Procedure for applying disciplinary sanctions

1. The commented article establishes the procedure (rules) for bringing employees to disciplinary liability.

In accordance with Part 1 of this article, the employer, before applying disciplinary action must require an explanation from the employee in writing. Such an explanation is necessary to clarify all the circumstances of the commission of a disciplinary offense, its illegality, as well as the degree of guilt of the employee who committed the offense. However, the employee’s failure to provide a written explanation is not an obstacle to the application of a penalty. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up. In the event of a dispute about the legality of applying a disciplinary sanction, such an act will be evidence of the employer’s compliance with the rules for bringing to disciplinary liability.

2. Part 3 of the commented article limits the possibility of applying disciplinary sanctions to certain statutes of limitations.

A disciplinary sanction can be applied to an employee no later than one month from the date of its discovery. The one-month period for imposing a disciplinary sanction is calculated from the day the offense was discovered. The day of detection of the misconduct, from which the month period begins, is considered the day when the person to whom the employee is subordinate for work (service) became aware of the commission of the misconduct. It does not matter whether this person has the right to impose disciplinary sanctions.

The period established for applying a penalty does not count the time during which the employee was absent from work due to illness or being on vacation. In this case, vacation that interrupts the flow of a month includes all vacations provided by the employer in accordance with the law, incl. annual (main and additional), vacations in connection with training in educational institutions, leave without saving wages(Clause 34 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

In cases where dismissal is applied as a disciplinary sanction, the specified period does not also include the time required to comply with the procedure for taking into account the opinion of the representative body of employees, if taking such an opinion into account is mandatory (Article 82, 373 of the Labor Code of the Russian Federation, see comment . to them).

The employee’s absence from work for other reasons, incl. in connection with the use of rest days (time off), regardless of their duration (for example, when shift method organization of work) does not interrupt the flow of the specified period.

When applying a disciplinary sanction in the form of dismissal, the one-month period is calculated from the date of entry into force of the court verdict or resolution of the judge, body, official authorized to consider cases of administrative violations (clause 44 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

It is not permitted to apply a disciplinary sanction after one month from the date of discovery of the offense or after six months from the date of its commission. If a disciplinary offense is discovered as a result of an audit, inspection of financial and economic activities or an audit, the employer has the right to apply disciplinary action to the employee within two years from the date of the offense. The time frame for the criminal proceedings does not count towards the specified time limits.

3. For each disciplinary offense, only one disciplinary sanction can be applied to an employee. However, in cases where non-fulfillment or improper fulfillment due to the fault of the employee of the duties assigned to him labor responsibilities continued despite the imposition of a disciplinary sanction, the employer has the right to apply a new disciplinary sanction to him, incl. dismissal on the basis of clause 5, part 1, art. 81 Labor Code of the Russian Federation. It must be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when he submitted an application for termination before committing the offense. employment contract on their own initiative, because labor attitude in this case, it terminates only upon expiration of the notice period for dismissal (clause 33 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

However, an employee who has terminated his employment relationship with the employer cannot be subject to disciplinary action.

Disciplinary action is applied by the head of the organization. Other officials may apply disciplinary sanctions if such powers are granted to them by the relevant documents (charter of the organization, order of the manager, etc.).

Application of penalties for committing a disciplinary offense is a right, not an obligation of the employer. Therefore, the employer may, taking into account all the circumstances of the case, not impose a penalty on the employee who has committed a disciplinary offense, but limit himself to a conversation with him or an oral remark. When applying disciplinary action, it is necessary to strictly adhere to the rules established for this purpose. If, when imposing a disciplinary sanction, these rules are violated by the employer, the body considering the labor dispute about the legality of imposing a sanction may recognize the application of the disciplinary sanction as unlawful.

4. The application of a disciplinary sanction is formalized by an order (instruction) of the employer. The order (instruction) indicates the basis for applying the penalty, i.e. the specific disciplinary offense for which the employee is subject to disciplinary action, and its type (remark, reprimand, etc.). It must be borne in mind that in the event of a disciplinary sanction in the form of dismissal, one dismissal order is issued, and not two separate orders (an order to impose a penalty in the form of dismissal and an order to terminate the employment contract), as is sometimes the case in practice .

This circumstance was brought to the attention of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation. The Appeal Determination No. 60-APG12-7 dated 09.11.2012 in the case of Sh. states that the application of a disciplinary sanction to an employee in the form of dismissal and termination of an employment contract with an employee by separate orders is based on an erroneous interpretation of labor law norms.

The issuance of an order to apply a disciplinary sanction to the plaintiff in the form of dismissal in itself indicated the termination of the employment contract with him, since the grounds for dismissal specified in this order, namely clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, is contained in the list of grounds for termination of an employment contract at the initiative of the employer, provided for in Art. 81 Labor Code of the Russian Federation. By virtue of clause 4, part 1, art. 77 of the Labor Code, termination of an employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation) is the basis for termination of the employment contract. Thus, the defendant had no grounds for issuing order No. 236-k dated July 4, 2012 to terminate the plaintiff’s employment contract after his dismissal on the basis of order No. 194-k dated May 30, 2012.

An order (instruction) to impose a penalty 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 an employee, for one reason or another, refuses to familiarize himself with the order (instruction) to apply a disciplinary sanction against him against signature, then a corresponding act is drawn up.

According to established practice, the order to impose a penalty is brought to the attention of all employees of the organization.

If, in the opinion of the employee, a disciplinary sanction was applied to him unreasonably or the penalty does not correspond to the gravity of the offense committed, he has the right to appeal the disciplinary sanction to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes in the manner prescribed by law.

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 necessary to take into account the opinion of the representative body of employees.

Disciplinary action, with the exception of disciplinary action for non-compliance with restrictions and prohibitions, failure to fulfill duties, established by law Russian Federation on anti-corruption, cannot be applied later than six months from the date of the 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. Disciplinary sanctions for failure to comply with restrictions and prohibitions, failure to fulfill obligations established by the legislation of the Russian Federation on combating corruption, cannot be applied later than three years from the date of the commission of the offense. 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.

Publications on the topic

Article 193 of the Labor Code of the Russian Federation regulates the procedure for applying disciplinary sanctions. In accordance with Article 193 of the Labor Code of the Russian Federation, the employer must request a written explanation from the employee, and if an explanation is not provided within two days, draw up an appropriate act, and then apply a penalty no later than one month from the date of discovery of the misconduct. The text of Article 193 of the Labor Code of the Russian Federation also indicates the possibility of an employee appealing a disciplinary sanction to the state labor inspectorate and bodies for considering individual labor disputes.

1. In accordance with Part 1 of Article 193 of the Labor Code of the Russian Federation, in order to clarify all the circumstances of the commission of a disciplinary offense, as well as the degree of guilt of the employee who committed the offense, the head of the organization is obliged to request a written explanation from him. Such an explanation must be requested before any sanction is applied to the employee.

the federal law No. 90-FZ dated June 30, 2006 established a 2-day period for the employee to provide a written explanation. If after 2 working days the specified explanation is not provided, then a corresponding act is drawn up indicating the witnesses present. Failure by the employee to provide an explanation does not prevent the imposition of a penalty.

2. Disciplinary action must be applied to the employee immediately upon discovery of the misconduct, but no later than one month from the date of its discovery (Part 3 of Article 193 of the Labor Code of the Russian Federation). The day when the misconduct was discovered, from which the period for applying a disciplinary sanction is calculated, is considered to be the day when the employee’s immediate supervisor became aware of the misconduct committed. It does not matter whether he has the right to impose disciplinary sanctions.

This rule is general character and applies to all cases of application of disciplinary sanctions, including dismissal 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.

It should be noted that Federal Law No. 90-FZ of June 30, 2006 established a different period for the dismissal of an employee for loss of trust or immoral misconduct, if the specified guilty actions were committed outside the place of work or at the place of work, but not in connection with the performance of labor duties, and, therefore, are not disciplinary sanctions. In these cases, dismissal is not allowed later than one year from the date of discovery of the misconduct by the employer (Part 5 of Article 81 of the Labor Code).

3. When applying Article 193 of the Labor Code of the Russian Federation, it should be taken into account that the period during which a disciplinary sanction can be applied does not include the period when the employee was absent from work due to illness or was on vacation. The same period does not include the time provided to take into account the motivated opinion of the elected official. trade union body upon termination of an employment contract in the event of repeated failure by the employee to good reasons labor duties, if he has a disciplinary sanction (see commentary to Article 373). Absence from work for other reasons, incl. and in connection with the use of rest days (time off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the flow of the specified period (subparagraph “c”, paragraph 34 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 ).

Vacation that interrupts the flow of a month should include all vacations provided by the employer in accordance with the law, incl. annual (main and additional) leaves, leaves in connection with training in educational institutions, leaves without pay (subparagraph “d”, paragraph 34 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

If, as a disciplinary sanction, dismissal is applied to an employee under sub. "g" clause 6, part 1, art. 81 of the Labor Code, the month period is calculated from the date of entry into force of the sentence, which established the employee’s guilt in theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, or the decision of the competent authority to impose an administrative penalty for this offense .

4. It is not allowed to apply a disciplinary sanction after 6 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 - 2 years from the date of its commission, not counting the time of criminal proceedings.

5. Part 5 of Article 193 of the Labor Code of the Russian Federation states that for each disciplinary offense only one disciplinary sanction can be applied. However, if failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction, it is permissible to apply a new disciplinary sanction to him, incl. dismissal (clause 33 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

6. Disciplinary sanctions are imposed by the head of the organization. Other officials can use them only if such powers are granted to them by the relevant documents (charter of the organization, order of the head, etc.).

An order (instruction) is issued on the application of a disciplinary sanction. The order (instruction) must indicate the reasons for its application, i.e. a specific disciplinary offense for which the employee is subject to punishment.

The employee who has been subject to a penalty must be familiarized with this order (instruction) against signature within 3 working days, not counting the time of his absence from work. Refusal to sign is certified by the relevant act.

The order (instruction) on the application of penalties is brought to the attention of all employees of this organization.

7. If an employee believes that a disciplinary sanction was applied unlawfully or the sanction is too severe, he has the right to file a complaint with the state labor inspectorate and (or) with the bodies for the consideration of individual labor disputes in the manner prescribed by law (see Chapter 60 and comments to her articles).

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 necessary to take into account the opinion of the representative body of employees.

A disciplinary sanction, with the exception of a disciplinary sanction for non-compliance with restrictions and prohibitions, failure to fulfill obligations established by the legislation of the Russian Federation on anti-corruption, cannot be applied later than six months from the date of the 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. Disciplinary sanctions for failure to comply with restrictions and prohibitions, failure to fulfill obligations established by the legislation of the Russian Federation on combating corruption, cannot be applied later than three years from the date of the commission of the offense. 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.

Commentary to Art. 193 Labor Code of the Russian Federation

Judicial practice under Article 193 of the Labor Code of the Russian Federation

As for the provisions of articles , and the Labor Code of the Russian Federation, then, formally appealing their constitutionality, G.G. Galeeva, in fact, expresses disagreement with the legality of her dismissal from work and the court decisions made in her labor dispute. Meanwhile, the resolution of this issue, including verification of the correct interpretation of the norms that were to be applied in the applicant’s case, the legality and validity of court decisions made on their basis based on the results of establishing and examining factual circumstances, by virtue of Article 125 of the Constitution of the Russian Federation and Article 3 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” is also not within the competence of the Constitutional Court of the Russian Federation, but refers to the powers of higher courts of general jurisdiction.

Consequently, when imposing a disciplinary sanction on a judge, the time limits established by the article of the Labor Code of the Russian Federation do not apply.

The issue of bringing a judge to disciplinary liability in each specific case is decided based on the severity of the offense and how long ago it was committed.

The procedure for applying disciplinary sanctions is established by an article of the Labor Code of the Russian Federation.

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 employee’s representative body.

In this part, the court expressed a judgment about the illegality of the contested norm to the requirements of Part 3 of Art. Labor Code of the Russian Federation, which provides for circumstances that interrupt the flow of the one-month period for applying a disciplinary sanction.

However, from the content of the operative part of the court decision, we can conclude that Part 1 of Clause 26 of the Regulations is completely illegal.

In accordance with the article of the Labor Code of the Russian Federation, disciplinary sanction 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.

In accordance with the article of the Labor Code of the Russian Federation, before applying a disciplinary sanction, the employer must request an explanation from the employee in writing. In case of refusal to give the specified explanation, a corresponding act is drawn up.

However, in violation of this rule of substantive law, which establishes the procedure for application of disciplinary sanctions by the employer, the employer did not request a written explanation for the illegal supply of diesel fuel before K. applied a disciplinary sanction in the form of dismissal (by order of December 26, 2002 No. 628).

According to Part 1 of Art. According to the Labor Code of the Russian Federation, the obligation to request an explanation in writing regarding the actions committed by the employee before applying a disciplinary sanction lies with the employer. If the employee refuses to give an explanation, a corresponding report is drawn up.

Since the said norm does not contain an obligation for the employee to give an explanation, the defendant had no right to regard the plaintiff’s refusal to give an explanation as a violation of official discipline.

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 necessary to take into account the opinion of the representative body of employees.

A disciplinary sanction, with the exception of a disciplinary sanction for non-compliance with restrictions and prohibitions, failure to fulfill obligations established by the legislation of the Russian Federation on anti-corruption, cannot be applied later than six months from the date of the 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. Disciplinary sanctions for failure to comply with restrictions and prohibitions, failure to fulfill obligations established by the legislation of the Russian Federation on combating corruption, cannot be applied later than three years from the date of the commission of the offense. 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.