New edition Art. 193 Labor Code of the Russian Federation

Before applying a disciplinary sanction, the employer must request from the employee written explanation. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction can be applied.

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up.

A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for considering individual labor disputes.

Commentary on Article 193 of the Labor Code of the Russian Federation

Regarding the practice of use in companies disciplinary sanctions, then Article 193 of the Labor Code of the Russian Federation is devoted to this. It should be noted that there are several controversial points here.

Any disciplinary sanction has a special procedure for implementation (Article 193 of the Labor Code of the Russian Federation).

First, the offending employee is required to provide a written explanation of the offense (being late, for example), which he may not give. Then - no later than one month from the moment of the offense - a direct disciplinary sanction is carried out - a remark, a reprimand.

After this, management issues an order and gives it to the employee for review.

In addition to the lengthy and very “paper” procedure for disciplinary sanctions, there is another factor that makes this punishment not very attractive to employers. Any penalty can be challenged in court, and the court first of all takes into account the severity of the offense. Therefore, for example, a reprimand for improper dress code or being late will most likely simply be dismissed by the court.

However, practice shows that Russian leaders reprimands are used quite often. Moreover, after two reprimands within a year, an employee can be fired by law. Workers in our country know little about their rights, which is why they rarely go to court. So it is very convenient for an employer to use reprimands as a threat of dismissal for being late, for taking a long lunch, or for having the “wrong” appearance.

Another comment on Art. 193 Labor Code of the Russian Federation

1. To understand the essence of the employee’s misconduct, the employer must obtain an explanation from him in writing. In the explanation, the employee must indicate the reasons for the offense and the circumstances under which it was committed. The employee may refuse to explain, which should not be considered an independent disciplinary offense, but may nevertheless affect the employer’s assessment of the employee’s personality. If the employee refuses to give an explanation, the employer must draw up a statement of refusal after two working days. This act must indicate the calendar date, place and reason for its preparation, as well as indicate the witnesses present when the employee was asked to provide an explanation and his refusal to do so. The act must be signed by an official of the employer and the witnesses present.

An employee’s refusal to give an explanation cannot be an obstacle to bringing him to disciplinary liability if there is other evidence of an offense (for example, memos from his immediate supervisor) and an act of refusal to give an explanation. They may provide documentary grounds for the application of disciplinary measures.

2. Educational value A disciplinary sanction is retained if it is applied directly after the commission of an offense. Therefore, the rule has been established that the penalty must be applied no later than one month from the date of discovery of the offense. The day of detection must be considered the day when the immediate supervisor of the violating employee became aware of it. In cases where there is a question of dismissal of an employee for committing theft (including minor) of someone else’s property at the place of work, embezzlement, intentional destruction or damage, the month period will be calculated from the date the court verdict or the act of the body authorized to do so enters into legal force. application of administrative penalties (for example, resolutions of an official of an internal affairs agency). The monthly period can be increased by:

Employee illness;

He is on vacation;

Necessary to take into account the motivated opinion of the elected body of the primary trade union organization.

The time of illness of an employee is understood as a period of temporary incapacity for work. The time spent on vacation should be understood as the periods of all vacations provided by the employer to the employee (including educational, in connection with pregnancy and childbirth, as well as those provided without pay). wages). In accordance with the provisions of Art. 373 of the Labor Code of the Russian Federation (see commentary to it) upon dismissal for repeated failure by an employee - a member of a trade union without good reasons labor duties, if he has a disciplinary sanction (see paragraph 5 of Article 81 of the Labor Code of the Russian Federation and the commentary thereto), the employer is obliged to notify the elected body of the primary trade union organization so that the latter can assess the legality and validity upcoming dismissal. The elected trade union body, no later than seven working days from the date of receipt of the documents, reviews the submitted documents and communicates in writing to the employer its reasoned opinion on this issue (including the illegality or inappropriateness of dismissal). If you disagree with this opinion of the trade union committee, the employer has the right to terminate the employment contract with the employee no later than one month from the date of receipt of the reasoned opinion of the elected trade union body. This period can no longer be extended while the employee is ill or on vacation.

Other circumstances that seem objective to the employer cannot serve as a basis for extending the period for applying disciplinary sanctions. Thus, by the decision of the Supreme Court Russian Federation dated May 24, 2002 N GKPI2002-375, it is recognized as illegal to extend the deadlines for applying disciplinary sanctions to railway transport workers for the period they are en route on passenger and freight trains, as well as for the period of their use of accumulated rest days.

Such a tough position of the legislator and the judiciary is due to the need to protect the interests of the parties employment contract. Firstly, the effectiveness of any punishment depends on its efficiency and inevitability. Secondly, the employee should not long time be under threat of disciplinary sanctions being applied to him.

In any case, disciplinary sanction must be applied no later than six months from the date of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - no later than two years. These deadlines can be extended only for the duration of the criminal case by the bodies of inquiry and investigation.

3. By general rule For each disciplinary offense, the employer can apply only one disciplinary sanction provided for by the Labor Code or the statutes and regulations on discipline. Along with this, it is possible and necessary to simultaneously bring the employee to property (material - according to labor law) or civil liability in the event that his misconduct resulted in property damage. In this case, the rules and deadlines provided for by labor and civil legislation must be observed. In addition, along with disciplinary measures, disciplinary measures may be applied to the employee at the same time. For example, an employee may be reprimanded and deprived of bonuses for the period during which the violation occurred. labor discipline.

4. As a general rule, the head of the organization exercises the full authority to apply disciplinary measures. At the same time, local regulations (orders of the manager, job descriptions or internal labor regulations) can redistribute the competence to bring employees to disciplinary liability between officials of the employer organization at various levels. Thus, the head of a workshop may be authorized to issue comments and reprimands to the workers of the workshop, and the head of a branch or representative office, on the basis of a power of attorney, may have full disciplinary powers, including dismissal of employees for violations of labor discipline. In some cases, the distribution of competence to apply disciplinary measures is carried out centrally. For example, the Charter on the discipline of crews of support vessels of the Navy provides that the commander of the ship (captain) can issue a reprimand, reprimand, severe reprimand and warn about incomplete performance, and an official who has the right to hire can exercise full disciplinary powers , - commander of a formation of ships or a military unit (clauses 15 and 16 of the Charter).

5. The order (instruction) on punishment is announced to the employee no later than three days from the date of publication against signature. This is necessary to confirm that the employee is familiar with the penalty applied to him. To optimize and record this procedure, it is advisable to include a note on the order (instruction) form itself indicating that the employee has familiarized himself with it. If the employee refuses to sign the acknowledgment, then an act is drawn up, similar in form and content to the act of refusal to give an explanation for the commission of a disciplinary offense (see paragraph 1 of the commentary to this article).

6. An employee may not agree with his being brought to disciplinary liability or with the type of penalty applied. In this case, he can appeal the employer’s actions to the state labor inspection authorities or labor dispute resolution authorities.

In accordance with the provisions of Part 2 of Art. 357 of the Labor Code of the Russian Federation (see commentary to it) in the event of an appeal by a trade union body, an employee or another person to the state labor inspectorate on an issue that is being considered by the relevant body for consideration of an individual or collective labor dispute (with the exception of claims accepted for consideration by the court, or issues on which there is a court decision), state labor inspector when identifying an obvious violation labor legislation or other regulatory legal acts containing labor law norms, has the right to issue an order to the employer that is subject to mandatory execution. This order may be appealed in court within ten days from the date of its receipt by the employer or his representative. Moreover, in accordance with the provisions of Art. 23.12 of the Code of the Russian Federation on Administrative Offenses The Federal Labor Inspectorate and state labor inspectorates subordinate to it are vested with the right to consider cases of violations of labor legislation and bring guilty employer officials to administrative responsibility.

If an employee disagrees with disciplinary action, he or she may appeal the employer’s actions to the labor dispute commission, except in cases of dismissal for committing a disciplinary offense (see Articles 385 - 391 and the commentary thereto).

An employee, in compliance with established procedures and in the presence of sufficient grounds, may resort to judicial protection of his rights in the event of an alleged or actual violation of them when bringing him to disciplinary liability. In addition to protecting your rights in the manner prescribed by the provisions of Art. Art. 391 - 393 of the Labor Code of the Russian Federation (see commentary to them), the employee can appeal the employer’s actions to the magistrate. In accordance with sub. 7 clause 1 art. 3 of the Law on magistrates in the Russian Federation of December 17, 1998 N 188-FZ (SZ RF. 1998. N 51. Art. 6270) magistrates consider cases arising from labor relations, with the exception of cases of reinstatement at work.

Courts of general jurisdiction consider labor disputes related to bringing workers to disciplinary liability, both at first instance and by appealing decisions of the labor dispute commission and magistrates. In cases involving applications for reinstatement of an employee at work, courts of general jurisdiction are necessarily the first instance. Based on the results of the consideration of the case, the court makes a decision or issues a court order. In accordance with the provisions of Art. 211 of the Civil Procedure Code of the Russian Federation, a court decision or court order is subject to immediate execution if it is made on an application for payment of wages to an employee for three months and reinstatement at work.

• Up

In few enterprises, let alone large ones, disciplinary sanctions were not applied (for which appropriate orders must be issued), because sooner or later, every person can make a mistake by violating discipline in the workplace. The Labor Code defines such an action or inaction as a disciplinary offense (in the form, for example, of absenteeism, which also entails punishment: details). Its implementation requires a certain procedure from the employer, as well as compliance with the rules of its application. Therefore, let's take a closer look at how this happens.

Disciplinary sanctions under the Labor Code of the Russian Federation - what are they?

The Labor Code of the Russian Federation defines disciplinary action as a measure of punishment for an employee for misconduct, that is, for failure to fulfill job duties, or their improper performance. This should include violation of job descriptions, employer orders, labor laws, contracts, and internal regulations. Thus, the employer influences the employee with intangible methods, as a result of which the commission of an offense becomes less expected due to the fear of punishment.

For committing a disciplinary offense, the employer has the right to apply the following disciplinary sanctions:

• Fine;
• Removal from the work process;
• Demotion;
• Dismissal.

More details on this issue can be found in this article.

disciplinary sanctions with comments

Article 193 of the Labor Code of the Russian Federation indicates the procedure for applying such an action. It is impossible to apply several penalties at once for one offense. Only a certain type is selected and an order is issued based on it. Before issuing it, in some cases, a disciplinary investigation may be necessary to prove the employee’s guilt, but often the presence of certain facts and witnesses is sufficient.

Is dismissal for disciplinary sanctions provided for under the Labor Code?

One of the most severe penalties is dismissal. However, there must be good reasons for it, as specified in Article 192 of the Labor Code. They are as follows:

• systematic absenteeism;
• actions that resulted in an accident or accident;
• disclosure of secrets;
• alcohol or drug intoxication;
• theft.

Each point has its own nuances. For example, non-disclosure of secrets can become a reason for dismissal only if it is specified in the contract. As for absenteeism, it must be systematic, that is, the law does not provide for dismissal for one absenteeism. Moreover, a more generous punishment should also be applied earlier. Additional information about dismissal under the Labor Code of the Russian Federation can be found.

Disciplinary measures under the Labor Code

In addition to dismissal, the Labor Code specifies such penalties as reprimand and reprimand. The first is a verbal warning, or a corresponding written order without an entry in the work book. The second consists of official registration for more serious types of misconduct and can be entered in the work book if it is regular.

Regarding dismissal, it is important to add that it carries more serious consequences, since there will be not only a search new job, but also difficulties in the device due to a negative entry in the work book.

Material measures include fines that are illegal, deprivation of bonuses if provided for in the contract, or financial liability. Its use is likely to cause damage to the property of an enterprise.

Disciplinary sanctions against military personnel

Military personnel, along with employees, can also commit disciplinary offenses and, as a result, penalties are applied to them. This right may be exercised in accordance with Article 75 of this Charter. These include:

• a severe reprimand or entered into a personal file;
• outfits out of turn (up to 5);
• ban on layoffs;
• reduction in rank;
• early dismissal from service;
• determination for the position below;
• disciplinary arrest or correctional labor.

In addition, material punishments are also applied to military personnel, such as deprivation of one-time payments or quarterly bonuses, as well as entering information into a personal card.

Disciplinary sanctions in the state civil service

For civil servants, the procedure and types of disciplinary sanctions are almost identical to the generally accepted ones, but, nevertheless, they have a number of differences. An additional penalty is a warning about incomplete performance. This is the so-called threat of dismissal. In such a situation, as a rule, the employee is demoted and offered other vacancies. If there are no such people, then he will be fired. The civil service also provides for an internal audit, on the basis of which the employee’s guilt is determined.

Appealing a disciplinary sanction

If the employer violates the procedure and deadlines for applying a penalty, the employee has the right to appeal it. The employer has no right to impose any type of punishment without requiring explanatory note. You cannot punish an employee for being absent from work if he has sick leave. It is also prohibited to punish repeatedly for the same offense. All of the above gives the right to appeal against the penalty. In addition, some employers use wage deductions that are illegal.

An appeal is made within 3 months after disciplinary sanctions are issued; in case of dismissal, this period is reduced to one month. To do this, you should contact the labor inspectorate, the commission for official or labor disputes, or the court.

How can I appeal a disciplinary sanction to the Ministry of Internal Affairs?

The appeal of these sanctions by employees of the Ministry of Internal Affairs is no different from the generally accepted ones. To do this, they need to contact their immediate supervisor, the court or the commission for official disputes. Employees have a three-month period to appeal after reading the order. The dispute is considered within a month, and its appeal is possible only within 10 days after the decision is made.

Imposing a disciplinary sanction on an employee - grounds and procedure according to the Labor Code of the Russian Federation

The current Labor Code provides provisions on the basis of which it is possible to make a recovery. The employee is obliged to properly fulfill his duties prescribed in the contract, comply with discipline and labor safety rules. The list of grounds for punishment also includes gross violations, such as alcohol intoxication at work, absenteeism, theft, etc.

The procedure for applying punishment for employees is that it can be imposed on a specific person within a month from the moment the fact of its commission was revealed. An important clarification: sick leave is not included in this period. It is also important to understand that the statute of limitations is 6 months. If during this time the offense is not identified, it will become impossible to punish for it.

Order to impose a disciplinary sanction on an employee - sample

A sample reprimand order is not provided for by law, but the list of required information should be as follows:

• Company name;
• number, date and title of the document;
• reasons for compiling and description of the violation committed;
• grounds for punishment - article of the Labor Code of the Russian Federation;
• person responsible for execution;
• signature of the manager and the offender;
• seal of the organization.

Thus, there are certain rules and procedures for filing a disciplinary sanction. If they are violated, the employer loses this right.

Current version of Art. 192 of the Labor Code of the Russian Federation with comments and additions for 2018

For committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:
1) remark;
2) reprimand;
3) dismissal for appropriate reasons.

Federal laws, charters and regulations on discipline (part five of Article 189 of this Code) for individual categories employees may also be subject to other disciplinary sanctions.
Disciplinary sanctions, in particular, include the dismissal of an employee on the grounds provided for in paragraphs 5, 6, 9 or 10 of part one of Article 81, paragraph 1 of Article 336 or Article 348.11 of this Code, as well as paragraph 7, 7.1 or 8 of part one of Article 81 of this Code Code in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by an employee at the place of work and in connection with the performance of his job duties.
The application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted.

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

Commentary on Article 192 of the Labor Code of the Russian Federation

1. An employer can apply not only rewards to an employee, but also disciplinary sanctions, thus giving a negative assessment of the employee’s behavior.

The grounds for applying disciplinary sanctions are the disciplinary offenses committed by the employee, that is, the failure or improper performance by the employee through his fault of the labor duties assigned to him.

Guilt constitutes the subjective side of a disciplinary offense and represents the employee’s mental attitude to the offense committed. Guilt can be intentional or careless, and intent can be direct or indirect.

According to paragraph 35 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation, failure by an employee to fulfill labor duties without good reason should be understood as failure to fulfill labor duties or improper performance through the fault of the employee of labor duties assigned to him (violation of legal requirements, obligations under an employment contract, internal labor rules regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).

At the same time, paragraph 19 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application by courts of the Labor Code of the Russian Federation draws attention to the fact that, by virtue of paragraph 5 of Part 1 of Art. 219, part 7 art. 220 of the Labor Code of the Russian Federation, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except for cases provided for by federal laws, until such danger is eliminated or from fulfillment heavy work and work with harmful and (or) dangerous conditions labor not provided for in the employment contract.

2. The employer has the right to apply disciplinary sanctions to the employee such as:
- remark - the mildest of penalties;
- a reprimand, which, despite the semantic meaning of this concept, should be issued not orally, but in writing;
- dismissal for appropriate reasons is the most severe punishment within the framework of labor relations. Such grounds for dismissal are the employee’s repeated failure to fulfill work duties without good reason, if he has a disciplinary sanction; one-time gross violation employee's work duties (absenteeism, employee showing up at work in a state of alcohol, narcotic or other toxic intoxication, etc.); a single gross violation by the head of the organization (branch, representative office), or his deputies of their labor duties; commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer, and other cases ().

The above hierarchy of disciplinary sanctions does not mean that they must be imposed on the offender in any prescribed sequence. In fact, for the same offense (for example, showing up at the workplace while intoxicated), the employer can apply both reprimand and dismissal.

However, in all cases, to determine the type of disciplinary sanction, it is necessary to take into account the circumstances of the offense, the degree of its severity and the employee’s guilt. , discrimination against employees when imposing disciplinary sanctions is unacceptable depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, attitude to religion, political beliefs, membership or non-membership of public associations, as well as from other circumstances not related to business qualities employee.

If disputes arise, the issue related to the validity of a particular disciplinary sanction is resolved by the court.

3. It should be noted that a reprimand or reprimand applied for the first time does not entail the dismissal of an employee; information about them is not included in work book employee, but in the future they may serve as a reason for termination of the employment contract at the initiative of the employer in accordance with paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction.

Thus, the ruling of the St. Petersburg City Court dated January 17, 2013 N 33-746/2013 states that the employee was refused to satisfy the demands for reinstatement at work and the recovery of wages for the period of forced absence, since it was established that he had violated the rules internal labor regulations, expressed in insulting the organization's employees, and due to the fact that at the time of committing this offense he had disciplinary sanctions, the employer had grounds for terminating the employment contract on this basis.

For example, Part 1 of Art. 57 of the Federal Law “On the State Civil Service of the Russian Federation” provides that in the event of a disciplinary offense committed against a state civil servant, disciplinary sanctions are applied such as a reprimand, a reprimand, a warning about incomplete official compliance, dismissal from the civil service on the grounds established in paragraph 2 , pp. pp. "a" - "g" clause 3, clauses 5 and 6, part 1, art. 37 of this law.

At the same time, the commented article establishes a ban on the use of disciplinary sanctions that are not provided for by federal laws, charters and regulations on discipline.

Another comment to Art. 192 Labor Code of the Russian Federation

1. The employer has the right to hold violators of labor discipline accountable, but can exercise this right at its own discretion: choose the best option from the possible penalties to be applied, or generally refuse to hold the violator accountable. Only in exceptional cases, directly provided for by law, is the employer obliged to take disciplinary measures (see, for example, Article 195 of the Labor Code and the commentary thereto).

2. An employee can be brought to disciplinary liability only if he commits a disciplinary offense, which is understood as a culpable failure or improper performance by the employee of his job duties.

An employee can be subject to disciplinary liability if the following conditions are met:
a) the employee’s behavior must be unlawful, i.e. his actions must actually not comply with the requirements of the law, the obligations under the employment contract or the orders of the employer based on them. An employee’s refusal to be divided into parts cannot be considered a disciplinary offense. annual leave, which is possible only by agreement of the parties (see);
b) as a result of the employee’s actions, damage of a property and (or) organizational nature is caused. More often, damage of an organizational nature occurs when the order established by the employer is violated (absenteeism, being late for work, etc.);
c) the damage suffered by the employer must be a direct consequence of the employee’s violation of labor duties, and vice versa, the cause of the damage must be the employee’s unlawful behavior, i.e. there must be a cause-and-effect relationship between the employee’s misconduct and the resulting damage to his employer;
d) the employee’s actions must be culpable, i.e. committed intentionally or through negligence. If there is no fault in the employee’s behavior in any form, then there is a case that does not give the employer grounds to apply disciplinary action to him. It is impossible to fire an employee for absenteeism due to being late from vacation due to the cancellation of flights due to meteorological or technical circumstances, confirmed in the prescribed manner.

3. Unlike the list given in Art. 191 of the Labor Code of Incentives, the list of disciplinary measures is exhaustive for the vast majority of employers and employees. Only in certain sectors of the economy where charters and regulations on discipline approved by federal law are in effect, additional disciplinary measures can be applied to employees. This is due to the increased public danger of unlawful behavior by workers in these industries. The list of current statutes and regulations on discipline is given in the commentary to Art. 189 TK.

For example, the Charter on the discipline of crews of support vessels of the Navy, approved. Decree of the Government of the Russian Federation of September 22, 2000 N 715, and the Charter on employee discipline maritime transport, approved Decree of the Government of the Russian Federation of May 23, 2000 N 395, in addition to the penalties listed in the commented article, provides for the announcement of a severe reprimand and a warning about incomplete official compliance.

Charter on discipline of workers of the fishing fleet of the Russian Federation, approved. Decree of the Government of the Russian Federation of September 21, 2000 N 708, in addition to the above-mentioned disciplinary measures, provides for the possibility of confiscating diplomas from captains and officers of the fishing fleet for a period of up to three years. Such confiscation of diplomas is possible for violation of labor discipline, which creates a threat to the safety of navigation, life and health of people at sea, pollution environment, as well as for gross violation of fishing rules (clause 20 of the Charter).

Regulations on discipline of railway transport workers of the Russian Federation, approved. Decree of the Government of the Russian Federation dated August 25, 1992 N 621, provides for the possibility of depriving a driver of a license to operate a locomotive, and an assistant driver of an assistant driver’s certificate. The driver may be deprived of his license to drive a locomotive for a period of up to one year for committing an offense that led to a derailment or accident, as well as for appearing at work in drunk, in a state of toxic or narcotic intoxication (Part 2, Clause 16 of the Regulations).

4. Employers may not establish or enforce any additional types disciplinary sanctions. Part 3 of the commented article provides for the establishment of disciplinary measures only by federal laws (the charters and regulations on discipline approved by them). Consequently, any attempts by other subjects of regulation of relations in the sphere of labor to establish additional types of disciplinary sanctions should be defined as illegal.

5. Disciplinary sanctions can only be applied for violations of labor discipline, i.e. failure by the employee to comply with established rules in the labor process. If damage is caused to the interests of the employer outside of working hours or when not performing duties under the employment contract, the employee cannot be subject to disciplinary liability. The Plenum of the Supreme Court of the Russian Federation did not include among the disciplinary sanctions the case of dismissal of employees for the commission by a person performing educational functions of an immoral act incompatible with the continuation of work (clause 47 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation"). In this regard, one should take into account the provision of Part 3 of the commented article that dismissal for committing an immoral offense by a person performing educational functions, or committing guilty actions by an employee directly servicing monetary or commodity assets, as a type of disciplinary sanction, can be applied only in the case if these actions were committed in connection with the performance of work duties by employees.
Dismissal is a special type of disciplinary sanction. In this case, the employer exercises its right to terminate the contract if the other party fails to fulfill its obligations under it. Currently, dismissal as a disciplinary measure should include those carried out on the grounds provided for in paragraphs 5, 6, 9 and 10 of Part 1 of Art. 81, paragraphs 1 and 2 of Art. 336, paragraphs 4, 5, 6 art. 341 and art. 348.11 TK. In addition, dismissal is possible on the grounds formulated in paragraphs 7 - 8 of Part 1 of Art. 81 of the Labor Code, in the event of an offense being committed at the place of work and in connection with the performance of work duties by the employee. Not all of the listed grounds for dismissal are enshrined in the commented article, but it must be taken into account that the legislator provides an approximate list without indicating its exhaustive nature.

6. It is necessary to distinguish between disciplinary measures and disciplinary measures. The list of the former should be directly provided for in federal laws (currently in acts of the Government of the Russian Federation). The latter can be installed in local regulations. Disciplinary measures cannot be offensive to the employee or cause damage to his honor and dignity. These include:
a) deprivation, in whole or in part, of the bonus provided for by the organization’s remuneration system for the period in which the disciplinary offense was committed;
b) restriction of the use of social and cultural facilities owned by the employer;
c) reduction in the amount or non-payment of remuneration based on the results of the organization’s work for the year;
d) appointment of extraordinary certification, etc.

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Article 191. Incentives for work

The employer encourages employees who conscientiously perform their job duties (declares gratitude, gives a bonus, awards a valuable gift, a certificate of honor, nominates them for the title of the best in the profession).

Other types of employee incentives for work are determined by a collective agreement or internal labor regulations, as well as charters and discipline regulations. For special labor services to society and the state, employees can be nominated for state awards.

Article 192. Disciplinary sanctions

For committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

1) remark;

2) reprimand;

3) dismissal for appropriate reasons.

Federal laws, charters and regulations on discipline (part five of Article 189 of this Code) may also provide for other disciplinary sanctions for certain categories of employees.

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

The application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted.

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

Article 193. Procedure for applying disciplinary sanctions

Before applying disciplinary action, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction can be applied.

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up.

A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

Article 194. Removal of disciplinary sanctions

If within a year from the date of application of the disciplinary sanction the employee is not subject to a new disciplinary sanction, then he is considered to have no disciplinary sanction.

The employer, before the expiration of a year from the date of application of the disciplinary sanction, has the right to remove it from the employee according to own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.

Article 195. Bringing to disciplinary liability the head of the organization, the head of the structural unit of the organization, their deputies at the request of the representative body of employees

The employer is obliged to consider the application of the representative body of employees about the violation by the head of the organization, the head of the structural unit of the organization, their deputies of labor legislation and other acts containing labor law, the terms of the collective agreement, agreement and report the results of its consideration to the representative body of employees.

If the fact of violation is confirmed, the employer is obliged to apply disciplinary action to the head of the organization, the head of the structural unit of the organization, and their deputies, up to and including dismissal.

For committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

1) remark;

2) reprimand;

3) dismissal for appropriate reasons.

Federal laws, charters and regulations on discipline (part five of Article 189 of this Code) may also provide for other disciplinary sanctions for certain categories of employees.

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

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

Commentary on Article 192 of the Labor Code of the Russian Federation

1. If an employee has violated labor discipline, then the administration is obliged to apply a disciplinary or social measure or a measure of coercion to him. Coercion is an important element of power.

There are 2 types of labor discipline violations:

1) failure to fulfill duties, including incomplete fulfillment of duties, poor performance of duties;

2) excess of rights, but only such that violates the rights and freedoms of other persons (Article 17 of the Constitution of the Russian Federation).

Responsibilities and rights are established in various regulatory legal acts, including local ones, developed by the organization itself.

An employee’s action or inaction is considered a violation of labor discipline if certain conditions are met.

Disciplinary liability occurs for a disciplinary offense. The main characteristics of a disciplinary offense include the following: socially non-dangerous violations of the internal labor regulations of the organization; violations committed by an employee who is in an employment relationship with the organization; failure by an employee to fulfill a duty or exceeding his rights, violating the rights and freedoms of another person. The object of the violation is the internal labor regulations of the organization. A disciplinary offense committed in the form of an act or omission is a culpable act, i.e. committed intentionally or through negligence.

The main reasons for violations of labor discipline are the following: shortcomings in the organization of work; working conditions that promote violations or even force the employee to commit violations; wages that do not encourage disciplined work; lack of control in the labor process; impunity of workers; personal disorganization of the employee; family living conditions.

The causes of violations also include contradictions between:

rules of law and real standards by which labor relations operate;

skilled and unskilled labor;

mental and physical labor;

private property and cooperative labor organization;

interests of people.

2. Punishment is associated with the restriction or deprivation of benefits from the offender - a bonus, the right to a trip, etc. This is a negative assessment of human activity by the subject of management - the employer and his administration.

The purpose of punishment is to convince a person to stop committing violations in the future and to deter other employees from violating them. Punishment is a consequence of the guilty person’s failure to fulfill a duty, or the excess of rights. For punishment to be effective, the following rules must be followed:

1) inevitability of impact. If all violators know in advance that sanctions will be applied to them immediately after committing a violation, most likely only a very small part of them will commit violations. Most violators hope and are even confident that they will not be held accountable;

2) individualization of punishment. When applying punishment, it should be taken into account that it must be extremely significant for the employee. For example, an employee violated labor discipline - he was late for work. The manager decided to reprimand him. But for this man there is no reprimand of great importance. For him, the deprivation of the right to part-time employment is more significant. If he has violated discipline, he is warned that he will be deprived of the opportunity to combine, and this turns out to be a more effective measure for him than any other;

3) the significance of punishment for the employee;

4) fairness of punishment. A person can only be brought to justice for culpable failure to fulfill his duties;

5) the administration must take into account the severity of the disciplinary offense, as well as its economic consequences, the circumstances in which it was committed, previous work, and the person’s attitude towards his violation;

6) punishment should not humiliate the honor and dignity of a person.

Exist different kinds disciplinary sanctions.

For committing a disciplinary offense, i.e. failure to perform or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions in accordance with Art. 192 TC: remark; rebuke; dismissal for appropriate reasons.

Dismissal as a disciplinary sanction can be applied when an employee has committed a disciplinary offense, consisting in the fact that he has not performed or improperly performed, through his own fault, the duties assigned to him.

Federal laws, charters and regulations on discipline for certain categories of employees may also provide for other disciplinary sanctions.

The application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted.

3. Before applying a penalty, an explanation in writing must be requested from the violator of labor discipline. At the same time, the employee’s refusal to provide an explanation cannot serve as an obstacle to applying disciplinary action. If a person refuses to give an explanation, an act is drawn up in which the fact of refusal is recorded. The act is drawn up in any form and signed by at least 2 - 3 employees who enjoy the trust of the team. An explanation is necessary in order to clarify the circumstances of the violation, its causes, and the attitude of the violator towards it.

Disciplinary action is applied by the administration immediately after the commission of an offense, but no later than 1 month. from the date of its discovery, not counting the time of illness or the employee being on vacation, as well as the time necessary to take into account the opinion of the representative body of employees. If the collection is announced later than this period, the collection will be illegal. Disciplinary action cannot be imposed later than 6 months. from the day the offense was committed, based on the results of an audit or inspection of financial and economic activities, or audit activities- no later than 2 years from the date of its commission. The specified time limits do not include the time of criminal proceedings. If, for example, the administration learned about a disciplinary offense after 3 months. after it has been committed, she can apply disciplinary measures within 1 month. from the date of its discovery, but after 6 months. from the date of its commission, she is deprived of the right to declare a penalty.

For each violation, only 1 disciplinary sanction can be applied. The penalty is announced to the employee in an order (instruction) indicating the reasons for its application and must be announced to the employee against receipt within 3 working days from the date of its publication. If the employee refuses to sign the order, then a note about this is made in the order or a report is drawn up. For example, an employee was reprimanded in an order that was posted on the notice board. However, the employee was not notified, and he did not see the order on the notice board. In this case, it is considered that the employee does not have a penalty.

A disciplinary sanction can be appealed by an employee to state labor inspectorates or bodies for the consideration of individual labor disputes.

The penalty is valid for 1 year. After this time, it is considered that the employee does not have a penalty (in this case, no order is required). At the same time, a disciplinary sanction can be lifted before the end of the year if the person has not committed a new violation of labor discipline and has proven himself to be a conscientious worker.

4. The most important responsibility of the administration is to register violations. It is advisable to draw up a methodology for registering each responsibility from job description. For example, an organization employs 1 thousand people. Each of them is assigned 30 responsibilities. In total, the organization's employees have 30 thousand responsibilities. It is advisable to analyze them and develop a method for recording violations of each of them.

5. Disciplinary sanctions are a coercive measure provided for in a regulatory legal act, applied by an official in accordance with his competence for a disciplinary offense committed. Organizations and enterprises do not have the right to change the types of disciplinary sanctions at their discretion.

It is necessary to distinguish from disciplinary sanctions disciplinary measures that are established by the organization, for example, deprivation of bonuses, failure to provide various benefits. As a rule, the provision of these benefits is directly related to the observance of discipline.

A reprimand with a warning and other measures not provided for in the commented article can be considered a disciplinary measure, but not a disciplinary sanction.

Disciplinary measures differ from other disciplinary measures in that they are established in legislation, charters, and regulations on discipline.

The commented article does not require the application of penalties in the sequence established in it. The choice of penalty depends on the severity of the offense committed, the circumstances of the violation, and the behavior of the employee.

The application of penalties is not an obligation, but a right of the administration. It should be considered the responsibility of the administration to register the violation and apply to the violator the measure of influence that is most reasonable and effective in the given circumstances.

6. Disciplinary sanctions are also provided for in other laws. In accordance with Art. 57 Federal Law dated July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” for committing a disciplinary offense, i.e. for non-fulfillment or improper fulfillment by a civil servant through his fault of the duties assigned to him job responsibilities, the employer's representative has the right to apply the following disciplinary sanctions: reprimand; rebuke; warning about incomplete job compliance; exemption from a civil service position; dismissal from the civil service on the grounds established in clause 2, sub-clause. "a" - "g" clause 3, clauses 5 and 6, part 1, art. 37 of the said Law.

For each disciplinary offense, only 1 disciplinary sanction can be applied.

Article 1 of ILO Convention No. 105 “Abolition of Forced Labor” (1957) obliges the state to abandon forced labor as a means of maintaining labor discipline. Therefore, if transfer to another job as a form of punishment is regarded as a type of forced labor, then it cannot be used.

A reduction in class rank may not be associated with a change in responsibilities and is therefore acceptable.

For example, for committing a disciplinary offense (Article 27 of the Federal Law of March 2, 2007 N 25-FZ “On Municipal Service in the Russian Federation”) - failure or improper performance by a municipal employee through his fault of the official duties assigned to him - a representative of the employer ( the employer) has the right to apply the following disciplinary sanctions: 1) reprimand; 2) reprimand; 3) dismissal from municipal service on appropriate grounds.

A municipal employee who has committed a disciplinary offense may be temporarily (but not more than 1 month), until the issue of his disciplinary liability is resolved, suspended from performing official duties while maintaining his pay. The removal of a municipal employee from the performance of official duties in this case is carried out by a municipal legal act.

7. A representative of the administration of an enterprise, institution, or organization has the right to apply disciplinary measures.

In order to have the right to apply disciplinary measures, an employee of the organization must be assigned to the administration group in the local regulatory legal acts of the organization: charter, PVTR, regulations on structural unit. This act must define the scope of his disciplinary power (for example, the right to issue only a reprimand, reprimand, etc.). In addition, the circle of persons to whom his disciplinary power extends must be determined.

The scope of disciplinary power usually includes the following powers: to give mandatory instructions; determine labor functions; apply disciplinary measures; apply 1 type of incentives; issue an order (instruction) within its competence.

The circumstances of the commission of an offense can be divided into 2 types: mitigating and aggravating punishment.

Circumstances mitigating punishment include such as committing an offense for the first time, through negligence, by a minor, by a pregnant woman, insignificant harm, etc.

Circumstances aggravating liability can be considered: repeated commission of the offense; the onset of severe consequences for the organization; intentional actions of the offender; state of narcotic or toxic intoxication; an attempt to hide the fact of a violation; refusal to cooperate with the administration during a disciplinary investigation; involvement of other employees in violation, etc.

When choosing a punishment, the offender’s previous work, his attitude to work, for example, conscientious work or systematic violations, etc., are taken into account. The behavior of the employee is also taken into account - whether he repents or not of committing an offense, how he plans to work in the future, etc.

A classification of violations by severity and a list of mitigating and aggravating circumstances may be included in the PVTR.

8. The commented article refers to the following statutes: Disciplinary Charter of the Customs Service of the Russian Federation (Decree of the President of the Russian Federation of November 16, 1998 N 1396); Charter on the discipline of crews of support vessels of the Navy (Resolution of the Government of the Russian Federation of September 22, 2000 N 715); Charter on discipline of workers of the fishing fleet of the Russian Federation (Resolution of the Government of the Russian Federation of September 21, 2000 N 708); Charter on discipline of maritime transport workers (Resolution of the Government of the Russian Federation of May 23, 2000 N 395); Charter on discipline of employees of organizations with particularly hazardous production in the area of ​​use atomic energy(Resolution of the Government of the Russian Federation of July 10, 1998 N 744); Charter on discipline of employees of enterprises and organizations involved in the development of gas and oil fields with a high content of hydrogen sulfide (Resolution of the Council of Ministers of the USSR of October 30, 1987 N 1216); Charter on the discipline of workers engaged in geological exploration for solid minerals on the continental shelf of the USSR and in the World Ocean (Resolution of the Council of Ministers of the USSR of August 6, 1985 N 749); Charter on the discipline of workers and employees engaged in the development of oil and gas resources on the continental shelf of the USSR (Resolution of the Council of Ministers of the USSR of December 16, 1982 N 1081); Charter on discipline of communications workers of the USSR (Resolution of the Council of Ministers of the USSR of April 20, 1972 N 284).

9. See also paragraph 53 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”.

10. Dismissal of an employee as a disciplinary sanction is carried out in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee at the place of work and in connection with the performance of his job duties.

Disciplinary sanctions, in particular, include the dismissal of an employee under paragraphs 5, 6, 9, 10 of Part 1 of Art. 81 Labor Code (see commentary to this article).

Grounds for termination of an employment contract with teaching worker educational institution(Clause 1 of Article 336 of the Labor Code) is a repeated gross violation of the charter of an educational institution within 1 year.

Disciplinary sanctions also include the dismissal of an employee under paragraphs 7 or 8 of Part 1 of Art. 81 TK.