How to properly reprimand an employee. About the possibility of lifting a disciplinary sanction
Difficulties in the difference in the perception of punishments by employees are experienced by every personnel officer and employer. There is a reprimand, there is a disciplinary sanction - which is better. Or a stern reprimand? It is difficult for a non-professional to understand this. Let's figure it out, a reprimand and a strict reprimand - what is the difference between the concepts, when what is applied and how to correctly call it legally.
Types and general conditions for the application of disciplinary sanctions
Most likely, the mention of the special severity of the penalty escaped from the leader in a fit of just anger. As soon as emotions recede, the director will remember the content of Art. 192 of the Labor Code that for commercial and municipal institutions there is no such punishment. In general, an employee may be afraid of:
- remarks;
- layoffs.
The code does not detail how a remark differs from a reprimand. But, based on simple logic and practice of application, we can conclude that the penalties in Art. The 192 TCs are listed as impact increases.
Then we can consider that the remark is taken out for minor misconduct (lateness, short-term absence from the workplace, minor errors or oversights that did not cause serious problems, but potentially dangerous). At the same time, the owner of a written remark should not relax, because:
- this is a full-fledged disciplinary sanction;
- its action will last exactly one year, if it is not canceled ahead of schedule;
- in paragraph 5 of Art. 81 there is no difference what type of penalty the employee already has, a remark or a severe reprimand, the very fact that the punishment is still in effect is enough for dismissal.
At the same time, many workers, subconsciously putting an equal sign only between the concepts of a strict reprimand and dismissal, voluntarily err. The fact is that, according to the norms of the Labor Code of the Russian Federation, it is possible to lose a job as a result of just one outstanding simple, and not a strict reprimand. And it is possible without going through this stage at all, if the employee committed a very gross violation (truancy, drunkenness, theft, misbehavior, etc.).
Difference between regular and strict pronunciation
As is often the case, the desire to rein in an employee makes the authorities wishful thinking. That's when the memory helpfully betrays a vague recollection that a severe reprimand, as a measure of punishment, is not a fruit of his imagination, but a real-life punishment.
This is true only for those who have connected their lives with service in the army or the Ministry of Internal Affairs. In special laws and decrees on the performance of military duties, indeed, there is a mention of a strict reprimand. Assumes its imposition and the law on the status of the military, art. 28.4 76-FZ and on service in the Ministry of Internal Affairs, art. 50 342-FZ.
Despite the similar concepts in form, a reprimand for a civilian and a strict reprimand for a person liable for military service are not at all identical. Then what's the difference?
The fundamental difference stems from the fact that individual federal laws providing for a form of severe reprimand offer commanders a choice of several more painful measures:
- deprivation of insignia or dismissal (how many reprimands are needed for dismissal, read);
- mismatch warning;
- demotion or demotion;
- early dismissal and termination of the military contract:
- disciplinary arrest (only for the military in the rank below the officer).
Obviously, the set of penalties for the military and employees of the Ministry of Internal Affairs is much more diverse. common moment it can only be considered that the presence of an outstanding simple or strict reprimand can serve as a reason for terminating the employment relationship in case of repeated misconduct by a specialist. Here, the prevailing importance is given to the norms of the Labor Code of the Russian Federation. Only the procedures will differ slightly, taking into account the requirements of the service charters.
The threat of a severe reprimand is legally justified only for the military and employees of the Ministry of Internal Affairs, Art. 50 342-FZ and art. 28.4 76-FZ
sample strict reprimand
No matter how much the boss frightens with the special severity of the coming punishment, he will not find a sample of a severe reprimand among the whole variety of unified forms and forms. We will have to confine ourselves to the standard order to issue a disciplinary sanction. At the same time, it must be remembered that Art. 192 of the Labor Code strongly recommends taking into account the severity of the misconduct, the degree of guilt of the employee and the content of his written explanations.
The search for a sample order for a severe reprimand will be justified only for the commanders of military units, representatives of law enforcement agencies or heads of departments of the Ministry of Internal Affairs. The fact is that Presidential Decree No. 1495 on the approval of model charters stipulates that a severe reprimand can only be issued in writing. This fact is announced at a meeting or before formation, and then, within a week, this data is entered into a personal file.
Only those penalties that were made public orally, and then only for employees of the Ministry of Internal Affairs, are not subject to reflection in a personal card. Any information about the punishment of a serviceman must be reflected in the personnel file.
Removal of severe reprimand
Since no norms of individual specialized laws can be contrary to the requirements Labor Code, then the period of validity of any disciplinary sanction cannot exceed 365 calendar days. In general, the employer does not need to issue a separate order about this. As soon as a year has elapsed from the moment when a severe reprimand was announced, it is repaid automatically.
| Category of workers and employees | Collection type | Method of fixing information about the cancellation of punishment |
| civilian hired person | Reprimand or remark in writing | When reprimanding, a copy of the order is placed under the employee's personal card and stored there until the expiration date or early withdrawal. After a year, the document is withdrawn from the case. In case of early withdrawal, a copy of the rehabilitating order is also attached to the card. |
| Employees of the Ministry of Internal Affairs | Oral penalties | They are not entered into the card, so the fact of their withdrawal or expiration is also not reflected. The duration of action is one month. |
| Written reprimands | In the standard case, they remain "valid" for a year. They are subject to registration in personal files, as well as for military personnel. | |
| Military | Severe reprimand | The longest punishment Charter military service it is even forbidden for officers to review it throughout the year. A record of bringing to disciplinary liability will necessarily appear in personal file military, as well as the mark of its removal after 365 days. |
For those who do not want to wait for the end of the year or refuse to recognize the correctness of their superiors at all, there are two options for early cancellation of punishment:
- make a request to management, arguing it with an improvement in performance or the acquisition of some particularly useful production skills and achievements;
- exercise the right to appeal against the actions of the management and send a complaint to the labor inspectorate or court, art. 382 TK.
In the event of a positive response to one or another type of appeal, the employer must issue an order to cancel the disciplinary punishment and familiarize all interested persons with it.
No matter how severe the penalty is for an employee for a misconduct, the very fact of its imposition is already depressing. That is why every leader must measure not only the seriousness of the violation and the measure of punishment, but also the strength of its influence on further work. It is important that the reprimand fulfill its educational function and mobilize the employee, and not discourage him from any desire to improve his skills and productivity.
Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.
If an employee does not perform his duties or performs them improperly, the immediate supervisor may bring him to disciplinary liability by imposing a penalty. We will talk further about what kind of penalty for what violation of labor discipline can be applied to an employee in 2019 according to the Labor Code of the Russian Federation.
Types of labor penalties
Legislatively, the types of disciplinary sanctions applied by the employer to the employee are enshrined in Article 192 of the Labor Code of the Russian Federation.
They are divided into two types:
- General (named in the Labor Code of the Russian Federation);
- Special (listed in special legal acts).
To understand in detail what types of disciplinary sanctions are provided for by the Labor Code of the Russian Federation, and which ones by other acts, the table will help.
| Kinds | Are common | Special |
| What are provided | Art. 192 Labor Code of the Russian Federation | norms federal laws, statutes, regulations on discipline |
| To whom apply | To all employees working under an employment contract, regardless of specialization | For certain categories (military personnel, civil servants, railway transport workers, employees in the field of nuclear energy, etc.) |
| Types of penalties |
|
|
* The charter should be understood as a normative act of federal significance, approved by law. This point deserves attention, since the charter also refers to local acts of organizations. So, if the latter contradict federal acts in terms of imposing a penalty, their provisions cannot be applied.
Types and procedure for imposing a penalty under the Labor Code of the Russian Federation
If labor activity An employee is not regulated by special acts (for example, the Federal Law “On the Prosecutor’s Office of the Russian Federation”, the Decree of the Government of the Russian Federation “Regulations on the discipline of railway workers of the Russian Federation”, etc.), which means that according to the Labor Code of the Russian Federation, only the following types of punishments can be applied to him.
Comment
The imposition of a disciplinary sanction in the form of a remark is the most "popular" punishment that is applied by the employer. The legislation does not clearly define - for what misconduct a certain penalty is imposed. The choice is at the discretion of the leader.
Most often, a remark is imposed for a violation of mild severity, that is, which:
- is inherently a minor violation of labor discipline;
- caused minor damage;
- done for the first time.
An example of such an offense would be being late for work.
The decision to issue a remark to an employee must be documented. However, before this, the employer must require an explanatory note from the violator. The latter must provide it within 2 days from the date of the request by the employer. Below is a sample order of disciplinary action in the form of a comment.
OOO "Neftetransservis"
ORDER No. 1100/64-3
Moscow December 15, 2018
About disciplinary action
Due to the absence of the chief engineer Voikov A.P. December 14, 2018 from 09:00 to 10:00 without a good reason.
I ORDER:
To announce a remark to the chief engineer Voikov Anatoly Vladimirovich.
Base:
- memorandum of the head of the unit dated December 14, 2018;
- explanatory note from the chief engineer Anatoly Vladimirovich Voikov dated December 14, 2018;
- certificate of absence from work dated December 14, 2018.
Head of the organization: Brazhsky I.G.
Head of department: Davydov O.I.
Head of Human Resources: Gerasimenko A.Yu.
The employee is familiar with the order: Voikov A.V.
The consequences of the remark for the employee are not very noticeable: information about the issuance of the remark is not entered into work book and a personal card, and such a punishment in itself does not entail any serious consequences negative character. However, at the same time, it serves as a warning: if another violation is committed during the year, the employee may face a reprimand or even dismissal.
note that there is no oral remark as a separate penalty in accordance with the Labor Code of the Russian Federation. There is only a “remark”, which is drawn up by the corresponding order. According to Article 193 of the Labor Code of the Russian Federation, the order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against signature. This means that the remark has its formal expression in the form of an official document, so it cannot be considered “oral”.
Rebuke
The imposition of a disciplinary sanction in the form of a reprimand is an intermediate measure of punishment, which by its nature is more “strict” than a remark, but “softer” in comparison with dismissal. If a remark is just a warning, then a reprimand is the “last” before dismissal.
It is declared when:
- The employee has already been charged for a year.
- A moderate violation was committed.
- The offense resulted in material damage, but not on a large scale.
To issue a reprimand, it is not necessary that the employee already has one penalty on his account. It can be applied even if the employee has never been disciplined.
An example of a misdemeanor that can be reprimanded is absenteeism. A sample order for a disciplinary sanction in the form of dismissal for absenteeism can be viewed below (it is also a sample order for reprimanding). Although at the same time, absenteeism is a sufficient reason for dismissal of an employee, however, in practice, such a measure is rarely used.
A reprimand is not much different from a remark: information about it is also not entered into the labor and, as such, it bears consequences in itself. However, for example, if you want to appeal against dismissal as a form of disciplinary punishment, and you will be reprimanded for a year before dismissal, the court will take the position of the employer and uphold its decision. At the same time, as court practice shows, if there are comments (rather than reprimands), the chances of challenging the dismissal are significantly higher. Also, a note about the announcement of a reprimand is entered on the employee’s personal card, but not when remarked.
Before announcing a reprimand, an explanatory note is also taken from the employee, which he must provide within two days. Only after that, the head can document the penalty. A sample disciplinary order in the form of a reprimand is provided below.
OOO "Stroychermet"
ORDER No. 1800/65-2
Moscow December 14, 2019
About disciplinary action
Due to the absence of Chief Engineer Budko Ignat Vasilyevich from the workplace without a valid reason during the working day on December 13, 2019 from 9-00 to 18-00
I ORDER:
Reprimand chief engineer Budko Ignat Vasilyevich.
Base:
- memorandum of the head of the unit dated December 13, 2019;
- an explanatory note from the chief engineer Budko Ignat Vasilyevich dated December 13, 2019;
- act of absence from work dated December 13, 2019;
- working hours for 2019.
Head of the organization: Gromov I.G.
Head of the subdivision: Lupko O.I.
Head of Human Resources: Tarasenko A.Yu.
The employee is familiar with the order: Budko I.V.
Dismissal
Disciplinary action in the form of dismissal is an extreme measure of punishment for an employee.
It applies in the following cases:
- Bringing to disciplinary liability twice or more in a year.
- Absenteeism.
Absence from work without good reasons more than 4 hours in a row is already considered absenteeism (if the employee was absent all day, this, of course, is also absenteeism). Not considered absenteeism:- Absence by order of the employer on a day off or during vacation;
- Absenteeism, in the case when the schedule provides for the excess of the normal working hours in accordance with Article 91 of the Labor Code of the Russian Federation;
- Absenteeism in case of changes in the shift schedule, if the employee was not familiarized with it against signature;
- Visiting the court on a summons, the police, the military registration and enlistment office, as well as detention, arrest or detention;
- A visit to the hospital for blood donation if the worker is a donor.
- Appearance at work in a state of intoxication, as well as in narcotic or toxic intoxication.
Even if the employee did not reach his workplace and did not start work, but at least got into the territory of the institution (for example, passed a checkpoint) in work time in this form, this is already sufficient reason to fire him. - Disclosure of secrets protected by law, which became known to the employee due to the performance of his labor functions.
This category of "secrets" also includes personal data of citizens. - Theft, embezzlement, deliberate destruction or damage to property at work, if the fact of commission is established by a sentence or a judge's decision.
It takes into account the theft not only of the property of the employer, but also of other employees, as well as third parties. These actions must be proven by a court decision. - Violation of labor protection requirements that caused serious consequences or created a threat of their occurrence, if it is proved by the commission/commissioner for labor protection.
- Loss of employer's confidence for those who work with money or valuables (cashiers, sellers, collectors, storekeepers).
At the same time, the loss of trust occurs only as a result of the commission of physical actions of the employee that violated the rules for handling the listed values. They can be cheating, weighting, shortages, use for personal purposes. They are established by conducting an inventory, test purchases, and inspections. The subjective opinion of the employer, without the employee committing any violations and proven facts, cannot serve as a basis for dismissal. - Loss of the employer's confidence as a result of failure to take action to resolve the conflict, if the employee is a party to it, provision of false information of a property nature about himself and members of his family, if the need to provide them is provided for by federal law.
- An immoral act committed by an employee performing educational functions.
Only in the case when it is committed at the place of work. Such an offense can be considered drunk, fighting, using obscene language. These actions committed in everyday life or even in society, but not during the performance of their job duties are not grounds for dismissing a teacher. - Making an unreasonable decision that caused damage to the property of the organization by the head, his deputy, accountant.
That is, on such a basis, only employees in senior positions who have the right to make appropriate decisions and dispose of material assets can be dismissed. "Unreasonable" may be considered a decision that was made:- on an emotional level without taking into account objective factors;
- on the basis of incomplete or incorrect data;
- when ignoring certain information;
- in case of erroneous interpretation of information;
- without proper training: consultations, analytical activities, data collection, calculations and research.
- Gross violation by the head or his deputy of his labor duties.
Even a single violation can serve as grounds for dismissal, and it is considered gross if it could cause harm to the health of other employees or damage to the property of the organization. - Repeated violation for 1 year of the charter of the educational organization.
Applies to teachers only. - Disqualification for 6 months or more.
For athletes who have employment contract(Contract). - Single anti-doping rule violation.
For athletes who carry out their activities under an employment contract (contract).
Example #1. Petrov S.G. I was systematically late for work by 30-40 minutes. After another such delay, the director of the enterprise called him to his office and announced that he had been fired for repeated violations of labor discipline. Petrov S.G. wrote an explanatory note, signed the order to impose a disciplinary sanction, but at the same time applied to the court. He considered the director's actions unlawful, since before that he had no facts of bringing to disciplinary responsibility. The court recognized the order as illegal, since dismissal as a disciplinary sanction can be applied to an employee in the event of repeated (2 or more) violations of labor duties. At the same time, such violations must be documented, namely, by order of the head to issue a disciplinary sanction. IN this case, although Petrov was late for work, he was never held liable in the prescribed manner, which means that there were no grounds for dismissal.
Example #2. Petrov S.G. was regularly late for work by 30-40 minutes, but in last time late for 4 hours 15 minutes, because he met his wife from the plane (the flight was delayed). Upon arrival at work, he was called to the directorate, where he was informed of his dismissal due to absenteeism. The employee wrote an explanatory note indicating the reason for absenteeism, but the management considered it disrespectful. In this case, the actions of the manager are legal and justified, since absence from the workplace for 4 hours or more is considered absenteeism. And in case of absenteeism, it is possible to dismiss an employee, even if disciplinary sanctions have never been imposed on him before.
Dismissal as a punishment for labor misconduct is also executed by order of the employer after receiving written explanations from the perpetrator no later than 2 days after the request was made. In this case, one order is issued, not two (imposition of a penalty and dismissal - in one document). If the employee refused to draw up an explanatory note, an act is drawn up with a corresponding note, where the offender must sign. If he refuses to do this, witnesses are invited to confirm this fact and affixing signatures on the document.
Information about the imposition of this penalty is entered in:
- work book;
- Private bussiness;
- Register of persons dismissed due to loss of confidence, in cases where the dismissal occurs precisely on this basis.
The employer does not have the right to impose a penalty in the form of dismissal to pregnant women, temporarily disabled and employees on vacation. This is prohibited by law.
It is possible to dismiss a minor only upon obtaining the consent of the Federal Labor Inspectorate and the commission on minors (Article 269 of the Labor Code of the Russian Federation).
Employers should remember that dismissal should be applied only if it is not possible to correct the employee by imposing another penalty. Disciplinary responsibility of an employee in the form of dismissal is extremely rare in practice, and the courts and the state labor inspectorate in such cases usually take the position of an employee.
Severe reprimand: is there such a penalty under the Labor Code of the Russian Federation now
No, there is no such disciplinary sanction in accordance with the provisions of the current Labor Code of the Russian Federation. The employer could issue a penalty in the form of a severe reprimand until February 1, 2002, while the Labor Code was in force Russian Federation, approved by the Supreme Court of the RSFSR on 12/09/1971 (it provided for a severe reprimand as a possible penalty).
In practice, it is not uncommon for an employer to decide to announce a disciplinary sanction in the form of a severe reprimand, guided by the internal local acts of the organization. Such actions are illegal and can be challenged in court..
However, if the provision on a strict reprimand is contained in the NLA of federal significance, then this type of penalty can be applied. For example, it is used by the military, prosecutors, firefighters and other categories of civil servants.
Can the law impose a penalty and deprive bonuses at the same time
According to Article 193 of the Labor Code of the Russian Federation, only 1 disciplinary sanction can be imposed for 1 disciplinary offense. In this regard, in practice, disputes often arise: can an employer, for example, announce a reprimand and deprive a monthly bonus, because in fact the employee is punished twice.
In fact, it can, and it does not violate the law in any way. The fact is that the deprivation of the award is not a disciplinary sanction. The bonus is an encouragement for an employee who copes with his labor duties (Article 191 of the Labor Code of the Russian Federation). Therefore, if an employee cannot cope with them, and even violates labor discipline, why should he pay a monetary incentive? Although there are nuances here.
The employer has the right to deprive an employee of an employee's bonus only when the cases in which this is possible are listed in local regulations(Regulations on wages or bonuses, collective agreement, etc.).
The term for imposing a claim
Recovery may be imposed within one month from the date of:
- Identification of a violation on the part of an employee by his immediate supervisor - for general cases.
- The entry into force of a court verdict or the adoption of a decision to impose an administrative penalty - for cases of registration of dismissal as a disciplinary sanction (in case of theft, embezzlement, etc.).
This monthly period does not include:
- Sick leave;
- vacation time;
- The period required to take into account the opinion of the representative body of employees.
Recovery cannot be imposed later*:
- 6 months from the date of the offense - the general rule;
- 2 years - in cases of need for audits, audits of economic and financial activities and audits.
*the specified time does not include the period of criminal proceedings.
How long is the charge
The Labor Code of the Russian Federation established a single period of validity for each type of penalty - 1 year.
If during this year the employee commits a new misconduct, and the employer issues another penalty to him, the period is “updated” from the moment the last order was issued and is 1 calendar year. After this expiration of this period, the employee is considered not to have disciplinary action. In this case, the employer does not need to draw up any paperwork.
Is it possible to cancel the penalty early?
Early withdrawal of a disciplinary sanction is possible in the following cases:
- The employee himself should apply with such a statement to the employer.
- A trade union will send a similar petition to the employer.
- The initiative will come from the head of the department where the offending employee works.
- The employer himself decides to withdraw the penalty ahead of schedule.
But in any case, the decision remains with the employer, that is, he has the right not to satisfy such petitions. Early withdrawal is issued by order on behalf of the head.
How to appeal a disciplinary action
Every employee has the right to appeal a disciplinary sanction. If he does not agree with the decision of the employer, he can contact:
- State Labor Inspectorate.
- Body for consideration of individual labor disputes.
For committing a disciplinary offense, i.e. for guilty non-performance or improper performance by an employee of his labor duties, three types of penalties can be applied to him (Article 192 of the Labor Code of the Russian Federation):
Remark (less strict measure of responsibility);
Reprimand (more stringent measure of responsibility);
Dismissal.
Federal laws, charters and discipline regulations applicable to certain categories of employees (for example, state and municipal employees, customs and prosecutors) may also provide for other disciplinary sanctions (Article 193 of the Labor Code of the Russian Federation).
For ordinary organizations, the list of these penalties is exhaustive, therefore, the employer does not have the right to apply other types of punishment to employees (fines, deprivation of bonuses, etc.). If such facts are revealed by the Federal Labor Inspectorate, then the organization may be held administratively liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of labor laws.
The penalties listed in Art. 192 of the Labor Code of the Russian Federation, can be applied not only in the order in which they are indicated in the Labor Code of the Russian Federation. Therefore, taking into account the severity of the offense committed, its consequences, the personality of the offender, etc. the employer can immediately reprimand the employee (rather than a remark) or even dismiss him (if there are sufficient grounds). But for each violation, only one penalty can be applied (Article 193 of the Labor Code of the Russian Federation), i.e. for absence from work for more than four hours, both a reprimand and dismissal cannot be applied to an employee at the same time. At the same time, bringing an employee to liability for a particular offense (for example, for damage to the organization's property) does not deprive the employer of the opportunity to simultaneously apply a disciplinary sanction. This conclusion follows from Art. Art. 192 and 248 of the Labor Code of the Russian Federation, according to which bringing to liability is not a disciplinary sanction.
For more information on bringing to liability, see "Guide to Personnel Issues. Material Liability of an Employee".
Violations for which penalties may be applied
Disciplinary sanctions are applied in case of non-performance or improper performance by the employee of his duties (Article 192 of the Labor Code of the Russian Federation). At the same time, these obligations must be fixed in the employment contract, job description or in the local regulations of the employer. This means that before starting the procedure for bringing an employee to liability, you need to make sure that the employee was familiar with the document, the provisions of which he violated. Familiarization of the employee with these documents is recorded by his signature (with the date) on the relevant document.
Thus, the application of the penalty is possible:
For the commission by the employee of actions expressly prohibited by the employment contract, job description, local act;
For failure to perform the necessary actions expressly provided for by these documents;
For the commission of actions not prohibited by the employment contract, but arising from the meaning of observing labor discipline.
Examples of such actions could be:
Failure to perform a labor function;
Failure to comply with the instructions of the head;
Violation of labor discipline (lateness, absence from the workplace without good reason, refusal to undergo a medical examination, refusal to teach the basics of labor protection, being at the workplace in a state of intoxication, etc.);
Committing guilty actions (theft, embezzlement, damage, etc.) in relation to the property of the employer, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses (clause "d" part 6 article 81 of the Labor Code of the Russian Federation).
Situation from practice
Is it possible to apply a disciplinary sanction to an employee who is late for work by an hour by confusing the start time of the shift established by the shift schedule?
Penalty can be applied only if the employee is properly familiar with the shift schedule.
According to part 4 of Art. 103 of the Labor Code of the Russian Federation, shift schedules are brought to the attention of employees no later than one month before they are put into effect. In this situation, the seller can be held liable only if he is familiar with the shift schedule a month before it is put into effect against signature. In the case when the schedule is posted in an open place (without the signature of the employees on familiarization with it), the seller cannot be held liable.
Thus, if the employer familiarized the employee with the schedule within the time limits established by law, then the application of the penalty is lawful.
Registration of the fact of committing a disciplinary offense by an employee
The first thing to do in order to correctly apply a penalty to an employee is to document the misconduct (action or inaction) that is a violation of labor duties or discipline and for which it is planned to apply a penalty. In practice (depending on what kind of violation the employee committed), this fact is usually documented by the following documents:
A memorandum (for example, if the employee fails to complete the assigned task or when the employer's resources (Internet, copier, etc.) are used for personal purposes);
Act (for example, in the absence of a workplace or in case of refusal to undergo a medical examination);
By the decision of the commission (based on the results of an investigation into the fact of damage to the employer or the fact of disclosure of confidential information).
The listed documents can confirm the misconduct both individually (for example, the decision of the commission) and in the aggregate (for example, in the absence of an employee at the workplace during the working day, as a rule, a memorandum is drawn up first, and then an act). The obligation to familiarize the employee with these documents is not established by the Labor Code of the Russian Federation.
Obtaining explanations from the employee who committed the violation
Before issuing an order to apply a disciplinary sanction, a written explanation must be requested from the employee (Article 193 of the Labor Code of the Russian Federation). Thus, the employee is given the opportunity to indicate good reasons for his misconduct. The Labor Code of the Russian Federation does not specify in what form the employer must request given explanation. Therefore, if the employee is ready to submit an explanatory note, a written requirement can not be drawn up. If the situation is clearly of a conflict nature, then it is better to issue this requirement in writing and hand it over to the employee against signature. If the employee refuses to sign the demand, it is necessary to draw up an appropriate act.
The Labor Code of the Russian Federation gives the employee two business days to submit explanations, which are counted from the date following the day the claim was made. If after this period the employee has not provided an explanation, then an appropriate act is drawn up (Article 193 of the Labor Code of the Russian Federation). If there is such an act and a document indicating that an explanation was requested from the employee, a disciplinary sanction can be applied without an explanatory note from the employee (Article 193 of the Labor Code of the Russian Federation).
Situation from practice
When is it necessary to draw up an act stating that the employee did not provide an explanation for the violation of discipline?
An act of refusal to give explanations must be drawn up after two working days from the date of presentation of the relevant requirement to the employee.
According to Art. 193 of the Labor Code of the Russian Federation, an act stating that the employee did not provide an explanation for the fact of the committed violation of discipline is drawn up after two working days from the date of presentation of this requirement. Accordingly, if the claim is made on Monday, then the first day will be Tuesday, and the second day will be Wednesday. At the same time, by virtue of the specified norm, the second day must expire. Thus, if no explanations were received before 24 hours on Wednesday, then on Thursday, an appropriate act can be drawn up. If the employee submits an explanatory note, the further actions of the employer depend on the reasons for the misconduct indicated in it. If the employer considers them respectful, then disciplinary action is not applied. Otherwise, the explanatory note becomes one of the grounds for applying a remark or reprimand.
Execution of an order for the application of a penalty
After receiving an explanatory note or drawing up an act stating that after two working days the employee did not provide an explanation, an order can be issued to apply a reprimand or remark. In this case, the question of what kind of punishment to apply in this case, the employer decides independently. In such a situation, it is necessary to take into account the circumstances of the misconduct, its consequences, the reasons cited by the employee, etc.
unified form there is no such order, so the organization develops it independently. The order must include the following information:
Surname, name, patronymic of the employee;
The position of the employee to whom the penalty is applied;
Structural unit where the employee works;
The misconduct committed by the employee, with references to the violated clauses of the contract or job description and to documents confirming this violation;
The circumstances of the misconduct, the degree of its severity and the guilt of the employee;
Type of imposed disciplinary sanction (remark or reprimand).
As a basis for issuing an order, the details of the act, memorandum or other document fixing the misconduct, the employee's explanatory note or the act of refusing to provide explanations are indicated.
The order is announced to the employee against signature within three working days from the date of its issuance, not counting the time the employee was absent from work. If the employee refuses to read the document, an appropriate act is drawn up.
It is possible to issue an order to apply a disciplinary sanction only if no more than six months have passed from the day the misconduct was committed, and no more than one month has passed since the day it was discovered (Article 193 of the Labor Code of the Russian Federation). In this case, the day when the misconduct was discovered is the day when this misconduct became known to the immediate supervisor of the employee. And it does not matter whether this leader has the right to apply a reprimand or remark (paragraph 34 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).
These terms are extended in the following cases:
If a violation is discovered as a result of an audit, audit of financial and economic activities or an audit, then the period counted from the moment the misconduct was committed increases to two years (Article 193 of the Labor Code of the Russian Federation);
If the employee's misconduct became the basis for initiating a criminal case, then the time of proceedings on it is not taken into account when calculating the period that has elapsed since the misconduct was committed (Article 193 of the Labor Code of the Russian Federation);
If the employee was sick, was on vacation, then the time the employee was ill, on vacation, as well as the time required to take into account the opinion of the trade union organization, is not taken into account when calculating the monthly period counted from the moment the misconduct was discovered (Article 193 of the Labor Code of the Russian Federation).
Registration of a work book when announcing a remark or reprimand
An entry on a disciplinary sanction is not made in the work book (Article 66 of the Labor Code of the Russian Federation), except in cases where dismissal is a disciplinary sanction.
Registration of a personal card when announcing a remark or reprimand
It is not necessary to make a record of a disciplinary sanction on a personal card. But if necessary (to ensure internal accounting), this information can be reflected in section 10 "Additional information".
The consequences of applying a penalty to an employee
If the employee has a disciplinary sanction (whether it is a comment or a reprimand), the employer has the right to:
Not to pay incentive payments to the employee in full or in part, if local regulations provide that these payments are not made in the presence of outstanding disciplinary sanctions;
In case of repeated (within a year) violation of labor discipline, dismiss the employee (part 5 of article 81 of the Labor Code of the Russian Federation).
For more information about dismissal for repeated non-performance of labor duties, see the section "Dismissal for repeated non-performance of labor duties" of this material.
Responsibility of the employer for violation of the procedure for applying the penalty
If during an inspection (including those carried out on the basis of an employee’s complaint (Article 193 of the Labor Code of the Russian Federation)) it turns out that the employer has violated the procedure for applying a disciplinary sanction or has applied a sanction without reason, the Federal Labor Inspectorate may bring the organization to administrative responsibility under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. In addition, the applied penalty will be recognized as illegal. Accordingly, if any amounts were not paid to the employee due to this penalty, they will have to be paid to him with interest (monetary compensation) for the delay in payment (Article 236 of the Labor Code of the Russian Federation).
Removal of penalty
Removal of the disciplinary action means that the employee is considered not to have disciplinary action. Such withdrawal may occur automatically or at the initiative of the employer.
1. Automatic withdrawal of penalty
The penalty applied to the employee (reprimand or remark) is automatically removed after a year, provided that during this year the employee was not subjected to a new disciplinary sanction (Article 194 of the Labor Code of the Russian Federation). At the same time, the employer should not draw up any documents, since the Labor Code of the Russian Federation does not require this.
If the employee commits a new offense during the year, for which a new penalty is applied to him, then the period for lifting the penalty begins to be counted again from the moment the order is issued to apply the penalty for a new offense. Accordingly, after a year, if the employee does not commit new misconduct, he will be considered without penalties.
Situation from practice
Is a violation of labor discipline considered repeated if the employee was transferred to another position before the second misconduct?
According to Part 1 of Art. 194 of the Labor Code of the Russian Federation, if within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have a disciplinary sanction. The employer also has the right, on his own initiative, to remove a previously imposed disciplinary sanction from the employee before the expiration of the year (part 2 of article 194 of the Labor Code of the Russian Federation). The Labor Code of the Russian Federation does not establish that a transfer to another position, another job with the same employer is considered a circumstance that exempts an employee from a previously imposed disciplinary sanction. Accordingly, if 12 months have not passed since the application of the first disciplinary sanction and during the same period the employee violates labor discipline again, such a violation will be considered repeated. The employer will have every reason to dismiss such an employee due to the employee's repeated failure to fulfill his labor duties without good reason (clause 5, part 1, article 81 of the Labor Code of the Russian Federation).
2. Registration of the removal of the penalty ahead of schedule at the initiative of the employer
The employer has the right to remove the penalty from the employee before the expiration of a year from the date of its application, and he can do this both on his own initiative and at the request of the employee himself, his immediate supervisor or a representative body of employees (Article 194 of the Labor Code of the Russian Federation).
Removal of the penalty is issued by order. There is no unified form of this order, so the organization develops it independently. The order must specify:
Surname, name, patronymic of the employee;
The position of the employee and the structural unit;
Grounds for removing the disciplinary sanction;
The date the charge was withdrawn.
It is necessary to familiarize the employee with the order against signature.
Not all employees and even employers, managers and personnel specialists know what a strict reprimand is at work and what is the difference between it and a simple one. However, a severe reprimand under the Labor Code of the Russian Federation may have completely different mechanisms of legal regulation, up to the complete inadmissibility of applying such a disciplinary sanction and holding the employer accountable for these actions. Therefore, all parties to the labor relationship should be aware of what a strict reprimand is.
Severe reprimand under the Labor Code of the Russian Federation - legislative regulation
From the point of view of the provisions of Russian legislation, which in fact include a strict reprimand, they have a fairly clear and unambiguous legal regulation, provided by the Labor Code. So, from a legal point of view, certain aspects of the issue under consideration may be present in the provisions of the following articles of the Labor Code of the Russian Federation:
As you can understand, according to the Labor Code of the Russian Federation, a strict reprimand does not apply to generally accepted types of disciplinary sanctions, which include a remark, reprimand and dismissal. However, this does not mean that this penalty does not exist or does not have a separate legal regulation.
When can a strict reprimand be applied?
Article 192 of the Labor Code of the Russian Federation establishes only three types of disciplinary sanctions acceptable in general cases of labor relations - a remark, a reprimand or dismissal. The wording "severe reprimand" of the provision of this normative document do not suppose.
Accordingly, for most business entities in the form of private commercial or non-profit organizations, the use of a severe reprimand as a disciplinary sanction against employees is unacceptable.
Moreover, if the employer issues a severe reprimand to the employee instead of a simple reprimand, this disciplinary sanction can easily be challenged both in the labor inspectorate and in court as illegal.
Accordingly, the employer for such actions may eventually be held administratively liable. And if, as a result of a strict reprimand, an employee for the following disciplinary offense is fired - then these actions will also be illegal, and the employee will be able to be reinstated at work through the court. Which, in turn, will entail the liability of the employer - he will need not only to pay legal costs and reinstate the employee at work, but also to pay lost earnings for the entire time from the moment of dismissal to the actual restoration.
However, in a number of bodies a severe reprimand is permissible. In particular, the norms of federal legislation and intersectoral agreements provide for this type of disciplinary sanction for the following public services and organs:
All of the above organizations provide for an extended list of disciplinary sanctions, which also includes a severe reprimand. When working in this area, employees may be severely reprimanded and these actions will not be illegal from a legal point of view.
Severe reprimand and reprimand - the difference between these penalties and the consequences
For employees of services and bodies where the use of additional disciplinary sanctions is allowed, as well as for the heads of individual departments of the aforementioned services, the difference between a reprimand and a strict reprimand may be of interest. It is believed that a severe reprimand is a more serious disciplinary action than a remark to an employee or a simple reprimand. Accordingly, a severe reprimand is assigned for more serious disciplinary violations.
Despite the greater severity and rigidity of this disciplinary sanction, assumed by the current regulations, from a practical and legal point of view, the consequences of a strict reprimand are identical for the employee to a simple reprimand or remark issued to him and cannot imply any additional sanctions.
The consequences of a strict reprimand can also include the deprivation of the bonus, if this is provided for by the provisions of the law, the employment contract of the collective agreement or the internal regulations of the organization. Also, instead of issuing a severe reprimand during the duration of a similar or other disciplinary sanction that has not been lifted, an employee may also be dismissed for committing a disciplinary offence.
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