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 called non-compliance (or improper performance) labor responsibilities 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:

• What this employee is guilty of failing to fulfill his job duties;
• that the subsequent penalty procedure was carried out with the execution of all legislative norms and rules.

This procedure consists of the following steps:

1. Recording a disciplinary offense.
2. Explanatory documents, or an act of the employee’s refusal to write them.
3. 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. Acts are drawn up 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.

Lasting disciplinary offense is considered an offense that has not been corrected by the culprit after the initial disciplinary sanction. 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.

Speaks CEO

Alexander Elin, CEO audit company"Audit Academy", Moscow

We try not to abuse disciplinary sanctions, although, of course, internal company regulations allow their use. What I do with a guilty employee is in the following way- I give him a task that exceeds in importance those that he performed previously. This method almost always achieves main goal– 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:

1. At the initiative of the manager. If the punished employee demonstrates proper performance official duties, high quality work, compliance with 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 responsible for monitoring the behavior of the offending employee).
2. At the request of the employee. If an employee tries to correct the consequences of his negative behavior, which led to disciplinary action and demonstrates 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.
3. On the initiative of the head of the department. Supervisor structural unit, in 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 reason to consider himself a violator of discipline.
4. 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 minutes of the meeting 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.

Discontinued misconduct - the misconduct is considered terminated if the employee who committed it makes every effort to eliminate it. negative consequences its 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 governing discipline special categories workers.

20 ways to punish an employee without resorting to monetary fines

In the article electronic journal“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 tardiness, non-compliance with dress code or other misconduct, which some employers take advantage of is 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.

Usually the right to bring subordinates to disciplinary liability is vested in executive agency represented by the head of the organization (company president, 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 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:

1. 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.
2. 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)
3. 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 share annual leave into several parts and other similar situations.
4. 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.
5. The employee’s action (or inaction) must be intentional or careless, i.e. guilty.

In the presence of good reasons failure to fulfill duties, disciplinary action imposed on the employee will be illegal. 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);
• absence 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 employment contract(excluding specifically 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 Supreme Court RF 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:

1. 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.
2. 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.
3. 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 in work time.
4. Refusal of an employee whose main labor function (agreed upon hiring) is the maintenance of material assets from concluding a contract for 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, this is an explanatory note drawn up by hand, in free 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 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

1. 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.
2. To record guilty actions, you must obtain written explanation the offending employee without fail 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.
3. 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.
4. 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.
5. If, after all, the case comes to trial in court, it is important for the employer to own initiative provide evidence of the legitimacy of your position, documents confirming the fact that a disciplinary offense was committed by the employee, 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.”
6. The documents submitted by the employer to the court must not contain contradictions. To do this, pay attention to filling out related documents throughout the history of 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 work book- indicate otherwise.

Evidence at trial is:

1. Written testimony.
2. Documents: acts, contracts, business correspondence, certificates, court orders and related applications in any format (originals, faxes, documents received by e-mail).
3. Audio and video recordings or other material evidence.
4. 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 what type public relations an illegal act was committed. 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.

• Labor safety requirements that a manager should know

CEO speaks

Mikhail Plynsky, CEO electrical 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 general meeting 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 create 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.

Meetings for round table. 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. Now they are ready to share their experience and often find effective (often original and non-standard) economical 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 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 remuneration. 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).

The personal compliance of each employee 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 enterprise 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 who passes through the turnstile, and no one else. We also accepted 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.

Labor Code Russian Federation Articles 192-195 establish the procedure for bringing employees to disciplinary liability. At the same time, the rules concerning 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 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 Labor Code Russian Federation") (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2) indicates cases of employee behavior that can 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 to perform job duties without good reason due to a change in in the prescribed manner labor standards (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 defined by this agreement, 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 responsibility) 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 educational institutions and teachers of children's institutions are subject to dismissal by virtue of clause 1 of Art. 336 of the Labor Code of the Russian Federation, if the charter was grossly violated twice within a year 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 signature job description according to the position held or work performed. 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. So, immediate supervisor regarding the performance of a particular operation included in the employee’s labor function, may give him mandatory instructions. 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 the signature of 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 an offense to arise, there must be consequences in the form of causing harm and, accordingly, causation between action and consequences)

Subjective side– the employee’s attitude towards his action in the form of guilt. A disciplinary offense covers only the culpable failure or improper performance of work duties by an employee. Guilt must be proven by the employer. By 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 refer 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 social 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 general education in a form of study other than full-time, or leaving a general educational institution in accordance with the 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 to 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 science 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 performance 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 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 working hours (absenteeism, tardiness);

Encroachments on the careful and correct use 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).

The entire life of a full-fledged citizen is tied to compliance with sets of rules and laws. Social norms and the rules are regulated by separate legal institutions. Depending on the nature of the violation, it is classified as either a crime or a misdemeanor. In turn, the latter can be divided into three main types: disciplinary, administrative and civil law.

What is a disciplinary offense

In any developed society, failure to comply with norms and order entails punishment. Labor activity citizen is no exception. While performing his or her job duties, an employee may commit a deliberate or unconscious violation of labor discipline, which will entail subsequent penalties.

This is any failure or non-compliance by an employee with his job duties, which he officially agreed to perform when concluding an employment contract. The punishment for this type of violation is assigned by the employer.

Examples of disciplinary offenses

Each organization has its own standards of behavior, which an employee can become familiar with when concluding an employment contract. However, we can list the most common types of offenses:

• late for work,
• showing up at work in an inappropriate manner,
• ignoring the dress code,
• drinking alcoholic beverages during working hours,
• refusal to undergo a medical examination,
• failure to comply with management orders,
• leaving the workplace without permission from superiors,
• damage to the employer's property, theft of funds,
• violation of norms of behavior and communication with clients, if the list of such is established in this organization.

For committing a disciplinary offense, the employer has the right to apply the following disciplinary sanctions:

• Fine;
• Demotion and salary reduction;
• Removal from official duties;
• Dismissal;
• Dismissal with a corresponding note of disciplinary action in the work book.

This issue is considered in more detail.

Gross disciplinary offenses by military personnel

For military personnel, prosecution is carried out on the basis of violation of military discipline. The worst ones include:

• willful departure from the territory of a military unit without appropriate permission;
• violation of the statutory rules of guard duty, patrol, combat duty, border service;
• intentional damage, theft of military property;
• deliberate careless handling of weapons, ammunition, chemicals or other objects/substances that may pose a danger to others;
• improper operation or damage to military equipment;
• performing guard duty, border duty, duty, patrolling in a state of narcotic or alcohol intoxication;
• non-acceptance necessary measures military personnel when one of his subordinates commits an offense, as well as concealing the fact of the violation and failing to report the incident to higher management.

The difference between a disciplinary offense and an administrative offense and a crime

If a citizen can commit a disciplinary offense while performing labor discipline, then administrative offenses are regulated by administrative law and imply the commission of socially dangerous actions. For example, an intoxicated employee left the workplace at odd hours without warning management, and then he went to the playground, where he continued to drink alcohol. In such a case, the citizen violated both labor discipline and administrative law. Accordingly, a citizen expects two types of punishment: disciplinary from the employer and administrative from the relevant authorities.

Is it possible to apply two penalties for a disciplinary offense?

As a punishment for this type of violation, the employer can apply three types of punishments, which are classified by degree of severity:

• comment,
• rebuke,
• dismissal.

For each offense, the employer has the right to apply only one penalty, and not necessarily in an increasing order: from the least to the most severe with the commission of each offense. If the offense is regarded by the employer as extremely serious, he has the right to immediately apply the most severe penalty: dismiss the employee.

If two or more penalties were applied to an employee simultaneously for one violation, his rights were violated, he must send a complaint to the federal labor inspectorate. However, the employer has the right to apply a penalty for the violation in parallel with bringing to financial liability if, due to non-compliance with labor discipline, the employee caused material damage to the employer’s property.

Act on the commission of a disciplinary offense by an employee - sample

There is a universal sample of an act of non-compliance by an employee with work ethics, which is filled out by the employer.

50. Concept and composition of a disciplinary offense

Disciplinary liability is a type of legal liability that provides for state condemnation (censure) for committing a disciplinary offense in the form of a disciplinary sanction.

The basis for disciplinary liability is disciplinary offense– failure to perform or improper performance due to the fault of the employee of the assigned labor duties. Composition of a disciplinary offense– object, objective side, subject, subjective side. The object of a disciplinary offense is what the offender encroaches on (internal labor regulations, property of the organization). The objective side of a disciplinary offense is illegal actions (inactions), harmful consequences and the causal relationship between these actions (inactions) and the resulting harmful consequences. The subject of a disciplinary offense is an employee who is in a specific labor legal relationship with the employer and who has violated labor discipline. The subjective side of a disciplinary offense contains guilt, expressed in the form of intent and negligence.

For violation of labor discipline, the administration may apply the following disciplinary sanctions:

a) remark;

b) reprimand;

c) dismissal.

Federal laws, charters and regulations on discipline may provide for other disciplinary sanctions for certain categories of employees.

Dismissal is possible in the following cases:

repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;

a single gross violation of labor duties by an employee;

commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him on the part of the employer;

the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

making an unjustified decision by the head of the organization, his deputies and the chief accountant, which resulted in a violation of the safety of property, its unlawful use or other damage to the property of the organization;

a single gross violation by the head of the organization or his deputies of their labor duties;

the employee submits false documents or knowingly false information to the employer when concluding an employment contract;

provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;

in other cases established by the Labor Code of the Russian Federation and other federal laws.

51. Disciplinary sanctions under state legislation. Service, rules for their appointment

The means of bringing to disciplinary liability is disciplinary action. Disciplinary action- these are measures of influence enshrined in regulations and imposed by competent, specially authorized subjects of linear authority on employees who have committed misconduct in connection with the performance of official duties or have committed other acts that affect their special legal status. The purpose of their use is twofold: on the one hand, to punish the perpetrator, on the other, general and specific prevention of offenses, which is achieved both by the content and by the procedure for their appointment. The application of penalties to guilty persons not only forces the violator to comply with the norms official discipline, but also encourages them to consciously perform their official duty, while exerting a general preventive effect not only on the offender himself, but also on other employees. Since disciplinary sanctions are carried out within the framework of stable teams, among them there are many moral and legal sanctions (reprimand, reprimand), sanctions that change or terminate a person’s ties with the team (demotion, dismissal).

Characteristic for all types civil service is the presence of “general” sanctions, such as: reprimand, reprimand, severe reprimand, warning of incomplete official compliance, dismissal. However for individual species services have established other types of sanctions. So, for example, “demotion in rank” is provided for police officers, and “their own” specific types of penalties are provided for military personnel, such as “deprivation of the next dismissal from the military unit,” “appointment out of turn to a work order,” “deprivation of a badge.” sign" and some others. For both of them, there are penalties in the form of “reduction in special rank by one step,” but for the customs service and service in the State Drug Control Service, these types of sanctions are not provided for at all.

A feature of military service is the differentiation of penalties depending on: the conditions of service (contract, conscription); from belonging to a certain composition (soldiers, sailors, sergeants; warrant officers, midshipmen; officers); depending on gender (certain types of penalties are not imposed on women).

A very important question is mechanism for bringing to disciplinary liability, order of application and enforcement of disciplinary sanctions for civil servants. There are a number of features here. Firstly, for civil government employees, military personnel, as well as for employees of the internal affairs department, customs authorities and State Drug Control authorities, this mechanism is carefully developed, but for bailiffs it is practically non-existent. Until now, employees of the Federal Bailiff Service of the Ministry of Justice of Russia have been brought to disciplinary liability on the basis and in the manner prescribed by the norms of the Labor Code of the Russian Federation.

Secondly, the right to apply a disciplinary sanction in the civil public service is vested in a representative of the employer, who, as a rule, is the head of a government agency, while in the law enforcement public service the sanction is imposed by the direct superior. Disciplinary sanctions can be imposed on military personnel not only by those superior in position, but also by rank, in accordance with the disciplinary authority of the commander. Thirdly, the decision to prosecute must be implemented in the civil service immediately after the discovery of a disciplinary offense, but no later than one month from the date of its discovery. A similar procedure is provided for customs officials. And in military service, service in internal affairs bodies and in the service of the State Drug Control Service - no later than 10 days from the day when the commander (chief) became aware of the offense committed.

Fourthly, it is prohibited to impose several disciplinary penalties for the same offense or to combine one penalty with another. Fifthly, in military service it is prohibited to impose penalties on the entire personnel of a unit. Sixthly, the imposition of disciplinary sanctions for offenses committed by a military personnel while serving as part of a daily assignment is carried out after a shift or replacement by another military personnel.

Seventh, in relation to persons who are intoxicated, disciplinary sanctions can be applied only after sobering up. Eighth, the state of punishment for military personnel does not automatically terminate, as for other civil servants, after a certain period of time (usually one year from the date of imposition of the penalty), since the Disciplinary Charter of the Armed Forces of the Russian Federation establishes that a penalty can be lifted by order only in the order encouragement. For those civil servants who are subject to the Regulations on Service in the Department of Internal Affairs of the Russian Federation and employees of the State Drug Control Agency, deadlines have been established for the removal of penalties depending on the order in which they were announced. Oral ones are removed a month from the date of imposition, and those announced in the order, after a year.

These are just some of the features of the application of disciplinary sanctions for certain types of public service.

The last thing I would like to focus on is the possibility of applying disciplinary measures to military personnel, persons called up for military training, as well as employees of internal affairs bodies, penal system authorities, the State Fire Service, State Drug Control authorities and customs authorities for committing administrative offenses. offenses. In accordance with Art. 2.5 of the Code of Administrative Offenses of the Russian Federation, these categories of civil servants “bear responsibility for administrative offenses in accordance with disciplinary statutes” and “regulatory legal acts regulating the procedure for serving in these bodies.” Exceptions are violations of the legislation on elections and referendums, in the field of ensuring the sanitary and epidemiological well-being of the population, the rules of the regime of the State Border of the Russian Federation, border regime, regime at checkpoints across the State Border, traffic rules, etc. In these cases, administrative responsibility arises on a general basis .

It seems that consolidation of this rule V modern conditions the development of legislation on the civil service does not correspond to the very spirit, the meaning of its existence for a number of reasons. Firstly, this violates the principles of unity of the civil service and the principles of legality in the application of administrative responsibility, in particular, enshrined in Art. 1.4 Code of Administrative Offenses of the Russian Federation, the principle of equality before the law. Secondly, as a rule, the effect of this norm means either an unjustified mitigation of responsibility, or, on the contrary, an unjustified strengthening of it. Thirdly, if this is an additional guarantee for civil servants with specific conditions of official activity, then why is the question of the possibility of applying disciplinary measures left to the authorities (officials) who are given the right to impose administrative penalties? And finally, fourthly, only the Disciplinary Charter of the RF Armed Forces provides grounds for bringing military personnel to disciplinary liability for “violations of public order,” which is not the same thing as committing an administrative offense. In others, named in Art. 2.5 of the Code of Administrative Offenses of the Russian Federation and regulatory legal acts does not even discuss this issue.

Thus, in modern conditions, to determine the legal status of militarized employees, the features of disciplinary responsibility are quite relevant. Improving the legal framework in this direction seems to be an extremely necessary condition for increasing the efficiency of this type of federal public service. It is worth thinking about introducing common principles of disciplinary responsibility and disciplinary proceedings for all types of militarized service, with uniform criteria, sanctions and a mechanism for applying disciplinary measures.