of the defendant, were violated by the plaintiff.
The employer's order (instruction) to impose a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against receipt, a corresponding act is drawn up.
An interesting ruling is the Kemerovo Regional Court dated February 29, 2012 in case No. 33-1984. Thus, the court found that the plaintiff (employee) was not familiarized with the order to impose a disciplinary sanction in a timely manner. Having satisfied the plaintiff's claims and recognizing the dismissal order as illegal, the court indicated that the defendant had violated the procedure for imposing a disciplinary sanction (this was expressed in the fact that the plaintiff was not familiarized with the order within the time limit established by Article 193 of the Labor Code of the Russian Federation). Meanwhile, the judicial panel of the Kemerovo Regional Court recognized the indicated conclusions of the trial court as unfounded and illegal for the following reasons.
Familiarization of the plaintiff with the order challenging him to impose a disciplinary sanction after the expiration of the period established by Art. 193 of the Labor Code of the Russian Federation, in force labor legislation not prohibited. The employer has an imperative obligation to familiarize the employee with the order to apply a disciplinary sanction, and therefore, in order to obtain the employee’s signature on familiarization with such an order, the employer has the right to carry out this action without any restrictions. Provided for in Part 6 of Art. 193 of the Labor Code of the Russian Federation, the period during which the employee must be familiar with the order to apply a disciplinary sanction is not preemptive; its violation does not entail recognition of the imposed disciplinary sanction as illegal.
The plaintiff’s right to challenge the order to impose a disciplinary sanction arose on the day he learned about its publication.
According to Part 1 of Art. 14 of the Labor Code of the Russian Federation, the period of time with which the Labor Code of the Russian Federation associates the occurrence labor rights and responsibilities, starts with calendar date, which determines the beginning of the emergence of these rights and obligations. Consequently, it is from the date of familiarization with the appealed order that the period established by Art. 392 of the Labor Code of the Russian Federation for an employee to go to court.
Thus, familiarization of the plaintiff with the contested order within the time limits provided for in Art. 193 of the Labor Code of the Russian Federation, is not a violation of the procedure for bringing the plaintiff to disciplinary liability, but affects the timing of the employee’s appeal to the court for protection of his rights.
Based on the above, we come to the following conclusions.
Before applying a disciplinary sanction, the employer must request from the employee a written explanation of the reasons for his misconduct. If after two working days the employee has not provided the specified explanation, a corresponding act is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action against him.
Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees.
A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.
For each disciplinary offense, only one disciplinary sanction can be applied.
The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against receipt, a corresponding act is drawn up.