In this case, you are obliged to execute the order until the court decision is made to suspend the contested order. To do this, you need to apply to the court with a statement.

Article 254 state power, local government, official, state or municipal employee
4. The court has the right to suspend the contested decision until the entry into force of the court decision.

The issue of suspension of the disputed decision may be resolved by the court at any stage of the proceedings on the case: when preparing the case for trial, during the consideration of the case, as well as after the resolution of the case, but before the entry into force of the court decision, if from the materials attached to the case It follows from the applicant's explanation that the suspension of the disputed decision may prevent possible negative consequences for the applicant.

For reference:

You have the right to refuse to execute an order only if the work entrusted to you is beyond the scope of your labor function. The labor function is fixed in the employment contract, job descriptions.

The employer has the right to issue orders, orders, give oral instructions to the employee on the performance of any work within the framework of the employee's labor function, enshrined in his employment contract. At the same time, the employer determines the expediency and necessity of the employee to perform a particular job.

You can refuse to perform work if the work assigned to you clearly goes beyond the scope of your labor function, provided that your right is not limited by law (it is impossible to determine whether this case applies to such a case without understanding the essence of the order).

To opt out, you must notify your employer that you are protecting your labor rights.

Article 379. Forms of self-defense
For the purpose of self-protection of labor rights, the employee, having notified the employer or his immediate supervisor or other representative of the employer in writing may refuse to perform work not provided for by the employment contract, as well as refuse to perform work that directly threatens his life and health, except as provided by this Code and other federal laws. At the time of refusal from the specified work, the employee retains all the rights provided for by labor legislation and other acts containing labor law norms.
For the purpose of self-protection of labor rights, an employee has the right to refuse to perform work also in other cases provided for by this Code or other federal laws.
Article 380
The employer, representatives of the employer do not have the right to prevent employees from exercising self-protection of labor rights.

But keep in mind that for an unlawful refusal to perform the assigned work, the employer may bring you to disciplinary liability (remark, reprimand, dismissal).

The employee has the right not to get acquainted with the order against signature for various reasons. For example, in connection with disagreement with the order, etc.

If the employee does not agree with the order and does not want to get acquainted with it, the employer must take measures to bring the order to the attention of the employee (read it to the employee, send it by mail to the home address by registered mail with return receipt, etc.) and issue a written refusal .

So, the employee may refuse to read the disciplinary order in writing. In this case, the employee is considered familiarized if the order is announced to him, and the refusal to familiarize himself in writing is formalized by an act indicating the witnesses present at the same time (parts 5, 7 of article 199 of the Labor Code). Legislation establishes unified form an act on the employee's refusal to familiarize himself with the order (instruction) on the imposition of a disciplinary sanction (Unified system of organizational and administrative documentation, approved by Order of the Director of the Department for Archives and Records Management of the Ministry of Justice of the Republic of Belarus dated 14.05.2007 N 25). It is advisable to mention in the act that the order was read to the employee, to note the employee’s reaction to the order (for example, he reported his unwillingness to sign, disagreed with the order, tore the order, etc.) and the motives for refusing to sign. The date of the act should be the date the employee refused to familiarize himself with the order. The signature of the employee in the act is desirable, but in practice it is rarely possible to obtain it. As a rule, the act is signed by those employees who compiled it.

In addition, an employee may, for example, be fired for absenteeism and refuse to familiarize himself with the dismissal order. In this case, his refusal is formalized by an act in the same form.

The number of copies in which acts are drawn up on refusal to familiarize employees with orders is determined by the employer independently.

If the familiarization period is violated

An employee who is absent from the workplace due to vacation, illness, business trip, etc., is sometimes not acquainted with the orders (such employees are not sent documents by mail). If it is not possible to wait for the employee to go to work, you should still send him an order by mail, by registered mail with acknowledgment of receipt, since an employee who is absent for a long time for good reasons at the workplace is not required to come and get acquainted with the order.

Sometimes an employee who has committed a disciplinary offense is not introduced to the disciplinary order. For example, on the day the salary is paid, the employee finds out in the accounting department that he has been reprimanded and the bonus has not been accrued, although more than five days have passed since the issuance of the disciplinary sanction order. In this case, the employee is considered not to have a disciplinary sanction (part 6 of article 199 of the Labor Code). Therefore, the employer must cancel the order, and if this is not done, the employee has the right to apply to the court or the prosecutor's office with a demand to remove the disciplinary sanction from him and to declare the order invalid. Note that the employer is obliged to take comprehensive measures to familiarize the employee with the order of disciplinary action within the prescribed period - five days from the date of its issuance.

"Acquainted" does not mean "agree"

Familiarization with the order does not mean that the employee agrees with it. In some cases, the date of termination of employment needs to be agreed upon by the employer and employee. In such situations, it is necessary not only to familiarize the employee with the relevant order, but also to obtain his consent.

For example, an employee who works under an employment contract concluded for an indefinite period (clause 1, part 1, article 17 of the Labor Code) has the right to terminate it by notifying the employer in writing one month in advance, while he is not required to indicate in the application the desired date of dismissal ( part 1 article 40 of the Labor Code). The employee has the right to withdraw the application in writing at any time before the expiration of the one-month period, unless another employee is invited to take his place, who, in accordance with the law, cannot be denied a conclusion. employment contract(part 3 of article 40 of the Labor Code) (in particular, sent to work by the state employment service on account of the reservation, including citizens who are obliged to reimburse the expenses spent by the state on the maintenance of children who are on state support; invited to work in writing in the order of transfer from one employer to another as agreed between them, within one month from the date of issue written invitation, unless the parties agree otherwise, etc. (part 1 of article 16 of the Labor Code)). In this regard, when dismissing such an employee before the expiration of the warning period, it is necessary to obtain his consent to dismissal before familiarizing himself with the order. If you do not make a note about the employee’s consent with the order, the employee who “changed his mind” about quitting has the right to challenge the dismissal in court, which can make a decision on reinstatement (Overview judicial practice Supreme Court Republic of Belarus dated 16.06.2011 "Review of the cassation and supervisory practice of the Supreme Court of the Republic of Belarus in civil cases for 2010").

If orders are issued to an employee regarding some type of change in the employment relationship that requires the consent of the employee (for example, transfer, change essential conditions labor (Articles 30, 32 of the Labor Code)), in the order, along with “familiarized”, it is advisable to indicate “agree”, “familiarized and agree”.

For certain types changes in labor relations do not require the consent of the employee, but this does not mean that the employee should not be familiar with the orders about these changes.

For example, the movement does not require the consent of the employee (part 3 of article 31 of the Labor Code), but must be justified by production, organizational or economic reasons, therefore, before assigning work at a new workplace, on another mechanism or unit, the employee should be familiarized with the order to move ( part 4 article 31 of the Labor Code).

The employer forced me to quit on my own, but I refused. He says you will receive an article in labor (((Tomorrow he will give me an order ... should I sign it or not? Or can I write familiarized, disagree? Or not sign at all? Which option is better here, based on the fact that I intend to go to court, after all, he will illegally draw up an article for me Question number №2170468 read 400 times Urgent legal advice8 800 505-91-11 free

• You must first be asked to write an explanatory note, and then an order. Most likely nothing will happen tomorrow. It is better to write familiar, do not agree. And take a voice recorder with you and ask questions why and how. Personal consultation Thank you very much for your answer) about the recorder, you read my thoughts) And what questions should I ask ?? Consult, please.

Free legal advice

Includes the date of compilation, number, link to the document (an order in which the employee does not want to put his signature). You need to specify the composition of the commission. Each member of the commission is registered in alphabetical order, indicating the full name and position.

• Main part.

It sets out established facts cases, findings and conclusions. For example, this part may contain the following entry: “The commission found that employee Ivan Ivanov, who holds the position of sales manager, refused to sign the dismissal order.”

Final part.
All members of the commission put their signatures on the document. Specifies information about the number of copies of the document.

IMPORTANT! It is very important for the employer to draw up an act in full compliance with the law.
This is principally because the employee's refusal to sign already indicates a conflict of interest.

“subsidies mortgage agency yugra payments 2012”

What to do here? Can I still recover? And can I claim compensation for non-pecuniary damage for illegal dismissal? Yes, your reason for missing the deadline for filing a claim is quite valid, so file a claim, and, among other documents, attach to it a petition for the restoration of the limitation period indicating the reason for missing the deadline, as well as a copy of the sick leave. As for non-pecuniary damage - yes, you can claim it.

Attention

Usually it is awarded in meager amounts, but if you prove that the cause of the nervous breakdown was illegal dismissal, then you can sue a more decent amount. Which one is difficult to say, since the courts determine it at their own discretion.

But we can advise you to write more (within reasonable limits, of course) - judges usually reduce the amount. But the matter will be considered on the merits only at the second meeting.

Dismissal appeal

For example, on the day the salary is paid, the employee finds out in the accounting department that he has been reprimanded and the bonus has not been accrued, although more than five days have passed since the issuance of the disciplinary sanction order. In this case, the employee is considered not to have a disciplinary sanction.

6 art. 199 TK). Therefore, the employer must cancel the order, and if this is not done, the employee has the right to apply to the court or the prosecutor's office with a demand to remove the disciplinary sanction from him and to declare the order invalid. Note that the employer is obliged to take comprehensive measures to familiarize the employee with the order of disciplinary action within the prescribed period - five days from the date of its issuance. »

Familiarized - does not mean "agree" Familiarization with the order does not mean that the employee agrees with it. In some cases, the date of termination of employment needs to be agreed upon by the employer and employee.

If the employee does not agree with the dismissal

Info

The legislation establishes a unified form of the act on the employee's refusal to familiarize himself with the order (instruction) on the imposition of a disciplinary sanction (Unified system of organizational and administrative documentation, approved by Order of the Director of the Department for Archives and Records Management of the Ministry of Justice of the Republic of Belarus dated May 14, 2007 N 25). It is advisable to mention in the act that the order was read to the employee, to note the employee’s reaction to the order (for example, he reported his unwillingness to sign, disagreed with the order, tore the order, etc.) and the motives for refusing to sign.

The date of the act should be the date the employee refused to familiarize himself with the order. The signature of the employee in the act is desirable, but in practice it is rarely possible to obtain it.

As a rule, the act is signed by those employees who compiled it.

What should the manager do if the employee refuses to sign the order

LABOR CODE “Recently I was fired from my job. I think it's illegal. What can I do to stand up for my rights? Sergey (Kursk).

Sergei STUPAKOV, Prosecutor of the Zheleznodorozhny District of Kursk, answers: “A dismissal can be recognized as lawful only if three circumstances are simultaneously present: 1) there is a legal basis for dismissal; 2) the procedure for terminating an employment contract on a specific basis has been observed; 3) there is a legal act of termination of the employment contract - an order (instruction) on dismissal. In cases where the employee does not agree with the dismissal, exercising his constitutional right to judicial protection, he goes to court with a statement of claim about the illegality of the dismissal and the restoration of the violated right to work.

If the employee disagrees with the order

Labor Code of the Russian Federation. In addition, it will be illegal if:

• violation of the procedure for dismissal;
• all due compensation has not been paid;
• for a minor disciplinary violation (for example, being 15 minutes late for work once) were immediately fired;
• while on vacation or on sick leave, they learned that an order had been issued to dismiss you;
• the employer simply forced to write a statement of his own free will;
• if you were fired due to a reduction in staff without warning you in advance, or in fact there were no procedures for reducing either the staff or the number of employees, or you have disabled relatives or young children as dependents;
• you are a single mother (father) raising a child under 14;
• and other nuances that are contrary to labor law.

You must be familiarized with the dismissal order against signature.

The court has sufficient authority both to make a decision on your reinstatement and payment Money during forced absenteeism, moral damage (if you prove that the dismissal brought you physical or moral suffering). In addition, the enforcement of the judgment will be monitored by bailiffs.

The procedure for appealing the dismissal order by the employee Required documents. 1. An employment contract concluded upon employment, proving your actual employment relationship and obligations of the parties.2. Copies of orders for admission and dismissal.3. Certificate of average earnings for the possibility of calculating compensation for the days of forced absenteeism.

If you do not agree with the dismissal order, what to do

That is why, you should be sure that the employer violated the law when terminating the employment agreement with you by contacting the judicial authorities. You do not need to pay the state duty when filing a claim for reinstatement, but when making a claim for compensation for non-pecuniary damage, it is already necessary to pay it, which will also be reimbursed when a decision is made in your favor.
Most often, if there were indeed violations during dismissal, the defendant's representative proposes to conclude a settlement agreement at the court session. At the same time, the labor dispute with the company ends if they agree to satisfy your requirements. It is important to remember here that, having agreed to sign a settlement, you will no longer be able to go to court on this issue if it later turns out that the employer, instead of being reinstated to work, for example, agreed to compensate you for forced absenteeism.
In addition, an employee may, for example, be fired for absenteeism and refuse to familiarize himself with the dismissal order. In this case, his refusal is formalized by an act in the same form.

The number of copies in which acts are drawn up on refusal to familiarize employees with orders is determined by the employer independently. An employee who is absent from the workplace due to vacation, illness, business trip, etc., is sometimes not acquainted with the orders (such employees are not sent documents by mail).

If it is not possible to wait for the employee to go to work, you should still send him an order by mail, by registered mail with acknowledgment of receipt, since an employee who is absent for a long time for good reasons at the workplace is not required to come and get acquainted with the order. Sometimes an employee who has committed a disciplinary offense is not introduced to the disciplinary order.

The wording of your dismissal will be changed, or you will be reinstated, depending on which issue you are more concerned about. 2. If you are a member trade union committee, submit this complaint to the chairman of the trade union organization of your enterprise, since dismissal is impossible without the consent of the trade union committee of its members.

According to Article 374 of the Labor Code of the Russian Federation, the trade union body has the right to send an application to the State Labor Inspectorate with a request to check the correctness of the termination of employment contracts with employees and force them to oblige them to be reinstated at the workplace with payment of compensation for the days that you were forced to miss. 3. You can also write an application yourself to the State Labor Inspectorate, which has the right, under Article 357 of the Labor Code of the Russian Federation, to take appropriate measures for your restoration and reimbursement of monetary compensation (Art.

Of course, they can be fired, but the court will most likely recognize this reason for absence from work as valid - even if it’s not even a sick leave, but a certificate. But still, think about who can confirm, at least indirectly, that the employer really let you go on time off, at least verbally - this will greatly help the cause.

For minor offenses - being late, not fulfilling the plan, etc., disciplinary sanctions may be applied in the form of a remark or reprimand. Note that the deprivation of the award disciplinary action is not.

You can be fired for a repeated disciplinary act committed within a year after the first - in fact, even for two five-minute delays. Example 2: I work as a secretary for a commercial firm and was recently severely reprimanded for being late for work.

Sergey, it's nice to read your interesting opinion. Thank you for allowing me to look at the problem from different angles. I absolutely agree with your opinion that in a number of cases "the rights and obligations of the parties give rise not just to an order, but to an agreement to carry out this order."

The instruction on office work tells us that an order is a legal act issued by the head of an organization, acting on the basis of unity of command, to resolve the main tasks facing the organization. The date in the order, order, instruction is affixed by the person who signed it. The date of the order, order, instruction is the date of signing. The administrative document enters into force from the moment of its issuance (acceptance), unless otherwise specified in it.

Let's discuss.
What does the term "invalidity of the order" mean (the law does not clearly define this concept, perhaps everyone puts their content into given expression). The law knows and discloses the concepts of "invalidity of a transaction", "invalidity of marriage", "invalidity of an employment contract", "invalidity of certain conditions of an employment contract".

Someone understands the term "invalidity of the order" as a doubt about the legal force of the order (signed by an unauthorized person), someone implies its falsification, forgery (one order with one text was replaced with an order with a different text), someone understands it as the impossibility of execution orders for any reason.

Consider the kitchen of issuing orders in an organization, for example, orders for personnel with the letter "l".
In a large organization, 6-10 orders for personnel with the letter "l" can be issued in one working day.
Let's take an order to work on a day off. As a rule, one or more employees are indicated in one order.
When preparing an order, the executor (the author of the memorandum) usually first finds out the desire of the employee to work on a day off. The law does not specify when the employer is obliged to offer work on a day off - before the issuance of the order or after the issuance of the order, the consent of the employee is usually expressed by the very fact of signing the administrative document without objection. In practice, there are cases when the desire of the employee is not clarified for some reason (unforeseen the need arose to carry out work on a day off, until the end of the working day before the day off there was little time left to prepare, issue an order and familiarize it with employees who are not located at the location of the employer , the immediate supervisor of the employee did not find out the attitude of the employee, but indicated in the memorandum that the employee agreed, etc.) or the employee previously verbally agreed to work on a day off before issuing the order, but then changed his mind upon presentation of the order.
The order is signed by the head, the relevant service registers it and only then passes it on to those employees who are indicated in it for familiarization. Registration has already been carried out in the journal, after this order several more have been registered.
A situation arises, the order is signed by the head and registered, but the employee specified in the order did not agree to work on a day off (it does not matter if he is indicated in the order or another 20 employees who agreed to work).
An order to tear and vomit? It’s not serious and it won’t work, documentary traces remain.
What to do in this case? Declaring an order illegal? No. In this case, the order or one of the paragraphs of the order is canceled, and if one paragraph of the order contains 21 employees involved on a day off (full name, position (profession), structural unit), then the words such and such are excluded from this paragraph.
And if attraction to the day off is mandatory for the employee, then the dispute goes to another plane.

However, in practice, in such situations, some organizations often do not cancel the order (order clause), but simply do not execute (do not take into account) due to the lack of consent of the employee in cases where his consent is required. What is not good.

"HR officer. Labor law for a personnel officer", 2011, N 12; 2012, No. 1

DISCIPLINARY RESPONSE

According to the author of the article, the effective application of disciplinary liability is possible only if the current legislation is observed in detail, otherwise the dissenting employee will successfully appeal the penalty in court. Read more in the article.

Right to apply disciplinary measures

An important factor in the effectiveness of legal measures regulating labor discipline and responsibility for its implementation is the skillful and qualified application of labor law norms on disciplinary liability. Practice shows that with the correct and legal use of this legislation, such norms have a positive effect on the behavior of employees in the labor process, strengthening labor discipline and ultimately on the general state of law and order of a particular employer. At the same time, it must be remembered that the employer has the right, and is not obliged to bring employees to disciplinary responsibility (Article 22 of the Labor Code of the Russian Federation).

In general, the right to apply disciplinary measures in labor relations can be exercised:

An individual who is an employer;

Governing bodies legal entity(organizations);

Authorized persons on behalf of a legal entity (organization) in the manner prescribed by laws, other regulatory legal acts, constituent documents of a legal entity (organization) and local regulations.

The circle of officials endowed with disciplinary power, the scope of their disciplinary rights can be expanded by local regulations or charters and regulations on discipline. At the same time, only the employer or persons authorized by him, exercising the right to hire and dismiss employees, are entitled to impose disciplinary sanctions in the form of dismissal from work.

A disciplinary sanction imposed by an official who does not have disciplinary power or in violation of its limits has no legal force.

As practice shows, the largest number of violations in the exercise of disciplinary powers by the employer relates to non-compliance with the procedure for applying disciplinary sanctions. Therefore, employers should carefully study the relevant procedure and strictly observe it. Violation of at least one of the conditions for the application of disciplinary sanctions may result in the cancellation of the penalty imposed by the employer.

The procedure for applying disciplinary sanctions

Article 193 of the Labor Code of the Russian Federation, establishing the procedure for applying disciplinary sanctions, proceeds from the interests of ensuring fairness and legality in the actions of the employer and the employee who has violated labor discipline, serves as a guarantee of protecting the interests of employees from unreasonable disciplinary liability.

The main purpose of the procedure for applying disciplinary sanctions is to take into account all the circumstances of the commission of a disciplinary offense and make an informed decision on the issue of disciplinary liability of an employee.

When applying the rules of Art. 193 of the Labor Code of the Russian Federation, it is necessary to take into account the presence of the following conditions: whether the misconduct committed by the employee actually took place and could be the basis for imposing a disciplinary sanction; whether the deadlines for the application of disciplinary action were observed.

Identification of the fact of a disciplinary offense is documented in an act (on being late, leaving work earlier than the established time, appearing at the workplace in a state of intoxication, and so on) or a memorandum from the immediate supervisor of the employee.

Before applying a disciplinary sanction, the employer must request an explanation from the employee in writing. Requesting a written explanation enables the employer to comprehensively ascertain the circumstances and causes of the offense, to establish the degree of guilt of the employee. In such an explanation, the employee will be able to indicate circumstances that justify him. All this is a guarantee that the choice of a disciplinary sanction will be reasonable, lawful and fair.

If, after two working days, the specified explanation is not provided by the employee, an appropriate act is drawn up in an arbitrary form, fixing this fact. Moreover, the employer must draw up two acts: the first act confirms the fact that such an explanation was requested from the employee, and the second - that no explanation was provided after two working days. In both cases, the act must be signed by the employees of the organization who were present when requesting a written explanation.

Note that the employer must personally request an explanation and it must be addressed to the employee, and not transmitted through third parties who are not representatives of the employee. These circumstances are confirmed by an example from judicial practice.

Example. By order of the Health Department of Yekaterinburg, Director of the Healthcare Ministry G. was reprimanded for violation of financial and economic discipline, revealed by the results of an audit of this institution by the KRU of Yekaterinburg. G. appealed against the application of the disciplinary sanction to the court, while he referred to the fact that the employer, without requesting an explanation from G., violated the procedure for applying the sanction. The representative of the employer in court presented a statement stating that a telephone message was sent to G., which was accepted by I., promising to convey to G. the employer's demand for the need to give an explanation. However, the representative of G. in court stated that there was no employee I. in this institution, which is confirmed by the list of employees. The employer failed to prove compliance with the disciplinary procedure. In addition, it turned out that no violations that could serve as a basis for the application of a disciplinary sanction were identified by the KRU of Yekaterinburg. As a result, the court declared the application of the disciplinary sanction illegal.

To give a written explanation of the fact of the offense is the right, not the obligation of the employee, and the employer is obliged to observe this right. According to the Ruling of the Judicial Collegium for Civil Cases of the Armed Forces of the Russian Federation dated September 28, 2004 N 47-G04-29, an employee’s refusal to give an explanation about his actions cannot be regarded as a disciplinary offense, and the obligation to demand such an explanation in writing before applying a disciplinary action to the employee the penalty lies with the employer.

In accordance with Part 2 of Art. 193 of the Labor Code of the Russian Federation, the employee’s failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. It is worth noting that both the refusal of the employee and the simple silence and ignoring of the employer by the employee fall under this wording.

It seems that in order to avoid errors, it is necessary to amend Art. 193 of the Labor Code of the Russian Federation, namely: to specify the procedure for requesting an explanation from employees.

I suggest...

Make changes to the Labor Code of the Russian Federation

Part 1 Art. 193 I propose to state in the following edition:

"Before applying a disciplinary sanction, the employer must require a written explanation from the employee. The specified requirement must be drawn up in writing and handed over to the employee against signature. If the employee refuses to sign for this requirement, an appropriate act is drawn up. If after two working days the specified explanation by the employee not submitted, an appropriate act is also drawn up.

In the future, all the circumstances of the misconduct are investigated, and a penalty is determined in relation to the offender. In some cases, when the violation of labor discipline by an employee is not obvious, in order to clarify the circumstances and obtain reliable data, an administrative investigation (inspection) is appointed and conducted.

The employer issues an order to conduct an inspection, in which it determines the timing of the inspection, the person (or persons) entrusted with conducting it, the deadline for submitting the materials of the inspection and the conclusion on its results.

During the audit, the collection and documenting information related to the misconduct, including the following: the goals and motives for committing the misconduct; the presence of guilt in the actions or inaction of specific employees and the degree of guilt of each in the event of a misconduct committed by several employees; circumstances affecting the degree and nature of the responsibility of the guilty employee; personal and business qualities employee, his previous behavior; reasons and conditions that contributed to the misconduct; the nature and amount of damage caused by the employee who committed the misconduct.

Employee rights

The employee, in turn, has the right: to give written explanations outlining his opinion about the misconduct committed, to state evidence on the merits of his explanation; demand that the documents and materials submitted by him be attached to the verification materials; submit an application for the withdrawal of an employee from the inspection with specific arguments explaining the withdrawal; in case of establishing violations in his actions at the end of the inspection, with its materials and the conclusion on the results of the inspection, which is certified by the signature of the employee in respect of whom the inspection was carried out, on the conclusion on the results of the inspection. In case of refusal to familiarize with the conclusion or to sign, an act is drawn up.

Upon completion of the audit, a conclusion is drawn up, which is presented to the head. The conclusion will be the basis for issuing an order to bring the employee to disciplinary responsibility.

When resolving the issue of valid or disrespectful reasons that served as a disciplinary offense, the employer should proceed from common sense, because not a single normative act contains such classifications. Usually, valid reasons are transport failures, accidents, fires, floods, illness of an employee or his close relatives, a call to law enforcement agencies, and so on. Valid circumstances should be (if possible) documented by the employee, for example sick leave, a certificate of a failure in the operation of transport, a summons, and so on. In any case, the employer must accurately establish the absence of valid reasons for non-performance of official duties.

The specific measure of disciplinary action is chosen by the employer. The validity and fairness of the decision will largely depend on whether the employer was guided by the principles of individualization and proportionality of punishment. At the same time, according to part 5 of Art. 192 of the Labor Code of the Russian Federation, when imposing a disciplinary sanction, the employer must take into account the severity of the offense committed and the circumstances under which it was committed.

A disciplinary sanction is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, as well as the time required to take into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation).

Deadlines for collections

When applying a disciplinary sanction, one should keep in mind the explanations set forth in paragraph 34 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts Russian Federation of the Labor Code of the Russian Federation" (as amended on September 28, 2010), which, in particular, boil down to the following:

a) a one-month period for imposing a disciplinary sanction must be calculated from the day the misconduct was discovered;

b) the day when a misdemeanor is discovered, from which the monthly period begins, is considered the day when the person to whom the employee is subordinate at work (service) became aware of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions;

c) within a month for the application of a disciplinary sanction, the time of illness of the employee, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation) are not counted; the absence of an employee from work for other reasons, including in connection with the use of rest days (days off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the course of the specified period;

d) leave interrupting the course of a month should include all holidays provided by the employer in accordance with applicable law, including annual (basic and additional) holidays, holidays in connection with training in educational institutions, unpaid leave.

If an employee is dismissed under paragraphs. "g" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, the one-month period in this case will be calculated from the date of entry into force of the court verdict, which establishes the employee’s guilt in committing the theft (including small) of someone else’s property at the place of work, embezzlement, deliberate destruction or damage to property, or a decision of the authority , an official authorized to apply administrative penalties.

But in any case, a disciplinary sanction cannot be applied later than 6 months from the date of the misconduct, and based on the results of audits, audits of financial and economic activities or an audit - later than 2 years from the date of the misconduct. The indicated time limits do not include the time of proceedings in a criminal case (part 4 of article 193 of the Labor Code of the Russian Federation).

The employer has the right to apply a disciplinary sanction even when the employee, prior to the commission of this misconduct, filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the term of notice of dismissal. An employee who has terminated an employment relationship with an employer cannot be subject to disciplinary action.

Thus, the legislation clearly establishes the time limits during which it is possible to bring an employee to disciplinary responsibility. The imposition of a disciplinary sanction after the expiration of these terms is illegal. They ensure the timeliness of the administration's response to a disciplinary offense of an employee, the promptness of the educational impact of penalties on the violator.

Part 5 Art. 193 of the Labor Code of the Russian Federation does not allow the application of several disciplinary sanctions for one offense. In this case, the employer is obliged to be guided only by those penalties that are provided for in federal law, in particular in Art. 192 of the Labor Code of the Russian Federation. Often, employers make a remark, then announce another reprimand, or immediately dismiss the employee. This practice unacceptable, since such a dismissal would be recognized by the court as illegal. In this case, the employer imposes a disciplinary sanction twice for the same disciplinary offence. At the same time, if the administration, having announced a remark, canceled this order and issued a new one in which it announced a reprimand, then such a replacement of the penalty will be in accordance with the law.

However, this rule does not apply to so-called continuing disciplinary offenses, such as absenteeism. If the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction, it is permissible to apply a new disciplinary sanction to him, including dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Situation. S. applied to the court with a statement of claim against the LLC for reinstatement at work, the recovery of wages for the time of forced absenteeism and compensation for non-pecuniary damage, and the cancellation of orders to impose disciplinary sanctions. As the basis for his claims, S. indicated that on April 1, 2005, in accordance with Order No. 392, the employment contract with him was terminated under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation for repeated failure to perform labor duties without good reason. The basis for the dismissal was the act of inspection dated 03/05/2005, orders for the imposition of disciplinary sanctions N 47 dated 01/20/2005 and N 350 dated 03/29/2005.

At the court session, it was established and confirmed by the materials of the case that by the order of the director of the LLC dated 11/23/2004 an inventory of inventory items was appointed, on the same day an inventory list and a collation sheet were drawn up. Then S. gave explanations, and the members of the commission submitted reports to the leadership. However, the employer, despite these circumstances, issued an order to impose a disciplinary sanction on S. only on January 20, 2005, that is, after the expiration of the one-month period prescribed by law. In this case, the disciplinary sanction should have been applied to the plaintiff no later than 23.12.2004. Due to the missed deadline for imposing a disciplinary sanction, the order of 01/20/2005 was declared illegal by the court.

In addition, when S. was dismissed, it was not taken into account that these violations were discovered in one inspection and set out in one document - an act dated 05.03.2005. Within the meaning of the law, the application of a repeated disciplinary sanction is possible when an employee, without good reason, does not perform or improperly performs his/her duties. official duties. Application to the employee of a new disciplinary sanction, including dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it is permissible if the failure to fulfill the labor duties assigned to him through the fault of the employee continued, despite the imposition of a disciplinary sanction. In this case, all violations were revealed as a result of the work of the same commission, which carried out an audit of the accounting of inventory items for 2003-2004. the company where the plaintiff worked. The time of revealing all the violations is the same, the revealed violations took place before the application of the first disciplinary sanction to S. according to the order of 20.01.2005.

By the decision of the Krasnoyarsk District Court of the Astrakhan Region dated March 20, 2006, the orders to impose penalties on S. were canceled, the plaintiff was reinstated in his previous position, wages for the time of forced absenteeism and compensation for non-pecuniary damage were collected in his favor. The cassation instance recognized the arguments of the defendant's complaint as untenable, since the violations were discovered during one check and took place before the first disciplinary sanction was applied to the plaintiff according to the order of 01/20/2005, which was recognized by the court as illegal due to the expiration of the period for its imposition.

An appropriate order (instruction) of the employer is issued on the application of any disciplinary sanction. The order must indicate the motives for its application, that is, a specific disciplinary offense for which the employee is sanctioned, the type of penalty and the legal basis, that is, a link to the relevant article of the Labor Code of the Russian Federation.

established by Art. 193 of the Labor Code of the Russian Federation, the provision according to which the order (instruction) of the employer on the application of 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, has an important legal significance. The presence of the employee's signature on the order to apply a disciplinary sanction is an unconditional proof that the employee is familiar with the measures applied to him. However, the signature does not mean at all that the offender agrees with the prosecution and is not going to appeal against it.

The term for issuing this order is not specifically specified by the legislator, therefore, based on general rule about the period for imposing a disciplinary sanction on an employee, we can conclude that it is also within one month from the date of discovery of the misconduct. This is especially important for the employer to take into account in the case of ongoing disciplinary offenses, such as absenteeism.

The refusal of the employee to familiarize himself with the order (instruction) against signature must be recorded in the act indicating the witnesses of the refusal. In itself, the fact that the employee refuses to familiarize himself with the order (instruction) on the application of a penalty against signature does not affect the legality of this penalty, but failure to familiarize himself with it through the fault of the employer is the basis for recognizing the penalty as unlawful.

Since the purpose of disciplinary action is not only to punish the violator, but also to prevent violations by other employees, it is advisable to bring the order to apply disciplinary action to the attention of all employees of this employer.

Appeal

An appeal is not mandatory in the procedure for applying a disciplinary sanction, however, the employer must remember that if the disciplinary sanction is unfounded or if the rules for imposing it are not followed, the employee has the right to restore his labor rights.

The current labor legislation (part 7 of article 193 of the Labor Code of the Russian Federation) provides for the possibility of appealing against the imposed disciplinary sanction to the following bodies: 1) to the state labor inspectorate; 2) to the bodies for consideration of individual labor disputes. In this case, the choice of these bodies is provided to the employee himself. Consideration of a complaint in state inspection labor does not deprive the employee of the right to file an appropriate complaint (application) with the bodies for the consideration of individual labor disputes, which are commissions for labor disputes and courts.

In accordance with Art. Art. 356, 357 of the Labor Code of the Russian Federation, state labor inspectors are authorized to consider complaints from employees about violations of their labor rights, take measures to eliminate the identified violations and restore violated rights. They have the right to present binding orders to employers to eliminate violations. labor law, on the restoration of the violated rights of employees, bringing the perpetrators to justice up to their removal from office.

An employee may appeal against a decision to apply a disciplinary sanction to the commission on labor disputes. To do this, he needs to apply to the commission with a statement within three months from the moment the penalty is announced. The application must be registered and considered within ten calendar days from the date of its submission (Articles 386, 387 of the Labor Code of the Russian Federation).

In accordance with Art. 391 of the Labor Code of the Russian Federation, individual labor disputes are considered directly in the courts on the applications of employees for reinstatement, regardless of the grounds for termination of the employment contract, for changing the date and wording of the reason for dismissal. If an employee believes that such a disciplinary measure as dismissal was unlawfully applied to him, then he should apply directly to the court, bypassing the labor dispute commission. At the same time, in the event that such disciplinary measures as a reprimand or remark are applied to an employee, the employee can apply both to the court and to the labor dispute commission.

The employee has the right to apply to the court for resolution of an individual labor dispute within 3 months from the day when he learned or should have learned about the violation of his right, and for disputes about dismissal - within one month from the date of delivery of a copy of the dismissal order to him or from date of issue work book(part 1 of article 392 of the Labor Code of the Russian Federation).

The bodies authorized to consider labor disputes on violations of labor discipline have the right to cancel the imposed disciplinary sanction if they find that, in particular, it does not correspond to the gravity of the offense committed. However, they cannot replace the penalty, since the imposition of a disciplinary sanction is the prerogative of the employer with whom the employee has an employment relationship. The administration, in this case, may apply a different penalty, but only in compliance with the deadlines specified in parts 3 and 4 of Art. 193 of the Labor Code of the Russian Federation.

It is necessary to pay attention to the fact that when considering litigation on reinstatement, the obligation to prove the validity of the dismissal rests with the employer. However, in case of non-compliance established order and (or) terms, the dismissal may be declared illegal, and the dismissed employee is reinstated, in addition, the court will oblige the employer to pay the employee wages during the forced walk.

Removal of a disciplinary sanction

The legislation provides for the procedure for lifting a disciplinary sanction imposed on a violator of labor discipline. This order establishes two possible options: repayment of penalties, removal of penalties by the decision of the employer.

The repayment of a disciplinary sanction means that the employee is considered not to have a disciplinary sanction if, within a year from the date of application of the disciplinary sanction, he is not subjected to a new disciplinary sanction (Article 194 of the Labor Code of the Russian Federation). In this case, the penalty is removed automatically, without issuing a special order (instruction).

However, the rule that the disciplinary sanction is removed after a year, if the employee is not subjected to a new disciplinary sanction, does not apply to such a sanction as dismissal, since in this case labor relation stops.

Part 2 Art. 194 of the Labor Code of the Russian Federation provides for the possibility of early removal of a disciplinary sanction - before the expiration of a year from the date of its application. The decision on early removal of a disciplinary sanction may be taken:

by the employer on his own initiative;

At the request of the employee himself;

At the request of his immediate supervisor (head of a team, department, other structural unit);

At the request of the representative body of employees (trade union committee, other body representing the interests of employees of this employer).

The legislator did not provide for any circumstances of an objective nature, upon the occurrence of which the head is obliged to remove the punishment ahead of schedule, in addition, this rule is exclusively the right of the employer. Therefore, the basis for the early removal of the penalty, apparently, should be the conscientious behavior of the employee, indicating that he realized his misconduct and showed himself as a disciplined employee with his attitude to work duties.

Early withdrawal of the disciplinary sanction must be formalized by the order (instruction) of the official who issued the order (instruction) to apply a disciplinary sanction to the employee. The Labor Code of the Russian Federation does not establish a minimum period during which a disciplinary sanction can be removed ahead of schedule. The decision to lift a disciplinary sanction may be taken at any time, based on specific circumstances that testify to the conscientious attitude of the employee to his labor duties.

It should be borne in mind that disciplinary sanctions removed or extinguished cannot be taken into account when the employer decides to dismiss an employee, due to his repeated failure to fulfill his labor duties without good reason (clause 5, part 1, article 81 of the Labor Code of the Russian Federation), otherwise the court will establish a violation of the provisions labor legislation on the removal of a disciplinary sanction and may oblige the employer to reinstate the employee at work. In addition, disciplinary actions that have been lifted should not be included in the performance record, as the employee is considered to have no disciplinary action. Also, disciplinary sanctions that were imposed on the employee by the previous employer are not subject to accounting.

Unremoved disciplinary sanction general rule does not interfere with the promotion of the employee. In local regulations(Regulations on bonuses, collective agreement, rules of internal work schedule) rules may be established on the impossibility of applying incentives to employees who have outstanding or outstanding disciplinary sanctions. Rewards may also be prohibited. federal law, for example, part 3 of Art. 4 of the Charter on the discipline of employees of organizations operating especially radiation hazardous and nuclear hazardous production and facilities in the field of the use of atomic energy, dated 08.03.2011 N 35-FZ states: "during the period of the disciplinary sanction, an employee of the operating organization is not encouraged."

It follows from the foregoing that the effective application of disciplinary liability is possible only if the current legislation is observed in detail. Otherwise, from an effective tool, it turns into a fiction that destroys the moral climate and leads the employer to additional costs, especially when reinstating workers fired for wrongdoing.

Bibliographic list

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