What is the validity period of a disciplinary sanction? Duration of disciplinary action: general rules and exceptions.

The right to bring employees to disciplinary liability, that is, to impose disciplinary sanctions on them, is vested in the authorized representatives of the employer, who, in accordance with the law and constituent documents, are vested with the authority to hire and fire employees. This conclusion suggests itself from the content of Part 1 of Art. 192 of the Labor Code of the Russian Federation, where dismissal from work is indicated as a disciplinary measure. Naturally, this measure can only be applied by a person who has the authority to hire and fire employees. Other disciplinary actions must also generally be taken by the individuals named. Indeed, in case of dismissal under clause 5 of Art. 81 of the Labor Code of the Russian Federation for repeated failure to fulfill labor duties without good reason, a disciplinary sanction applied to an employee is one of the reasons for terminating an employment contract at the initiative of the employer. Whereas only a person with the authority to hire and fire employees has the right to make a decision to dismiss an employee.

In accordance with Part 4 of Art. 20 of the Labor Code of the Russian Federation, the powers of the employer in labor relations, including when applying disciplinary sanctions, are exercised by the management bodies of the organization or persons authorized by them in the manner established by law, constituent documents and local regulatory legal acts of a legal entity. In connection with the foregoing, we can conclude that the head of an organization, without a decision of its management body, cannot delegate powers to other persons to apply disciplinary sanctions, including by issuing them an appropriate power of attorney or issuing an order (instruction). The foregoing allows us to identify two legally significant circumstances, the proof of which allows us to conclude that a person has the authority to apply disciplinary sanctions. Firstly, such a circumstance is the presence of a decision by the authorized management body of the organization to grant the right to apply disciplinary sanctions. This right arises without a special decision from persons authorized by the organization’s management body to hire and fire employees. Other employees may be granted the right to apply disciplinary sanctions by a decision of the organization's management body, which has the authority to grant employees the right to hire and fire employees of the organization. The decision of the authorized management body of the organization may provide for the transfer of the right to apply disciplinary sanctions by the person exercising the authority to hire and fire employees to other persons. In this case, the person exercising the right to hire and fire employees, in compliance with the decision of the authorized body for the management of the organization, may grant the authority to apply disciplinary sanctions to other employees. Thus, without a decision of the authorized body for managing a legal entity, the authority to apply disciplinary sanctions cannot arise.

Secondly, a legally significant circumstance, the proof of which allows us to conclude that a person has the authority to apply disciplinary sanctions, is the adoption of a decision by the organization’s management body to grant these powers in accordance with the current legislation, constituent documents and other local regulatory legal acts of the organization. In connection with the foregoing, we can conclude that the transfer of powers to apply disciplinary sanctions by a person vested with the right to hire and dismiss employees to other employees can be recognized as legal if the decision of the authorized body for managing the organization on this is made in accordance with its competence. That is, the authority of the organization’s management body to transfer the right to apply disciplinary sanctions by decision of a person with the authority to hire and dismiss to other employees must be recorded in the constituent documents or other local regulatory legal acts of the organization. The absence of such authority from the management body of the organization does not allow the transfer of the right to bring disciplinary liability to other persons to be recognized as legal. In this case, only the body managing the legal entity has the right to grant powers to apply disciplinary sanctions.

Proof of the considered legally significant circumstances allows us to conclude that a disciplinary sanction has been applied by an authorized representative of the employer. Failure to prove any of these circumstances indicates that the person lacks the authority to apply disciplinary sanctions, which entails recognizing the order to impose disciplinary sanctions as having no legal consequences. Thus, the presence of the authority to apply disciplinary sanctions is another legally significant circumstance that must be proven when bringing an employee to disciplinary liability.

As already noted, a legally significant circumstance that must be proven when bringing an employee to disciplinary liability is the commission of a disciplinary offense by the employee, as well as the existence of elements of a disciplinary offense. Proving this circumstance must take place according to the rules defined in law. In accordance with Part 1 of Art. 193 of the Labor Code of the Russian Federation, before applying a disciplinary sanction, the employer is obliged to request a written explanation from the employee regarding the claims made against him in connection with violation of labor duties. Fulfillment of this obligation involves the issuance of an order (instruction) by a representative of the employer, which must set out the circumstances in connection with which the employee must give an explanation.

The employee must be familiarized with this order (instruction) against signature. Failure by the employer to fulfill this obligation serves as one of the proofs of the employee’s innocence of committing the disciplinary offense charged to him.

Giving explanations by an employee regarding the claims brought against him by an authorized representative of the employer is a right, not an obligation. In accordance with Part 1 of Art. 51 of the Constitution of the Russian Federation, no one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law. This rule also applies to cases of bringing employees to disciplinary liability. In connection with the above, the employee may refuse to give explanations regarding the claims brought against him for committing a disciplinary offense. Such a refusal does not contradict current legislation. Therefore, an employee cannot be brought to disciplinary liability for refusing to give explanations regarding claims of authorized representatives of the employer about violation of his labor duties. Such an order conflicts with the law.

In accordance with Part 2 of Art. 193 of the Labor Code of the Russian Federation, an employee’s refusal to give explanations regarding claims brought against him by his employer for violation of labor duties is not an obstacle to applying a disciplinary sanction. In Art. 193 of the Labor Code of the Russian Federation states that such a refusal must be formalized by an appropriate act. This act is drawn up by authorized representatives of the employer, and the employee must be familiarized with it against signature. In practice, refusal to familiarize yourself with such an act is formalized by another act. However, the legislation does not indicate how many employees must sign these acts. In order to refute the employee’s explanations, the testimony of at least two witnesses is required to confirm the inconsistency of his position. But at the same time, the employee should be asked to familiarize himself with the acts drawn up by the employer’s representatives. An employee’s refusal to familiarize himself with the acts can be endlessly formalized by new acts drawn up by representatives of the employer. Although these acts cannot be recognized as admissible evidence in civil proceedings.

In paragraph 1 of Art. 71 of the Code of Civil Procedure of the Russian Federation, written evidence includes acts that contain information about circumstances relevant to the case.

However, these acts do not contain information about legally significant circumstances; they are intended to record only the fact of the employee’s refusal to give an explanation regarding the disciplinary offense charged to him. In addition, acts are drawn up in connection with the need to document special knowledge about circumstances relevant to a civil case.

In the situation under consideration, the acts record the testimony of eyewitnesses about the events taking place. Such testimony in civil proceedings is recognized as witness testimony. In accordance with Art. 180 of the Code of Civil Procedure of the Russian Federation, the reading of a witness's testimony as evidence is possible only in cases where it was received by another court in the order of executing a letter of request or securing evidence, as well as when the court received this testimony in previous court hearings. In other cases, on the basis of the Code of Civil Procedure of the Russian Federation, witnesses must be questioned directly by the court. An exception to this rule may be cases where witnesses cannot be called at the hearing, for example in the event of a death. In this case, their explanations may be read out by the court. Thus, the employee’s refusal to give an explanation cannot be used as admissible evidence by the employer. Although the employer can use the testimony of the signatories given in court as evidence.

In turn, the employee can use these acts to confirm his position on the case. In this case, the principle of asymmetry of evidence is applied, according to which a person accused of committing an offense, including a disciplinary one, can use evidence that is considered inadmissible for use by the accusing party, that is, the employer. In this connection, these acts can be used by the employee to confirm his position on the case.

The employee's written explanations regarding the employer's claims for violation of labor duties without the employee's consent cannot be used by the court or the state labor inspectorate as admissible evidence. In accordance with Art. 157 of the Code of Civil Procedure of the Russian Federation, the body considering the application for violation of labor rights must directly examine the evidence presented. In this connection, only the employee’s explanations given directly to the court or the state labor inspector can be used as evidence. Although the employer, represented by authorized representatives, when resolving the application by the state labor inspector or the court, is not deprived of the opportunity to ask the employee questions about the written explanations given by him in connection with the presentation of claims for committing a disciplinary offense. In this case, the employee’s answers, as part of his direct explanations to the court or state labor inspector, can be used as evidence.

In turn, an employee accused of committing a disciplinary offense has the right to use written explanations given to the employer as evidence. In such a situation, the principle of asymmetry of evidence also applies.

A legally significant circumstance when bringing an employee to disciplinary liability is the compliance of the disciplinary measure applied to the employee with the violation of labor rights committed by him. The measure of disciplinary action against an employee who has committed a disciplinary offense is determined by the authorized representative of the employer. However, his decision to impose a disciplinary sanction on an employee must be legal and justified.

In this connection, the employer’s decision to apply a particular disciplinary measure must contain the reasons for applying this particular disciplinary measure, and not another disciplinary measure. Judicial practice proceeds from the fact that when an authorized representative of the employer chooses a disciplinary measure applied to an employee, the general principles of legal liability must be observed. These principles follow from the content of Art. Art. 1, 2, 15, 17, 18, 19, 49, 50, 54, 55 of the Constitution of the Russian Federation. These principles include justice, equality, proportionality, legality, and humanism. In this regard, the employer must provide evidence indicating not only that the employee committed a disciplinary offense, but also that when choosing a disciplinary sanction, the severity of this offense, the circumstances in which it was committed, the employee’s previous behavior, and his attitude were taken into account to work. If, when considering an application for disciplinary action, it is established that the misconduct actually occurred, but the dismissal was made without taking into account the listed circumstances, the employee’s demands for the removal of the disciplinary sanction must be satisfied. However, in this case, the judicial authority, the state labor inspectorate cannot replace the disciplinary measure with a milder one, for example, dismissal with a reprimand, since the application of a disciplinary sanction in accordance with Part 1 of Art. 192 of the Labor Code of the Russian Federation falls within the exclusive competence of authorized representatives of the employer. In connection with the above, the recognition by the court or the state labor inspectorate of illegal and (or) unfounded parts of the employer’s claims regarding the employee’s violation of labor duties allows us to conclude that the severity of the disciplinary offense committed does not correspond to the disciplinary measure applied. For example, when an employee is dismissed for absenteeism and refusal to give explanations for absence from work, claims regarding the employee’s refusal to give explanations are both illegal and unfounded. In this connection, a disciplinary measure in the form of dismissal from work may be recognized as inappropriate to the gravity of the employee’s offense, since some of the claims for which the employee is dismissed are recognized as not complying with the law. Moreover, if it is established that the employee was absent from work for valid reasons, for example, taking his wife to the maternity hospital, but refused to disclose the reason for his absence from work to the employer. There is no such basis as refusal to communicate the reason for absence from work for dismissing an employee in the current legislation. In this connection, the employee must be reinstated at work with the consequences arising from such reinstatement.

In accordance with Part 3 of Art. 193 of the Labor Code of the Russian Federation, disciplinary sanction is applied no later than one month from the date of discovery of the offense. The day the misconduct was discovered should be considered the day when the employee’s immediate supervisor became aware of its commission, even if he does not have the right to hire and fire. The employee’s immediate supervisor is obliged to bring information about the disciplinary offense committed to the person exercising the right to hire and dismiss, that is, the right to apply disciplinary sanctions. Failure to fulfill this obligation by the employee's immediate supervisor, who does not have the authority to bring disciplinary action, within a month from the day he became aware of the commission of a disciplinary offense, excludes the possibility of legally applying disciplinary measures to the employee. In such a situation, a person exercising the right to hire and dismiss may bring to disciplinary liability the immediate supervisor of the employee who failed to fulfill the obligation to timely report information about the disciplinary offense committed. Thus, a one-month period is preemptive for the application of disciplinary sanctions.

In Part 3 of Art. 193 of the Labor Code of the Russian Federation lists periods that are not subject to inclusion in the monthly period established for bringing an employee to disciplinary liability. This period does not include: 1) time of illness of the employee; 2) the time the employee is on vacation; 3) the time required to take into account the opinion of the representative body of employees upon dismissal for violation of labor discipline of individual employees. The list of periods that are excluded from the monthly period established for the application of disciplinary sanctions is exhaustive. During the employee's illness, the one-month period for imposing a disciplinary sanction is suspended. The employee’s illness is confirmed by a certificate of temporary incapacity for work. After the end of the illness, the one-month period for applying disciplinary action continues. For example, an employee fell ill 20 days from the date of discovery of the disciplinary offense, and therefore was on temporary sick leave for two months. From which it follows that after the end of the illness, the employer can take disciplinary action against the employee within 10 days; after 10 days, the monthly period for bringing disciplinary action ends.

While the employee is on any leave, including without pay, the month-long period for applying a disciplinary sanction is also suspended. At the end of the vacation, as well as during the period between vacations, the one-month period for applying a disciplinary sanction continues. In this case, the end of vacation or vacations on weekends has no legal significance. The monthly period for applying a disciplinary sanction is calculated in calendar days. Therefore, the employee’s days off are not excluded from it, and therefore cannot serve as a legal basis for its suspension.

The monthly period established for bringing an employee to disciplinary liability excludes the time required to take into account the opinion of the representative body of employees when applying dismissal as a disciplinary measure in relation to employees whose employment contract cannot be terminated without taking into account the opinion of the representative body of employees organizations. In accordance with Art. 373 of the Labor Code of the Russian Federation, the suspension of the month period in order to take into account the opinion of the elected trade union body is possible for no more than 10 days. In this case, the following legally significant circumstances must be proven. Firstly, the presence of an indication in legislation or a local regulatory legal act on the need to take into account the opinion of the representative body of employees when applying dismissal as a disciplinary measure. Secondly, it is necessary to prove that the authorized representative of the employer has actually completed the procedure for taking into account the opinion of the elected trade union body when dismissing an employee for violating labor discipline. Proof of the listed circumstances makes it possible to suspend the period for bringing an employee to disciplinary liability for 10 days, that is, for the time established by law for going through the procedure for taking into account the opinion of the representative body of employees when dismissing. After 10 days, if the above circumstances are proven, the one-month period for bringing the employee to disciplinary liability continues. The lack of proof of each of the considered circumstances does not allow us to legally suspend the month-long period established for applying a disciplinary sanction to an employee.

When calculating the monthly period for bringing an employee to disciplinary liability, it is necessary to take into account that certain disciplinary offenses, in particular absenteeism, may be of a continuing nature. In this case, the day of discovery of the disciplinary offense should be recognized as the first day the employee returns to work or informs the employer that the reasons for absence from work are not valid, that is, in such a situation, the month period for bringing the employee to disciplinary liability begins on the date when any representative of the employer, including the immediate supervisor of the absent employee, it became known that he had committed a disciplinary offense. However, dismissal in such a situation is carried out from the first day the employee commits absenteeism.

In connection with this, a continuing disciplinary offense and bringing an employee to disciplinary liability for its commission may go far beyond the scope of the month, which will be calculated from the moment the employer’s representative discovers that the employee has committed a disciplinary offense.

The application of a disciplinary sanction to an employee after the expiration of a month from the day when the employer’s representative became aware of the commission of a disciplinary offense entails recognition of the order (instruction) to bring the employee to disciplinary liability as illegal and unfounded. At the same time, proof of other legally significant circumstances, in particular the commission of a disciplinary offense or the application of a penalty by an authorized person, has no legal significance. An employee to whom a disciplinary measure was applied after a month has passed from the date the employer discovered the disciplinary offense committed by him, in accordance with Part 3 of Art. 193 of the Labor Code of the Russian Federation is considered to have no disciplinary sanction. In connection with the above, compliance with the one-month period for applying a disciplinary sanction to an employee must also be recognized as a legally significant circumstance that must be proven when bringing the employee to disciplinary liability.

In accordance with Part 4 of Art. 193 of the Labor Code of the Russian Federation, as a general rule, a disciplinary sanction cannot be applied later than six months from the date of commission of the disciplinary offense. This period is also preemptive. Therefore, valid reasons, for example, an employee’s illness or being on vacation are not grounds for suspension or reinstatement. In this connection, the presence of an employee who has committed a disciplinary offense on a certificate of temporary incapacity for work or on vacation within six months after the commission of a disciplinary offense, regardless of the timing of its discovery, deprives the employer of the right to apply a disciplinary sanction to the employee. Thus, the expiration of the six-month period, including when a disciplinary offense is discovered after the specified period, does not allow the employer to legally bring the employee to disciplinary liability. After six months, as a general rule, the employee is released from disciplinary liability, regardless of when the employer became aware of the commission of a disciplinary offense, since this period is calculated from the moment of commission, and not discovery, of the disciplinary offense.

An order (instruction) to bring an employee to disciplinary liability after six months from the date he committed a disciplinary offense is illegal and unfounded. In this connection, an employee brought to disciplinary liability after six months from the date of commission of the disciplinary offense is considered not to have had a disciplinary sanction. The foregoing allows us to conclude that compliance with the six-month period from the date of commission of a disciplinary offense is a legally significant circumstance when bringing an employee to disciplinary liability. Violation of this period allows the employee to be recognized as not having a disciplinary sanction, including if other legally significant circumstances are proven, in particular, the application of a disciplinary sanction by an authorized person, the commission of a disciplinary offense, and compliance with the one-month period from the date of discovery of the disciplinary offense.

As already noted, the presence of an employee on a certificate of temporary incapacity for work or on vacation does not interrupt the six-month period, after which no disciplinary sanction can be applied to the employee who has committed a disciplinary offense. During the period of temporary incapacity for work and the employee being on vacation in Art. 81 of the Labor Code of the Russian Federation it is prohibited to apply disciplinary sanctions in the form of dismissal from work. Although within a six-month period during the period of temporary disability and the employee is on vacation, when its course is not suspended, other disciplinary measures may be applied to the employee, in particular a reprimand and reprimand. Two exceptions have been made to the rule that it is impossible to apply a disciplinary sanction after six months from the date of commission of the disciplinary offense. In accordance with Part 4 of Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction cannot be applied later than two years from the date of commission of a disciplinary offense identified as a result of an audit, inspection of economic activity or audit. In this connection, when conducting an audit, inspection of business activities or an audit in compliance with current legislation, the pretrial period is set at two years from the date of the disciplinary offense. However, in the situation under consideration, there is a one-month period for applying a disciplinary sanction, which is calculated from the date of discovery of the disciplinary offense. In this case, the day of discovery of the offense should be considered the day of familiarization of any representative of the employer with the audit report, documents of verification of financial and economic activities, audit, which indicate the commission of a disciplinary offense. Naturally, the expiration of a month from the date of discovery of the disciplinary offense, including before the end of the pretrial period of two years, calculated from the moment the offense was committed, deprives the employer of the right to apply a disciplinary sanction to the employee.

From Part 4 of Art. 193 of the Labor Code of the Russian Federation it follows that the total six-month period calculated from the date of commission of a disciplinary offense and the special pretrial period applied when conducting an audit, inspection of financial and economic activities, or an audit on a legal basis do not include the time of criminal proceedings. Consequently, for the period of criminal proceedings, the running of the specified pretrial periods is suspended. Proceedings in a criminal case begin from the moment of its initiation and end with the issuance of either a decision to terminate criminal prosecution at the stage of preliminary investigation, or a court decision that has entered into legal force. The specified period of criminal proceedings is excluded from the preventive periods calculated from the moment the disciplinary offense was committed. However, these periods continue to run from the moment the disciplinary offense is committed until the initiation of a criminal case, as well as after the end of the criminal proceedings. Although in criminal proceedings a month period is also applied from the date the employer discovered the disciplinary offense. The duration of this period may not be related to the investigation of a criminal case in cases where representatives of the employer have information about the employee committing a disciplinary offense. The one-month period can also be calculated from the date the employer receives the final document in the criminal case, which contains references to signs of a disciplinary offense. As already noted, the expiration of a month from the date of discovery of a disciplinary offense deprives the employer of the right to apply a disciplinary measure to the employee.

In accordance with Part 5 of Art. 193 of the Labor Code of the Russian Federation, only one disciplinary sanction can be applied for each disciplinary offense. The application of two or more disciplinary measures to an employee for one disciplinary offense makes it possible to recognize the order (instruction) to bring the employee to disciplinary liability as illegal and unfounded, and the employee brought to disciplinary liability in this way should be considered not to have had a disciplinary penalty. The authorized state body that verifies the legality and validity of bringing an employee to disciplinary liability, when applying more than one disciplinary sanction for one disciplinary offense, must recognize the decision to impose disciplinary sanctions on the employee as illegal and unfounded. The court and the state labor inspectorate are not given the right to choose a disciplinary sanction; this power is the prerogative of the employer. Therefore, the application of several penalties for one disciplinary offense entails recognition of the decision to impose disciplinary liability as illegal and unfounded, and an employee brought to disciplinary liability in this manner should be recognized as not having a disciplinary penalty. At the same time, proof of other legally significant circumstances, in particular, the application of a disciplinary sanction by an authorized person, the commission of a disciplinary offense, compliance with deadlines calculated from the date of discovery and commission of a disciplinary offense, or bringing to disciplinary liability, has no legal significance. Consequently, the application of one disciplinary sanction for each disciplinary offense is a legally significant circumstance when bringing an employee to disciplinary liability.

In accordance with Art. 195 of the Labor Code of the Russian Federation, the authorized representative of the employer is obliged to consider the application of the representative body of workers about the violation by the head of the organization, his deputies of the law, the terms of labor contracts and report the results of the consideration to the representative body of workers. If the facts of violations are confirmed, the authorized representative of the employer is obliged to apply disciplinary action to these persons who committed a disciplinary offense, up to and including dismissal from work. Failure of an authorized representative to fulfill this obligation allows the representative body of employees to file a claim in court for the obligation to apply disciplinary measures. However, even when bringing these persons to disciplinary liability, the considered time limits are applied, excluding the possibility of imposing disciplinary sanctions on employees, regardless of their position.

Thus, when bringing an employee to disciplinary liability, which consists of applying disciplinary sanctions to him, the following legally significant circumstances are subject to proof: 1) whether the person who applied the disciplinary sanction has the authority to bring employees to disciplinary liability; 2) the commission of a disciplinary offense, the proof of which is related to compliance with the rule on the employer’s fulfillment of the obligation to demand appropriate explanations from the employee and the employee’s exercise of the right corresponding to this obligation to give such an explanation; 3) compliance with the deadlines for applying disciplinary sanctions, calculated from the moment the disciplinary offense was committed and the date of its discovery by the employer’s representative; 4) correspondence of the severity of the disciplinary offense committed by the employee to the disciplinary measure applied to him; 5) application of disciplinary sanctions provided for by federal law, charters and regulations on employee discipline approved by the Government of the Russian Federation; 6) application of only one disciplinary sanction for each disciplinary offense. The lack of proof of each of the listed circumstances allows us to recognize the decision to bring the employee to disciplinary liability as illegal and (or) unfounded, and the employee as not having a disciplinary sanction.

In Part 6 of Art. 193 of the Labor Code of the Russian Federation establishes a rule according to which an 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. Compliance with this deadline is possible when the employee is present at work. The absence of an employee subject to disciplinary liability at work allows the employer to familiarize him with the specified order (instruction) on the first day of going to work, and also send a document on the application of disciplinary action to the employee’s place of residence. An employee’s refusal to sign an order (instruction) to apply a disciplinary sanction to him entails the drawing up by representatives of the employer of a corresponding act, which is not acceptable evidence for the employer to confirm the employee’s refusal to familiarize himself with the order (instruction) to bring him to disciplinary liability. But at the same time, the employer can use the persons who signed the specified act as witnesses to confirm the employee’s refusal to familiarize himself with the specified order (instruction). The absence of a written document, that is, this act, deprives the employer of the right to refer to witness testimony to confirm compliance with the written form of familiarizing the employee with the order (instruction) to bring him to disciplinary liability. In turn, the employee can use any evidence, including a document drawn up by the employer’s representatives, to confirm the employer’s failure to comply with the written form of his familiarization with the order (instruction) to bring him to disciplinary liability. The period for an employee to appeal a disciplinary sanction applied to him must be calculated from the moment when it is established that the employee is familiar with the order (instruction) to bring him to disciplinary liability. In this case, the employer is obliged to hand over to the employee, upon his request, a copy of the order (instruction) on the application of a disciplinary sanction to him. Failure by the employer to fulfill this obligation is a valid reason for missing the deadline for going to court, since the employee can draw up an application with the help of representatives only if he has the specified copy. In this connection, the deadline for applying for judicial protection that was missed due to untimely delivery of a copy of the order to impose a disciplinary sanction must be restored by the CCC or the court.

In accordance with Part 7 of Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction can be appealed by an employee to the state labor inspectorate or bodies for considering individual labor disputes. At the same time, the deadlines for applying for protection of a violated right to the state labor inspectorate have not been established. In this connection, the employee is not required to provide evidence confirming the validity of the reasons for untimely appeal of a disciplinary sanction when contacting the labor inspectorate.

Textbook "Labor Law of Russia" Mironov V.I.

Personnel records management and Labor law

Disciplinary action is the legal right of an employer to apply it to an employee for misconduct, that is, for failure to fulfill his duties or their improper performance.

The procedure for applying such an action, as well as the established deadlines, are regulated by Articles 192 and 193 of the Labor Code of the Russian Federation. Moreover, their incorrect application or imposition after the expiration of the prescribed period will lead to the loss of such right by the employer. In this article we will look at the period during which a penalty can be applied and how much time the Labor Code of the Russian Federation provides for appealing it.

What is the deadline for applying disciplinary action?

Based on the Labor Code, it is possible to determine how long the period of time is during which a penalty can be imposed and applied. The legislative period is set at 1 month for its application from the moment the violation is discovered.

It is important to remember that this period can be extended if the employee is on sick leave or on vacation. In this case, the maximum period of time for application cannot exceed 6 months from the date of commission of the offense.

There are exceptions to this rule, since there are cases when violations are related to the economic or financial spheres of the enterprise. Determining a violation in this case takes a longer period of time, for example, due to an audit or audit. Therefore, the penalty may be up to 2 years. After it is imposed and the corresponding order is entered, the employer is required to present it to the employee for review within 3 days.

An important nuance is that a disciplinary sanction can be imposed only after requiring an explanatory statement from the employee. He can either present it, which will help him avoid punishment, or refuse, then the employer should draw up an act regarding such an action.

After what period cannot a disciplinary sanction be imposed on an employee?

Despite the penalties applied, be it a reprimand, reprimand or dismissal, exceeding the time limits established by law is prohibited. Its use cannot be declared after a one-month or extended six-month period.

Violation of the deadlines established in the Labor Code of the Russian Federation, firstly, deprives the employer of the right to disciplinary action, and secondly, entails administrative liability. Therefore, it is necessary to observe not only the order of application, but also take into account the time during which punishment can be announced.

How long is the duration of a disciplinary sanction?

The validity period of a disciplinary sanction cannot exceed 1 year from the date of its issuance. This validity period is established by Article 194 of the Labor Code of the Russian Federation. At the end of its completion, additional acts and documents should not be drawn up; withdrawal occurs automatically. This provision applies when the employee continues to work at the enterprise. If there is a dismissal, then the situation is somewhat different.

Involvement in disciplinary liability is a reason for entry in the personal file, and an order is also issued within the organization. The dismissal is recorded immediately in the work book and does not disappear anywhere after the expiration of the punishment. There is no liability in connection with the termination of the employment relationship.

Consequently, dismissal has no statute of limitations. Therefore, each case must be considered separately, as it may have its own nuances.

Labor Code of the Russian Federation deadline for appealing a disciplinary sanction

Any punishment is subject to appeal, including disciplinary punishment. To do this, the employee goes to court, the labor inspectorate or the labor dispute commission. In this case, there must be valid reasons, such as improper registration, violation of the established time, lack of an explanatory note, etc.

To file a request for an appeal, the employee has 3 months to do so, and if the reason was dismissal, then this period should not exceed 1 month. The submitted application is a basis for checking the personnel activities of the enterprise. If during it it is established that the punishment was unlawfully imposed, it will be removed from the employee.

Deadline for lifting a disciplinary sanction from an employee

Removal of the established punishment is possible after a year from the moment it was imposed. A prerequisite is the absence of repeated prosecution of the employee. The employer should not have any complaints about him, then the withdrawal occurs automatically.

In addition, on the basis of Part 2 of Art. 194 of the Labor Code of the Russian Federation, as an incentive, the employer may establish early withdrawal of punishment in the following cases:

improving the quality of employee work;
employee request;
manager's petition;
union demand.

It is also necessary to remember that only early withdrawal of punishment is possible; its extension is not provided for by law. To do this, it is also necessary to issue an appropriate order giving the right to do so.

Thus, it is possible to announce a disciplinary sanction within a month, or in some cases it is possible for 2 years. The main thing is to comply with all the norms and prerequisites established by law.

Management has the right to impose disciplinary sanctions on an employee for failure to comply with disciplinary liability.

Related materials:

Management has the right to impose disciplinary sanctions on an employee for failure to comply with

Disciplinary action- punishment imposed on an employee in connection with his violation of labor discipline.

Types of disciplinary action:

Remark - made orally;
Reprimand - condemnation of an employee’s unlawful behavior (without entering it into the work book, personal file);
Dismissal on appropriate grounds - it can be recognized as lawful, in accordance with current legislation, under three simultaneous conditions: the grounds for dismissal are provided for by current legislation and correspond to actual circumstances; the dismissal procedure has been followed and corresponds to the specifically provided grounds; the employment contract has been terminated.

For each disciplinary offense, only one disciplinary sanction can be applied. For certain categories of employees, federal laws, charters and discipline regulations may provide for other types of punishment. But it should be remembered that disciplinary sanctions can only be imposed in accordance with the law. There is no list in labor legislation, so whether to punish an employee or not is decided by the head of the company, taking into account the employee’s explanations.

An employee can appeal a disciplinary sanction in court if the labor duties assigned to him are not specified in the employment contract.

The imposition of disciplinary sanctions is regulated by Art. 193 Labor Code of the Russian Federation

Before imposing a disciplinary sanction, the fact of violation of labor discipline must be documented. After this, the employee must write an explanatory note outlining the reasons for his behavior. The reasons are carefully analyzed by management and it is determined whether they are valid or not. If after two working days an explanation is not provided, an act signed by two or more witnesses is drawn up. A manager who has such an act in hand can impose a disciplinary sanction without explanation to the employee.

The disciplinary process must be strictly followed. If a disciplinary sanction is found unlawful, the employee may demand compensation for moral damages and restoration of violated rights.

Information about penalties is not entered into the employee’s work book and personal card of form No. T-2 (clause 5 of the Rules for maintaining and storing work books).

The absence of an employee from work is recorded in the working time sheet. During absence from attendance, the employee is not paid wages. If we are talking about failure to fulfill job duties, you will need evidence of the employee’s unsatisfactory work - customer complaints, work plans and schedules, technical specifications, etc.

When all evidence of the employee’s guilt has been collected, about disciplinary action. If the penalty is a reprimand or reprimand, then the order is issued in free form. If an employee is fired, then this is formalized by an order to terminate the employment contract with the employee using the unified form No. T-8 (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). An order to impose a penalty in the form of a reprimand or reprimand is announced to the employee against signature within three working days from the date of issue, not counting the time the employee is absent from work (Article 193 of the Labor Code of the Russian Federation). If an employee refuses to sign an order, a report about this is drawn up.

Terms of disciplinary action

A disciplinary sanction can be imposed on an employee no later than one month from the date of discovery of the misconduct. This period is suspended only for the period of vacation, illness of the employee and taking into account the opinion of the representative body of employees.

“A penalty cannot be applied later than six months from the date of commission of the offense. Based on the results of an audit, inspection of financial and economic activities or an audit - no later than two years from the date of its commission” (Article 193 of the Labor Code of the Russian Federation). This applies to those offenses that are not discovered immediately after the commission, but after some time (waste of company funds). And if the misconduct was discovered later than the specified period, the employee cannot be held accountable. The six-month period does not include the time of criminal proceedings.

An employer has the right to dismiss an employee if, for example, he brought a sick leave certificate confirming that he was sick for five days out of ten missed, and the rest are not valid. In this case, an explanatory note is required from the employee, on the basis of which the issue of dismissal is decided.

The date of the order to impose a disciplinary sanction will be the day when management became aware that the employee was absent for an unexcused reason, or a later date within the time limits specified in Article 193 of the Labor Code of the Russian Federation.

Cash compensation for vacation is paid to the employee regardless of the grounds for dismissal. If an employee has several unused vacations left, then upon dismissal the employer must pay for all of them, no matter what their duration. But such an employee cannot take a vacation before dismissal, since the employment contract with him is terminated on grounds of guilt (Article 127 of the Labor Code of the Russian Federation).

Not all employees can be fired for committing a disciplinary offense, even if there are grounds for this. For some, a complicated procedure for terminating an employment contract is provided (pregnant women, minors, etc.).

Removal of disciplinary action

An employee is considered to have no penalty if he is not subject to a new penalty within a year from the date of application of the disciplinary sanction. (Article 194 of the Labor Code of the Russian Federation).

A disciplinary sanction can be lifted from an employee earlier at the initiative of the administration, at the request of the employee himself, at the request of his immediate supervisor or a representative body of the labor collective (Article 194 of the Labor Code of the Russian Federation).

A request to lift a disciplinary sanction can be expressed in a statement (if the employee himself requests), an internal memo (if the request comes from the immediate superior), or a petition from a representative body. If the head of the company agrees to remove the penalty from the employee ahead of schedule, he puts a positive resolution on this document. After this, you need to prepare an order to remove the disciplinary sanction in free form.

The Labor Code of the Russian Federation lists only the following types of disciplinary sanctions:

the easiest thing is a remark;
followed by a reprimand;
after it - removal from office;
and finally, dismissal.

Other types of punishments are generally permissible to apply only in a situation if they are provided for by the regulatory acts in force in the company. We are talking about:

imposing fines;
withdrawal of bonuses, etc.

Other punitive sanctions not mentioned in the Labor Code of the Russian Federation or labor regulations are prohibited.

The most serious type of penalty is dismissal. It applies to an employee if:

he accumulates a certain number of reprimands;
there are systematic problems with discipline;
he is convicted of theft or disclosure of secret information, etc.

An exhaustive list can easily be found in Article 81 of the Labor Code of our country.

In what cases should disciplinary sanctions be applied?

This issue is discussed in detail by Article 192 of the current Labor Code. Here, in particular, it is reported that disciplinary action should be imposed on an employee who does not fulfill his duties or does it improperly. Their list is certainly prescribed in the employment agreement or job description. The employee must be familiarized with the scope of his duties against receipt.

In addition, disciplinary punishment is applied in the following situations:

committing certain actions that are contrary to internal regulations;
violation of discipline.

The latter include:

absenteeism;
regular lateness;
premature leaving work and a number of others.

In turn, the same measure of influence is applied to federal officials - a warning, which entails recognition of incomplete compliance with official duties.

The military has its own list of disciplinary measures. This is about:

severe reprimands;
early termination of the contract;
demotion in position (as an option - rank);
deprivation of badges;
arrest;
expulsion (from school or military training).

Overlay order

This procedure consists of several stages, each of which must be documented in writing.

First of all, the immediate superior of the offending employee is obliged to write a report or draw up an act on the revealed facts. This document is handed over to management. The latter requires the violator to prepare an explanation and state exactly what reasons prompted him to take such actions. If an employee avoids the opportunity to clarify the situation, they write a document that reflects this point. Refusal to draw up an explanatory note is not a reason for lifting sanctions - this norm is given in Article 193 of the Labor Code.

When considering the issue, all available information that could mitigate the severity of the penalty should be taken into account. If there is insufficient evidence of misconduct, no sanctions are applied.

As follows from Article 192 of the Labor Code (Part 1), the manager has the right to choose any type of penalty or limit himself to other preventive measures.

Based on the analysis of the situation, an order for disciplinary action is issued. This document is drawn up in free form. It provides the following information:

the name of the employee and his position;
description of the violation (must be accompanied by references to regulations);
the chosen disciplinary measure.

The offender must be made aware of the order within the next 3 days. If the employee does not want to sign it, then representatives of the administration draw up a report about this.

Duration of disciplinary actionis limited, and as soon as it passes, the penalty itself is considered lifted. Find out in our article what restrictions the law has on the duration of a disciplinary sanction and how they affect the employee’s position in the company.

What may be the disciplinary sanction?

The Labor Code of the Russian Federation establishes several types of sanctions that can be applied in any field of activity for violation of labor discipline. Here they are (according to the provisions of Article 192):

comment,
rebuke,
dismissal.

The same article states that other sanctions can be used for certain categories of employees, and they can be established not only by law, but also by charters, regulations and other normative acts. Thus, for military personnel and internal affairs officers, the following additional types of penalties apply:

severe reprimand
warning about incomplete official compliance,
transfer to a lower position (for a military man - demotion in rank).

A complete list of possible sanctions for such categories of employees can be found in the Federal Law “On Service in the Internal Affairs Bodies of the Russian Federation” dated November 30, 2011 No. 342-FZ and the Disciplinary Charter of the Armed Forces of the Russian Federation, approved by Decree of the President of the Russian Federation dated November 10, 2007 No. 1495.

WITH The duration of a disciplinary sanction under the Labor Code of the Russian Federation is 1 year

The moment when you can forget about collection is stated in Art. 194 Labor Code of the Russian Federation. If there have been no complaints against an employee who has been subject to disciplinary liability for a year, the sanction receives the status of lifted; Moreover, this happens automatically, i.e. the personnel employee does not need to perform any additional actions. In other words, the validity period of a disciplinary sanction is 1 year.

With dismissal, the situation is a little different. The fact is that when brought to disciplinary liability, a record is usually made about this in the employee’s personal file, and an order is issued that is valid within the organization. Upon dismissal, a record of the application of the penalty is made in the work book (it is the basis for dismissal) and in the future this remains there even after the disciplinary sanction is lifted.

In this regard, the following practice has emerged: as soon as the penalty terminates, the person applies to the labor dispute commission to change the entry in the labor record. However, there is one more nuance: with dismissal, the employment relationship ends, and therefore disciplinary liability. Consequently, there seems to be no validity period for the sanction in the form of dismissal as such... So there is room for different interpretations of the law and the emergence of disputes.

As for the types of penalties that are provided for in sources other than the Labor Code of the Russian Federation, the procedure for their application and validity periods may vary.

The right of the employer to independently remove penalties

Norm part 2 art. 194 of the Labor Code of the Russian Federation allows the employer to remove the penalty from the offending employee before the deadline specified in the law. This may happen if:

the employer himself noticed improvements in the performance of work duties and took the initiative;
this request was made by an employee;
the immediate supervisor requested this;
This demand was made by the trade union.

It should be noted that the employer can only reduce the period during which the disciplinary sanction is valid, but not increase it in any way. Such a lifting of a penalty is formalized by order, and there is no unified form here, therefore, in each company, the corresponding order is drawn up by a personnel employee only on the basis of existing experience and knowledge.

Consequences of expiration of the foreclosure period

While a disciplinary sanction is in effect, the commission of a new violation by an employee entails more severe consequences for him. For example, clause 5, part 1, art. 81 of the Labor Code of the Russian Federation considers failure to fulfill his duties to be one of the sufficient grounds for dismissal of an employee, provided that he has a valid disciplinary sanction. True, only the employer decides whether to apply more stringent measures to an employee who already has a valid penalty. He can exercise this right - and then, following the reprimand, the employee can be fired, or he can give the employee another chance by issuing a second reprimand. The validity period of the reprimand in this case will be counted from the moment the last penalty was announced.

As soon as the penalty is lifted (either automatically or early), it is no longer possible to apply the consequences of a repeated violation of labor discipline. But this does not mean that the employer should always turn a blind eye to previous violations - this may well be taken into account when choosing the type of penalty. For example, instead of a verbal reprimand, the employee may be reprimanded. However, this is a subjective approach that does not meet the requirements of the law, and, accordingly, can be challenged if the employer does not voice other reasons for his choice.

According to the general rules, a disciplinary sanction is valid for a year after it is issued. After which it is automatically removed, although the manager can do this earlier. While the penalty is in effect, it can serve as a reason for toughening liability for subsequent violations committed by the same employee. Moreover, after a change of job, penalties imposed at the previous place of business cannot be used by the new employer.