Who has the right to request written explanations from an employee? Requirement of an explanatory note from the employee.

Written explanations become mandatory only in a number of cases. The most common is when assessing the validity of the reasons for an employee’s disciplinary offense (violation of labor or official duties by the employee). This is required by the procedure for imposing a disciplinary sanction under Art. 193 of the Labor Code (hereinafter referred to as the Labor Code of the Russian Federation), which can result not only in a reprimand or reprimand, but also in dismissal. It all depends on the circumstances, which need to be sorted out. In this case, the explanatory note documents and conveys to management the employee’s position, his vision of the situation, and his arguments.

Document fragment

Labor Code of the Russian Federation. Article 193 “Procedure for applying disciplinary sanctions”

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

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

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

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

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

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

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

But explanatory notes can also be drawn up for other reasons, although the aspect of “the need to justify oneself” remains (after all, in other cases, official and memos are used). For example, during the investigation of the circumstances of damage to the employer’s property and determining its amount under Art. 247 Labor Code of the Russian Federation.

Request for written explanations

So, “before imposing disciplinary action, the employer must request a written explanation from the employee.” As you can see, the law does not specify whether the demand for explanations must be oral or written. In particularly difficult cases, when both the employee and the employer are very serious and intend to go, as they say, to the bitter end, the employer must request an explanation from the employee in writing, in order to then be able to confirm compliance with the procedure prescribed for imposing disciplinary sanctions in Article 193 of the Labor Code of the Russian Federation (Example 1). There has never been an approved form of this personnel document, therefore each organization draws it up in its own way. Even the type of document used for this is different (notification, demand, letter, etc.), although it is more correct to call it “demand”, because in Part 1 of Art. 193 of the Labor Code of the Russian Federation states that it is necessary to “request” a written explanation. The notification has a different meaning - information is provided and there is no requirement to do anything. A letter is an outgoing document that is sent to a third-party organization or individual, and the employee is not such a “stranger” person.

It should be remembered that “disciplinary sanction is applied no later than one month from the date of discovery of the offense” (Part 3 of Article 193 of the Labor Code of the Russian Federation). The fact of its discovery is confirmed by an act, not a requirement. Therefore, this month should be counted from the date of discovery (which ideally should coincide with the date of drawing up the act), and not from the date of request for written explanations.

Another period is counted from the date of the request - 2 days for giving a written explanation (see Example 3). Therefore, it is important not only to formalize the demand, but also to prove that it was handed to the employee or that he refused to receive it. To do this, you can immediately make the corresponding blanks at the bottom of the sheet (marked with numbers 1 and 2 in Example 1): if the first one (signature on receipt of the request) is not drawn up, then the second one is drawn up (witnesses confirm the fact of the employee’s refusal to receive this document, this mark eliminates the need to draw up a separate act on this matter).

A written request for an explanation from the employee

The text of the request for an explanation from the employee about the reasons for absence from work and signature

Calculation of the period for giving a written explanation of the reasons for the disciplinary offense

Let’s say a worker negligently damaged the employer’s property on Monday, September 1, 2014, there were witnesses to this, and a report was drawn up on the same day. On September 2, 2014, the worker was required to give written explanations. We begin counting the deadline from the next day:

• 09/03/2014 – 1st day,
• 09/04/2014 – 2nd day (when the submission of the explanatory note will still be considered timely),
• On September 05, 2014, it is already possible to activate the fact of failure to provide explanations.

If the requirement to provide written explanations was presented to the employee on Friday 09/05/2014, and Saturday and Sunday are his days off (i.e. they are not included in the calculation of the 2-day period), then the deadline for timely submission of the explanatory note would expire only on Tuesday 09/09 .2014.

To prevent a conscientious employee from getting confused in calculating this period, it is better to immediately indicate in the request a specific date by which the explanatory note must be provided. Here you can add the specific department / official to whom it should be given (see the second paragraph of the text of the requirement from Example 1). The addressee of the explanatory note (in whose name it is drawn up, for example, the general director) and the person to whom it should be transferred (for example, the secretary or the head of the personnel department) will most likely be different people.

If the employee really had good reasons for behavior that the employer did not like, and in general they are adequate people, then you should not be afraid of the explanatory note - it will come to the defense of the “accused”. Then there is no need to wait for a written request from the employer. At his verbal request, it is better to immediately draw up an explanatory note, attaching to it as much evidence as possible that he is right. Not only official documents will do, even a printout from a news site about interruptions in the work of the metro line that a latecomer uses to get to work. If there is a conflict between employees, then a well-written explanatory note can even “pull” management to the side of its author.

In whose name is the explanatory note written?

To accurately answer this question, you need to look into the Internal Labor Regulations, which must apply in every organization. Most likely, it says that the employee reports to his immediate superior and general director. Then, if something happens, the employee will write an explanation addressed to either his boss or the general director.

Local regulations may establish a different hierarchy: for example, members of a working group report to the head of this group, despite the fact that they represent different departments in it. The group leader may ask for written explanations only if the misconduct is related to the work of the group.

Thus, the security service, corporate culture manager, or head of the personnel department do not have the right to demand explanations from employees of other departments who do not report to them, unless this is expressly stated in the organization’s local regulations. True, the corresponding powers to these and other officials can still be delegated by order of the general director (for example, to the chairman of the commission to investigate a specific incident). See the captions in Examples 1 and 2, marked with an exclamation mark.

By hand or on a computer?

The law does not require explanatory notes to be written by hand; they can be typed on a computer. But experienced personnel officers require explanations from employees, written only in their own handwriting. In the event of a labor dispute, this will help the employer protect itself from unlawful actions on the part of an employee who may claim that he was “forced” to sign a text that someone else had already drawn up.

The minimum required composition of handwritten elements, drawn by the employee’s hand on an explanatory note, is as follows:

• job title,
• personal touch and
• AND ABOUT. Surname.

You cannot limit yourself to just a handwritten personal stroke, because... graphological examination is not able to unambiguously identify some signatures as belonging to a specific person. And based on whole words (position and surname), this can definitely be done.

Details of the explanatory note

The form of the explanatory note is relatively free. No one requires an employee to have a thorough knowledge of document preparation standards; compliance with the required minimum is enough.

On the top right side of the sheet, information is written in a column about who and by whom the explanatory note is addressed. The employee must indicate his structural unit, position, as well as his full last name, first name and patronymic. The name of the type of document - an explanatory note - is written in the center, after several lines (usually with a capital letter or only in capital letters, as shown in Example 4). Example 5 demonstrates an outdated version, where the name of the document type is written entirely in small letters and followed by a dot, i.e. the entire “header” could, as it were, be read in a single sentence; Such design options were previously found in applications.

"Head" of the explanatory note

An outdated version of the “header” of the explanatory note

Circumstances vary, and it is incorrect to demand brevity from an employee in an explanatory statement. The note can take up several sheets of paper, contain direct speech and read like a good detective story, or it can consist of one line. The employer does not have the right to limit an employee in such “creativity”.

No one expects the employee to make conclusions and suggestions in the explanatory note, although it will not be possible to prohibit him from including them.

The content of the explanatory note is determined only by the employee who needs to write it. The boss does not have the right to dictate the text, say phrases like “this is not the reason,” demand a rewrite, or otherwise influence the content of the document. Some organizations go even further and draw up standard texts of explanatory notes. The employee has the right to decide whether to use them or write an explanatory note on his own. It is in his interests to describe what happened as he considers correct. The employer, in turn, is obliged to familiarize himself with any explanations of the employee, whether he likes them or not.

Marking the presence of applications

The explanatory note has been drawn up. What to do next?

The employer, having received the explanatory note, puts on it the registration number of the incoming document and, without fail, the date of reception.

According to Art. 193 of the Labor Code of the Russian Federation, which we referred to at the beginning, the employee has 2 working days to write an explanatory note. If after this time the employee does not provide an explanation, the employer has the right to draw up an appropriate act about this. In order to insure against unlawful actions on the part of the employer, it is better for the employee to register his explanatory note in the office or with the secretary with an appropriate mark on the document, and then pick up a copy of the explanatory note with this mark. Another option: the employee can write an explanatory note in 2 copies, and keep one of them, after marking the acceptance. Then no one will be able to say that the employee did not provide written explanations within the period established by law.

In case of various violations on the part of the employee, according to Article 139 of the Labor Code of the Russian Federation, the boss is obliged to demand an explanation from him. The request for an explanatory note can be oral or in writing. There is no provision in the law that would indicate the form of the request. It is preferable for employers to make the request in writing.

Judicial practice shows that the judge sided with the employee due to the fact that the employer did not formalize the requirement to write an explanatory note in writing. If the employee refuses to accept the request from the boss in writing, a report about this is drawn up. But the boss does not have the right to indicate to the subordinate that his request must be accepted. This is considered illegal and entails a violation of the employee’s labor rights.

The deadline for writing an explanatory note in accordance with the Labor Code is 2 days. The law gives this period of time to the employee to explain the reasons that prompted him to act in this way, violating, for example, labor discipline. The law does not require an employee to be required to write an explanation. The absence of this rule of law in the Labor Code of the Russian Federation may be due to the requirement of reasonableness. If an employee values ​​his work, he will definitely write an explanation. But it is better to create an order to provide an explanatory note to the employer in the form of a written document.

How to request an explanation from an employee?

In the paperwork of a company, an explanatory note acts as an official document. This document should explain the reasons for violation of labor discipline by the employee dryly and concisely, subject to the rules of business correspondence. An employer may require an employee to provide an explanation only if there are circumstances indicating a violation of labor laws.

These circumstances are specified in the Labor Code of the Russian Federation:

• being late for work;
• failure to fulfill labor duties provided for by the employee’s functionality;
• absence from work for 4 hours;
• causing damage to the employer's property;
• state of intoxication (alcohol or drugs);
• non-compliance with labor protection rules;
• failure to provide the management of the enterprise with reliable information.

The requirement to write an explanatory note is made by the employer. He must do this, since on the basis of the document the employee is held accountable and the degree of his guilt is determined. The employer is obliged to realistically assess the situation that happened to his subordinate. And the employee’s task is to correctly state the essence of what happened so that the employer clearly understands further actions. If the decision made by the employer does not satisfy the employee, he can apply for labor rights protection. The first line of defense is usually the CLC (labor dispute commission). But they are not always created at the enterprise, so most often citizens turn to the court and the Labor Inspectorate.

An employee who receives a written explanatory request from the employer must respond to it. And this does not depend on which of the two options he decided on: to write a note or not to do it. If an employee does not want to write an explanation, he must tell his boss about it. But the subordinate’s refusal to write an explanation cannot be regarded by the boss as a fact of an offense committed through his fault.

Application form

There is no standardized application form. Therefore, free form is used. Some organizations issue special explanatory forms that are given to employees on occasion. In other situations, the employee takes an A4 sheet and writes a statement by hand or on the computer. Based on the text, the employer assesses the legality of the employee’s actions. What should be indicated in the text of the explanatory note?

If we talk about the ideal way for an employee to write this document, then the document should reflect the answers to the following questions:

1. Description of the situation in which the citizen found himself.
2. Attitude towards your actions.
3. Admission or non-admission of guilt.
4. The employee’s opinion on holding him accountable.

The employee must sign and date the explanatory note. This is explained simply: the employer must know from whom he is receiving the explanation. And the date is set in order to notify the employer that the citizen did not miss the deadline allotted for him to write an explanation (2 days). If the note is written a week later, this will no longer entail legal consequences for the employee. In the absence of an explanatory note from the employee, his boss draws up a report. Punishment on an employee if his guilty actions are discovered is imposed no later than six months after the event. With the exception of cases related to violations in the field of finance, audits, audits. The deadline is extended in these cases by another year and a half.

Considering that in some cases the employer is obliged to demand an explanation from the employee, failure to comply with this procedure may be regarded as a violation of labor legislation. That is why the employer must confirm the fact that explanations were requested from the employee. This can be done by familiarizing the employee with such a requirement, where the employee puts his signature. Or, if the employee refuses to sign for familiarization with the requirement, such a requirement can be sent to the employee at his place of residence, confirming the fact of sending with a list of the attachment and a notification of delivery. Another option for making the employee aware of the request when he does not want to withdraw it is to read out loud the request for an explanation. In this case, this must be done in the presence of witnesses (commission), about which a corresponding act is drawn up.

Notice of explanation (sample and form)

Attention

When is an employee required to write a note? In what cases is an employee required to write:

1. Late for work.
2. Failure to fulfill duties that are determined by the employee’s functionality.
3. Absence from work for more than 4 hours.
4. Causing damage to the employer's property.
5. Coming to work intoxicated (alcohol, drugs).
6. Failure to comply with labor safety regulations.
7. Disclosure of commercial secrets of an enterprise, etc.

The video below will tell you what to do if an employee leaves the workplace: Who can request a document An employer has the right to demand an explanatory note from an employee under Article 139 of the Labor Code of the Russian Federation. This document must be written. Judicial practice shows that judges often take the employee’s side in a dispute due to the fact that the employer does not formalize the requirement for a written explanation.

Notice of explanation

If the employee refuses to write an explanation This is also possible: the employee may refuse to write a statement, or may not provide it to his boss within two days. In this case, an act is drawn up. This document is important from a legal point of view; the essence of writing this document is that it is evidence of the absence of an explanatory statement, as well as the employee’s remorse for what he actually did.

Info

Thus, the act gives full right to the boss of the offending employee to punish him. Disciplinary action against an employee has three forms:

1. Comment.
2. Rebuke.
3. Dismissal.

One of these punishments must be specified in the order issued in relation to a particular person by his director.

Not found

If the decision made by the employer upon review of the explanatory note does not satisfy the employee, he can turn to the CTS. But labor dispute commissions are created at enterprises - voluntarily, so not all of them are present.
When should the paper be provided? The employer is obliged to carefully investigate each case. A note written on behalf of the employee argues for the details of what happened, describes them, and explains the motives for the person’s action.
If within two working days the employee is unable to explain anything to the employer in writing, an act of failure to draw up a note is issued. The act is not an obstacle to taking disciplinary action against the employee. This video will tell you how to write an explanation for absenteeism: How to request a Notification is drawn up in two copies.

Request for explanation

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What is an explanatory note from an employee?

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For example, the employer must request such an explanation from the employee before applying a disciplinary sanction to the employee in the form of a reprimand, reprimand or dismissal (Part 1 of Article 193 of the Labor Code of the Russian Federation).

Request for an explanatory note from the employee

The boss does not have the right to dictate the text, say phrases like “this is not the reason,” demand a rewrite, or otherwise influence the content of the document. Some organizations go even further and draw up standard texts of explanatory notes.

The employee has the right to decide whether to use them or write an explanatory note on his own. It is in his interests to describe what happened as he considers correct. The employer, in turn, is obliged to familiarize himself with any explanations of the employee, whether he likes them or not. Drawing up the text of an explanatory note very often causes difficulties.

Important

Let us repeat the main rule: events must be presented as they happened. If the employee’s guilt is obvious (he was late, was rude to the client, forgot to do something), then there is no point in denying it and inventing any excuses.

Explanatory letter

We begin counting the deadline from the next day:

• 09/03/2014 – 1st day,
• 09/04/2014 – 2nd day (when the submission of the explanatory note will still be considered timely),
• On September 05, 2014, it is already possible to activate the fact of failure to provide explanations.

If the requirement to provide written explanations was presented to the employee on Friday 09/05/2014, and Saturday and Sunday are his days off (i.e. they are not included in the calculation of the 2-day period), then the deadline for timely submission of the explanatory note would expire only on Tuesday 09/09 .2014. To prevent a conscientious employee from getting confused in calculating this period, it is better to immediately indicate in the request a specific date by which the explanatory note must be provided.

Here you can add the specific department / official to whom it should be given (see the second paragraph of the text of the requirement from Example 1).
Requesting written explanations So, “before applying a disciplinary sanction, the employer must request a written explanation from the employee.” As you can see, the law does not specify whether the demand for explanations must be oral or written. In particularly difficult cases, when both the employee and the employer are very serious and intend to go, as they say, to the bitter end, the employer must request an explanation from the employee in writing, in order to then be able to confirm compliance with the procedure prescribed for imposing disciplinary sanctions in Article 193 of the Labor Code of the Russian Federation (Example 1). There has never been an approved form of this personnel document, therefore each organization draws it up in its own way.
Even the type of document used for this is different (notification, demand, letter, etc.), although it is more correct to call it “demand”, because in Part 1 of Art.

Sample request to provide an explanatory note

Thus, the security service, corporate culture manager, or head of the personnel department do not have the right to demand explanations from employees of other departments who do not report to them, unless this is expressly stated in the organization’s local regulations. True, the corresponding powers to these and other officials can still be delegated by order of the general director (for example, to the chairman of the commission to investigate a specific incident). See the captions in Examples 1 and 2, marked with an exclamation mark. By hand or on a computer? The law does not require explanatory notes to be written by hand; they can be typed on a computer. But experienced personnel officers require explanations from employees, written only in their own handwriting.