A single non-fulfillment by an employee without good reason of labor duties. Step-by-step procedure for dismissal for non-performance of work duties

The worker quits either at his own request or at the initiative of the employer. The head can dismiss the worker only if there are grounds listed in the Labor Code of the Russian Federation. Repeated failure job duties is one of those reasons.

Under what circumstances can a worker be fired?

The features of dismissal for repeated non-fulfillment of maintenance are set out in clause 5 of part 5 of article 81 of the Labor Code of the Russian Federation. Termination of an employment contract with an employee is possible only if there are three conditions:

1. Violation of labor discipline was proven.
2. At the time of the misconduct, the employee already has disciplinary action, which has not expired. It includes, in accordance with Article 192 of the Labor Code of the Russian Federation, a reprimand and a remark. If the worker does not have a penalty, the dismissal will be considered unlawful, since there is no fact of repeated misconduct.
3. The worker did not have a good reason, which entailed the non-fulfillment of maintenance. Good reasons are not given in the Labor Code of the Russian Federation. Their list is determined on the basis of practice and the wishes of the employer.

The grounds for termination of the employment contract are listed in paragraph 35 of the resolution of the Plenum of March 17, 2004. These include:

• Absence from work for less than 4 hours. If the worker was absent for more than 4 hours, he is dismissed under a different article -.
• Refusal to work after the employer has approved an act to change labor standards. It must be said that the employee may refuse to change the terms of the employment contract. For this, he is not threatened with dismissal. It's all about changing labor standards.
• Ignoring the conditions for admission to labor activity. For example, it can be a refusal of a medical examination, vocational training and examinations.

FOR YOUR INFORMATION! The last point should be considered in more detail. An employee does not have the right to refuse both periodic and daily medical examinations, if the need for it is specified by law. The obligation to familiarize with the rules of labor protection is established by article 225 of the Labor Code of the Russian Federation.

Valid reasons for non-fulfillment of labor duties

As mentioned earlier, the law does not say anything about specific good reasons. Their list is determined on the basis of practice, including judicial. If the employer does not take into account the existing good reason, the employee can appeal his dismissal through the courts. Consider good reasons formed by judicial practice:

• Getting into an accident.
• Part-time work due to the fact that the employer delays wages.
• Summons an employee to court.
• Fulfillment by workers of public or state duties.
• Blood donation (if the employee has provided the relevant certificate).
• The manager did not notify the employee of the change in labor standards in the prescribed manner (2 months in advance).
• The employer did not create conditions for passing a medical examination or training in labor protection standards.

ATTENTION! What to do if the employee had a good reason for non-fulfillment of maintenance, but the employer did not take it into account and dismissed him? You should go to court. In your claim, it makes sense to refer to a court decision in a similar case.

The procedure for dismissal due to non-fulfillment of labor duties

The dismissal must be executed in accordance with the prescribed procedure. If the employer ignores this procedure, the employee can also challenge the dismissal. Consider the main stages of the procedure:

1. Fixing grounds for dismissal. It involves control over labor discipline with subsequent fixation of violations in writing. This stage is regulated by Article 81 of the Labor Code of the Russian Federation.
2. Confirmation of the legality of the dismissal. An explanation must be obtained from the employee regarding the fact of non-fulfillment of duties. At this stage, an already existing disciplinary sanction is identified, the validity period of which has not passed. The possibility of executing the dismissal is checked (a number of employees cannot be dismissed).
3. Documentation of the termination of the employment contract. The manager issues a dismissal order. A note-calculation is also published. The employee is sent a notice of dismissal. IN work book corresponding entry is made.
4. Carrying out the calculation. The employer must pay the employee a salary for the period worked, compensation for unused vacation.
5. Delivery of documents. The employee on the day of dismissal must receive a work book and other documents. This need is established by article 84.1 of the Labor Code of the Russian Federation.

If the employer does not give the employee a salary and documents, the latter can go to court to restore his rights.

Drawing up an explanatory note

The employer must receive an explanatory note from the employee before dismissal. It indicates the reasons for which the non-fulfillment of labor duties occurred. In the future, the employer, on the basis of an explanatory note, is obliged to:

• study the explanations provided;
• assess the severity of the employee's fault;
• examine the situation prior to the violation.

ATTENTION! The employee is given 2 days to draw up an explanatory note.

The manager is also obliged to take into account the previous behavior of the employee. The employee may refuse to draw up an explanatory note. This does not release the employee from liability. In this case, the employer must issue an act. It states:

• The fact of contacting an employee in order to obtain an explanatory note.
• The fact of refusal to draw up a document.

The document must be signed by a number of key employees: deputy director, secretary, lawyer.

Making an entry in the work book

First you need to put down the date of dismissal. Then an entry of the following form is put:

“Dismissed due to repeated failure to perform labor duties without good reason on the basis of paragraph 5 of Article 81 of the Labor Code Russian Federation».

In the last column, you need to refer to the date and order number.

Which employees cannot be fired?

Not all workers can be fired at the initiative of the employer. This guarantee is provided to such categories of employees as:

• Pregnant.
• Vacation employees.
• Employees in a state of temporary disability.
• Women with a child under 3 years old.
• Single mothers with underage children with disabilities.
• Single mothers with children under the age of 14.
• A parent who is recognized as the sole provider of a disabled minor child.

The only situation in which these categories of workers can be fired is the liquidation of the company.

What should an employee who was fired illegally do?

If an employee was fired illegally, he must go to court. The content of the statement of claim is determined depending on the situation. It may mention the presence of valid reasons for non-fulfillment of labor duties, the fact of incorrect registration of dismissal. The employee can also prove in court the absence of the fact of repeated violation of labor standards. It is recommended to file a claim with the help of a lawyer.

When can an employer's decision be challenged?

Judicial practice shows that an employee can be reinstated at work in the presence of the following violations:

• Wrong ordering.
• Disproportionate violation and punishment.
• Absence of a valid disciplinary sanction.
• Written explanations of the employee were not taken into account.

If violations are established, the employee is reinstated in his previous position.

Disputes about dismissal in the event of repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation)

Dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation is possible due to repeated non-fulfillment by an employee without good reason of labor duties, i.e. it is allowed only if he has a disciplinary sanction that has not been withdrawn and extinguished, and has again committed a disciplinary offense.

The list of disciplinary sanctions is established by law. Article 192 of the Labor Code of the Russian Federation provides for the following types of disciplinary sanctions: remark, reprimand, dismissal on appropriate grounds. This list is exhaustive. This means that the application of any other type of penalty is illegal.

The disciplinary sanction is valid for one year. from the date of its application. After this period, it automatically loses its legal force and can no longer form a sign of repetition, necessary for terminating the employment contract under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. Any order or instruction of the employer to remove the disciplinary sanction due to the expiration of the one-year period is not required. An order (instruction) is required without fail if the employer decides to remove the penalty from the employee ahead of schedule.

Thus, when deciding on the dismissal of an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, disciplinary sanctions removed ahead of schedule or invalidated after one year from the date of their application are not taken into account. In addition, for the dismissal of an employee for repeated non-fulfillment of labor duties without good reason, it does not matter what disciplinary sanction: a remark or a reprimand - the employee has at the time of committing another disciplinary offense. The main thing is that it should not be removed and not lose force. Penalties imposed on the employee at the place of his previous work are also not taken into account when deciding on the dismissal on the specified basis.

For disciplinary offense characterized by the employee's failure to fulfill his labor duties stipulated by labor legislation and other regulatory legal acts containing norms labor law, collective agreement, internal labor regulations, charters and regulations on discipline, job descriptions, as well as arising from the concluded employment contract.

The employer should remember that according to Part 3 of Art. 68 of the Labor Code of the Russian Federation, when hiring, he is obliged familiarize the employee against signature with the rules of internal labor regulations, other local regulations directly related to the labor activity of the employee, the collective agreement.

With the job description, which fixes the rights and obligations of the employee, the latter must be familiarized before signing the employment contract.

When included in the text of the employment contract references to job description it is also necessary to indicate all the details of the local regulatory act that approved this instruction (number, date of adoption of the local regulatory act, the person who signed the specified act).

With Ivanov, entering the position of personnel inspector, an employment contract was concluded, where there was a link to the job description. However, her details employment contract were not indicated. When hiring Ivanov, they did not familiarize him with the job description of the personnel inspector against receipt.

In the process of work, a dispute arose between the management of the organization and Ivanov regarding his obligation to draw up time sheets, since he was not informed of the need to fulfill this obligation when hiring.

In this regard, the employer dismissed Ivanov for repeated failure to fulfill his labor duties without good reason under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

The employee filed a lawsuit for reinstatement, recovery of wages for the time of forced absenteeism and compensation for non-pecuniary damage, considering the dismissal illegal, since he was not familiar with the job description when he was hired.

After listening to the views of the parties, having studied the case materials and the evidence presented, the court decided to reinstate Ivanov at work, since the obligation to draw up time sheets was not provided for by the employment contract, and the employee was not familiarized with the job description against receipt.

In accordance with Art. 56 Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers. The employer could not prove the fact that when hiring Ivanov was aware of the duty of the HR inspector to draw up time sheets, since the plaintiff's signature on familiarization was missing in the job description and in the registration log.

Non-performance by an employee without valid reasons of the labor duties assigned to him is a violation of labor discipline (violation of the internal labor regulations, job descriptions, regulations, orders of the head of the organization, technical rules, etc.).

It was suggested that the dismissal of an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation is allowed subject to the following mandatory conditions:

• a) non-fulfillment of labor duties has already taken place, and a disciplinary sanction has been applied to the employee, which has not been removed or extinguished;
• b) labor duties were not performed by him without good reason.

The position of A.I. Stavtseva seems to be more correct, she singled out the following conditions for the legitimacy of dismissal on this basis:

• - non-fulfillment or improper fulfillment of labor duties assigned to the employee by an employment contract or internal labor regulations. It is impossible to dismiss an employee for misconduct that is not related to his work activity. Refusal to perform work that is not included in the scope of the employee's labor duties (except in cases of mandatory transfer for employees), or from performing a public assignment is not a violation of labor discipline;
• - the presence of guilt in the actions of employees in the form of intent or negligence. Failure to perform labor duties for a good reason does not give grounds for dismissal;
• - the systematic nature of the guilty violation, i.e. disciplinary offense is not the first time, for which the employee was earlier (within last year) a disciplinary measure has already been applied;
• - committing a specific guilty offense before dismissal, from the moment of which more than a month has not passed.

Attention was drawn to these circumstances in the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004. In clause 33 of this resolution it is noted: the employer has the right to terminate the employment contract under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, provided that a disciplinary sanction was previously applied to the employee and at the time of his repeated failure to fulfill his labor duties without good reason, it was not removed and not repaid.

Application to the employee of a new disciplinary sanction, including dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, 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.

Suppose an employee, in violation of his labor duties, did not go on a business trip. In this case, the employer has the right to apply a disciplinary sanction to him (for example, a reprimand), except in cases where the employee has the right to refuse a business trip (Articles 259, 264 and 268 of the Labor Code of the Russian Federation). If, despite the imposed disciplinary sanction, the employee continues to refuse to go on a business trip without good reason, the employer has the right to apply a new penalty to him, including dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Similarly, an employer may act in the event that an employee refuses without good reason, for example, to undergo training and testing of knowledge and skills in the field of labor protection or a periodic medical examination, if this is a prerequisite for admission to work.

Unfortunately, the Labor Code of the Russian Federation does not disclose the concept of "good reasons". Therefore, in each separate case The employer decides this issue based on specific circumstances.

The employer is obliged to prove the correctness of imposing all disciplinary sanctions with which he justified the dismissal order, and the court should check their legality.

Within the meaning of the term "repeated" for the dismissal of an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it is enough to commit two disciplinary offenses, for the first of which the employee has already been sanctioned.

In this regard, one cannot agree with the opinion of A.K. Gavrilina that, in contrast to the previously applied grounds for dismissal for systematic non-fulfillment by an employee without good reason of the duties assigned to him by an employment contract or internal labor regulations, if the employee was previously disciplinary action or public influence(Clause 3, Article 33 of the Labor Code of the Russian Federation), from the basis for dismissal, provided for in Clause 5, Art. 81 of the Labor Code of the Russian Federation, it cannot be determined that initially, for a violation of labor discipline, an employee must be subjected to a disciplinary sanction and then again commit a violation of labor discipline, for which he will be subjected to a disciplinary sanction in the form of dismissal.

Back in 1984, the Supreme Court of the USSR, and before that the State Committee for Labor of the USSR and the All-Union Central Council of Trade Unions in 1983, clarified that workers who have a disciplinary or social penalty for violating labor discipline and violated it again are considered systematically violating labor discipline. However, some scientists and practitioners considered this position to be controversial, since earlier judicial practice interpreted the concept of "systematic violation" as a person committing at least three disciplinary offenses.

Paragraph 35 of the decision of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 also sets other requirements for the courts. So, when considering a case on the reinstatement of a person dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, or on contesting a disciplinary sanction, the courts must take into account that the employee’s failure to perform labor duties without good reason is the failure to perform or improper performance of the labor duties assigned to him through the fault of the employee (violation of the requirements of the law, obligations under an employment contract, internal labor regulations, official instructions, regulations, orders of the employer, technical rules, etc.).

The Plenum of the Supreme Court of the Russian Federation, in particular, refers to these violations:

• – absence of an employee without good reason at work or workplace;
• - refusal of the employee without good reason to perform labor duties in connection with a change in the established order of labor standards (Article 162 of the Labor Code of the Russian Federation), since by virtue of the employment contract the employee is obliged to perform the labor function defined by this contract, to comply with the employer's internal labor regulations ;
• - Refusal or deviation without good reason from the medical examination of workers in certain professions, as well as the refusal of the employee to pass in work time special training and passing exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work.

In addition, the Plenum of the Supreme Court of the Russian Federation draws attention to the fact that when resolving labor disputes arising in connection with the application of disciplinary measures to employees who refused to conclude a written agreement on full liability for the lack of property entrusted to employees (Article 244 of the Labor Code of the Russian Federation) , in the case when it was not simultaneously concluded with an employment contract, it is necessary to proceed from the following.

If the need to conclude an agreement on full liability arose after the conclusion of an employment contract with an employee and is due to the fact that, in connection with a change in the current legislation, the position held by him or the work performed is included in the list of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full liability, however, the employee refuses to conclude such an agreement, the employer, by virtue of Part 3 of Art. 74 of the Labor Code of the Russian Federation is obliged to offer him another job, and in the absence of it or the employee’s refusal from the job offered to him, the employment contract is terminated with him in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation (refusal of the employee to continue work due to a change in the terms of the employment contract determined by the parties) (clause 36 of the decision of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004).

In cases of reinstatement at work of persons dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, the defendant is obliged to provide evidence proving that:

• 1) the violation committed by the employee, which was the reason for the dismissal, actually took place and could be the basis for terminating the employment contract;
• 2) the employer complied with the provisions of Parts 3 and 4 of Art. 193 of the Labor Code of the Russian Federation, the terms for applying a disciplinary sanction.

It should be borne in mind that:

• 1) a one-month period for imposing a disciplinary sanction must be calculated from the day the misconduct was discovered;
• 2) the day of discovery of the misconduct, from which the monthly period begins, is considered the day when the person to whom the employee is subordinate at work (service) became aware of the commission of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions;
• 3) within a month for the application of a disciplinary sanction, the time of illness of the employee, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation) are not counted; the absence of an employee from work for other reasons, including in connection with the use of rest days (days off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the course of the specified period;
• 4) leave interrupting the course of a month should include all holidays provided by the employer in accordance with applicable law, including annual (basic and additional) holidays, holidays in connection with training in educational institutions, unpaid leave.

The employer when applying paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, we must not forget that before applying a disciplinary sanction, he must request a written explanation from the employee. If, after two working days, the specified explanation is not provided by the employee, then an appropriate act is drawn up.

The employee has the right to provide such an explanation, and the employer is obliged to request it. One should agree with the statement of A. K. Gavrilina that the employer has the right to evaluate the work activity of the employee, dressing it in the form of an order, without applying a disciplinary sanction to him. IN this case the requirement to obtain an explanation from the employee is optional. Therefore, the absence of such an explanation cannot serve as a sufficient basis for recognizing the employer's order as unlawful. However, the legal consequences in the form of dismissal under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, the publication does not have such an order.

An example from judicial practice. M. filed a lawsuit against ZhBK-2MS LLC for reinstatement, recovery of wages for the time of forced absenteeism, compensation for non-pecuniary damage and recovery of expenses for paying for the services of a representative in the amount of 3 thousand rubles. In the application, the plaintiff referred to the fact that by order CEO LLC "ZhBK-2MS" X. On July 18, 2002, he was dismissed from the post of head of the Apastovsky quarry under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. Considering the dismissal unlawful, the plaintiff pointed out that he did not commit any violations, he was not acquainted with the orders of the director of July 3, 2002 and July 4, 2002 on imposing disciplinary sanctions on him in the form of a remark and a reprimand, he was not acquainted with the explanations from him they didn’t demand, the orders were sent to him by mail; On July 17, 2002, he was at the plant in Kazan to resolve issues that are part of his direct production duties. According to the plaintiff, the real reason for the dismissal was his critical remarks to the general director of ZhBK-2MS LLC X.

In the supervisory appeal, M. requested that the court decisions be canceled and a new decision be made to reinstate him in the position of head of the Apastovsky quarry.

On August 15, 2003, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation annulled the court decisions, and sent the case for a new trial, stating the following.

In accordance with Art. 387 of the Labor Code of the Russian Federation, the grounds for canceling or changing judicial decisions by way of supervision are significant violations of the norms of substantive or procedural law.

By virtue of Art. 60 and 72 of the Labor Code of the Russian Federation, the employer is not entitled to require the employee to perform work not stipulated by the employment contract, except as provided for by the Labor Code of the Russian Federation and other federal laws, as well as to transfer the employee to another permanent job without his written consent.

Transfer to another permanent job in the same organization, requiring the written consent of the employee, by virtue of Art. 72 of the Labor Code of the Russian Federation should be considered a change in the labor function or other terms of the employment contract determined by the parties (Article 57 of the Labor Code of the Russian Federation). The same consent must be obtained from the employee in case of transfer to a permanent job in another organization or in another locality together with the organization.

If in the employment contract the place of work of the employee was determined with an indication of a specific structural unit, then it should be assumed that the transfer of the employee to another structural unit of the organization is possible only with his written consent, since in this case this entails a change essential condition employment contract (part 2 of article 57 of the Labor Code of the Russian Federation).

As can be seen from M.'s explanation, after receiving a telephone message dated July 2, 2002, about sending an employee to Kazan to repair the bulldozer, he left the village. Apastovo together with the bulldozer G.; the latter, having confirmed the breakdown of the bulldozer, at the same time refused to repair the bulldozer, referring to the fact that this was not part of his duties, a written order on a business trip of an employee from the village. Apastovo in Kazan (the distance between them is 150 km) and there was no travel allowance. Other machine operators under his command categorically refused to go to Kazan to repair the bulldozer (which was confirmed by him at the court hearing), citing the fact that they got a job in a quarry with. Apastovo, in Kazan there is a transport workshop, workers and all necessary equipment for the repair of bulldozers.

Thus, the court did not take into account that M. had no legal grounds for sending his subordinates to Kazan to repair the bulldozer and, due to this circumstance, could not follow the relevant instructions of the head of the organization.

Consequently, the court should have taken into account that the orders to impose disciplinary sanctions on M. on 3 and 4 July 2002 were issued without taking into account the requirements of Art. 60 and 72 of the Labor Code of the Russian Federation.

When resolving disputes of persons dismissed under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment of labor duties without valid reasons, it should be borne in mind that the employer has the right to terminate the employment contract on this basis, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated non-fulfillment of labor duties by him without valid reasons, it has not been removed and not redeemed.

At a new consideration of the case, the employer is obliged to prove the correctness of the imposition of all disciplinary sanctions with which he justified the dismissal order.

The main reason for applying to the court of former employees, to whom the dismissal was applied as a measure of disciplinary action, is the conviction that there was no disciplinary offense in their actions (inaction). When considering such disputes, the court determines the legality of the employee's behavior and assesses the legality and validity of the employer's actions when applying the chosen measure of disciplinary action.

Application specified in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation of the grounds for dismissal shows that not only the employer, but in some cases the court does not always correctly interpret this measure.

Thus, the director of the neuropsychiatric dispensary imposed disciplinary sanctions on the driver P. for several violations of labor discipline: on August 8, 2006 - a remark for leaving work prematurely on August 7, 2006, on August 14, 2006 - a reprimand for being late for work on August 13, 2006 ., August 20, 2006 - reprimanded for using an official car on August 18, 2006 for personal purposes. By order of 22 August 2006, P. was dismissed in accordance with clause 5, part 1, art. 81 of the Labor Code of the Russian Federation.

Objecting to the termination of the employment contract, P. went to court with a claim for reinstatement. The court recognized P.'s dismissal as lawful, since there had been repeated failure to fulfill labor duties and the employee was brought to disciplinary liability in connection with this.

Thus, both the employer and the court recognized the possibility of applying the grounds for dismissal, provided for in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, for a set of previously committed misconduct, for each of which the employer has already applied a disciplinary sanction to the employee in the form of a remark or reprimand.

At the same time, according to the meaning of this provision of labor legislation, to terminate an employment contract, one violation of labor duties is sufficient, for which a disciplinary sanction is imposed, in order for the employer to exercise his right to dismiss the employee, however, dismissal is possible only for the commission of another violation of labor discipline by the employee.

When calculating or summing up disciplinary sanctions, the employer must also take into account the fact that neither the non-payment of bonuses, nor the issuance of a censure, nor other types of disciplinary action not provided for by the Labor Code of the Russian Federation, other federal laws, regulations and charters on discipline, are not subject to disciplinary action. Therefore, they should not be taken into account when deciding on the dismissal of an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. For example, non-payment of a bonus to an employee cannot be regarded as the first penalty, and when committing a disciplinary offense within a year from the date of non-payment of the bonus, paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

In addition, it is worth noting that for an employee who has submitted a letter of resignation on own will, during the period of such a warning, labor legislation applies in full without any restrictions. The employment relationship in this case is terminated only after the expiration of the term of the notice of dismissal. Therefore, despite the employee's statement of dismissal of his own free will, he can be dismissed at the initiative of the employer for repeated failure to perform labor duties without good reason, if the violation that was the reason for dismissal actually took place and could be the basis for termination of the employment contract.

Actions of an employee that are not related to his job duties should not be considered as a disciplinary offense. Therefore, it is impossible to dismiss an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, for example, for misbehavior in everyday life.

Employers should remember that when considering labor disputes on the reinstatement of persons dismissed due to repeated failure to perform their job duties without good reason, if these persons have a disciplinary sanction, in subject of proof include the following circumstances:

• - what was the violation, which was the reason for dismissal;
• - whether the misconduct underlying the dismissal order was expressed in the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (and the employee does not agree to continue working in the new conditions);
• – repeated non-fulfillment of labor duties without valid reasons;
• - the reasons for the repeated non-fulfillment of labor duties by the employee, the nature of these reasons (valid or disrespectful);
• - the fault of the employee in non-fulfillment without good reason of the labor duties assigned to him;
• - the severity of the misconduct committed, the circumstances under which it was committed, the consequences of the misconduct;
• - the behavior of the employee preceding the misconduct, his attitude to work;
• - the application of earlier disciplinary measures to the plaintiff, the correctness of imposing on the employee all disciplinary sanctions with which the employer justified the dismissal order, regardless of whether the plaintiff claimed claims to recognize them as unreasonable;
• - observance by the employer of the deadlines for the application of disciplinary action;
• - whether the procedure for taking into account the opinion of the elected body of the primary trade union organization has been observed (in accordance with Part 2 of Article 82, Articles 374 and 376 of the Labor Code of the Russian Federation);
• - whether the dismissal was made during the period of temporary disability of the employee or while on vacation and other circumstances.

Necessary evidence in cases of this category, which must be presented by the defendant, are:

• 1) a copy of the order on hiring the plaintiff for work (extract from the order);
• 2) a copy of the order on the dismissal of the plaintiff (extract from the order);
• 3) an employment contract, job description of the employee and other documents that make it possible to determine what duties the employee performed;
• 4) copies of orders on the application of disciplinary sanctions;
• 5) materials on the basis of which the application of disciplinary sanctions was carried out (memorandums, materials of internal audits, explanatory notes, presentations, acts, etc.);
• 6) documents on the duration of the work experience of the employee (work book, etc.);
• 7) certificate of average wages claimant.

Repeated violation by an employee without valid reasons of labor duties must be documented, in particular, by an order on the application of a disciplinary sanction.

When considering relevant labor disputes, it often turns out that disciplinary sanctions were not properly executed, and this serves as a basis for satisfying the claim and reinstating the employee at work, even if the employee has committed the corresponding disciplinary offense.

The employer should also take into account the severity of the misconduct committed, which served as the basis for dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. Often there are cases when an employer, in order to dismiss an employee on this basis, applies disciplinary sanctions against him that clearly do not correspond to the severity of the misconduct (5 minutes late for work, leaving work 5 minutes earlier than it is provided for by the internal labor regulations, etc.). The court, considering such cases, restores the employee to his previous job.

So, M. worked as a janitor at JSC Yelets Tabak. By order of the director dated July 3, 2002, she was dismissed in accordance with paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. Considering her dismissal unlawful, M. filed a lawsuit for reinstatement, arguing that the disciplinary sanctions applied to her were unlawful. By decision of the Yelets City Court M., the claim was denied.

The Judicial Collegium for Civil Cases of the Lipetsk Regional Court, having considered the cassation appeal of M., canceled the decision of the Yelets City Court and issued a new decision, which satisfied the requirements of M.

The Judicial Board acknowledged that on March 6, 2002 the plaintiff was subjected to a disciplinary sanction for

On February 28, 2002, without the permission of the supervisor of the watchmen's shift, workplace. The court found that her absence was of short duration, as she needed to take medicine for her appointment. Although the plaintiff's actions contained signs of a disciplinary offense (guilty failure to comply with the requirements of the job description), since she left the workplace without notifying the shift supervisor of the watchmen, the cassation instance, having considered M.'s disciplinary offense, assessed it as insignificant due to the fact that her absence from the workplace was short (3 min.).

Formally, the actions of M. should be qualified as a disciplinary offense, but due to the nature of the offense committed, i.e. its insignificance, the Judicial Collegium for Civil Cases recognized the application of a disciplinary sanction in the form of a reprimand to M. as unlawful.

The second offense for which she was disciplined was personal telephone conversations by office phone. On the basis of the job description approved by the director of OAO Yelets Tabak, which defines the rights and obligations of the janitor, a ban was established on conducting personal conversations from a telephone set located at the janitor's workplace.

The Judicial Collegium for Civil Cases of the Lipetsk Regional Court did not agree with the conclusion of the Yelets City Court on the legality of applying this disciplinary sanction to M., taking into account the reason why M. was negotiating. Her young daughter was at home and M. was worried about her health and safety.

The reason for the dismissal was the fact that on 2 July 2002 M. left her workplace. The case materials established that this happened due to the need to take medicine in the first-aid kit. The Yelets City 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. 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 5 of Art. 81 of the Labor Code of the Russian Federation.

The panel of judges came to the conclusion that M.'s actions can formally be considered as disciplinary offenses, but due to their insignificance, the employer has no grounds for bringing M. to disciplinary action in the form of dismissal. The above example shows that when considering a labor dispute, the court took into account the gravity of the misconduct committed and the circumstances under which it was committed.

10.5.6. Disputes about dismissal in the event of a single gross violation by the employee of labor duties (clause 6, part 1, article 81 of the Labor Code of the Russian Federation)

A single gross violation of labor duties by an employee (regardless of the subject composition) is an offense, the qualifying features of which are the severity of the offense committed and the possible onset of serious consequences.

The list of single gross violations of labor duties, for the commission of which labor legislation establishes (along with other measures specified in Article 192 of the Labor Code of the Russian Federation) the possibility of dismissal of an employee as a measure of disciplinary responsibility, is provided for in paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The list of single gross violations is exhaustive and is not subject to broad interpretation.

In contrast to the grounds for dismissal of an employee for violation of labor duties, defined in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, which considers the presence of repeated commission to be a qualifying sign, the basis for the dismissal of an employee under paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation does not contain such a sign. In this case, one offense is enough.

Clause 6, Part 1, Art. 81 of the Labor Code of the Russian Federation contains five cases of a single gross violation of labor duties. The obligation to prove the fact that an employee committed one of such violations, giving grounds for dismissal of an employee under paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation, is assigned to the employer.

09 Mar 2012 15:14

Repeated non-performance by an employee without good reason of 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 of the Russian Federation of 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) (with amendments and additions that entered into force on January 7, 2011) The document was not published in this form.The original text of the document was published in the publications: "Rossiyskaya Gazeta", N 256, 12/31/2001; "Parliamentskaya Gazeta", N N 2 - 5, 01/05/2002; "Collected Legislation of the Russian Federation", 07.01. 2002, N 1 (part 1), item 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 of a disciplinary sanction 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 an independent basis for dismissal is provided for a gross violation of labor duties.
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 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 labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work, etc. .d.
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 notify the employee in writing 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, before committing the misconduct, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the notice period for dismissal (paragraph 33 of the Decree 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.

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 Labor Code RF “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 violation . 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.

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 of the Labor Code of the Russian Federation, but it must be used by thoroughly preparing personnel documentation on the one hand, and on the other hand, 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 regulatory 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