Disciplinary sanctions: remark, reprimand, dismissal. How to appeal a disciplinary sanction

For violation of labor discipline, a type of penalty such as a reprimand may be applied to the main circle of employees. The use of a reprimand requires the employer to strictly comply general order application of disciplinary sanctions established by law. There must be grounds for applying a reprimand; therefore, it is necessary to find out valid reasons that exclude the employee’s guilt. The article talks about the bodies that have the right to apply disciplinary sanctions, the timing and procedure for applying and appealing a reprimand and its removal.

Reprimand as a type of disciplinary sanction

One type of legal liability is disciplinary liability. In the sphere of the use of hired labor, it consists of the obligation of an employee who has committed a disciplinary offense to report to the employer for his unlawful and guilty actions and to bear disciplinary sanctions provided for by labor law.

By committing a disciplinary offense we mean the failure or improper performance by an employee, through his fault, of the duties assigned to him by law, a collective agreement, employment contract or internal rules labor regulations unless criminal liability is provided for these acts.

Disciplinary liability, like any other legal liability, is of a compulsory nature. It consists in the fact that in relation to an employee who has committed a disciplinary offense, the employer may apply coercive measures, a compulsory sanction, which entails certain negative consequences for the violator.

Note. It is the right, not the obligation of the employer to bring an employee to disciplinary liability. Instead of a disciplinary sanction, the employer, in accordance with Article 152, may apply other measures of influence to the violator of labor discipline, in particular, refer the issue of violation of labor discipline to the consideration of the labor collective or its body.

Disciplinary measures applied to some employees who perform their labor duties in bad faith are specified in Article 147 of the Labor Code. Thus, for violation of labor discipline, only one of the following penalties can be applied to an employee:

• rebuke;
• dismissal.

Legislation, charters and discipline regulations may provide for other disciplinary sanctions for certain categories of employees. The right to choose a penalty for violation of labor discipline belongs to the employer and not necessarily in the sequence specified in Article 147 of the Labor Code. However, in accordance with part three of Article 149 of the Labor Code, when choosing the type of penalty, the employer must take into account the severity of the offense committed and the damage caused by it, the circumstances in which the offense was committed, and Previous work employee.

The reprimand is disciplinary measure personal non-property nature. This penalty consists of a negative assessment and condemnation of the employee’s behavior in the work collective. Such moral condemnation is intended to encourage the employee to continue to conscientiously perform his work duties. After all, the employee must be aware that in the event of a violation of labor discipline and subsequent receipt of a reprimand, the employer may apply to him a more severe penalty provided for by law, in particular dismissal.

Thus, rebuke- a measure of disciplinary action of a moral and psychological nature, containing a negative assessment of the employee’s specific actions and having an evaluative, preventive and motivational effect on him.

The application of a disciplinary sanction to an employee - a reprimand - entails other negative consequences of a moral and material nature for him:

• during the period of validity of the reprimand as a disciplinary sanction, incentive measures in accordance with part three of Article 151 of the Labor Code for the employee do not apply;
• when reprimanding an employee, the relevant bonus provisions may provide deprivation of such employee's bonuses, other incentive payments or reduction in their size;
• whether an employee has an outstanding reprimand is taken into account when determining his level of qualifications and labor productivity in the event of a preferential right to remain at work when the number or staff of employees is reduced due to changes in the organization of production and labor;
• a reprimand is a prerequisite for dismissal under paragraph 3 of Article 40 of the Labor Code.

Applying a reprimand to a violator of labor discipline in the prescribed manner and bringing this to the attention of the entire enterprise staff to a certain extent has a moral impact on other workers, develops in their minds a sense of the inevitability of punishment for the disciplinary offense committed and encourages them to prevent violations of labor discipline. Thus, a reprimand as a disciplinary sanction, among other things, performs educational and preventive (warning) functions.

A reprimand, unlike other types of disciplinary action, in particular dismissal, is the most universal. It can apply to any category of workers. It also applies to those employees who are subject to charters, regulations and other acts of legislation on discipline. A reprimand can be applied for any disciplinary offense committed by employees, even if for such an offense the legislation gives the employer the right to apply a more severe disciplinary sanction, including disciplinary dismissal, in particular, for the employee committing absenteeism, appearing at work in a state of intoxication, gross violation by the head of the enterprise of his labor responsibilities etc.

Note. The legislation does not limit the number of reprimands applied to the same employee for violations of labor discipline, provided that the requirements of part two of Article 149 of the Labor Code are met, which provides that only one disciplinary sanction can be applied for each violation of labor discipline.

At the same time, the use of a reprimand requires the employer to strictly comply with the general procedure for applying disciplinary sanctions established by law.

Grounds for applying a reprimand

The basis for applying a reprimand is the employee’s commission of an unlawful guilty act (action or inaction), which is recognized as a disciplinary offense. The illegality of an employee’s behavior lies in his violation of his labor duties, established by the norms of labor law, for example: Labor Code, internal regulations, charters, regulations, job descriptions, employment agreement (contract), collective agreement, as well as in violation or failure to comply with lawful orders and instructions employer.

Of particular importance when determining an employee’s act as a disciplinary offense is the presence of the employee’s guilt in committing this act, which means a certain mental attitude of the person towards his illegal actions and their harmful consequences. Guilt can be either intent or negligence.

Characteristic signs of intent:

• awareness by the employee of the social harmfulness of his behavior;
• predicting the negative consequences of such behavior;
• the desire for harmful consequences to occur as a result of one’s behavior or the conscious assumption of them.

Depending on the nature of a person’s volitional attitude towards the socially harmful consequences of their act, they determine two types of intent:

• straight- when an employee, foreseeing the socially harmful consequences of his action or inaction, desires their occurrence;
• side- when an employee, foreseeing the socially harmful consequences of his action or inaction, does not directly desire them, but consciously allows them to occur.

Carelessness characterized by the fact that the employee who committed a disciplinary offense foresaw the possibility of harmful consequences of his behavior, but frivolously counted on their aversion or did not foresee the possibility of such consequences, although he should have and could have foreseen them. In labor law, fault as negligence is seen mainly as negligence.

Consequently, regardless of the form of guilt, its obligatory element is the person’s awareness of the wrongfulness of his act. The form of guilt affects the severity of the offense committed. Thus, a disciplinary offense committed through negligence is considered less serious than one committed intentionally. And the type of disciplinary action should depend on this, in turn.

For the most part, disciplinary offenses are recognized as actions that are associated with the failure or improper performance by an employee of his duties without good reason. Consequently, the presence of good reasons in this case indicates the absence of the employee’s guilt.

Valid reasons excluding the employee’s guilt

Valid reasons excluding the employee’s guilt may be life circumstances. But not all life circumstances can be recognized by the employer as valid reasons. Then, if a labor dispute arises, the presence or absence of valid reasons, and therefore the presence or absence of the employee’s guilt, is determined by the body considering the dispute.

An employee cannot be found guilty if he performs his work improperly as a result of insufficient qualifications, illness or lack of appropriate conditions for its performance. The presence of valid reasons is recognized in the case of proven incapacity for work of the employee, even if it was not confirmed by a certificate of incapacity for work, since the law does not oblige the employee, if he is ill, to turn to official medicine. However, the absence of a certificate of incapacity for work will deprive the employee of the right to receive benefits for temporary loss of ability to work.

Respectful can also be considered reasons of a family or other nature when the employee’s actions were aimed at eliminating the threat of causing him or other persons damage that significantly exceeds the damage caused to the employer by the employee’s failure to perform or improper performance of his work duties under such circumstances, since there is reason to believe that in such circumstances the employee acted in a state of extreme necessity. For example, as a result of taking measures to eliminate damage to the water supply system, which threatens to flood the apartment of the employee and his neighbors, or to provide urgent medical assistance to loved ones or other persons, the employee did not arrive at work on time.

If the reason for the employee’s failure to perform or improper performance of his or her job duties is negative impact of natural disasters or other force majeure, then such reasons are also considered valid. For example, as a result of heavy fog, ice, etc. or a vehicle malfunction that occurred unpredictably, the driver of the vehicle did not deliver the cargo on time. It is impossible to hold an employee accountable for failure to comply with a clearly illegal order of the administration, as well as for refusal to perform work not provided for in the employment contract. However, an employee who carried out a clearly unlawful order or instruction of the relevant official, and thereby caused damage to the employer or created a threat to cause such damage, for acts committed for the purpose of fulfilling of this order or orders subject to disciplinary liability on a general basis, if such acts do not provide for criminal liability. But if the employee did not realize and could not realize the illegal nature of such an order or instruction, he cannot be brought to disciplinary liability. In this case, only the official who gave the unlawful order or instruction should be held accountable.

An unlawful action or inaction of an employee committed under the direct influence of physical or mental coercion, as a result of which the employee could not control his actions. Physical coercion means the use of violence against an employee in order to force him to commit illegal actions or to unlawfully fail to perform certain actions against his will. Mental coercion means influencing the psyche of an employee in order to force him, against his will, to commit illegal actions or illegal inactions. For example, a security worker, as a result of a threat from a criminal to use a weapon, did not fulfill his job duty to ensure the safety of material or monetary assets.

If an employee is held financially liable for material damage caused to the employer by the employee as a result of violation of the labor duties assigned to him, disciplinary measures can also be applied to the employee, unless criminal liability is provided for this. But it is necessary to pay attention that in such circumstances, in contrast to material liability, the employee is brought to disciplinary liability not for the damage caused by him, but for failure to perform or improper performance of his work duties, i.e., his commission of unlawful guilty acts, as a result of which he was caused material damage to the employer.

In accordance with part four of Article 130 of the Labor Code, workers cannot be held financially liable for damage falling into the category of normal production and economic risk, as well as for those not received by the enterprise, institution, organization ( Further- enterprise) profits and for damage caused by an employee who was in a state of emergency. However, it should be noted that the norm of part four of Article 130 of the Labor Code exempts an employee in the cases specified in this norm only from material liability, but not always from disciplinary liability.

Of course, an employee cannot be brought to disciplinary liability, as well as financial liability, if he acted in a state of extreme necessity or his actions are classified as a normal production and economic risk, since such actions are not illegal. But if, as a result of non-fulfillment or improper performance by an employee of his labor duties, the enterprise has lost the opportunity to receive the planned profits, then such an employee can be brought to disciplinary liability for committing relevant guilty and unlawful acts that led to such material damage, although he is held financially liable for this damage cannot be attracted in accordance with part four of Article 130 of the Labor Code. For example, as a result of non-fulfillment or improper performance by an employee of his work duties without good reason, the conclusion or fulfillment of an already concluded economic contract for a significant amount, which is why the owner did not receive the planned profits.

Note. In labor law, the principle of the presumption of innocence applies. Thus, an employee cannot be brought to disciplinary liability until the employer has proven his guilt, and the employee is not obliged to prove his innocence. The principle of the presumption of innocence in labor law follows from the content of Article 138 of the Labor Code, which provides for the employer’s obligation to establish the existence of conditions, including the employee’s guilt, in order to bring such an employee to financial responsibility.

Disciplinary offense failure to fulfill labor duties is recognized. An employee cannot be brought to disciplinary liability if he has not violated his labor duties.

Failure to perform public or other assignments not related to the performance of a labor function, may not result in disciplinary action. Violation of labor discipline, as a rule, is considered such provided that it occurred in work time. For employees working irregular working hours, the entire period of stay at the workplace is considered working time.

For disciplinary liability, it is not necessary to cause material or other damage to the owner as a result of a disciplinary offense, since the very fact of committing a disciplinary offense is harmful.

It is worth noting that a reprimand as a type of disciplinary liability can only be applied to an employee, i.e. a person who is in an employment legal relationship with the owner of the enterprise or an authorized body or individual on the basis of concluding an employment contract, regardless of its type and duration, in particular , during the test period established for the employee in order to verify his suitability for the assigned work.

Note. A person working at an enterprise or for an individual on the basis of concluding a civil law contract cannot be brought to disciplinary liability, since in civil legal relations the principle of parity of the parties applies and there is no subordination. Such a person, for failure to fulfill or improper performance of his duties stipulated by the agreement concluded with him, may bear civil liability provided for by this agreement and civil legislation.

Bodies applying disciplinary sanctions

In accordance with the first part of Article 147 1 of the Labor Code, the right to apply a disciplinary sanction, in particular, a reprimand, is granted to the body that is granted the right to hire (elect, approve and appoint) this employee. At an enterprise, the right to hire and fire employees is granted to the manager in accordance with the charter of the enterprise and the employment agreement (contract) concluded with him. This means that the head of an enterprise always has the right to take disciplinary action against any employee of this enterprise who has committed a disciplinary offense.

Deputy managers may have the right to hire or dismiss employees, and therefore to apply disciplinary sanctions against them, provided that such a right is enshrined in the charter of the enterprise or delegated by an appropriate order from the manager. If an official who, in the absence of the head of the enterprise, performs his duties according to the relevant order or his own functional responsibilities, is vested with the right to hire and dismiss workers, it also has the right to bring them to disciplinary liability.

Heads of separate structural divisions of an enterprise (branches, directorates, representative offices), in accordance with the regulations on this division or a separate order of the head of the enterprise, may be vested with the authority to independently hire and dismiss employees of this structural unit, and therefore they have the right to apply disciplinary sanctions to such employees.

The body that, in accordance with the law and the charter, hires the manager, has the right to apply penalties to the managers of the enterprise as hired employees. It could be:

• a ministry or other body that manages state or municipal property;
• owner of a private enterprise;
• meeting of participants of a business company, etc.

Disciplinary sanctions can also be applied by employers - individuals to employees with whom they have entered into an employment contract.

For employees who bear disciplinary liability under the charters, regulations and other acts of legislation on discipline, disciplinary action, in particular, a reprimand, in accordance with part two of Article 147 1 of the Labor Code, can also be imposed by higher authorities, in relation to bodies that are granted the right to hire (election, approval and appointment to a position) of this employee.

Applying a type of disciplinary sanction such as a reprimand (as opposed to dismissal) to general circle workers is carried out without agreement with the elected body of the primary trade union organization (trade union representative). At the same time, in accordance with part two of Article 252 of the Labor Code, bringing to disciplinary liability (regardless of the type) workers who are members of elected trade union bodies is allowed only with the prior consent of the elected trade union body of which they are members.

Terms of application of a reprimand

In accordance with part one of Article 148 of the Labor Code, a reprimand is applied immediately after the discovery of an offense, but no later than one month from the date of its detection, not counting the time the employee is released from work due to temporary disability or being on vacation. It is necessary to note that this provision provides for the calculation of the one-month period for applying a disciplinary sanction from the day the misconduct as such is identified. Consequently, the identification of a misdeed means not only the identification of a fact (a certain act), but also the identification of the employee who committed these acts, the illegality of these acts, the guilt of the employee, the presence of harmful consequences, the causal relationship between the offense and the harmful consequences. Therefore, the day the disciplinary offense was discovered may not always coincide with the day it was committed or the day the fact was discovered. The day the offense is discovered may come significantly later than the day it was committed, as well as the day the fact was discovered. For example, damage to the owner’s property occurred on January 10, the fact of such damage was identified on January 15, and the employee who, as a result of guilty, illegal actions, damaged this property was identified on January 20.

Features of determining the period of application of a reprimand in some cases

In our opinion, the norm of part one of Article 148 of the Labor Code is not specific enough, and this creates certain difficulties in its practical application. In particular, from the content of this norm it is not entirely clear what kind of offense we are talking about and who should identify it. Indeed, in practice, it often happens that it is not the employer, but the relevant state control bodies that detect the commission of offenses (administrative, financial, etc.) by employees (officials) of enterprises, which at the same time are recognized as disciplinary offenses if they are committed in working hours and are recognized as non-fulfillment or improper performance by such employees of their labor duties. This may be a violation of safety regulations, fire safety, sanitary and epidemiological rules, rules traffic, evasion of payments stipulated by law to the budget and social insurance funds, theft of the employer’s property, etc. Then, if such an employee is brought, among other things, to disciplinary liability, difficulties arise in determining the day from which the monthly period will be counted , during which disciplinary action may be taken.

These issues are not directly regulated by law, but in some cases a certain judicial practice has developed. In particular, when a disciplinary sanction is applied to an employee based on the results of an audit by the control and audit department ( Further- KRU). For example, an accountant of an enterprise carried out a certain financial transaction in October 2012, and in January 2013, during an audit by the control department, it was determined that this operation was carried out in violation of financial discipline. The head of the enterprise was familiarized with the KRU inspection report, which noted the fact of violation of financial discipline by the accountant, on February 15, 2013. The day of discovery of the misconduct, i.e. the day from which the month period must be counted, during which a reprimand can be applied to the accountant, in this case the courts recognize the day the head of the enterprise familiarizes himself with the inspection report or the delivery of such an act to the head, i.e. February 15 2013.

By analogy with the procedure for determining the timing of applying a disciplinary sanction to an employee - dismissal in accordance with paragraph 8 of Article 40 of the Labor Code (clause 26) in the event that the employee is brought to administrative responsibility for any other administrative offense committed by him, which is also a disciplinary offense, of this employee the employer may bring to disciplinary liability no later than one month from the date of adoption of the decision to impose an administrative penalty or measure social impact for committing an administrative offense, without taking into account the time the employee was released from work due to temporary disability or being on vacation.

In contrast to the legislation providing for financial liability of employees, which does not limit the period for bringing material liability from the date the employee causes material damage to the employer, part two of Article 148 of the Labor Code stipulates that disciplinary sanction cannot be applied later than six months from the day the offense was committed. Therefore, if an employee commits guilty, unlawful acts related to the performance of his labor duties, as a result of which material damage was caused to the employer, such an employee for these acts after the expiration of six months from the date of their commission cannot be brought to disciplinary liability, but in accordance with part three Article 233 of the Labor Code, the employer may go to court regarding the recovery of material damage from the employee within one year from the date of discovery of the damage caused by the employee, regardless of the day it was caused.

At the same time, you should pay attention to paragraph three of paragraph 29 of the Model Internal Labor Regulations for workers and employees of enterprises, institutions, organizations approved ( Further- Model internal labor regulations), which states: “A disciplinary sanction cannot be applied later than six months from the date of the commission of the offense. The specified periods do not include the time of implementation in a criminal case.” Taking this into account, we can conclude that if a criminal case was initiated against an employee for violation of labor discipline before the end of the six-month period from the date the employee committed the offense, and subsequently this case was closed on the grounds provided for by the norms of criminal procedure legislation, this employee can be prosecuted to disciplinary liability, provided that his actions contain signs of a disciplinary offense and provided that the period from the day he committed an offense until the day a criminal case was initiated against him and from the day this case was closed until the day a disciplinary sanction was applied to this employee totals not more than six months. But if a criminal case was initiated after six months from the date the employee committed the offense, then after the closure of such a case, this employee can no longer be brought to disciplinary liability.

However, the norm of paragraph three of paragraph 29 of the Model Internal Labor Regulations, which have the force of a by-law, regarding the failure to include the time of production in a criminal case within six months from the date of the commission of the offense, contradicts the norm of part two of Article 148 of the Labor Code, which is a norm of law, and a norm direct action, and which does not provide for any exceptions. Therefore, there is every reason to believe that a disciplinary sanction cannot be imposed later than six months from the date of the commission of the offense under any circumstances.

Procedure for applying a reprimand

Before deciding to reprimand an employee, the employer must conduct an investigation and collect sufficient evidence that would indicate that the employee has committed a disciplinary offense. Such The following documents can serve as evidence:

• reports from other employees;
• written statements of witnesses;
• notifications government agencies exercising control and supervision over compliance with legislation, in particular in the field of the use of hired labor;
• expert opinions;
• written explanations from the violators themselves, etc.

If the employer identifies a violation of labor discipline by an employee, which has signs of an act provided for by the Criminal Code of Ukraine as a crime, the employer must notify law enforcement agencies about this in the prescribed manner.

Part one of Article 149 of the Labor Code stipulates that before applying a disciplinary sanction, the employer requires a written explanation from a violator of labor discipline. This is a mandatory procedure. If it is not complied with, the body that will consider the labor dispute will have grounds to cancel the employer’s order to impose a disciplinary sanction on the violator. The refusal of a labor discipline violator to provide a written explanation is not an obstacle to applying disciplinary action against him.

If the violator of labor discipline refuses to provide a written explanation, a corresponding act is drawn up in free form, which, as a rule, indicates the circumstances of the violation, the last name, first name and patronymic of the person who committed it, where, when and under what circumstances it was committed, and what consequences it had. It is also noted that the violator was asked to provide a written explanation, but he refused to do so. The act is signed by the official who drew up this act, and by at least two other employees (other persons) who are witnesses to the violation and the refusal of the violator to give the specified explanation. In this way, both the fact of a specific employee committing a disciplinary offense and the fact of refusal to provide them with a written explanation are recorded.

If the fact of a disciplinary offense is confirmed by other evidence, in particular, explanations of other witnesses and relevant documents, and it is only required to record the fact of the offender’s refusal to provide a written explanation regarding his commission of this offense, then an act of such refusal is drawn up, which is signed by the persons who are witnesses to the refusal ( Annex 1).

It is worth noting that for each violation of labor discipline, only one disciplinary sanction can be applied. That is, it is impossible, for example, to reprimand an employee for absenteeism and fire him from work. However, financial liability for damage caused to the enterprise or an administrative penalty is not another disciplinary sanction. For example, the driver of a vehicle of an enterprise who committed a traffic accident, as a result of which material damage was caused to the enterprise, was brought to administrative liability by traffic police officers for violating traffic rules, and by the employer - in accordance with material liability. But this is not an obstacle to applying a disciplinary sanction to this driver - a reprimand.

The reprimand is announced in the order (instruction) ( appendix 2) and is communicated to the employee against signature. The order must contain a link to the relevant document that the employee violated. Such documents can be: the internal regulations of the enterprise, an employment agreement (contract), a collective agreement, a job description, instructions on labor protection, etc. After all, it is possible that what the employee is held accountable for is not included in his employment at all duties, or the employee, on receipt, was not familiarized with the document, the paragraph or section of which he violated. If the employee was not notified against receipt of a reprimand, then he will have reason to believe that such a disciplinary sanction was not applied to him. And this, if a dispute arises in the future on issues related to the application of this disciplinary sanction, will be taken into account when making a decision by the body that will consider the dispute. For example, if a dispute arises regarding the future dismissal of this employee under paragraph 3 of Article 40 of the Labor Code (systematic failure by an employee, without good reason, to fulfill the duties assigned to him by an employment contract or internal labor regulations, if disciplinary or public sanctions have previously been applied to the employee).

If the employee refuses to sign that he has read the order, then a corresponding act is drawn up. In addition, in this act it can be noted that, for example, the manager (or other official) read the order out loud in the presence of the violator of labor discipline, who is being reprimanded. The employee’s refusal to familiarize himself with the order of reprimand or to certify this fact with his signature does not cancel the disciplinary sanction. But if a dispute arises, such a refusal must be proven by the employer, and the document drawn up about this will serve as evidence of the refusal.

Note. A reprimand announced orally has no legal force. Therefore, if a reprimand is announced in this way, no legal consequences arise for the employee, although he may be subject to moral influence.

Information about a reprimand, as opposed to an incentive, V work book are not included. However, in order to keep records of the application of disciplinary sanctions, a corresponding entry is made about this in section 2.2 “Disciplinary sanctions” of the appendix to the personal personnel record sheet.

Appeal and removal of reprimand

The legislation (Article 150 of the Labor Code) provides for the possibility of an employee appealing a disciplinary sanction imposed on him.

Unlike disciplinary dismissal which is appealed exclusively in court within a month from the date of delivery of a copy of the dismissal order or from the date of issuance of the work book, the reprimand can be appealed to the labor dispute commission or to the district (city) court in accordance with Articles 225, 233 of the Labor Code within three months from the day when the employee learned or should have learned about the violation of his rights. Such a day should be considered the day the employee familiarizes himself with the order (instruction) reprimanding him, regardless of the day this order was issued.

A reprimand applied by the employer in violation of the established procedure (for example, violation of the terms of application, the violator was not offered to give a written explanation, etc.), but not appealed by the employee in the prescribed manner and within the established time frame without good reason, may have legal consequences for this employee , if it was announced in the order (instruction).

Article 151 of the Labor Code provides for the procedure for removing a reprimand. If during a year from the date of imposition of a disciplinary sanction - a reprimand, the employee will not be subject to a new disciplinary sanction; he is considered to have not had a disciplinary sanction. The day of imposition of this disciplinary sanction is considered the day of issuance of the order (instruction) to bring the employee to disciplinary liability.

Note. At the end of a year from the date of its imposition, a reprimand automatically expires. Thus, in this case there is no need to issue a special order (instruction) to recognize an employee who has not had a disciplinary sanction. However, if within a year from the date of application of the disciplinary sanction the employee is subjected to a new sanction, the previous sanction will be considered one that remains in force and can be taken into account upon dismissal for the employee’s systematic failure to fulfill his labor duties (Clause 3 of Article 40 of the Labor Code).

If the employee has not committed a new violation of labor discipline and, moreover, has proven himself to be a conscientious worker, the reprimand can be withdrawn before the end of one year. Initiator of early removal of reprimand, as a rule, there may be the head of the department in which the employee who has a penalty, a team or other team works. Such an initiative can be formalized as a presentation, petition, memorandum of an official, decision general meeting the corresponding labor collective, etc. ( Appendix 3). Since the legislation does not directly provide for who such an initiator can be, it can be the employee himself, who has the right to contact the employer with a corresponding application for early removal of the reprimand, indicating in this application suitable arguments about the possibility of early removal of the disciplinary sanction.

On the early removal of a reprimand from an employee, an order (instruction) is issued by the manager who hired him and applied the penalty, where he is motivated decision (appendix 4). The interested person gets acquainted with the order. It is advisable that the early removal of a reprimand from an employee be notified to the workforce, of which the employee is a member.

Separate laws, regulations and charters on discipline may establish a different procedure for appealing and removing disciplinary sanctions.

Note. A reprimand given to an employee is valid within the framework of one employment contract concluded with this employee. Thus, if an employee has concluded several employment contracts with the same employer (for example, in addition to his main job, he also has a part-time job) and he is reprimanded for non-fulfillment or improper performance of labor duties under one contract, then the effect of this reprimand cannot extend to for legal relations under other contracts. If an employee who was reprimanded was dismissed from work before his dismissal, and then over time was again employed by the same employer, having concluded a new employment contract with him, then this employee will be considered not to have had a disciplinary sanction. When transferring an employee who has been reprimanded to another job (in another position or profession) at the same enterprise, the reprimand will remain in force until it is withdrawn in the prescribed manner, since when an employee is transferred to another job, only his labor function changes, and the contract itself remains valid.

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Under what conditions can disciplinary action be taken? What is the difference between a reprimand and a remark? We will learn in this article how a salon manager should deal with a guilty employee.

Types of disciplinary sanctions

Disciplinary action applied for a disciplinary offense. A disciplinary offense is a culpable failure or improper performance by an employee of his assigned job duties, prescribed in the local regulatory documents of the beauty salon (abbreviated as LND). A disciplinary sanction has legal force, unlike a fine, which does not have legal force.

The director has the right to apply the following types of disciplinary sanctions for violation of the rules of his enterprise established in the LND (Article 192 of the Labor Code of the Russian Federation):

• comment;
• rebuke;
• dismissal for appropriate reasons.

Before punishing an employee, the salon owner should consider whether he is legally ready for this. Punishment is permissible only if there is a local regulatory framework. And only when punishment cannot be replaced by preventive motivation.

• Personnel management in a beauty salon: principles, methods, various approaches

The procedure for applying disciplinary action and its features

Before imposing a disciplinary sanction, the administration of the beauty salon is obliged to request a written explanation from the employee. An employee’s refusal to give an explanation cannot serve as an obstacle to applying disciplinary action (the employee’s refusal will be replaced by witness testimony).

If the employee refuses to give an explanation for the misconduct in the prescribed form, a corresponding act is drawn up. Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill or on vacation.

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 period does not include criminal proceedings).

For each disciplinary offense, only one disciplinary sanction can be applied. When applying a penalty, the following must be taken into account: the severity of the offense committed, the circumstances in which it was committed, previous work and the behavior of the employee.

The imposition of a disciplinary sanction is formalized by an order from the director of the beauty salon, which indicates the grounds and motives for imposing the sanction. The order must be accompanied by the employee’s explanations, acts, certificates confirming the fact of the offense and the guilt of a particular employee. The order is announced to the employee against signature within three working days from the date of its publication.

An employee who has been subjected to a disciplinary sanction is not subject to incentive measures during the period of validity of the disciplinary sanction. In fact, there is such a norm in the Labor Code of the Russian Federation, but in practice everyone forgets about it. Therefore, if you decide to give a bonus to an employee with a disciplinary sanction, IT’S NOTHING.

• Job responsibilities of a beauty salon administrator

How to file a disciplinary sanction

Minimum required documents:

• memo from the immediate manager of the beauty salon with facts of violation;
• explanatory statement of the employee (his point of view on the fact of the violation);
• order for a beauty salon to impose a disciplinary sanction (after submitting reports of violation).

Mandatory local regulatory documents

I would like to note that any beauty salon must have mandatory local regulatory documents, the presence of which will help avoid problems when checking by external inspection bodies on the issue of imposing disciplinary sanctions. These include:

• internal labor regulations. In this document, you must write down clauses about wages, disciplinary sanctions and much more;
• wage regulations. Here you need to describe all the details of calculating and paying wages, make a link to the Regulations on Bonuses (if your salon has bonuses);
• bonus regulations - you prescribe the rules for accruing the variable part. Typically, the check is limited to only the first (general) position, so it is important to make two separate provisions.

Naturally, in addition to these documents, there must be employment contracts with each employee, job descriptions for each employee, and a Regulation on working with personal data, which all employees must be familiar with.

When to take disciplinary action

As we have already said, disciplinary action is applied for a disciplinary offense. It makes sense to contact him when your employee has not fulfilled or improperly performed his job duties.

The following reasons include violations:

• requirements of current legislation
• requirements contained in the employment contract and/or job description
• requirements of local regulations (including internal labor regulations)
• requirements of orders and instructions of the employer.

The illegality of an employee’s actions or inaction lies in their non-compliance with the requirements contained in the above documents.

Failure to perform or improper performance of labor duties is considered guilty if the employee acted intentionally or through negligence.

Only such culpable unlawful actions (inaction) of an employee that are directly related to the performance of his job duties can be recognized as a disciplinary offense.

Each of the documents (with the exception of laws and other regulations), the requirements of which were violated by the employee, must be familiarized with the latter against signature. If such awareness is absent - that is, the employee does not know that his actions constitute a violation - the application of a disciplinary sanction cannot be considered legal.

It should be borne in mind that Article 22 of the Labor Code of the Russian Federation establishes the employer’s obligation to familiarize employees with the accepted local regulations upon signature. regulations, directly related to labor activity workers. Employees, in turn, in accordance with Article 21 of the Labor Code of the Russian Federation, are obliged to conscientiously fulfill their labor duties assigned to them by the employment contract, comply with internal labor regulations and labor discipline. Those. If the Employer has not communicated the new local regulatory document to all employees for signature, then it will no longer be possible to impose an official disciplinary sanction for failure to comply with the rules outlined in the new regulation.

In the same way, the Employer will not be able to punish an employee for failure/improper performance of duties if, upon hiring, the employee is not familiar with his job description in writing. Or if you changed the functionality, but forgot/did not have time to communicate the new functionality in the changed job description to the employee in writing.

Cases where courts overturned disciplinary sanctions due to the fact that the employee was not familiar with the relevant document, for violation of which a disciplinary sanction was imposed, are not uncommon.

A reprimand and a reprimand - are there any differences?

Despite the fact that this does not look very logical, there are no fundamental differences between a remark and a reprimand. The sequence of penalties in Article 192 of the Labor Code of the Russian Federation (reprimand, reprimand, dismissal) allows us to understand that a reprimand is the “mildest” type of disciplinary sanction, a reprimand is a kind of middle ground, and dismissal is applied for the most significant and significant violations provided for by law.

However, apart from the sequence of location of penalties in the specified article of the Labor Code of the Russian Federation, nothing else distinguishes a reprimand from a reprimand. Both disciplinary sanctions have the same terms and procedure for application and withdrawal, as well as the same consequences for both parties to the employment relationship.

Current legislation does not oblige the employer to document the fact that an employee has committed an offense. Nevertheless, I recommend doing this. In practice, the fact of committing an offense can be recorded by drawing up the following documents:

• official or memorandum (from persons who discovered the fact of an offense). As a rule, a memo is written by the immediate supervisor addressed to the director of the salon;
• act (in case of absence from work, refusal to undergo a medical examination, etc.);
• conclusion of the commission (for example, based on the results of an internal investigation).

All these documents must be included as components of the order to issue a disciplinary reprimand.

When preparing an order to impose a disciplinary sanction, do not restrain your “eloquence” (remember that now graduates write an essay to pass the Unified State Exam; so you “practice”). The order must contain a description of all events identified during the verification of facts confirming the employee’s violation.

Let us highlight two important points:

1. If the employee does not provide explanations, after two working days from the date of request for explanations, draw up a Statement of Failure to Provide Explanations;
2. It is necessary to familiarize the employee with the specified documents against signature. If the employee refuses to familiarize himself, draw up a Certificate of refusal to familiarize himself with the documents or make an appropriate mark on the document that the employee refused to familiarize himself with. At the same time, this act must contain the signatures of witnesses who confirm that the employee refused to sign this act and this act was read out loud to him in front of witnesses.

These so-called “complexities of personnel bureaucracy” are very important when issuing a disciplinary sanction. In the absence of such “bureaucratic” documents, an employee can easily protest a disciplinary reprimand and try to receive moral compensation.

• Making changes to an employee’s job description: procedure and samples

Time limits for applying disciplinary action

When applying a disciplinary sanction, you should pay attention to the deadlines established by Article 193 of the Labor Code of the Russian Federation, according to which a 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 for taking into account the opinion of the representative body of workers.

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.

Employers often apply disciplinary sanctions to employees when the period for their application has already expired. Such a violation is grounds for declaring a disciplinary sanction illegal.

Removal of disciplinary action

In accordance with Article 194 of the Labor Code of the Russian Federation, 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. It should be borne in mind that in this case, the disciplinary sanction is automatically lifted from the employee; the publication of any documents is not required.

Also, in accordance with the above article of the Labor Code of the Russian Federation, before the expiration of a year from the date of application of a disciplinary sanction, the employer has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees. In this case, the removal of the penalty is carried out by the employer issuing an appropriate order indicating the grounds for lifting the disciplinary sanction (employer's initiative; employee's statement; petition from the immediate supervisor).

At some enterprises, the PVTR (internal labor regulations) has the following clause: if an employee is given a disciplinary sanction, he is not rewarded (thanks, bonuses) during the year of punishment. If there is no such rule in the PVTR, then we can (at the initiative of the employer) declare gratitude and solemnly present him with a bonus (the main thing is that there is something for it).

• Subtle psychological work with beauty salon staff

How to remove a disciplinary sanction ahead of schedule (Part 2 of Article 194 of the Labor Code of the Russian Federation)

Appealing a disciplinary sanction

In accordance with Article 193 of the Labor Code of the Russian Federation, a disciplinary sanction can be appealed by an employee in state inspection labor and (or) bodies for considering individual labor disputes. The bodies for the consideration of labor disputes in accordance with Article 382 of the Labor Code of the Russian Federation are labor dispute commissions and courts. At the same time, these authorities have the authority to include your salon in a scheduled inspection/inspection within 1-2 months, notifying you about the dates and questions of the inspection, or they can come to the salon without notice or warning and demand “here and now” to present the necessary information documentation.

It all depends on the following circumstances:

• the degree of “seriousness” of the offense (whether the offense poses risks to the health and safety of salon employees);
• if a pregnant employee or a disabled employee (categories of employees with additional privileges under labor law) applied.

In this case, a court or other inspection company can easily cancel a disciplinary sanction imposed by an employer:

1. If the procedural component is violated:

• absence of a signature in the job description, in the PVTR or in another local regulatory document, for violation of which a disciplinary sanction was issued
• the employee did not sign the order imposing a disciplinary sanction on him.

2. If the “subject” of the disciplinary sanction is not confirmed. For example, an employer reprimanded an employee for being 1 hour late on a specific day. At the same time, there is a memo from the immediate manager, there is an act confirming the fact of being late, even the employee wrote an explanatory note in which he seemed to admit his guilt. After which he appeals the disciplinary sanction imposed on him, citing the fact that he received a full salary for the period of time worked. The court, considering this case, will request a time sheet for the designated period. So, if on the day you were late, you forgot to give him 7 working hours instead of 8, then consider that the employee won the case due to the absence of the subject of violation of the PVTR.

Application of disciplinary action in the form of dismissal of an employee

Dismissal of an employee as a disciplinary measure is extremely difficult. They are applicable for:

• repeated failure by an employee to perform work duties without good reason, if he has a disciplinary sanction. Those. if the employee has already violated the rules of the beauty salon several times and has official disciplinary comments of a different format (remark or reprimand);
• absenteeism is the absence of an employee from work without good reason for more than 4 hours in a row during the working day. This paragraph is applicable if the employee does not bring you a certificate from the hospital (he was at an appointment), a certificate that he was stuck in the elevator, or any other certificate explaining his absence;
• appearing at work in a state of alcohol, drug or toxic intoxication. This is only possible if there is an examination by official bodies (if you have a doctor on staff, or you will have to visit the nearest hospital, the nearest police station, and obtain witness statements from employees);
• committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of an authority authorized to apply administrative penalties;
• violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences. Please note that if you plan to dismiss an employee under this point, then you must have an almost “ideal” state of labor protection documentation;
• the commission of guilty actions by an employee directly servicing monetary or commodity valuables, if these actions give rise to a loss of confidence in him by the beauty salon.

Labor legislation does not allow the use of a fine as a form of influence on an employee. Such punishment is applicable only for administrative, tax and criminal offenses.

Penalties in a beauty salon

Fines at work are contrary to labor laws. Fining for disciplinary offenses (being late for work, etc.) is also prohibited by law. An employee can be held financially liable only if his actions caused direct damage to the employer.

During a survey on the topic “Is it possible to manage people without punishment?”, which was conducted by the National Union of Personnel Officers, it turned out that 15% of surveyed managers exclude this possibility. 79% believe that “negative motivators” can be used, but only as an exception to the rule: not often and in relation to those “especially guilty”. And 6% even mentioned fines the best way motivation. In large Russian companies The fine system is practically not used. Russian companies are becoming law-abiding.

There is no concept of a fine in the Labor Code of the Russian Federation. But there is a reasoned deprivation of a bonus for a particular offense. This action must be justified and understandable to both parties - the employer and the employee. This is formalized by order, and must be specified in the bonus regulations.

At its core, instead of fines, deductions have appeared, which are not much different from fines. Now in many companies wage consists of three parts - a salary, a permanent variable part (no matter how strange it may sound) and a variable or bonus part. An employee receives a permanent variable part if he fulfills his job description. If he violates it, he may be deprived of bonuses.

A person gets so used to the constant variable part that he considers it a salary, and is very surprised if he (for example, in case of absenteeism) is deprived of this part. However, from a legal point of view, everything remains clean.

• Disciplinary action: reprimand, reprimand or dismissal

Alternative to fines

However, even the most reasonable system of control and punishment will not be effective without a reward system. Excessive punishment leads to the phenomenon of “learned helplessness” and ceases to motivate even compliance with the rules.

Additional encouragement for the fact that the employee did not do anything violative will definitely bring results. Very often, in large Russian companies, an employee is paid approximately 500 rubles per month for not smoking during working hours. Also, in some companies, an employee is rewarded for not being late for a whole month. There are companies where an entire system is being developed non-material incentives employees. In these incentive systems, conditions are created so that the employee does not violate the company’s rules, but rather wants to become “better” or become a leader in the production discipline. For this, several criteria are identified:

• no delays in the morning;
• lack of sick leave;
• no disciplinary action;
• lack of customer comments, etc.

And those departments that have the fewest violations during the year go on vacation as a whole (the location of the vacation is chosen by the department employees themselves). Those. we aim at two birds with one stone:

• we encourage not to violate labor discipline;
• We involve employees in the life of the company, introduce an element of mutual responsibility, because These are team competitions.

The issue of applying disciplinary sanctions is regulated by Article 192 of the Labor Code of the Russian Federation.

The director of the enterprise expects the employee to fulfill his official duties.

A penalty is a warning of more serious consequences for repeated violations.

What is the difference - differences

There is no fundamental difference between disciplinary sanctions such as a reprimand and a reprimand.

The difference between a reprimand and a reprimand is the fact that the first type of penalty used as a primary warning and represents a signal to the employee that he needs to take a closer look at his behavior and try to maintain discipline and work duties at the proper level.

A reprimand differs from a reprimand in that it is a more severe form of punishment, expressed in in writing and is reflected in the personal file employee. IN labor record Usually a record of these types of penalties is not made.

If you carefully read labor legislation, namely Labor Code, this document puts the remark one line above the reprimand. Based on this, it can be considered that it is a lighter punishment than a reprimand.

But in fact, labor legislation does not set restrictions on the choice of penalties and does not rank what to accept or not to accept. Everything happens at the discretion of the employer. Therefore, it does not matter whether the reprimand or reprimand was issued. Both will comply with the letter of the law.

Is it possible to announce two punishments at once?

An employee cannot be punished twice for the same violation. Therefore, it is possible to apply only one type of disciplinary sanction at a time for the same offense.

If the employee later commits another violation, then penalties may be imposed on him again.

Remark as a disciplinary sanctiondiscussed in Art. 192 Labor Code of the Russian Federation. Based on the provisions of this article, we can conclude that a reprimand can lead to a number of undesirable consequences and is the mildest form of punishment for employees who have committed a disciplinary offense.

Disciplinary action in the form of a reprimand

So, a reprimand as a disciplinary sanction is applied when workers commit offenses of minor severity. It's about about misconduct that does not entail serious consequences for the production activities of the entire enterprise/its individual structural divisions, or for officials.

A reprimand is one of the types of sanctions that can be applied to a negligent employee. At the same time, the procedure and consequences of bringing to this type of responsibility, as well as the rights of the employee associated with the announcement of a reprimand to him as a disciplinary sanction, are similar to those that occur when issuing a reprimand. Let's look at each of these points in more detail.

Consequences of the remark for the employee

A reprimand given to an employee as a disciplinary sanction can lead to a number of undesirable consequences, such as:

1. Deprivation of bonuses and incentive payments and additional payments. This is possible if the organization in which the employee performs his labor functions has a bonus wage system.
2. Dismissal in the event of subsequent commission of another disciplinary offense, until the previously announced reprimand is removed (the penalty is valid for a year after its announcement). That is, if during this time the employee commits another offense that entails punishment, then the employer has the right to fire him.

The procedure for announcing a disciplinary sanction in the form of a remark, structure and sample order

To announce a remark to an employee, the employer must act in accordance with the provisions of labor legislation, namely Art. 193 TK. According to this legal norm, the procedure for bringing to responsibility is as follows:

1. The employee writes an explanatory note regarding the identified violation. To write it, the citizen is given 2 working days. If he has not done this, the employer must draw up a corresponding act.
2. The employer issues a disciplinary order in the form of a remark (you can see a sample of this on our website).

What you should know about the form and structure of the order:

1. It is published on the company’s letterhead, which indicates the document number and date of preparation.
2. The main text of the document may be as follows: “In connection with the commission of (indicate the full name of the employee who committed the offense and his position) a disciplinary offense, namely (indicate what exactly the employee committed), I order that (the full name and position of the employee) be reprimanded. The reason for involvement is (indicate the grounds that led to the imposition of a penalty, in particular these could be inspection reports, memos from the immediate supervisor, results of an audit, etc.).
3. As a result, the signature of the head of the organization and its decoding are affixed.

Please note that it is important to comply with the requirement regarding the mandatory familiarization of the employee with the order no later than 3 days from the date of its issuance. If the employer refuses to familiarize himself, he must draw up a corresponding act.

Actions of an employee in case of disagreement with the announcement of a remark

If an employee disagrees with the actions of the employer, he has the right to appeal the disciplinary sanction imposed on him, doing this in one of the following ways:

1. Contact the territorial labor inspectorate with a statement.
2. Submit statement of claim to the courts with a demand to cancel illegal prosecution of this kind.
3. Contact the labor dispute commission (if there is one in the organization).

An employer has the right to punish its employee for committing guilty or illegal actions. One such punishment is a reprimand. This is stated in Art. 192 Labor Code of the Russian Federation.

An employer has the right to punish an employee only for committing a disciplinary offense.

A disciplinary offense is a violation by an employee of the provisions of his job description, as well as internal regulations or labor discipline.

For such violations, the employer has the right to impose disciplinary sanctions, one of which is a reprimand. A reprimand can be simple and severe. Depending on the degree of guilt of the employee and the damage caused to him, the employer may issue one of the types of reprimand.

In order to impose a disciplinary sanction on an employee in the form of a reprimand, it is necessary to document the violation and prove the employee’s guilt. To do this, you need to take several steps.

First of all, you need to request a written explanation from the employee of what happened. If an employee has a respectful reason, then the employer does not have the right to impose penalties. The employee must give written explanations within two days after receiving the request. The requirement is issued in the form of an act requesting explanations.

A reprimand is applied to an employee on the basis of an order from the employer, which is issued on the basis written explanations employee. If the employer has proven that there is a cause and effect relationship between the employee’s actions and his guilt, then he must issue an order to impose a penalty. A reprimand is issued for offenses of “medium gravity.” For example, for improper performance of one’s job duties that did not result in large-scale damage to the employer’s property.

The employer has the right to reprimand the offending employee within 1 month from the moment the offense was discovered. If an employee’s guilty action was revealed during an audit or audit, then a reprimand may be imposed within six months. For the same offense, the employer does not have the right to apply different penalties.

The employer can impose penalties on the guilty employee who is still working for him. A record of a reprimand is not made in the work record book. An entry can only be made in the employee’s personal card.

The reprimand is “valid” for a year from the date of issuance of the order for its issuance. But the penalty can be lifted ahead of schedule:

• at the written request of the employee himself;
• by decision of the employer;
• at the written request of the head of the structural unit where the offending employee works;
• at the written request of the trade union body, if there is one at the enterprise.

If a repeated disciplinary sanction is carried out “during the validity period” of the reprimand, the employer may apply a penalty such as dismissal, making a corresponding entry in the employee’s work book.