A disciplinary sanction order is issued to an employee to hold him accountable for committed illegal actions or actions that led to material damage at the enterprise, in case of systematic violation of labor obligations. How to write a disciplinary order correctly? Read about it in our material.
What types of disciplinary action are there?
First of all, you need to study the list of existing disciplinary sanctions that can be introduced against company employees. According to Article 192 of the Labor Code of the Russian Federation, an employee may receive a reprimand, remark, or even dismissal, which may be related to misconduct that fall under Article 81 of the Labor Code of the Russian Federation.
In addition, there is a special disciplinary responsibility, which can be regulated by internal acts of companies - they will take into account the specifics of the work of each individual enterprise. For example, at some enterprises, it is practiced to transfer a specialist to a lower position for 1-3 months or transfer to another area where wage somewhat less.
At the same time, the head of the enterprise must remember that there are no penalties in the Labor Code of the Russian Federation that would provide for liability. The only thing that is possible is simply to deprive the employee of the bonus, if such an option is provided for in the collective or labor agreement, other local acts.
At the same time, it is impossible “just like that” to deprive an employee of a bonus or give him another type of penalty. Here you will need either witnesses or evidence about:
- Finding an employee at the workplace in a state of intoxication
- Violation of labor protection.
- non-compliance technological map process.
- Extracts from the work schedule.
- Copy of the order.
- Copy job description.
- Other documents that confirm the violation of the employee.
The main thing is that any documents are not accepted retroactively or have violations, errors - in this case, when an employee goes to court, the employer may have problems
Also, do not delay the investigation - a penalty can only be imposed within 30 days. True, if during this period the employee fell ill or went on vacation, the time is automatically extended by the number of days while the specialist was absent.
Document preparation and employee explanation
It is important to remember that all steps must comply with modern legislation. Therefore, upon discovering a violation on the part of an employee, you should first draw up one of the following documents:
- An act is a document that records the commission of an offense in the workplace. Most often, such a document is drawn up in case of being late for work or absent from the workplace without a good reason.
- The employer may also draw up a memorandum. Most often, such a document is drawn up if the employee has not fulfilled the duties assigned to him, prescribed in the job description, in case of violation of the reporting deadlines, etc.
- If the employee, by his actions, caused material damage to the enterprise, a decision of the commission should be drawn up.
After the violation and its fixation, the employee must write an explanatory note, in which it is necessary to describe the incident as accurately and consistently as possible, indicate the reasons due to which the offense was committed. It must be submitted within the next two days - if this did not happen, the head or other responsible person draws up an act indicating what happened. At the same time, in order to protect their rights, it is better for the manager to demand to provide an explanatory note in writing - if there is no document from the employee, and this is recorded in the act, such behavior can be a good reason for issuing an order for disciplinary action.
If there is an explanatory note, the employer must carefully study everything written in it in order to make a final decision. If the reasons seem convincing, and the actions of the employee did not cause great damage to the enterprise, then disciplinary action can be avoided. If not, an order is made.
Then the duty of the employer is to carefully consider it and make a decision. If the reasons listed in the explanation are considered valid, then there may not be any penalty or punishment. In another case, such a note will necessarily serve as the basis for a penalty.
Order of disciplinary action - how to draw it up?
After an internal investigation has been carried out and the management of the organization has decided on a disciplinary sanction, it is necessary to issue an appropriate order. Only then will it be valid. The Labor Code of the Russian Federation or other legislative acts do not provide for the exact form of writing such a document, however, when compiling it, it should be borne in mind that the order must reflect all the facts relating to the violation, indicating justifications, regulations.
The name of the order can also be simple, for example, "Order on the failure to meet the deadlines for installing equipment." In the descriptive part, you need to tell in as much detail as possible about the fact of the violation with an exact indication of all the perpetrators - their full name, position, duties and responsibilities.
In order to increase the disciplinary effect on other employees and prevent recurrence, it is necessary to conduct a small review of what happened and identify all the reasons that could lead to this. By the way, if an employee has previously had disciplinary sanctions, then this should also be reflected in the document. By the way, three such penalties - and you can be fired under the article.
Next comes the motivational part - here it is worth pointing out the violated articles of the Labor Code, legislative acts, listing other local documents adopted in the organization.
In the operative part, the main requirement of the leadership is entered. It is clear that here we are talking directly about the need to impose a penalty on an employee, however, the manager can also order his employees to put things in order in departments, conduct explanatory conversations with employees, etc. It is also worth warning the employee who violated discipline about what the penalty could lead to. The order is signed by the director, then it is transferred to the employee against signature. The specialist may not agree with what is written in the document - in this case, a special act is additionally drawn up.
Some personnel officers prepare only one copy of the order in order to file it in the main documents of the enterprise, however, practice shows that it is better to make several copies at least - including in order to transfer the document to the employee for review.
The order can be brought to the employee personally or at a team meeting, but there is one thing important rule- if the document is drawn up for the head of the link, it cannot be read out to the subordinates of the employee.
Can an employee appeal a penalty?
At the same time, the employee has every right to appeal against the penalty - this is stated in article 193 of the Labor Code of the Russian Federation, which says that the employee has every right to file an application with the labor dispute commission or the FIT, and even with the court if he believes that his rights have been violated . In addition, it is possible to appeal against the recovery order if there are errors in the documents. In this case, you can apply within 90 days from the date of receipt of the recovery.
If the company has its own commission dealing with the resolution labor disputes, at first the appeal can be given to them. In the application, we must indicate for what reason the employee does not agree with the penalty, it is also worth indicating your request for review of the case, mitigation or full appeal of the penalty.
If they apply to the labor inspectorate, they need to write a statement, which prescribes the following:
- Full name of the authority where the employee submits documents.
- Name of the organization, its address, contact details.
- The essence of the application and request, which can be issued in free form.
In the application, you must definitely justify your request by citing articles of the Labor Code of the Russian Federation, which may indicate that the punishment imposed was illegal.
In addition, you can ask the commission to check the employer, punish him and restore your rights. If the audit really reveals violations on the part of the company's management, the recovery order is canceled. If the check did not make any difference, but at the same time you are still sure that the penalty against you was issued illegally, you should go to court.
How to “liquidate” a disciplinary sanction prematurely?
If during the year the specialist no longer received penalties, then the already imposed on him is removed. However, in some cases this can be done earlier. If the head decides to remove the penalty, he needs to issue an order stating:
- Why is the charge cancelled.
- Reasons for its removal.
- Date, order number.
In contact with
First you need to understand the basic concepts.
Labor discipline is a set of rules in force at the enterprise. They must be followed by all employees. This includes rules of procedure, corporate ethics, labor protection rules, etc.
Also, for educational purposes, an order for a warning in connection with a violation of discipline can be drawn up. It is issued in the case when the employer decided not to punish the employee, but limited himself to a verbal warning about the need to comply with the procedure established at the enterprise.
Order sample: warning about violation of labor discipline
Sometimes an employer who has shown loyalty to a delinquent employee may not draw up a separate order for him, but confine himself to an instruction relating to all staff.
Sample order on compliance with labor discipline
The citizen must be familiarized with the order under the signature within 3 days. A copy of the order is included in the employee's personal file.
If the employee refuses the request to sign the order, the employer will be required to draw up an appropriate act in the presence of two witnesses.
There is a limited period for imposing a penalty, which is equal to one month from the date of the violation. After 6 months, the penalty cannot be applied.
Express your opinion about the article or ask the experts a question to get an answer
Violations of labor discipline - we punish the employee
Labor legislation provides for the creation in each organization of its own rules of procedure. It is this document that employees are guided by, because it prescribes all labor moments and issues that arise at the enterprise: the time of the beginning and end of the working day, the procedure for calculating salaries and even the features of trade secrets.
Even a slight delay or leaving the workplace for 5 minutes can be considered a violation of labor discipline. Such seemingly harmless offenses can lead to heavy penalties. Therefore, it is very important to learn how to identify those actions that are violations, as well as assess the possible punishment for them.
Violation of labor discipline - definition and types
First you need to understand the basic concepts. Labor discipline is a set of rules that are in force at the enterprise and are binding on absolutely all of its employees. These include rules of procedure, corporate ethics, labor protection rules, etc. The employer himself, in addition to creating these rules, must ensure the possibility of their implementation, because if he does not do this, then any violation by the employee of some rule will be recognized as the fault of the authorities.
To understand why various penalties can be applied to employees, you need to clearly understand those actions that are a violation of discipline and what it is.
Employee Responsibilities
The Labor Code defines a number of duties that are inherent in an employee, namely:
- Compliance with all fixed rules and labor standards.
- High-quality and conscientious performance of official duties.
- Compliance with the rules of the order, labor protection and various regulations and requirements that are present in the workplace.
- Take care of the tangible property that is in the enterprise.
- Notify your management in the event of any dangers that may harm surrounding employees.
It is believed that if an employee violated at least one of these points, he violated labor discipline.
Types of violations of labor discipline
There are three groups of violations that an employee can commit, depending on the characteristics of the work process itself:
So, if an employee contributes to the spoilage of products, then he will commit a technological misconduct, and if he is late for workplace, then regime.
Each violation entails the collection of supporting documents and investigation.
List of violations of labor discipline
Among the most frequent misdemeanors that are associated with a violation of labor discipline are:
From this list, gross violations include constant absenteeism, forgery of documents, theft, visiting work while drunk, or committing some kind of illegal act.
All types of non-fulfillment of their work duties are divided according to the following criteria:
Disciplinary offenses are acts of violation of discipline during the performance of official duties.
Also, each employer should be able to distinguish between misconduct and liability, because if an employee has caused some kind of material damage, then he may be liable for this even after the end of the action. labor relations.
Penalties for violations of labor discipline
Article 192 of the Labor Code defines several penalties that are applicable to employees in the territory Russian Federation:
If one of the local documents indicates the possibility of depriving the bonus for misconduct, then the employer can use it.
In the event that there are federal laws describing special ways penalties, they may apply.
Remark for violation of labor discipline
In case of violation of discipline, an act is created about this with detailed description misconduct, the chosen punishment and the explanation of the employee himself. Although the remark does not cause much harm, it can stop the employee from systematic violations, which are caused by repetition of misconduct.
Reprimand for violation of labor discipline
The reprimand that is issued when committing some kind of disciplinary offense is of two types: ordinary and strict. It must be written in the order, but not indicated in work book. In it, they can only note the dismissal, which was due to constant violations and failure to perform their work.
Dismissal for violation of labor discipline
It is believed that it is the dismissal that is the last resort of all possible penalties. It is assigned if a person has committed a very serious violation or stopped working. So, in banking institutions, for example, they can safely be fired if an employee has stolen property.
Responsibility for violation of labor discipline
Labor legislation states that all employees are responsible for their actions and are obliged to familiarize themselves with the rules of labor protection, regulations and other requirements against signature. The employer retains the right to impose penalties if the employee has violated something. At the same time, they are compared with the complexity of the offense.
The order of recovery for a disciplinary offense
The authorities independently choose the punishment, which should be based on existing information and legislative regulations.
The act of committing a disciplinary offense
Each violation must be recorded with the help of an act. This paper is created by the employee's superiors together with witnesses. Then the document, after signing, is sent to the employee, and the second copy is sent to the higher management so that it can take any action. Those people who will be responsible for drawing up this act must be indicated in advance in local documents.
Employee explanations
The employee must provide an explanation of what happened. It is advisable to require its written form in order to protect yourself from unnecessary problems. Sometimes an act can be created, but only if the person refuses to explain any nuances. At the same time, it is worth knowing that such unwillingness to comment on the situation cannot exempt from punishment, therefore it is advisable to draw up a note within 2 days.
The act of the committed misconduct, the report and explanatory note of the employee himself are sent to the higher authorities, who already determine the features of imposing a penalty in this situation.
The order to impose a penalty
The management must analyze all the information and papers present in order to subsequently issue an order that will talk about the misconduct of the employee.
Although there is no fixed example of such a document (ready-made forms exist for creating dismissal orders), the act describes the violation itself, the time it was committed, and the punishment that was chosen. Documents that govern all this are also indicated. The finished order must be endorsed by the employer, the immediate supervisor of the violator and the head of the personnel department.
The order is not noted in the work book in any way, only if it did not lead to dismissal, although a copy of it can be filed to the employee in a personal file after the offender has familiarized himself with it. It gives no more three days. It is very important to do so in such a way as to compare the size of the penalty and the complexity of the misconduct, as well as to impose it reasonably so that a person cannot challenge it in any way.
Order to remove the disciplinary sanction
If the authorities decide to cancel the punishment, then they can do this within a year after the misconduct occurred. To do this, you need to draw up a new order, where it is necessary to describe the reasons that prompted the removal of the penalty. After its publication, the employee must general order(as after violation) read the document.
The punishment can be canceled on its own (as if it never happened) if no more violations were committed by the employee during the calendar year.
Deadlines for foreclosure
Any punishment can only be used within a month after the punishment. If more than six months have passed, then the employer is no longer able to influence his employee. In the event that the offense was discovered only after the next audit, the term of possible punishment is increased to 2 years.
It should be understood that a fine cannot be applied in case of violation of labor discipline at the enterprise, but the deprivation of encouragement (for example, bonuses) can be used by decision of the authorities. If the employer punishes his employee more than once for the same offense, then this will be a violation of current legislation.
Examples of violation of labor discipline
Among all misdemeanors, the most popular is absenteeism, which consists in the absence of an employee from work who did not warn his management in any way and did not provide a normal and confirmed reason. If some kind of emergency occurs (fire, seizure, accident), then the possibility is considered that the person did not have the opportunity to explain something. Based on this, for the sake of their own safety, employers are not advised to immediately somehow punish the employee, because if his reason was good, then he can safely complain about his management in court with a request to restore justice.
Violation of labor discipline (systematic, gross, repeated) - what threatens?
What disciplinary sanction to apply to an employee is decided by the administration in each case. The circumstances of the misconduct and the personal data of the employee are taken into account. For example, the commission of an immoral misconduct by a teacher in a school in relation to a student is a gross violation of discipline and it is quite possible to apply the most severe punishment - dismissal.
For what faults can an employee be punished?
You can punish an undisciplined employee for:
- Failure to perform duties without a valid reason and if the employee has previously been punished for a disciplinary violation.
- Absenteeism.
- A single gross violation of labor discipline by an employee.
- Being at work in a state of intoxication or drug intoxication.
- Disclosure of state or official secrets.
- Waste, theft, loss or other intentional damage to property, confirmed by a court verdict.
- Loss of trust as a result of guilty actions.
- Committing an immoral act in the performance of labor duties.
For managers and some specialties (judges, investigators, prosecutors, for example), there are separate lists of labor misconduct.
Punishment for systematic violation of labor discipline by an employee
The law provides for only three types of disciplinary action:
- Comment. It does not bear any consequences for the employee, but can be taken into account in case of repeated misconduct.
- Rebuke. Can be strict or regular. If the violation is repeated and the employee is fired, then a note is made in the work book that the employment contract has been terminated for repeated violation of labor discipline by the employee.
- Dismissal. The most severe and unpleasant measure of disciplinary action. It entails not only the loss of work, but an ugly entry in the work book. which further reduces the chances of continuing a career.
In practice, punishment with the ruble is common, although this is prohibited by law. Some managers, not afraid of labor inspections, introduce fines for systematic violation of labor discipline, and some do it in completely legal ways, depriving employees of bonuses or allowances.
How is disciplinary action imposed?
If an employee has committed a gross violation of labor discipline, explanatory note. Its absence (the employee refuses to write it) does not interfere with the administration of the perpetrator, since in this case an act is drawn up, signed by the employee of the personnel department and any other employee.
After the discovery of a misconduct, for example, repeated violation of labor discipline in the form of being late, absenteeism or poor-quality work, an order for disciplinary punishment is issued within 30 days. The monthly period does not include the presence of the guilty person on vacation or on sick leave.
The employee is acquainted with the order personally against signature before the expiration of three days. If the employee refuses to sign the punishment order, then an act of refusal is written.
If the offender does not agree with the punishment. the order can be appealed to the state labor inspectorate or directly to the court. Beforehand, it is recommended to contact a lawyer or a lawyer dealing with labor disputes. They will prompt the prospects of the case and recommend ways to solve the problem.
Two punishments cannot be imposed for the same offense. For example, if an employee is fired for a systematic violation of labor discipline, they do not have the right to simultaneously deprive him of the bonus.
An analysis of labor legislation suggests that rather strict penalties are applied to negligent workers. Therefore, those who are regularly late for work should think about the fact that the director’s patience is not unlimited and one day a 5-minute delay can cost the workplace.
Disciplinary penalties and fines for violations of labor discipline
The procedure for applying disciplinary sanctions
The Labor Code categorically prohibits the use of disciplinary measures, except for the penalties provided for by the Code itself, federal laws statutes and regulations on discipline. An employee cannot be put in a corner, forced to work seven days a week or deprived of vacation. You can't fine an employee.
When an employee commits a disciplinary offence. employer, according to Art. 192 of the Labor Code of the Russian Federation, has the right: to make an oral or written remark to the employee, to announce a reprimand, to dismiss the employee on the grounds provided for in paragraphs 5, 6, 9 or 10, part 1 of Art. 81, paragraph 1 of Art. 336 or art. 348.11 of the Labor Code of the Russian Federation, as well as paragraph 7 or paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation.
In addition, the procedure for applying disciplinary sanctions is clearly spelled out in Art. 193 of the Labor Code of the Russian Federation algorithm.
To begin with, the employer records the fact of violation of labor discipline by the employee: in case of being late and absenteeism, this is an act of absence from the workplace, in case of failure or poor performance of the assigned task, a memorandum from the immediate supervisor. The employee has the right and must submit a written explanation of his disciplinary offense within two working days from the date of its commission. If there is no explanation from the employee, this is recorded in the act.
For each disciplinary offense, only one disciplinary sanction can be applied; the employee must be familiarized with the order to punish the employee against receipt within three working days from the date of its issuance. If an employee refuses to put his signature under the order, this is recorded in the relevant act.
Disciplinary measures
However, the employer can punish the employee with a ruble. In my opinion, it is sometimes necessary to do this. True, such a measure of disciplinary action can hardly be called a fine. Often in the specialized literature there is the concept of "rewarding", which the authors equate to the concept of "fine". However, a fine is one of the types of punishment, expressed in monetary form and levied for committing a misconduct, while a bonus is one of the forms of encouragement for success achieved in work. The prefix "de" means the absence, the cancellation of the premium, which has nothing to do with penal, punishing, sanctions. Prize, in accordance with Art. Art. 129, 135 of the Labor Code of the Russian Federation, is one of the incentive payments. Accordingly, in the composition of wages, this value is variable. The amount of the premium may vary depending on the criteria specified in the collective agreement and the award clause.
It is legal not to deprive the bonus, the payment of which to the employee is already provided for by the order of the enterprise, but simply to exclude the employee who has been at fault from the bonus order or pay the bonus in a reduced amount.
This is also mentioned in Art. 191 of the Labor Code of the Russian Federation, according to which the employer encourages employees who conscientiously fulfill their labor duties. Among the incentives named and the payment of bonuses.
Thus, in order to receive a bonus, an employee must fulfill the bonus conditions set out in the bonus regulation approved by the enterprise. Any violation of labor discipline, as well as failure to fulfill the labor duties assigned to the employee by an employment contract, may affect the amount of the bonus paid.
If you want to “punish with a ruble” an employee for violating labor discipline, include the following wording in the bonus provision: “A bonus in the amount of 1 to 100 percent is paid to employees for labor achievements in the absence of disciplinary sanctions.” In no case do not mention in local regulations, an employment contract with an employee or an order on bonuses the wording: "deprive", "reduce the bonus" or "reduce the amount of the bonus" (Letter from the Ministry of Labor and social development RF dated July 31, 2000 N 985-11). Remember, according to the Labor Code of the Russian Federation, it is forbidden to fine an employee for disciplinary offenses or worsen his position in comparison with the stipulated labor contract and the Code.
You can not execute, pardon
As you know, judges treat employees much more loyally than an employer would like. For some reason, servants of Themis consider workers as more weak side in a case that requires protection.
The fattest point in the order of application of the norms by the courts Labor Code put the Supreme Court of the Russian Federation in the Decree of the Plenum of March 17, 2004 N 2. Thus, paragraph 53 of this document contains a provision according to which, by virtue of Part 1 of Art. 46 of the Constitution, the state is obliged to ensure the exercise of the right to judicial protection, which must be fair, competent, complete and effective. First of all, when considering a labor dispute to challenge a disciplinary sanction, the court rechecks compliance by the employer with respect to the employee general principles legal, and consequently, disciplinary responsibility, such as justice, equality, proportionality, legality, guilt, humanism. These principles are reflected in Art. Art. 1, 2, 15, 17, 18, 19, 54 and 55 of the Constitution of the Russian Federation.
Employees are, in most cases, successful in challenging employer disciplinary orders that do not result in a reduction in their wages.
The Decision of the Moscow Arbitration Court dated May 4, 2006, May 15, 2006 in case N A40-17389 / 06-146-165 expressly states that the deprivation of the award is not a disciplinary measure due to the provisions of Art. 192 of the Labor Code of the Russian Federation.
In the Resolution of the Ninth Arbitration Court of Appeal dated July 24, 2006, July 28, 2006 N 09AP-7824 / 2006 in case N A40-25961 / 06-92-189, the judge points out the impossibility of imposing a fine on an employee for violating labor discipline.
Employees usually value their workplace, so they often agree with the employer's actions aimed at maintaining labor discipline. Those who are dissatisfied enjoy the protection of their rights, established by Art. 352 of the Labor Code of the Russian Federation. Among them is a complaint against the employer to the bodies of state supervision and control over compliance with labor laws.
An employee's appeal to the labor inspectorate is a reason for checking by the authorities of the employer's compliance with labor law norms. Neglect of them, including the illegal collection of fines from personnel for violation of labor discipline, leads to liability under Art. 5.27 of the Code of Administrative Offenses. The fine for legal entities ranges from 30 to 50 thousand rubles. for individual entrepreneurs- from 1 to 5 thousand rubles. Both categories of employers may be punished by suspension of activities for up to ninety days. Officials can be fined from 1 to 5 thousand rubles.
Advice to employers: apply legal disciplinary measures to employees, but do not forget to delve into the essence of the offense committed and all its circumstances in order to ascertain whether the employee’s actions are guilty of non-fulfillment or improper performance of the duties assigned to him. Otherwise, the employee has the right to challenge the disciplinary sanction applied to him by the employer. Remember that it is impossible to fine staff, as well as deprive them of bonuses, because these methods of influence are not provided for by the Labor Code of the Russian Federation.
The procedure for applying a disciplinary sanction under the Labor Code of the Russian Federation
A disciplinary sanction is provided by the legislator as a measure of responsibility for violation of the organization's labor schedule. When imposing a disciplinary sanction, all requirements of labor legislation must be taken into account. You will learn how to properly impose a disciplinary sanction (Labor Code of the Russian Federation) from our article.
When can disciplinary action be taken?
Providing for incentives for conscientious performance of work, the legislator simultaneously introduces norms that regulate the issues of punishing irresponsible employees.
A disciplinary sanction may be imposed on an employee only if the latter has committed a disciplinary offense.
That is, if the employee does not perform (improperly performs) his official duties, then disciplinary action cannot be avoided.
Specifically, offenses include:
However, special federal laws may establish that a disciplinary sanction is imposed on an employee not only for committing a misdemeanor that violates labor discipline. For example, the Federal Law of January 17, 1992 No. 2202-1 On the Prosecutor's Office of the Russian Federation establishes that an employee may receive a disciplinary sanction in case of misconduct that may discredit the honor and dignity of a prosecutor's worker.
Disciplinary sanctions are divided into general and special.
General disciplinary actions include the following:
Special disciplinary sanctions are provided for by regulations or laws on certain types of service (employees) in the Russian Federation. But the legislator clearly limits the employer: the application of disciplinary sanctions. that is not specified in federal law, disciplinary regulations, or statutes is not allowed. Otherwise, the employer may be held administratively liable for imposing unnecessary disciplinary sanctions under Article 5.27 of the Code of Administrative Offenses, and administrative proceedings may be initiated against him.
For any disciplinary offense, only one disciplinary sanction may be imposed. For example, if an employee appeared at work in a state of intoxication, and the employer reprimanded him for this offense, then dismiss the employee in accordance with subpara. b p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation for the same misconduct, he no longer has the right.
Disciplinary responsibility is independent view responsibility. Accordingly, in order to attract to it, it is necessary to have an offense in the form of a subject, object, subjective and objective sides.
The subject in this case will be a citizen who is in labor relations with a particular organization and violates labor discipline.
The subjective side is a form of employee's guilt.
Object - the work schedule of the organization.
The objective side is the connection between the actions of the employee and the consequences that have occurred.
The result of bringing to disciplinary responsibility is the imposition of a disciplinary sanction. In this case, the employer personally decides whether he will impose a disciplinary sanction. because it is his right. Such a conclusion can be drawn from the analysis of dispositive norms of labor legislation. But if he nevertheless decides to punish the employee, then deviation from the requirements of the law is unacceptable.
The procedure for imposing a disciplinary sanction
A disciplinary sanction may be imposed on an employee no later than 1 month from the day when the employer recorded a case of violation of labor discipline. But this time period does not include:
It should be remembered that any disciplinary sanction cannot be imposed:
These terms will not include the period of time during which the criminal proceedings were ongoing.
The procedure for applying disciplinary sanctions is as follows.
- The employer discovers that the employee has committed a disciplinary offense. As a rule, a memorandum (report or other document) is sent to the name of the head of the organization, which indicates the facts of the misconduct. It is from the date of this document that all deadlines begin to count. But not from the date the author of the memorandum was written, but from the date when this paper reached the head.
- Further, the employer must request an explanation from the employee. If after 2 working days the employee refuses to write an explanatory note, then the relevant officials draw up an act. We draw your attention to the fact that the employee's failure to provide explanations cannot serve as a basis for not applying a disciplinary sanction.
- If the employee writes an explanatory note, then, accordingly, he indicates the reasons for the misconduct. Labor legislation does not provide for criteria for valid reasons, so the employer evaluates them at its discretion.
- If the employer considers that the reasons for the misconduct are disrespectful, an order is drawn up to impose a disciplinary sanction.
Order for disciplinary action
An order to impose a disciplinary sanction can only be issued in cases where the fault of the employee is fully proven.
If a disciplinary sanction is imposed on an employee in the form of a reprimand or remark, then the order is drawn up in an arbitrary form.
After issuing an order to impose a disciplinary sanction, the employee must be familiarized with it within 3 days. If he refuses to familiarize himself, then an appropriate act must be drawn up about this. Disciplinary action will be imposed in any case. This period of time does not include the period when the employee was absent from work.
If the employer does not comply with this deadline, the employee has the right to appeal against the imposition of a disciplinary sanction.
Recording a violation of labor discipline by an employee in the form of a punishment order is necessary for the employer. After all, if there are several outstanding disciplinary sanctions, an employee can be dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation (an employee repeatedly fails to perform official duties without serious grounds, while having a disciplinary sanction).
Sample letter of disciplinary action
The order to impose a disciplinary sanction is printed on the letterhead of the organization and registered in a special journal.
08.03. Yekaterinburg city
In connection with the improper performance by the storekeeper Viktor Petrovich Nesterov of the labor duties assigned to him by the employment contract No. 5 dated 09/01/2005 and the storekeeper's job description dated 08/06/2004, expressed in the lack of control over the preparation of shipped products, which led to a failure to deliver the goods to the customer ,
P R I C A Z Y V A YU:
reprimand the storekeeper Viktor Petrovich Nesterov.
Base:
- Memorandum of the Deputy Head of the administrative and economic part Skvortsov O. V. dated 01.03 ..
- Act on the commission of a disciplinary offense by an employee No. 45 dated 05.03 ..
- Explanations of the employee from 02.03..
Director of Horns and Hooves LLC ________________ Strelkov I.P.
How is a disciplinary sanction removed?
Any disciplinary responsibility is of a continuing nature, but within the framework of labor relations between specific persons. That is why the legislator has clearly established that if an employee has not received another disciplinary sanction within 1 year from the date of receipt of the previous disciplinary sanction, he will be considered exempt from disciplinary responsibility.
The Labor Code establishes that a disciplinary sanction is removed from an employee earlier in the following cases:
Exemption from a disciplinary sanction earlier than the established period is issued, as a rule, by an appropriate order.
Despite the fact that disciplinary action is one of the types of punishment on the part of the employer, it can be completely avoided by observing labor discipline. Remember that if there are several outstanding disciplinary sanctions, you may well be fired under article 81 of the Labor Code.
Personnel records management at small enterprises and individual entrepreneurs, the requirements of labor legislation for its maintenance, features, legal subtleties and problematic issues
Application of labor legislation in the activities of the employer
Repeatedly in my practice, I and my colleagues had to face serious difficulties in protecting the interests of enterprises and individual entrepreneurs. These difficulties were a direct result blunders admitted by the heads of these enterprises in the conduct of personnel records management. As a rule, this situation develops in small enterprises and individual entrepreneurs, who, in order to save money, are their own lawyers, accountants and personnel officers. Most of the documents are often simply downloaded from the Internet or borrowed from friends, and with a large share of the stakes on the "Russian maybe" are introduced into everyday activities. However, the consequences of such “optimizing” decisions can be very deplorable for an entrepreneur, because they come in the form of lost court cases and thousands of fines for violating labor laws. The “this is how everyone works” argument will not impress a judge, an assistant prosecutor or a state labor inspector, and this is at best. In the worst case, an entrepreneur will have a conversation with the employees of the Economic Crime Department or the Department for Tax Crimes, I think it’s not worth talking about the consequences of conversations with representatives of the above departments. So is this saving justified? Yes, he justifies, but, as a rule, before the first visit to the court, the labor inspectorate or the prosecutor's office.
Most entrepreneurs are well aware that the times when “the employer is always right” are ending, employees become more legally literate, know their rights and are able to defend them. There is only one way out, to respond adequately to this situation, to ensure reliable legal protection of your business.
Personnel management. What should you pay attention to.
So, in order, let's start with hiring:
Applicant Questionnaire:
many consider this document formal, but in vain. In many cases, it can play a decisive role. This is a document in which the vacancy applicant himself, personally and voluntarily, provides information about himself. So what is its importance, I will give just one case from my own practice, a person who was a disabled person of the second group found a job in a small enterprise. By outward signs it was impossible to determine that he was disabled; during employment, this citizen hid the fact of his disability. However, having subsequently resigned, he began to write complaints to all supervisory authorities and sued the employer for violating his labor rights as a person with a disability. And in this case, the questionnaire just played the main role, because in the column “Are you a disabled person, if so, which group” was written “no, I am not” by the hand of the applicant himself.
This is just one of the cases, and there are many such cases. The Labor Code divides workers into certain groups, for each of which there are special conditions: hiring, working hours, social and other security. Therefore, when developing the applicant's questionnaire, these points should be addressed Special attention. In the questionnaire, without fail, with a separate line for signature, it is necessary to provide a clause stating that the applicant confirms the veracity of the information provided by him and is aware of all the consequences associated with this.
In addition to the above: the questionnaire must be filled out by the applicant on his own, all points must be filled in, the answer to each of them must be written in words (i.e. without the use of signs, lines, shading, etc.), in the date of filling a month must be spelled out in a word, after the signature, the transcript must also be complete. Filling should be done with one pen. The completed questionnaire must be kept in the personal file of the worker.
Labor contract:
an employment contract is the main document that determines the procedure and features of labor relations between an employee and an employer. When drawing up an employment contract, you should pay attention to the following points. First you need to decide on the type of contract:
Fixed-term employment contract
Employment contract concluded for an indefinite period
With or without probation
if the contract provides probation, its terms and conditions must be reflected in the employment contract in accordance with Art. 70 of the Labor Code of the Russian Federation
part-time
an employment contract when hiring a part-time job should also reflect both the very fact that the employee is employed part-time, and the features provided for by such work specified in Chapter 44 of the Labor Code of the Russian Federation
Sections of the employment contract:
A standard employment contract should usually include the following sections:
1. The Subject of the Agreement
the parties to the contract are indicated, the position for which the employee is accepted, briefly the nature of the work and status
2. Duration of the contract
if the contract is urgent, the date from which the employee must begin to perform his labor duties and the date of termination of work is indicated. If the contract is open-ended, then only the date from which the employee must begin to perform his labor duties is indicated
3. Conditions of remuneration of the employee
indicated official salary(or tariff rate), established by law and mandatory for payment of allowances and surcharges, for example, the regional coefficient and the northern allowance, while their amounts must be indicated. Here it is necessary to make a small digression - the size of the district coefficient is a constant value if the employee constantly works in the area where such a coefficient is established. The northern allowance in some cases changes its size depending on the continuous work experience of the employee in the given region. Therefore, the percentage of the northern allowance at the time of employment of the employee is stated in the employment contract, with a mandatory reference to the fact that the amount of this allowance is set on the date of employment and will be revised upwards after the period established by law. If, at the time of employment, the amount of the allowance for a given area is the maximum, then it is indicated in the employment contract without reference to the change.
Additional incentive payments and surcharges (if any) are also indicated, their sizes are indicated, or a link is indicated to a document establishing the procedure for calculating and the amounts of these allowances and surcharges. The order and dates of salary payments are also indicated (it should be remembered that Article 136 of the Labor Code of the Russian Federation establishes the requirement that - wages are paid at least every half a month on the day established by the employment contract), as well as other features. In addition, it is necessary to indicate in this section of the employment contract and the procedure for the implementation (established by Article 134 of the Labor Code of the Russian Federation) of the employee's right to increase the real level of wages.
4. Mode of working time and rest
the following is indicated: the working hours, the working week, the procedure for working and providing days off, the system for recording working hours, the total duration of working hours for the reporting period, breaks for meals and rest. It should be remembered that in Khanty-Mansiysk Autonomous Okrug employees are entitled to an additional paid leave of 16 days (Article 321 of the Labor Code of the Russian Federation), and for women a 36-hour work week is established (Article 320 of the Labor Code of the Russian Federation).
5. Rights and obligations of an employee
the basic rights and obligations of the employee are indicated in accordance with the position and nature of the work performed, while they must comply with the requirements set forth in Art. 21 of the Labor Code of the Russian Federation and not contradict them
6. Rights and obligations of the employer
must comply with the requirements set out in Art. 22 Labor Code of the Russian Federation
7. Worker's social security
the employee is subject to compulsory social and medical insurance in the manner and on the terms established by the current legislation of the Russian Federation. If the company has additional social insurance programs, they are also indicated
8. Guarantees and compensations
for the period of validity of this employment contract, the employee is subject to all guarantees and compensations provided for by the labor legislation of the Russian Federation, local acts of the employer and the employment contract. If the company has additional guarantees and compensation, they are also indicated
9. Liability of the parties
the main measures of responsibility are indicated, both for the employee and the employer, as well as the procedure and grounds for bringing to these measures of responsibility
10. Termination of the contract
the grounds for termination of the employment contract are indicated, while they must comply with the requirements set forth in Chapter 13 of the Labor Code of the Russian Federation and not contradict them
10. Final provisions
here you can specify the nature of the contract, the terms of the contract, their legal effect, dispute resolution procedure, etc.
11. Details of the parties
details of the employee and employer
some employers add a paragraph at the end of the employment contract with the following content “I am familiar with the internal labor regulations and local regulations” naively believing that anything can be inserted into this paragraph. However, this is not the case, the labor code requires a personal written acquaintance of the employee with local legal acts regulating his activities at the enterprise. Alternatively, you can use an employee familiarization sheet with such documents, which indicates:
Document registration number
Date of its adoption
Full title
Worker painting
The familiarization sheet is assigned the status of an annex to the employment contract, in which the corresponding entry is made
On the large enterprises with a large staff of employees, there are internal labor regulations that determine all aspects of activity, at small enterprises there is no need for such documents, however, labor legislation requires such provisions even at a small enterprise, namely:
Regulations on internal labor regulations
establishes the mutual rights and obligations of the employer and employees, responsibility for their observance and execution, ensure the regulation of labor relations at the enterprise, the establishment of an optimal labor schedule, improvement of labor organization, strengthening labor discipline
Regulations on working hours
establishes the procedure for regulating the regime of working time and rest time for employees, taking into account the characteristics of their work. Determine the work schedule, the length of the working day, breaks. Each category of workers signs a separate section
Regulations on labor discipline
defines the concept of labor discipline of employees, as well as measures of responsibility for its violation. It is mandatory to indicate:
Types of violations of labor discipline
Disciplinary measures for its violation
The procedure for imposing and removing disciplinary sanctions
Regulations on employee incentives
defines the concept, types and amounts of incentives for employees, as well as the grounds for their establishment, reduction and deprivation. It is mandatory to indicate:
Types of incentives and their sizes
Grounds and procedure for applying incentives
The rest of the internal labor regulations, as a rule, are prescribed in the job descriptions of the employees themselves. Each position is approved by the order of the head of the enterprise.
especially if these are punishment orders, they must necessarily contain clear, and most importantly, reasonable wording. Often in my practice there were such orders for punishment from the content of which it is generally impossible to understand what exactly the employee was punished for, respectively, according to such orders, decisions were made about their illegality. As a result, the cancellation of orders, and, accordingly, the penalties themselves, fines against the employer, recalculation and payment of material, and often moral damage to the employee, submissions from supervisory authorities to eliminate shortcomings, a lot of wasted time and nerves. So that this does not happen to you, do not make such mistakes. As an example, I will give the procedure for drawing up an order on punishment, because it is precisely such orders that are most often disputed by employees.
The procedure for drawing up the order "On punishment":
You need to start the text of the order with a description of the event, for example -
“01.01. according to the work schedule of the drivers LLC "Enterprise" driver Ivanov I.I. had to carry sales representatives to retail outlets during the period from 09.00 to 19.00, however, 01.01. year driver Ivanov I.I. did not go to work. About his absence at work, the driver Ivanov I.I. I did not warn any of the employees of LLC "Enterprise" in advance, did not answer phone calls. In his explanation, the driver Ivanov AND.AND. he acknowledged the fact of his absence from the workplace, explaining that he had no good reasons for absenteeism.”
“By their actions, the driver Ivanov I.I. violated the requirements of clause 3.1. of his job description and clause 4.7 of the Regulations on labor discipline of LLC "Enterprise"
“Based on the foregoing and guided by Art. 192 of the Labor Code of the Russian Federation and clause 5.3 of the Regulations on labor discipline of LLC "Enterprise", I order:
Here are just a few simple tips on the organization of personnel records management at a small enterprise or at an individual entrepreneur.
However, in order to properly organize it and protect the interests of the employer in terms of compliance with labor laws, a more professional approach to this area of activity is required. I am ready to help you in solving these issues. My services will cost you much less than constant payments on lawsuits and fines from supervisory authorities. I provide services to businesses and individual entrepreneurs in terms of:
Developments employment contracts drawn up in the interests of your company, while strictly complying with the requirements of the labor legislation of the Russian Federation;
Development of internal regulations, regulations, orders and instructions regulating the activities of your enterprise in terms of labor organization;
Legal support in case of dismissal or reduction of "problem" employees;
Representation of your interests in the labor inspectorate, prosecutor's office, court in resolving labor disputes;
Advice on the application of labor legislation.
Do not forget that savings on legal business support services now can result in more significant losses in the future.
You can make an appointment or get a consultation by phone
In what cases is a disciplinary order issued in the form of a remark? What labor law rules govern this procedure in 2019? For what offenses can one resort to issuing such an order? Consider these issues and give an example of an order to announce a remark.
Remark - as a variant of punishment
A disciplinary offense is a failure to perform or improper performance of labor duties, in which the fault of the employee is present (Article 192 of the Labor Code of the Russian Federation). For a disciplinary offense, the employer has the right to apply one of the disciplinary sanctions to the employee (part 1 of article 192 of the Labor Code of the Russian Federation):
- comment;
- rebuke;
- dismissal.
A reprimand is the “lightest” disciplinary punishment that can be applied if an employer wants to punish an employee.
The lightest punishment
Disciplinary action must be fair. So, for example, if an employer fires an employee for being 5 minutes late for work, then such a punishment is not commensurate with the severity of the misconduct. And, most likely, the employee will be able to challenge such a penalty, for example, in court. From the point of view of “security”, it is easier for the employer to announce a remark. Thus, the employer, in fact, will show that he applied the least penalty to the employee.
If the management of the organization believes that the remark is too weak a punishment for the culprit, then a reprimand can be issued. It's more of a tough place in terms of labor laws. Cm. " ".
Respect the due dates
A disciplinary sanction in the form of a remark can be applied to an employee no later than one month from the day the misconduct was discovered. The day the misconduct was discovered should be taken into account the day when the immediate supervisor of the employee became aware of the violation. At the same time, no more than six months should elapse from the moment the offense was committed.
Flow month term suspended for the period:
- employee illness;
- any leave of the employee;
- the time required to take into account the opinion of the trade union, if it is present in the organization.
Make an order
If the employer has collected all Required documents confirming the fact of committing a disciplinary offense (reports, acts, explanatory), then you can proceed to the most important stage - issuing an order to impose a disciplinary sanction in the form of a remark. Such an order is issued in free form. Here is an example of a real order “from life”, which was issued in 2019. It looks like this:
You can also in the form of a comment in Word format (published in 2019) and adjust it to fit your situation.
There is no unified, specially designed sample of a disciplinary sanction order. Organizations can independently develop an order template or write it in free form. To write the order, the letterhead of the organization or a regular sheet of A4 format can be used. The law allows for the writing of an order for disciplinary action both by hand and in printed form, but the presence of genuine signatures of the director of the organization, as well as the offending employee, must be present on it.
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Who issues a disciplinary order
Depending on the situation, the boss can impose a penalty. structural unit, department or head of the organization. The order is most often filled out by the secretary of the enterprise, a lawyer or a specialist in the personnel department. After registration, the order is submitted for signature to the director or another employee authorized to sign such documents.
Before placing an order
Before issuing an order to impose a penalty, it is necessary that the delinquent employee give explanations in writing, which must be considered by his immediate supervisor. The results of the review go to the memorandum, which the head of the unit passes to the higher authorities. If the employee refuses to give explanations, this must be recorded in a special act.
In cases where a disciplinary violation resulted in injuries, accidents, etc. consequences, a special commission to investigate the incident should be created in the organization, since in some situations this offense can be recognized as a crime and serve as the basis for initiating a criminal case. The results of the audit must also be reflected in the relevant act.
Thus, before writing an order for a disciplinary sanction, it is necessary to prepare three main documents that will serve as the basis for issuing an order: an explanatory note from the employee, a memorandum from his immediate supervisor and an act and identification of a violation.
How to place an order correctly
The order on the responsible person has a completely standard structure. It must necessarily contain information about the legal entity in which the employee who has been levied works and his personal data. It should also indicate the reason for the recovery, indicate the punishment, and provide links to the documents that served as the basis for the release of this document.
The legislation provides for three options for penalties:
- dismissal;
- disciplinary reprimand;
- simple remark.
Any other means of recovery will be illegal. The form of punishment is determined by the head of the organization, depending on the explanations of the employee and the severity of his misconduct.
It is important to remember that only one type of penalty can be imposed for one violation.
Instructions for writing a disciplinary order
- At the beginning of the document, the full name of the legal entity is written indicating its organizational and legal form (CJSC, OJSC, LLC, IP). Then the word “Order” is written, its number according to the internal document flow is indicated, and the essence of the document is briefly indicated.
- On the line below, enter locality, in which the organization is located, as well as the date of filling out the order (day, month (in words), year).
- Next, you need to specify detailed information about the essence of the claim against the employee, in other words, the reason for imposing a penalty. Here you should enter his last name, first name. patronymic (name-patronymic can be in the form of initials), the date of the identified violation.
- After that, you need to enter the word “I order” and make the appropriate order (reprimand, make a remark or dismiss the employee). Below are the grounds for issuing an order (memorandum, explanatory note, act, etc.).
- In conclusion, the order must be signed by the management team: the director of the enterprise, the head of the structural unit responsible for personnel. Under the order, the offending employee himself must also sign.
If desired, the order can be certified with a seal, but since 2016, legal entities have not been required to have a seal. If the enterprise has a trade union body, then you need to put its mark.
After writing the order
When imposing a disciplinary sanction, it is worth remembering the period during which it can be imposed after a violation has been committed: this period is equal to one month(in this case, the employee’s illness, vacation, etc. are not taken into account). That is, for example, if an employee skipped work on July 15, and it became known about it on August 18, then it is no longer possible to punish him.
An employee who has been punished and considers it unfair can appeal this decision to the labor inspectorate or court.