A disciplinary offense is... The concept, signs and composition of a disciplinary offense. Examples, classification

Disciplinary liability of employees is one of the types of legal liability that is provided for by law for unlawful behavior.

For violation of labor discipline, i.e. for committing a disciplinary offense, the employee is subject to disciplinary liability.

In other words, a disciplinary offense is the basis for bringing to disciplinary liability, indicating a culpable violation by the employee of labor duties.

A disciplinary offense is... Definition of the concept and signs

Dictionaries give the following definitions of the concept “disciplinary offense”:

A disciplinary offense is an unlawful, guilty violation of labor or service discipline by an employee (military), for which disciplinary liability is provided (Big Legal Dictionary. - M.: Infra-M. A. Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukhareva, 2003.)
Disciplinary offense (English disciplinary offense, misdemeanour) - a violation of discipline (military, labor, service, etc.), consisting of an unlawful and guilty excess of rights, non-fulfillment or improper performance by an employee of the duties assigned to him, entailing disciplinary liability (Encyclopedia of Law. 2015)
A disciplinary offense is an offense committed in the sphere of official relations and encroaching on the mandatory order of activity of certain groups of people: workers, employees, military personnel, students, etc. (Legal Encyclopedia, 2015)
A disciplinary offense is a culpable, unlawful failure or improper performance by an employee of labor duties assigned to him by labor legislation, other regulatory legal acts containing labor law norms, a collective agreement, agreements, local acts of the employer, and an employment contract. The fact that an employee has committed a disciplinary offense and the circumstances of such an offense are established and proven by the employer (Big Legal Dictionary. - M.: Prospect. A.V. Malko. 2009.)

The Labor Code of the Russian Federation contains the following definition of a disciplinary offense : “failure or improper performance by an employee, through his fault, of the labor duties assigned to him” (Part 1 of Article 192 of the Labor Code of the Russian Federation).

Within the meaning of this definition, we can list the main signs of a disciplinary offense :

actions or inaction of an employee that are defined by law as failure to perform or improper performance of job duties;
the presence of guilt is a mandatory sign of a disciplinary offense (responsibility arises exclusively for guilty actions or inaction);
the employee did not fulfill his job duties ;
the presence of circumstances that make it possible to apply a disciplinary sanction .

The consequence of a disciplinary offense committed by a specific employee is his bringing to disciplinary liability by the employer, i.e. applying disciplinary action to the employee as a violator of labor discipline.

Thus, the employer applies legal measures to violators of labor discipline in the form of disciplinary liability, and in cases provided for by federal law (in case of damage to the employer), financial liability or both types of legal liability at the same time.

Both disciplinary and financial liability are an independent type of legal liability in labor law.

Extenuating circumstances

When applying a disciplinary sanction to an employee, the employer must prove that the violation occurred precisely through the fault of a particular employee, and also take into account all the circumstances of the incident. Penalties are not imposed in case of violation of labor discipline for a valid reason:

If the employee does not have the necessary materials.
If the employer violates the working conditions of employees.
In case of incapacity.
When an employee is summoned to court or law enforcement agencies.
For family reasons.
In the event of force majeure and natural disasters.

The presence of mitigating circumstances that led to a violation of labor discipline must be proven by the employee himself. He must present to the employer an explanatory note outlining such circumstances, as well as supporting documents or witness statements.

For example, an employee voluntarily left his workplace because he learned about his child’s injury. This may become a mitigating circumstance when choosing a punishment. The validity of the reasons must be determined by the employer at his own discretion.

Federal Law No. 76 “On the Status of Military Personnel” provides the following mitigating circumstances for committing an offense that facilitate disciplinary liability:

repentance of the perpetrator;
voluntary reporting of guilt;
independently preventing the negative consequences of one’s offense;
committing an offense in a state of strong mental agitation;
in the event of difficult personal or family circumstances.

The commander may recognize other circumstances of the incident as mitigating factors.

Composition of a disciplinary offense

Disciplinary legislation, unlike criminal and administrative legislation, does not contain an exhaustive list of disciplinary offenses. The legislation does not contain clear grounds for what punishment corresponds to each disciplinary offense. This, however, does not prevent courts from turning to theoretical constructs. Both in theory and in judicial practice, a disciplinary offense is divided into 4 elements (referred to as the composition of a disciplinary offense):

subject of a disciplinary offense;

the subjective side of a disciplinary offense;

the objective side of a disciplinary offense;

object of a disciplinary offense.

The presence of each of these elements is determined separately. If all 4 elements are present, then they say that the actions (inaction) of the person constitute a disciplinary offense .

If at least one of the elements is missing, then the actions (inaction) of the person do not constitute a disciplinary offense.

By the way

In Russia, the procedure for bringing employees to disciplinary liability began to take shape in the 19th century. In particular, it was recorded in the Charter on Industrial Labor, which was in force before the October Revolution of 1917.
DIVISION FOUR

On the mutual relations of owners of factory, mining and mining enterprises and workers

104.

In order to maintain proper order in enterprises, the manager of these enterprises is authorized to impose monetary penalties on workers by his own authority:
1)
for faulty work;
2)
for absenteeism and
3)
for disturbing the order.

No penalties can be imposed for other reasons.

Note.

Regardless of the monetary penalty for faulty work imposed by the authority of the head of the enterprise, the worker may be ordered to pay remuneration for the loss caused to the owner of the enterprise in a judicial proceeding.

105.

Malfunctioning work is considered to be the production by a worker, through negligence, of poor-quality products, damage to materials, machines and other production tools during operation. Penalties for defective work are determined according to the nature of the defect.

106.

Absenteeism, in contrast to late attendance at work or unauthorized absence from work, is considered absence from work for at least half of the working day. Penalties for absenteeism are imposed according to the worker’s wages and the amount of time spent away from work during one month, in an amount not exceeding, however, the amount of his six days’ earnings. In addition, the worker’s wages are withheld for all absenteeism. For workers receiving a salary, the penalty for absenteeism is determined in an amount of no more than one ruble per day of absence and no more than three rubles in total.

Note.

Penalties for absenteeism are not due if the absence from work occurred as a result of the worker’s deprivation of freedom, sudden ruin from an accident, fire, river flood, illness that makes it impossible to leave home, and the death or serious illness of parents, husband, wife and children.

107.

The following are considered a violation of order:
1)
late attendance at work or unauthorized absence from work;
2)
failure to comply with the established rules of caution when handling fire on the premises of the enterprise, in cases where the head of the enterprise does not consider it necessary to terminate, in accordance with Note 1 to Art.
62, an employment contract concluded with the worker; 3)
failure to maintain cleanliness and tidiness in the premises of the enterprise;
4)
violation of silence during work by noise, shouting, swearing, quarrel or fight;
5)
disobedience;
6)
coming to work drunk;
7)
organization of illegal games for money (cards, toss, etc.);

non-compliance with internal regulations in enterprises;
9)
violation of rules on safe work at mining plants and fields.

Penalties for individual violations of the order cannot exceed one ruble.

108.

Each of the violations subject to penalties on the basis of Articles 104–107 must be defined in special reports indicating the exact amount of the penalty. These reports are approved by the factory inspection or mining supervision, as appropriate, and are displayed in all workshops.

109.

Penalties imposed for faulty work, for absenteeism and for violation of order, in total, should not exceed one third of the earnings actually due to the worker by the established payment date.

110.

If, in terms of the number of violations committed by the worker, the penalties from him should exceed the norm specified in the previous (109) article, then the manager of the enterprise is given the right to terminate the employment contract concluded with the worker.

Note.

A worker dismissed on the basis of this (110) article is given within one month to appeal the termination of the contract to the court, which, if it recognizes the complaint as valid, decides to remunerate the worker for the losses he has incurred.

If there are grounds to believe that an employee has committed a disciplinary offense, then a procedure begins that can be called a disciplinary investigation.

Subject of disciplinary offense

The subject of a disciplinary offense can only be a citizen who has legal personality at work (Article 63 of the Labor Code of the Russian Federation), who is in an employment relationship with a specific employer and who violates labor discipline.

Another definition of this concept can be given: the subject of a disciplinary offense is always an employee , that is, a person who is in an employment relationship with the employer on the basis of a concluded employment contract.

The subject is an individual. At the same time, it should be noted that an individual performing work under a civil contract is not the subject of a disciplinary offense, since he is not in an employment relationship with the employer. Such an entity may bear civil liability.

Procedures for bringing to special disciplinary liability

In addition to the expanded list of disciplinary sanctions, the above laws contain norms providing for procedures for bringing to disciplinary liability.

So, for example, Art. 59 of the Federal Law on the State Civil Service establishes the rules for conducting an official audit , during which the following must be fully, objectively and comprehensively established:

the fact that a civil servant committed a disciplinary offense;
guilt of a civil servant;
the reasons and conditions that contributed to the commission of a disciplinary offense by a civil servant;
the nature and extent of harm caused to a civil servant as a result of a disciplinary offense;
circumstances that served as the basis for a written application by a civil servant to conduct an internal audit.

The internal audit must be completed no later than one month from the date of the decision to conduct it. The results of the internal inspection are communicated to the representative of the employer who ordered the internal inspection in the form of a written report.

The legislation outlines the circle of persons and bodies vested with the power to apply disciplinary sanctions.

For example, prosecutors of constituent entities of the Russian Federation have the right to impose disciplinary sanctions on employees appointed by them to positions, with the exception of deprivation of the badge “Honorary Worker of the Prosecutor's Office of the Russian Federation.” Prosecutors of cities and districts have the right to impose disciplinary sanctions in the form of a reprimand, reprimand, severe reprimand, as well as dismissal of employees appointed by them to positions. The imposition of a disciplinary sanction in the form of dismissal from the prosecutor's office of employees awarded the badge "Honored Worker of the Prosecutor's Office of the Russian Federation" can only be applied with the consent of the Prosecutor General of the Russian Federation (Article 41.7 of the Federal Law "On the Prosecutor's Office of the Russian Federation").

The subjective side of a disciplinary offense

The subjective side of a disciplinary offense is expressed in the culpable failure or improper performance by an employee of labor duties assigned to him by an employment contract in accordance with labor legislation, a collective agreement, internal labor regulations, technical rules, job descriptions, charters and regulations on discipline in those industries and types works where they operate.

Good reasons in labor law. Correlation with forms of guilt

It should be noted that the concept of guilt in labor legislation is not defined. Guilt in labor law is not divided into forms, but is a mandatory element of a disciplinary offense. In law, guilt is traditionally understood as the internal attitude of a person to the action (inaction) performed and the consequences caused. It is through guilt, as one of the mandatory elements of the offense, that a distinction is made as to whether the act committed is a misdemeanor or not. Guilt is established on the basis of evidence collected during disciplinary proceedings.

In the institution of disciplinary responsibility, the content of guilt is determined through the category of valid reasons . However, there is also no list of valid reasons in the legislation.

Thus, since in labor law the concept of “fault” is not differentiated into intent (direct and indirect) and negligence (frivolity and negligence), as provided for by the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation, then formally dismissal, for example, under clause 6 of Part. 1 tbsp. 81 of the Labor Code of the Russian Federation is possible in the presence of any form of guilt (both intentional and careless).

No employee’s fault if there are good reasons

Despite the fact that, as stated above, the law does not contain a definition of what is meant by the category “good reason” , this term is quite widely used in judicial practice. A valid reason may be understood as the need to protect other benefits of the employee, his relatives or other persons who are more valuable in society.

Failure by an employee to fulfill labor duties, if there is no fault of the employee, cannot be considered as a disciplinary offense (for example, failure to perform duties due to the deterioration of the employee’s health, which prevents the performance of work; for the purpose of self-defense of labor rights if the employee refuses to perform work not provided for by the employment contract or directly threatening his life and health; in case of refusal to recall the employee early from vacation or if the employer does not create the necessary working conditions, does not provide serviceable equipment, materials, etc.).

The “Review of the practice of courts considering cases on disputes related to the termination of an employment contract at the initiative of the employer” (approved by the Presidium of the Supreme Court of the Russian Federation on December 9, 2020) defines a number of legal positions regarding the consideration of the employee’s guilt (good reasons) and the severity of the offense committed when the employer imposes disciplinary action collections:

An employee’s absence from the workplace for a valid reason is not absenteeism.

B. considered her dismissal illegal, pointing out that for good reasons she was absent from work during the night shift, since she was at that time with her minor nephew in the hospital, where he was receiving medical care in connection with an injury in the form of an open fracture nose bones. The Supreme Court agreed with the plaintiff’s arguments, stating the following in the Review:

“Establishing the circumstances and reasons (good or bad) for an employee’s absence from the workplace is mandatory when the court considers a case in a dispute over the legality of the dismissal of an employee under subsection. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for a single gross violation of labor duties by an employee - absenteeism. The absence of an employee from the workplace for a valid reason during the entire working day (shift) or for more than four hours in a row during the working day (shift) is not absenteeism, and the employer cannot apply disciplinary action to the employee in the form of dismissal on the specified basis" ( see paragraph 11 of the Practice Review for more details).

The absence from work of an employee who has notified the employer of leaving work for good reasons is not absenteeism.

S. Indicated that he did not commit absenteeism, since he left his workplace before the end of the work shift for a good reason (the funeral of a friend) with the permission of his immediate superiors. The Supreme Court of the Russian Federation agreed with the position of the plaintiff, indicating the following in the Review:

“The absence from the workplace of an employee who has notified the employer of the need to leave work before the end of the work shift for good reasons in the manner established by the employer’s local regulations cannot be considered by the employer as absenteeism and be grounds for dismissing the employee under subclause. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation" (see for more details paragraph 15 of the Review of Practice).

Dismissal for absenteeism is legal subject to the following principles: fairness, proportionality, legality, guilt and humanism

M. believed that her dismissal was illegal, since she was absent from the seminar-meeting for a good reason (she was at an appointment with doctors due to an exacerbation of the disease as part of a medical examination organized by the employer under a voluntary health insurance agreement). The court agreed with the plaintiff’s arguments, stating the following:

“The court, when considering a dispute about the legality of dismissing an employee for absenteeism, must check the validity of the employer’s recognition of the reason for the employee’s absence from the workplace as disrespectful, based on such general principles of legal, and therefore disciplinary liability, as fairness, proportionality, legality, guilt and humanism, and also check whether the employer, when imposing a disciplinary sanction, took into account the severity of this offense and the circumstances in which it was committed, the employee’s previous behavior, and his attitude to work. If the dismissal of an employee is carried out by the employer without observing these principles of legal liability, then such dismissal cannot be recognized as lawful” (see paragraph 16 of the Review of Practice for more details).

Dismissal for absenteeism when absent from work for good reasons and in connection with the employee’s activities in the trade union

Z. believed that her dismissal was illegal, since she was absent from work for valid reasons. She, along with her minor daughter, traveled in a private car outside of Moscow to visit her elderly parents in a village located in the Moscow region. She was unable to leave her parents and get to work in Moscow for reasons beyond her control related to a meteorological phenomenon - heavy snowfall in Moscow and the Moscow region. Agreeing with the plaintiff’s arguments, the Supreme Court of the Russian Federation indicated the following:

“When resolving a dispute about the reinstatement of an employee dismissed for absenteeism, the court must check all the employee’s arguments given as justification for the illegality of such dismissal...” (see for more details paragraph 17 of the Review of Practice).

Taking into account the employee’s guilt when he fails to fulfill his labor duties under the Labor Code of the Russian Federation

In addition to Ch. 30 “Labor discipline” in the Labor Code of the Russian Federation separately draws attention to the need to take into account guilt in case of failure to fulfill labor duties:

Art. 76 Labor Code of the Russian Federation. In cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory medical examination through no fault of his own, he is paid for the entire period of suspension from work as idle time;
Art. 84 Labor Code of the Russian Federation. If a violation of the rules for concluding an employment contract established by this Code or other federal law is not due to the fault of the employee, then the employee is paid severance pay in the amount of average monthly earnings;
Art. 155 Labor Code of the Russian Federation. In case of failure to comply with labor standards or failure to fulfill labor (official) duties through the fault of the employer, remuneration is made in an amount not lower than the average salary of the employee;
Art. 156 Labor Code of the Russian Federation. Defects not caused by the employee are paid on an equal basis with suitable products;
Art. 157 Labor Code of the Russian Federation. Downtime (Article 72.2 of the Labor Code of the Russian Federation) due to the fault of the employer is paid in the amount of at least two-thirds of the employee’s average salary.

The above cases directly indicate the need to determine whether failure to fulfill labor duties is a disciplinary offense, indicate that in the absence of guilt, the employee cannot be brought to disciplinary liability. Guilt implies awareness and the ability to act in accordance with the prescribed order.

Foreclosure procedure

When imposing a disciplinary sanction, the employer should adhere to the provisions of the Labor Code. This procedure includes the following steps:

Violation of labor discipline by an employee must be recorded in writing . The fact of a disciplinary offense can be recorded in the form of an act, a memorandum addressed to management, or a decision of a special commission to investigate the incident. This document is drawn up in free form, but its preparation should be approached with all responsibility, since it can be used in the future as evidence in court. The act states the full name of the director, the circumstances of the incident, the full name of the employee, the type of offense committed by him, an indication of the clause of the local document or article of the Labor Code violated by the employee, the date of preparation of the document, the signatures of all drafters. The act may contain recommendations regarding the form of liability applicable to the employee.
After the company's management has been informed of the disciplinary offense, a written explanation must be obtained from the employee . This request can be conveyed to the employee orally, but it is advisable to document it. A written notification of explanations is given to the employee against signature indicating the date of review. It contains the originating number, the date the application was submitted and the circumstances of the incident.
The explanatory note is provided by employees within two working days after submitting the employer’s demand (under Article 191 of the Civil Code). If an employee is deprived of the right to explain his version of what happened to the employer, this may become a basis for invalidating the disciplinary sanction. At the same time, when calculating the two-day period, the individual work schedule of the employee is not taken into account.
If, after two days, an explanatory note has not been received from the employee, then the employing company will issue a report on the employee’s refusal to provide an explanation . For example, the employer requested an explanatory note on Tuesday, and already on Friday, if no documents were received from the employee, he draws up a corresponding act. If the specified procedure is followed, then the lack of explanation does not prevent the employer from imposing a disciplinary sanction.
If the employee receives an explanatory note and if the employer considers the information provided to be valid, the latter has the right to refuse to apply a disciplinary sanction . Then the procedure can be considered complete.
If the employer is not satisfied with the explanations provided, or the employee does not provide them, the employer may impose a disciplinary sanction . To do this, he must adhere to certain deadlines. Thus, disciplinary sanction can be applied within one month from the moment the employer discovers this fact. In the specified time frame it is not allowed to include the time of illness of the employee, his stay on vacation, as well as the periods necessary to take into account the opinion of the representative body (based on Article 193 of the Labor Code). By default, the date of commission of a disciplinary offense is considered to be the moment information about it is received by the employee’s immediate management.

A sample report on a disciplinary offense committed by an employee can be downloaded here. The employee should be familiarized with the drawn up act against his signature, although this obligation is not enshrined in law. If the employee refused to familiarize himself with the act, then this fact must be indicated in the document.

Also in Art. 193 of the Labor Code specifies time limits for imposing disciplinary sanctions. They are six months after the commission of an offense or 2 years if the offense became known during audit or verification activities.

A disciplinary sanction is imposed by order. A unified form of such an order is not provided for by law. But this document should include the following information:

Employee's name.
His position.
Name of structural unit.
Description of the offense committed.
Indication of points of local documentation or provisions of labor legislation that were violated by the employee.
Links to memos and explanatory notes from the employee , acts, minutes of the meeting of the commission to investigate what happened, etc.
The selected type of disciplinary action that will be applied to the employee.
Date of the order and signature of the manager.
The employee must be familiarized with this order and signed . If he refuses to familiarize himself with the order, then a special act is drawn up about this fact. Also, information about the disciplinary sanction must be entered into the personal card in the “Additional information” section (at the discretion of the employer).

The work book does not display information about disciplinary action, except in cases where the disciplinary action is dismissal (based on Part 4 of Article 66 of the Labor Code).

A disciplinary sanction is automatically lifted after one year if the employee has not committed another violation during this time (according to Article 194 of the Labor Code). But the employer can, on its own initiative or at the request of the employee’s immediate superior, remove the penalty early.

According to the norms of the Labor Code, violation of the current procedure for imposing disciplinary sanctions is not allowed. For this, the employer faces liability in the form of a warning or an administrative fine under Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

The fine for officials can range from 1,000 to 5,000 rubles, for legal entities - 30,000-50,000 rubles. If the specified act of violation of labor law is committed again, then the employer faces an administrative fine in the amount of 10,000-20,000 rubles. for officials and 50,000-70,000 rubles. for legal entities.

The objective side of a disciplinary offense

The objective side of a disciplinary offense is illegal behavior (actions or inactions of an employee), its harmful consequences and the cause-and-effect relationship between them.

The illegality of an employee’s behavior in an employment relationship, according to Art. 192 of the Labor Code of the Russian Federation, consists of failure to perform or improper performance of exclusively labor duties, generally listed in Art. 21 Labor Code of the Russian Federation. If it is not related to the performance of work duties, it cannot be considered a disciplinary offense (violation of the rules of conduct in the hostel, failure to fulfill public assignments, etc.).

Harmful consequence and the relationship between action (inaction) and consequence

A harmful (negative) consequence of an employee’s unlawful behavior, as a general rule, is not a mandatory sign of the objective side of a disciplinary offense. That is, the employee is brought to disciplinary liability for committing a formal disciplinary offense.

Let us recall that, as in criminal law, the formal composition of an offense is characterized by the fact that to qualify an act as unlawful, the very fact of the violation is sufficient, and the negative consequences are beyond the scope of the composition and do not matter for the qualification of the act. For example, the very fact of an employee’s absence from work without good reason (absenteeism) is sufficient grounds for dismissal under clause. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. It does not matter whether there were any negative consequences of this absenteeism for the employer.

The material composition is characterized by the obligatory presence of harmful consequences of the deed and a cause-and-effect relationship .

For example, dismissal of an employee on the grounds provided for in subsection. "d" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation will be lawful only if it is established that the employee’s violations of labor protection requirements entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences. If the specified consequences did not occur and there was no threat of their occurrence, there is no disciplinary offense. There will be no corpus delicti even if serious consequences have occurred or a real threat of their occurrence has been created, but a direct cause-and-effect relationship has not been established between the actions (inaction) of the employee and the consequences that have occurred.

Controversial situations and nuances

Let us note several important nuances of disciplinary offenses and the application of penalties for them.

You cannot be fined for disciplinary offenses, but an employee can be deprived of bonuses if such a measure is contained in the LNA (app. definition of the Supreme Court of the Republic of Tatarstan, No. 33-11761/2013 dated 09/26/13).

Can unethical behavior be punished? The judges believe that it is possible (Moscow City Court, ruling No. 33-8753/2012 of 04/10/12). The chances of receiving a disciplinary sanction are especially high if there is a LNA that establishes the norms of corporate ethics of the company.

A similar opinion was expressed by the Ministry of Labor (letter No. 14-2/B-888 dated 09/16/16). Rude, derogatory language in the workplace towards a client is unacceptable. At the same time, there is also extensive judicial practice when judges do not recognize unethical behavior of an employee in relation to management as such, but define it as the exercise of the right to freedom of speech (Article 29 of the Constitution of the Russian Federation, S-P City Court decision No. 33-5330 dated 08 /04/13).

Important! For violating the procedure for applying penalties, the employer himself may be punished with a fine in the amount of 1 to 5 thousand rubles. A fine for the organization is from 30 to 50 thousand rubles. In case of repeated violation, the amounts increase (Article 5.27 of the Administrative Code).

The most important

Negligent performance or neglect of job duties is called a disciplinary offense. Disciplinary liability is established for such an act. The list of disciplinary punishments in the Labor Code of the Russian Federation is closed. The most severe is dismissal.
In addition, there are penalties relating to certain groups of workers. They are established by special regulations, Federal Laws.
Documentation of the disciplinary offense is mandatory. It includes a memo, written explanations from the employee and an order to impose a penalty.
Violation of the procedure and deadlines for applying a penalty (Article 193 of the Labor Code of the Russian Federation) makes it illegal. Along with disciplinary penalties, other penalties may be applied for violation of labor laws.

Object of disciplinary offense

The object of a disciplinary offense is what the offense is aimed at. For example, internal labor regulations, labor, financial, technological, production or other discipline, requirements that an employee must obey in accordance with the law, employment contract, local regulations, etc.

In other words, the object is a specific provision of internal labor regulations or specific job duties that were not performed by the employee or performed improperly. The absence of a specific violation of labor regulations also does not allow the employee to be legally subject to disciplinary action.

For example, if an organization does not have a confidentiality regime for information defined by a local regulatory act, or there is no list of information constituting a trade secret, then dismissal under clause. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for disclosure of trade secrets is impossible precisely because of the absence of such an element of the composition as the object of a disciplinary offense.

Is it possible to impose double punishment?

In Part 5 of Art. 193 of the Labor Code provides a clear answer to the question of the possibility of applying double punishment to an employee for one offense. The rule contained here states that only one punishment can be imposed for the same disciplinary offense.

For example, it is not allowed to simultaneously reprimand an employee and dismiss him under Art. 81 TK. The employer must choose only one punishment that will be grounds for dismissal.

If, as a result of an offense, the employer suffered damage, then he has the right to simultaneously hold the employee financially liable and subject to disciplinary action.

For example, an employee was drunk at work, which resulted in the production of a batch of defective products. The employer may reprimand him and oblige him to compensate him for the cost of damaged materials.

Examples of disciplinary offenses by employees under the Labor Code of the Russian Federation

The list of disciplinary offenses , as mentioned above, is not defined by law, however, a list of grounds for dismissal of employees as a disciplinary measure has been established (Part 3 of Article 192 of the Labor Code of the Russian Federation):

repeated failure by an employee to fulfill work duties without good reason if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);
one-time gross violation of labor duties by an employee (clause 6, part 1, article 81 of the Labor Code of the Russian Federation):
adoption of an unfounded decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9, part 1, article 81 of the Labor Code of the Russian Federation);
a one-time gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (clause 10, part 1, article 81 of the Labor Code of the Russian Federation);
for teaching staff, managers, deputy heads of state or municipal educational organizations of higher education and heads of branches of these organizations: repeated gross violation of the charter of an organization carrying out educational activities within a year (clause 1 of Article 336 of the Labor Code of the Russian Federation);
for athletes: sports disqualification for a period of six months or more; violation by an athlete, including a one-time violation, of all-Russian anti-doping rules and (or) anti-doping rules approved by international anti-doping organizations, recognized as a violation by decision of the relevant anti-doping organization (Article 348.11 of the Labor Code of the Russian Federation);
the commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of trust in him on the part of the employer and were committed by the employee at the place of work and in connection with the performance of his job duties (clause 7, part 1, article 81 of the Labor Code RF);
failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party (clause 7.1, part 1, article 81 of the Labor Code of the Russian Federation);
the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work, if this offense was committed by the employee at the place of work and in connection with the performance of job duties (clause 8 of part 1 of article 81 of the Labor Code of the Russian Federation).

Some of the disciplinary offenses are given, for example, in paragraph. 2 clause 35, clause 36 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2:

absence of an employee from work or workplace without good reason;
refusal of an employee, without good reason, to perform job duties in connection with a change in labor standards in accordance with the established procedure;
refusal or avoidance without good reason from a medical examination of workers in certain professions, as well as the employee’s refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work.
the employee’s refusal to enter into an agreement on full financial liability, if the performance of duties for the maintenance of material assets is the main job function of the employee, which was agreed upon when hiring, and in accordance with the law, such an agreement can be concluded with him, which the employee knew about.

Registration of disciplinary action

The heads of structural units (departments, sections, workshops, services, departments, branches) are usually responsible for the observance of labor discipline by the enterprise's employees and the proper and timely registration of disciplinary offenses. But they, as a rule, have insufficient literacy in the field of drawing up such documents. This gap can be filled in different ways. Each time you can involve a specialist from the personnel service or the preschool educational institution service (document support for management) for this purpose. Or you can develop a memo for heads of structural divisions, which would contain samples of the necessary documents with comments on their execution. So, when it is discovered that a disciplinary offense has been committed, ideally you should :

immediately take measures to stop the offense being committed,
draw up the corresponding act
report the identified fact to your immediate supervisor, and, if necessary, to other services of the enterprise (legal, occupational health and safety department, security service, etc.).

the following documents to the official :

a memo outlining the essence of the disciplinary offense;
a written explanation of the person who committed the violation of labor discipline;
written explanations (reports, memos) of persons involved in the commission or discovery of the committed offense;
working time schedule or a copy of the order on working hours;
other documents necessary for making a decision on imposing a disciplinary sanction and (or) applying material sanctions (job descriptions, extracts from the ETKS, copies of regulatory documents whose requirements were violated, medical examination protocols, acts recording the fact of a violation, for example, on the appearance of working while intoxicated or an act of absence from work, etc.).

When preparing a draft order to impose a disciplinary sanction, it should be remembered that facts that seem obvious often need verification. An order to impose a disciplinary sanction and (or) material sanctions is best divided into three parts:

descriptive,
motivational,
resolutive.

The descriptive part of the order must briefly describe what the disciplinary offense committed by a specific employee was.

The motivation part must indicate all the documents that served as the basis for imposing a disciplinary sanction, indicating their details. These may be items in the job description, work characteristics that the employee violated, memos, acts, protocols indicating their originating (or registration) number and date.

List of disciplinary offenses in the legislation of the Russian Federation

The list of disciplinary offenses is defined in a number of industry regulations. Some of them define only gross disciplinary offenses .

Some examples of lists are given below in the attachment to this publication (list of gross disciplinary offenses committed by military personnel of the Armed Forces of the Russian Federation; list of disciplinary offenses committed by notaries; list of gross violations of official discipline committed by employees of the penal system; list of violations in the field of use of nuclear power energy; list of malicious violations by those sentenced to imprisonment of the established procedure for serving the sentence).

Classification of disciplinary offenses

Disciplinary offenses can be classified into types on various grounds.

1) Types of disciplinary offenses depending on the object that was the subject of the violation:

failure to perform or improper performance of specific job duties assigned to the employee by the employment contract;
violation of labor protection and occupational safety requirements;
violation of the internal labor regulations of the organization;
violation of work and rest schedule, etc.

2) Types of disciplinary offenses according to the subjective criterion (i.e., depending on what category of employee committed them):

The general subject of a disciplinary offense is employees performing their duties in accordance with the employment contract and within the framework of internal labor regulations. General disciplinary liability for misconduct of a common subject is established by Art. Art. 192 - 194 of the Labor Code of the Russian Federation and the internal labor regulations of a particular organization.
A special subject of a disciplinary offense is a separate category of employees whose disciplinary liability rules are established by special legislation, charters and discipline regulations. The disciplinary liability of special subjects is characterized by the special nature of the disciplinary offense, special types of disciplinary sanctions, and a special procedure for imposing and appealing a disciplinary sanction. Special subjects of disciplinary offense include, for example, military personnel, judges, employees of internal affairs bodies, as well as civil servants, i.e. a person who has entered into a service contract with a state authority or local government in accordance with Federal Law No. 79-FZ “On the State Civil Service of the Russian Federation” and Federal Law No. 25-FZ “On Municipal Service in the Russian Federation”, To special subjects of legislation may include, for example, workers engaged in work activities in production, which are characterized by the responsible nature of work duties associated with servicing sources of increased danger or special working conditions.

3) Types of disciplinary offenses depending on the legal consequences for the employee :

misconduct that may result in dismissal as a disciplinary measure;
offenses punishable by other disciplinary measures.

4) Types of disciplinary offenses depending on the form of the employee’s guilt :

offenses committed intentionally;
offenses committed through negligence.

Deadlines

The legislator sets the following deadlines:

to submit a written explanation – 2 days;
to familiarize yourself with the order - 3 days;
from the date of discovery of the offense - 1 month for applying a penalty;
from the date of commission of the offense - six months (if it is discovered later, no penalty is applied).

In some cases, the deadlines are extended. For example, a disciplinary offense based on the results of an audit of a company can be punished for 2 years.

The procedure and terms for applying disciplinary sanctions are established by Art. 193 Labor Code of the Russian Federation. The penalty is lifted after a year or earlier - at the request of the employee, at the request of the administration, at the request of the trade union (Article 194 of the Labor Code of the Russian Federation).