A single non-fulfillment by an employee without good reason of labor duties. Repeated breach of duty

09 Mar 2012 15:14

Repeated non-performance by an employee without good reasons labor duties, if he has a disciplinary sanction, is one of the grounds for dismissal of employees at the initiative of the employer. The norms of this ground for dismissal are provided for in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation (Labor Code Russian Federation dated December 30, 2001 N 197-FZ (adopted by the State Duma of the Federal Assembly of the Russian Federation on December 21, 2001) (as amended on December 29, 2010) (as amended and supplemented, which entered into force on January 7, 2011). This document has not been published in this form. The original text of the document was published in the publications: "Rossiyskaya Gazeta", N 256, 12/31/2001; "Parliamentary newspaper", N N 2 - 5, 05.01.2002; "Collection of Legislation of the Russian Federation", 01/07/2002, N 1 (part 1), art. 3). Such a basis for dismissal applies and is applied by the employer to the employee as a disciplinary sanction (part 3 of article 192 of the Labor Code of the Russian Federation).

In connection with the repeated failure to fulfill his labor duties, two basic requirements must be observed.
First, the disciplinary offense must be committed repeatedly, that is, the employee at the time of application disciplinary action in the form of dismissal on the grounds provided for in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, there is a valid disciplinary sanction applied within one year before the appointment of the next disciplinary sanction and not withdrawn by the employer on its own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees in accordance with Art. 194 of the Labor Code of the Russian Federation.
Second, the worker must violate labor discipline, that is, obligatory obedience for all employees to the rules of conduct defined in accordance with the Labor Code, other laws, a collective agreement, agreements, an employment contract, local regulations of the organization (in accordance with Article 189 of the Labor Code of the Russian Federation).
When bringing an employee to disciplinary responsibility, the employer must prove the following circumstances:
- violation by the employee of the labor (official) duties assigned to him;
- unlawful actions of the employee;
- fault of the employee;
- a causal relationship between the unlawful, guilty behavior of the employee and the violation of the labor duties assigned to him.
The Plenum of the Supreme Court of the Russian Federation came to a similar conclusion, which, in Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" (Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On application by the courts of the Russian Federation of the Labor Code of the Russian Federation" (as amended on September 28, 2010). The document was not published in this form.) as an essential condition for the legality and validity of the application of the sanction, clause 5, part 1, art. 81 of the Labor Code of the Russian Federation provided for the existence of an outstanding and / or not previously withdrawn disciplinary sanction.

Therefore, in the case when no disciplinary sanctions were applied to the employee during the current year, the dismissal of such an employee in accordance with paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation does not apply.
So, for example, if on May 13, 2010 a disciplinary sanction was applied to an employee in the form of a reprimand, and on May 12, 2011 the same employee had a completely new disciplinary violation, then dismiss such an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation is not possible, since the application of this penalty requires a written explanation from the employee, which he can provide within two working days (of course, provided that such an explanation is not received before May 13, 2011).
Also, the application of dismissal on the grounds: dismissal for repeated non-performance official duties unacceptable in a situation where: on May 20, 2010, the employer’s order came into force to apply a notice to the employee in the form of disciplinary liability, but subsequently, for example, on June 21, 2010, such an order was canceled by a decision, and on June 25, 2010 this employee committed a new disciplinary offence.
But if such an order is not appealed within 3 months, and this period is not restored according to the rules and grounds specified in Part 3 of Art. 392 of the Labor Code of the Russian Federation, then dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation will be considered lawful and justified, since the legality and validity of the previous penalty are not considered by the court (the answer to question 8 of the Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the II quarter of 2007.).

At the same time, it should be noted that the last disciplinary violation should not necessarily be a gross violation, however, like the initial one, since for committing gross violation job duties provide an independent basis for dismissal.
Therefore, in order to prevent employers from using this ground only as a formal reason for dismissing an employee, the Plenum of the Supreme Court of the Russian Federation, in Resolution No. 2 of March 17, 2004, obliged the employer to prove in the event of a dispute on the use of paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, that when imposing such a penalty, the following were also taken into account:
- the severity of the disciplinary offense, the circumstances under which it was committed, the previous behavior of the employee, his attitude to work, as well as the fact that the disciplinary offenses committed by the employee had adverse consequences for the organization;
- infliction of damage, which may result in the need to make excessive cash payments (for example, pay a fine for demurrage of railway cars that occurred through the fault of the employee; pay for the downtime of other employees that arose in connection with the untimely receipt of the production task by them, the untimely implementation of repairs due to the fault of the employee; fired employee)
- disruption of negotiations with the counterparty, because necessary materials were not prepared or were prepared, but at an inadequate level, which made it impossible to conclude an economically beneficial contract for the organization;
- poor-quality performance of the assigned task, due to negligent attitude to the performance of labor duties, which entails the need to correct it and negatively affects manufacturing process.
Therefore, if, when considering the employee’s claim in court to recognize the dismissal as illegal and reinstate at work, it is established that disciplinary offenses actually took place, his behavior is guilty, but they did not negatively affect the production process and the employee’s previous behavior was impeccable, on the part of the employer, he was repeatedly encouraged, that is, the employer applied a disciplinary measure (dismissal without taking into account the criteria underlying disciplinary liability), then the court, as noted in paragraph 53 of the Resolution of the Plenum of the Supreme Court, can satisfy the claim for reinstatement.
In addition, when deciding on the repetition of a disciplinary violation, the employer must take into account that a disciplinary sanction cannot be imposed twice for the same violation, therefore, the application of a sanction in the form of dismissal of an employee for a repeated violation is possible only in the event of a continuing disciplinary offense (usually homogeneous in terms of content).
Application to the employee of a new disciplinary sanction, including dismissal under paragraph 5 of part 1 of Art. 81, it is also permissible if the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction (paragraph 33 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).
Non-fulfillment by an employee without valid reasons of labor duties is the non-fulfillment and / or improper performance due to the fault of the employee of the labor duties assigned to him, which may also include:
a) the absence of an employee without good reason at work or workplace;
b) the refusal of the employee without good reason to perform labor duties in connection with a change in the established procedure of labor standards;
c) refusal or evasion without valid reasons from a medical examination of employees of certain professions, as well as the refusal of an employee to pass work time special training and passing exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work, etc.
In practice, this causes great difficulties, since the text of paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, in essence, contains an unlimited range of grounds for dismissal, pointing only to common features characterizing such grounds. Whereas, due to the different functions of employees, the characteristics of the enterprises and industries where they work, the significance of their position and the work performed for the employer, the same disciplinary offense has different consequences and the severity of harm even for the same employer. Therefore, it is obvious that for errors in the field of the technological process, the punishment cannot be as severe as for violation of discipline.
Thus, one of the defining criteria is to determine the essence of the reasons for the refusal of an employee without good reasons to perform work duties, that is, the definition of such reasons as valid or disrespectful. But the list of reasons that can be considered as valid is not established by law. The employer will have to decide for himself whether to consider the reason for non-performance or improper performance of labor duties as valid, and subsequently the court will decide the same according to its own criteria.
All this sometimes creates a curious situation in practice, when the employer has the biggest problems when trying to punish for " bad job". Since the concepts of what is good and what is bad do not usually coincide with people, it will not be easy to justify the correctness of the dismissal. It is better if the employee's work has received any quantitative expression. If we are talking only about quality, you will have to prepare for a serious dispute, including in court.
The employee’s refusal (regardless of the reasons) to comply with the employer’s order to return to work before the end of the vacation (clause 37 of Resolution No. 2) cannot be considered as a violation of labor discipline, since recall from vacation is carried out only with the consent of the employee (part 2 of article 125 of the Labor Code RF).
Thus, dismissal for repeated non-performance by an employee without good reason of labor duties should be carried out with the exact application of all the rules related to the procedure for applying disciplinary sanctions, and with the utmost care of the employer's administration.
A. If signs of a disciplinary offense are detected in the action (inaction) of the employee or if harmful consequences of a disciplinary offense are detected, the employer issues an order to conduct a disciplinary audit, in which it indicates:
- grounds for the purpose of the inspection;
- FULL NAME. and the position of the person in respect of whom the inspection is scheduled, or the known circumstances and consequences of a disciplinary offense discovered by the employer, in the case when the person who committed the offense is initially unknown;
- FULL NAME. and the position of the person who is appointed to conduct the audit.
If necessary, a working group may be appointed to conduct a disciplinary review.
The labor legislation does not establish time limits for conducting disciplinary checks, however, if the check is not carried out within a month, not counting the time the employee is sick, he is on vacation, as well as the time required to take into account the opinion of the representative body of workers, the employer will not be able to bring the employee to disciplinary responsibility, since in most cases the moment of detection of a misconduct is fully considered the moment the disciplinary check begins, since in accordance with Part 3 of Art. 193 of the Labor Code of the Russian Federation: "A disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time the employee is ill, he is on vacation, as well as the time required to take into account the opinion of the representative body of workers."
B. Only one disciplinary sanction may be applied for each disciplinary offense.
C. Before applying a disciplinary sanction, the employer must require the employee to provide a written explanation of the misconduct committed. If after two working days the specified explanation is not provided by the employee, then an act of refusal to give an explanation is drawn up. The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction.
D. A disciplinary sanction may not be applied later than six months from the date of the misconduct, and based on the results of an audit, audit of financial and economic activities or an audit - later than two years from the date of its commission. The above time limits do not include the time of criminal proceedings.
E. When imposing a disciplinary sanction, the gravity of the misconduct committed and the circumstances under which it was committed must be taken into account.
Evidence of the employee's guilt in committing a disciplinary offense and materials characterizing him can serve as:
- explanations of the employee, his immediate supervisor of the unit, colleagues, experts on circumstances relevant to the audit, which became known to them as a result of their professional actions;
- acts of inspection of the premises, workplace, tools and equipment, etc.;
- acts of inventories, accounting checks and presentations of supervising state bodies on the establishment of violations of the law and on their elimination;
- expert opinions:
accounting;
merchandising;
appraisal;
tax;
trasological;
medical;
handwriting;
documentary, etc.
- other circumstances relevant to the case.
Moreover, all evidence of a disciplinary review must be collected, recorded and executed in accordance with the requirements of the law, otherwise they will not have legal force and cannot be used as evidence of the employee's guilt.
E. The imposition of a disciplinary sanction should be carried out only by a representative of the employer authorized to make a decision on the hiring and dismissal of employees (since dismissal is provided as one of the disciplinary sanctions). Failure to comply with this requirement when applying a disciplinary sanction, along with other violations, may result in the cancellation of this sanction.
G. The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance, 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 an appropriate act is drawn up. If the employee fails to appear to familiarize himself with the dismissal order, the employer has the right to writing notify the employee that he can familiarize himself with the dismissal order, and (or) send the order by mail with a notification.
When preparing a draft order to impose a disciplinary sanction, it should be remembered that often facts that seem obvious need to be verified.
The order to impose a disciplinary sanction and (or) measures of material influence is best divided into three parts:
- descriptive;
- motivational;
- resolutive.
In the descriptive part of the order, it is necessary to briefly describe what the disciplinary offense committed by a particular employee expressed, its timing and place of commission, and describe the harmful consequences that have occurred.
The motivation part must contain all the documents that served as the basis for the imposition of a disciplinary sanction, indicating their details. These can be articles of the Labor Code of the Russian Federation, paragraphs of the job description, operating characteristic that the employee violated, memos, acts, protocols indicating their outgoing (or registration) number and date.
In the operative part of the order, it is necessary to indicate the exact position (profession) of the employee, indicating the unit, last name, first name, patronymic, the imposed measure of disciplinary action and (or) material impact. When imposing a disciplinary sanction in the form of dismissal, the wording of the reason for dismissal must exactly correspond to the basis in the Labor Code, or federal law with an article and paragraph.
One of the points of the order to impose a disciplinary sanction and (or) financial measures, if necessary, can provide for its distribution to the necessary departments (accounting, structural unit where the guilty employee works, personnel department, legal service, etc.) after signing and assigning his registration number.
The text of the order may provide for the obligation of the immediate supervisor to familiarize the violator with this order against receipt within three working days from the date of publication.
Upon familiarization, the employee signs directly on a copy of the order to impose a disciplinary sanction.
In some cases, in the text of the order, a warning can be made about the possible dismissal of an employee if a disciplinary offense is repeated. If the employee nevertheless committed a repeated disciplinary offense within one year after the imposition of the previous disciplinary sanction, the employer has full right without additional warnings, having established the guilt of the employee in committing a disciplinary offense, dismiss him on the grounds provided for in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.
It should be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when he, before committing the misconduct, filed an application for termination employment contract on their own initiative, since the employment relationship in this case is terminated only after the expiration of the term of notice of dismissal (paragraph 33 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation").

The final decision on the type of disciplinary sanction is made by an authorized representative of the employer.
Termination of an employment contract in the event of repeated non-fulfillment by an employee without valid reasons of labor duties, if he has a disciplinary sanction, obliges the head of the enterprise to comply with the guarantees established for certain categories of employees upon dismissal on this basis:
- the dismissal of an employee elected to the commission on labor disputes is carried out taking into account the reasoned opinion of this commission (Articles 171, 373 of the Labor Code of the Russian Federation);
- the dismissal of an employee - a member of a trade union is carried out taking into account the reasoned opinion of the elected trade union body of this organization (part 2 of article 82 of the Labor Code of the Russian Federation);
- dismissal of the heads (their deputies) of the elected trade union collegiate bodies of the organization, its structural divisions (not lower than the shop and equated to them), not released from the main work, is allowed, in addition to general order dismissal, only with the prior consent of the relevant higher elected trade union body. In the absence of a higher elected trade union body, the dismissal of these employees is carried out taking into account the reasoned opinion of the elected trade union body of this organization (Articles 373, 374 of the Labor Code of the Russian Federation). The specified procedure also applies to employees - heads of elected trade union bodies of this organization and their deputies within two years after the end of their term of office (Article 376 of the Labor Code of the Russian Federation);
- the dismissal of an employee under the age of 18 is allowed only with the consent of the state labor inspectorate and the commission on minors;
- Pregnant women cannot be dismissed on this basis.
Even in the case when a woman knew about her condition and did not inform the employer about it, she is subject to mandatory reinstatement at work.
The dismissal of employees - members of the trade union on the specified basis is carried out taking into account the motivated opinion of the elected trade union body of this organization. The dismissal of the heads (their deputies) of the elected trade union collegial bodies of the organization, its structural subdivisions (not lower than the shop and equated to them), not released from the main work, is allowed, in addition to the general procedure for dismissal, only with the prior consent of the relevant higher elected trade union body.
When an employment contract is terminated for repeated non-performance by an employee without good reason of labor duties, the Labor Code of the Russian Federation does not provide for the payment of any severance pay to employees, and compensation is collected from the employee for the used vacation days. However, the administration is obliged to pay the employee for the days worked, unused vacation, make the final settlement and issue him a work book on the day of dismissal. A disciplinary sanction may be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

Sofia Povzikova, head of HR administration at Coleman Services, continues to cover the topic of employer-initiated layoffs. Today we will talk about layoffs associated with repeated non-fulfillment of official duties by employees.

The specified basis is established by paragraph 5 of Article 81 Labor Code Russian Federation, but you need to use it, having thoroughly prepared personnel documentation, on the one hand, and on the other, having a margin of time, because. on this basis, as a rule, takes at least a month.

What is meant by non-fulfillment or poor-quality performance of official duties?

Non-performance of labor duties is a violation of the requirements of labor legislation, the functions specified in the employment contract, local regulations in force with the employer: PWTR, job description, orders of the organization's management, technical rules for processing documentation or using equipment, labor protection and safety requirements, etc. .P.

Example: an employee works in a call center and his job description states the obligation to “make 40 phone calls per shift”. If an employee does not fulfill the specified norm during the day, then this indicates a poor-quality performance of official duties. If during the day the employee for some reason did not make a single call at all (he came up with a job for himself or found reasons to shirk from work), then this is a failure to fulfill duties.

As can be seen from the example, one of the most important documents that establish the requirements for the quality of job duties is another document that specifies the employee's labor function.

The job description is not a mandatory local normative act, but its presence and competent wording help the employee, his immediate supervisor and HR specialists to determine the quality of the employee's work in disputable or conflict situations.

Very often, when compiling a job description, streamlined wording is used: “calling customers” or “registering customer orders”. Such vague duties are not specific, which means that some other document is needed that establishes the criteria for assessing the quality of work, and the employee must be familiarized with it under signature. Otherwise, the actions of the employer can be appealed, indicating that the calls to customers have been completed, but the employee was not informed that exactly 40 calls were needed.

What is meant by "repeated failure"?

In practice, there are very often cases when managers complain to HR specialists about the quality of work of line personnel. However, just as often, managers refuse to document the identified violations: a lot of documents need to be drawn up, and, as always, there is not enough time. The HR specialist must understand that the verbal complaints of the head cannot be considered as a failure to perform official duties. Therefore, “repeated non-performance” is several documented disciplinary sanctions for various violations of various job duties.

It is impossible to impose a disciplinary sanction on the same violation, otherwise two penalties will be applied to the employee for one misconduct, which is unlawful (part 5 of article 193 of the Labor Code of the Russian Federation).

Let's return to our example: the first disciplinary sanction can be received by the employee (if there is documentation) for poor-quality performance of official duties, the second, for example, for being late for work.

In 2004, the Plenum of the Supreme Court of the Russian Federation (clause 33 of Resolution No. 2 of March 17, 2004) ruled that in order for dismissal on the indicated grounds to be legal and justified, two conditions must be met simultaneously:

the employee does not perform labor duties without good reason;

the employee commits a violation repeatedly, that is, he already has at least one outstanding or outstanding disciplinary sanction in the form of a remark or reprimand.

What documents to issue in order to announce a disciplinary sanction to an employee?

So, the employee did not work properly and made only 10 calls (instead of 40), and, his manager requires the HR specialist to announce to him. We considered in detail the actions of the personnel officer when issuing a disciplinary sanction in the article “Loss of confidence”.

Let's repeat some points:

1. It is necessary to explain to the immediate supervisor that he must draw up a memo addressed to the head of the organization (since it is this person who, in accordance with the Charter of the organization, is authorized to be an employer). The memorandum must contain:

• Full name of the employee;
• date and time of the violation. If a violation is detected after the working day, this should also be indicated.
• details of the violation itself and the discovery of the violation
• proposals of the head on the measures of influence on the employee.

Indicative text of a memo for our example:

“On April 13, 2017, a call center specialist (full name) during a work shift from 9.00 to 18.00, in violation of the requirements of the job description, made 10 phone calls. ABOUT this fact I became aware in the process of summing up the results of the working day. I propose to announce (full name) reprimand.

1. It is necessary to explain to the immediate supervisor that a reprimand can be announced only if there is a written explanation from the employee about the reasons for non-performance of official duties. In practice, there are two mechanisms for obtaining explanations: written (when the employee is given a Request for explanations) and oral (when the manager orally requires an explanation from the employee). I can’t advise my fellow personnel officers the second way: if an employee appeals against the employer’s actions, then without an appropriate document it will be very difficult to prove compliance with the requirements of paragraph 1 of Article 193 of the Labor Code of the Russian Federation.

The requirement to provide explanations, as a rule, is prepared by HR specialists and issued to the employee, necessarily fixing the time of issuance of the document. The requirement is issued to the employee against signature. At the request of the employee, he may be given a copy of the Requirements.

1. After two working days, the employee must provide a written explanation. If an explanation is not provided, an Act of refusal to provide explanations must be drawn up. The act is announced to the employee in the presence of the spirit of witnesses. The employee may put a signature on familiarization with the Act, or may refuse to familiarize himself. In this case, the Act is read aloud to the employee.
2. Two received documents that recorded the violation are submitted for consideration to the head of the organization (or other authorized person) for a decision. The head, taking into account the facts available, may decide on the recovery or on the absence of grounds for it, may mitigate the punishment or toughen it. The leader reflects his decision in a resolution that he writes on a memo.
3. Based on the decision of the head of the organization, the personnel service specialist prepares an Order to impose a disciplinary sanction on the employee.

The order of actions of HR specialists may vary depending on the traditions of the organization, but two primary documents are required, because are starting points for timing calculation.

Since we are talking about repeated violations, the specified procedure must be performed at least one more time.

There are two disciplinary actions. What's next?

So, the personnel service specialist has two orders for the imposition of disciplinary sanctions, as well as two sets of justifications for them. The orders are signed by the employee and the employer. Prepared and signed by witnesses Acts of refusal to familiarize themselves with the documents.

In the event of the next violation, a third set of evidentiary documents is prepared and submitted for decision to the head of the organization. If the decision of the head is dismissal, then it is necessary to prepare an order for dismissal according to unified form T-8, or in the form established by the organization. If the order cannot be brought to the attention of the employee or the employee refuses to read it against his signature, then a corresponding entry is made directly on the order (Article 81, paragraph 5 of the Labor Code of the Russian Federation).

Thus, the preparation of dismissal, in connection with the repeated failure to perform official duties by employees, requires:

The presence of a job description (or detailed job responsibilities in an employment contract)

Willingness to process a lot of documents quickly and accurately.

Time, because dismissal associated with repeated non-fulfillment of official duties by an employee takes about a month

Internal regulations are approved at each enterprise. This document is considered a kind of instruction for employees, which spells out all the features of the work procedure - from the number of working hours to the procedure for calculating bonuses or disciplinary sanctions. Often employees violate these rules. What threatens non-compliance with the rules of labor regulations for employees and are the actions of the employer lawful in cases of fixing violations?

What is labor discipline?

Labor discipline is a set of rules developed by the enterprise in order to optimize the workflow. It is based on the duties of each employee prescribed in the legislation.

Article 21 of the Labor Code of the Russian Federation “Basic rights and obligations of an employee:

“The employee must:

• conscientiously fulfill their labor duties assigned to him by the employment contract;
• observe the rules of internal labor regulations;
• observe labor discipline;
• comply with established labor standards;
• comply with the requirements for labor protection and ensuring labor safety;
• take care of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees;
• immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property)”.

In addition to the basic requirements, the rules of labor discipline may indicate other duties of employees related to the specifics of the work of each organization. These include: compliance with corporate ethics, keeping commercial secrets, violation of subordination, etc. In the event of a single violation of the schedule, an employee may be subject to disciplinary action as provided by law. Its type depends on the severity of the offense. The main violations of labor discipline include:

• non-compliance with labor protection rules resulting in an accident at work;
• absenteeism or systematic tardiness;
• appearing at work in a state of intoxication;
• immoral acts ;
• theft work or personal property of employees;
• intentional failure to perform duties or their performance is not in full;
• falsification of legal documents;
• ignoring orders leader.

In private enterprises, the issue of choosing a disciplinary sanction is decided directly by the head. Punishment is considered the right of the leader, but not an obligation. Therefore, the employer independently decides on the appropriateness of imposing a disciplinary sanction. Systematic violation of labor discipline is considered as gross non-compliance with the rules and provides for more severe penalties, up to and including dismissal of the employee.

Types of disciplinary sanctions and their application

Disciplinary sanctions are aimed at improving the quality and organization of work. On the basis of an employment contract, employees are obliged to strictly comply with all regulations, since in case of violation of labor discipline in accordance with the Labor Code of the Russian Federation, the employee may be subject to penalties regulated by law.

“For the commission of a disciplinary offense, that is, non-performance 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:

• comment;
• dismissal for appropriate reasons.

A disciplinary offense will be considered a misdemeanor committed only through the fault of the employee. The employer is obliged to require the implementation of all the rules only if the enterprise provides all the conditions for this. at the same time, each employee must be familiar with the labor schedule, labor protection rules and his official duties, which is confirmed by his personal signature.

Article 81. Termination of an employment contract at the initiative of the employer

“The employment contract may be terminated by the employer in the following cases:

• repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction”.

Article 192 of the Labor Code of the Russian Federation. Disciplinary sanctions

“Disciplinary sanctions, in particular, include the dismissal of an employee on the grounds provided for in paragraphs 5, 6, 9 or 10 of the first part of Article 81, paragraph 1 of Article 336 or Article 348.11 of this Code, as well as paragraph 7, 7.1 or 8 of the first part of Article 81 of this Code in cases where the guilty actions that give grounds for the loss of confidence, or, accordingly, an immoral offense are committed by the employee at the place of work and in connection with the performance of his labor duties.

When imposing a disciplinary sanction, the gravity of the misconduct committed and the circumstances under which it was committed must be taken into account.

Disciplinary action may be taken based on memorandum. If the employer considers this an insufficient reason, then he can initiate disciplinary proceedings with the participation of the labor collective. The result of the meeting of the commission will be an act with a decision on the type of disciplinary punishment.

Examples of violation of labor discipline

Practice knows many examples of violations of labor discipline. Most of them relate to non-gross offenses and are often limited to verbal remarks.

For example, worker Ivanov. A.A. violated the work schedule by showing up to work an hour later than the scheduled time without a good reason. In this case, the employer may limit himself to an oral warning, which is issued in the form act of disciplinary offense. With systematic delays, Ivanov A.A. may be reprimanded, however, the law does not allow a reprimand immediately after the first offense.

A reprimand may be caused, for example, by the failure of the warehouse manager V.V. Petrov to fulfill his official duties, which entailed financial losses for the enterprise in the form of a failure to sign an agreement with suppliers. An employee may be issued regular or strict reprimand(at the discretion of the employer).

A one-time violation, entailing dismissal, may be the appearance of an employee at the workplace in a state of intoxication, theft of official property, or actions that provoked an accident or accident at work.

Any decision on disciplinary action may be appealed by the employee in court. Then there will be help professional lawyer competent in matters of labor legislation of the Russian Federation.

As it became known from the case file, orders No. 56 and No. 47 were based on the same memorandum of the section head dated 23.05.2012. From the memorandum of the foreman foreman of the section it followed that “on May 23, 2012, the electrician Smirnov A.L. did not show up for work on time by 8 o’clock and was absent during the order”, i.e. late for work. This memorandum does not establish another disciplinary offense. The memorandum does not establish that essential fact, as far as Smirnov A.L. late for work. The plaintiff himself at the hearing explained that he was late for 3 minutes and did not write an explanatory note, seeing in the situation a far-fetched creation of a conflict by the administration. It follows from the text of Order No. 47 that it was issued on May 25, 2012.

Systematic non-fulfillment (violation) of labor duties

Labor Code, it should be borne in mind that on this basis, employees may be dismissed who, after applying one of the disciplinary measures provided for in Art. 198 of the Labor Code, again violated labor discipline. The court is obliged to examine the employee's arguments about the correctness of the application of all disciplinary sanctions laid down by the employer as the basis for the order (instruction) on dismissal.

Evidence to refute such arguments must be presented to the court by the employer. The employer's failure to fulfill the obligation to request a written explanation from the employee and the failure to receive such an explanation is not grounds for canceling a disciplinary sanction if the fact of violation of labor discipline is confirmed by the employer with evidence submitted to the court.

Systematic non-fulfillment of labor duties

Dismissal on this basis (clause 4, article 42 of the Labor Code of the Republic of Belarus) is one of the disciplinary measures applied for committing a disciplinary offense. Therefore, termination of the employment contract on this basis will be unlawful in the absence of a specific disciplinary offense, and also if another disciplinary sanction has already been imposed for a disciplinary offense.

Dismissal is not allowed for a single violation of labor discipline. To apply this ground for termination of an employment contract, a systematic violation of labor discipline by an employee is required.

Employees who, after applying one of the measures of disciplinary action, again violated labor discipline are considered to be systematically violating pond discipline.

Newsletter of the magazine "personnel department"

TC is possible under the following conditions: - the presence of a guilty non-fulfillment or improper fulfillment by the employee of his labor duties; - failure to perform duties is systematic; - the employee was previously subjected to disciplinary sanctions; - the employee committed a new violation of labor discipline, for which no disciplinary sanction was applied to him (reason for dismissal). Violation of labor discipline, for which a disciplinary sanction has already been imposed on the employee, cannot be a reason for dismissal.
An employee may be dismissed under paragraph 4 of Art. 42 of the Labor Code for specific violations of labor discipline. The dismissal order cannot be limited to common characteristic behavior of an employee in an enterprise during a certain period.

Therefore, despite the employee's application for dismissal on own will, he may be dismissed at the initiative of the employer for a systematic violation of labor discipline, if the violation that was the reason for the dismissal actually took place and could be the basis for terminating the employment contract. It should be borne in mind that the employer has the right to apply a disciplinary sanction to the employee (incl.
dismiss him under paragraph 4 of Art. 42 of the Labor Code) and when he filed an application for termination of the employment contract on his own initiative before committing a disciplinary offense. What awaits the employer in case of violation of the procedure for dismissal under paragraph 4 of Art.

Thus, by the decision of the court, order No. 47 for LLC “E” was declared invalid, the disciplinary sanction in the form of a reprimand imposed by order No. 47 was removed from the plaintiff. Smirnov A.L. was reinstated at work as an electrician of the 4th category in LLC E from July 1, 2012. In his favor, LLC E was charged with amounts for the time of forced absenteeism, compensation for moral damage and legal costs.

In conclusion Summing up, we draw attention to the fact that dismissal for systematic non-fulfillment by an employee without good reason of the duties assigned to him by an employment contract is possible only if the non-fulfillment or improper performance by the employee of his labor duties is due to his fault, i.e. . intentionally or through negligence, as a result of his illegal actions (inaction).
The case materials established that this happened due to the need to take medicine in the first-aid kit. The district court considered the plaintiff's actions as a disciplinary offense due to the fact that she did not inform anyone of her intention to leave her post for a short time.

Attention

The cassation instance agreed with the assessment of the plaintiff's behavior established by the court of first instance, but due to the insignificance of the misconduct, it recognized it as inappropriate to apply a disciplinary sanction to her in the form of dismissal under paragraph 4 of Art. 42 TK. The Judicial Board came to general conclusion that the actions Voronova The.P.

formally can be considered as disciplinary offenses, but due to their insignificance, the employer has no reason to attract Voronova V.P. to disciplinary action in the form of dismissal.
TC); 12) whether the dismissal was made during the period of temporary disability of the employee or while on vacation; 13) other circumstances. The necessary evidence in cases of this category, which the defendants must submit, are: - a copy of the order on the employment of the plaintiff (extract from the order on employment); - a copy of the order on the dismissal of the plaintiff (extract from the order on dismissal); – a copy of the employment contract with the employee, job descriptions and other documents that allow you to determine what duties the employee performed; - copies of orders for the imposition of disciplinary sanctions; - materials on the basis of which disciplinary sanctions were imposed (memorandums, materials of internal audits, explanatory notes, acts, etc.); - documents on the duration of the employee's work experience ( employment history); - certificate of average wages claimant.

Info

When resolving disputes about dismissal due to the employee’s systematic failure to perform duties without good reason, the courts recognize it as lawful only if disciplinary sanctions for misconduct preceding the dismissal were imposed in compliance with the procedure established by the legislation on disciplinary liability. By themselves, cases of violation of labor discipline, previously committed by the employee, to which the employer did not respond in a timely manner, in the manner prescribed by law, cannot be grounds for dismissal.

Disciplinary sanctions are imposed by the employer, as well as other authorized officials. Prior to the imposition of a penalty, the offender must be required to provide explanations in writing.

The refusal of the employee to give an explanation is not an obstacle to the imposition of a penalty.
At the same time, the plaintiff asked to remove the disciplinary sanction in the form of a reprimand, imposed by the order of the employer dated May 25, 2012 No. 47 (hereinafter - Order No. 47) after his dismissal. In support of the claim Smirnov A.L. indicated that he worked at E LLC as an electrician of the 4th category. On the basis of the order of the employer dated 06/01/2012 No. 56 (hereinafter - order No. 56), he was dismissed under paragraph 4 of Art. 42 of the Labor Code "for systematic violation of labor discipline, failure to fulfill labor duties without good reason and being late for work." However, he had not previously been brought to disciplinary liability, and order No. 47 on imposing a disciplinary sanction on him, dated May 25, 2012, appeared only on July 10, 2012 in the course of preparing a civil case for trial on his claim for reinstatement at work.

At the same time, it should be borne in mind that the refusal to continue work in connection with a change essential conditions labor is not a violation of labor discipline, but serves as a basis for terminating the employment contract, clause 5, article 35 of the Labor Code (refusal of the employee to continue working due to a change in essential working conditions); - Refusal or evasion, without good reason, of a medical examination of workers in certain professions, as well as refusal of an employee to undergo special training during working hours and pass exams on safety precautions and operating rules, if this is a prerequisite for admission to work. Dismissal under paragraph 4 of Art. 42 of the Labor Code is permissible only in the case when the employee’s failure to perform or improper performance of his labor duties is due to his fault, that is, intentionally or through negligence.

Dismissal of an employee for repeated non-performance of labor duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation): approximate step by step procedure

DISMISSAL FOR REPEATED DEFAULT OF LABOR DUTIES:

EXAMPLE STEP-BY-STEP PROCEDURE

If the employee refuses to familiarize himself with the order to terminate the employment contract, in this case it is necessary to draw up an act (part 6 of article 193 of the Labor Code of the Russian Federation). The act is registered in the manner prescribed by the employer in the appropriate registration log.

10. Registration of a note-calculation upon termination (termination) of an employment contract with an employee (dismissal).

11. Settlement with the employee.

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than next day after the laid-off employee presents a demand for payment. In the event of a dispute over the amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article (Article 140 of the Labor Code of the Russian Federation).