The labor code is a gross violation. Grounds for dismissal of an employee for violation of labor discipline
Internal regulations are approved at each enterprise. This document is considered a kind of instruction for employees, which spells out all the features of the work procedure - from the number working hours before the procedure for calculating bonuses or disciplinary sanctions. Often employees violate these rules. What are the risks of not following the rules? work schedule employees and are the actions of the employer lawful in cases of fixing violations?
What is labor discipline?
Labor discipline is a set of rules developed by the enterprise in order to optimize the workflow. It is based on the duties of each employee prescribed in the legislation.
Article 21 of the Labor Code of the Russian Federation “Basic rights and obligations of an employee:
“The employee must:
- conscientiously fulfill their labor duties assigned to him by the employment contract;
- observe the rules of internal labor regulations;
- observe labor discipline;
- comply with established labor standards;
- comply with the requirements for labor protection and ensuring labor safety;
- take care of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees;
- immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property)”.
In addition to the basic requirements, the rules labor discipline other duties of employees related to the specifics of the work of each organization may be indicated. These include: compliance with corporate ethics, keeping commercial secrets, violation of subordination, etc. In the event of a single violation of the schedule, an employee may be subject to disciplinary action as provided by law. Its type depends on the severity of the offense. The main violations of labor discipline include:
- non-compliance with labor protection rules resulting in an accident at work;
- absenteeism or systematic tardiness;
- appearing at work in a state of intoxication;
- immoral acts;
- theft work or personal property of employees;
- intentional failure to perform duties or their performance is not in full;
- forgery legal documents ;
- ignoring orders leader.
In private enterprises, a matter of choice disciplinary action decided directly by the manager. Punishment is considered the right of the leader, but not a duty. Therefore, the employer independently decides on the appropriateness of imposing a disciplinary sanction. Systematic violation of labor discipline is considered as gross non-compliance with the rules and provides for more severe penalties, up to and including dismissal of the employee.
Types of disciplinary sanctions and their application
Disciplinary sanctions are aimed at improving the quality and organization of work. Based employment contract, employees are obliged to strictly comply with all regulations, since in case of violation of labor discipline in accordance with the Labor Code of the Russian Federation, the employee may be subject to penalties regulated by law.
“For the commission of a disciplinary offense, that is, non-performance or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:
- comment;
- dismissal for appropriate reasons.
A disciplinary offense will be considered a misdemeanor committed only through the fault of the employee. The employer is obliged to require the implementation of all the rules only if the enterprise provides all the conditions for this. at the same time, each employee must be familiarized with the labor schedule, labor protection rules and his official duties, which is confirmed by his personal signature.
Article 81. Termination of an employment contract at the initiative of the employer
“The employment contract may be terminated by the employer in the following cases:
- repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction”.
Article 192 of the Labor Code of the Russian Federation. Disciplinary sanctions
“Disciplinary sanctions, in particular, include the dismissal of an employee on the grounds provided for in paragraphs 5, 6, 9 or 10 of the first part of Article 81, paragraph 1 of Article 336 or Article 348.11 of this Code, as well as paragraph 7, 7.1 or 8 of the first part of Article 81 of this Code in cases where the guilty actions that give grounds for the loss of confidence, or, accordingly, an immoral offense are committed by the employee at the place of work and in connection with the performance of his labor duties.
When imposing a disciplinary sanction, the gravity of the misconduct committed and the circumstances under which it was committed must be taken into account.
Disciplinary action may be taken based on memorandum. If the employer considers this an insufficient reason, he may initiate disciplinary proceedings with the participation of labor collective. The result of the meeting of the commission will be an act with a decision on the type of disciplinary punishment.
Examples of violation of labor discipline
Practice knows many examples of violations of labor discipline. Most of them are minor offenses and are often limited to verbal remarks.
For example, worker Ivanov. A.A. violated the work schedule by showing up to work an hour later than the scheduled time without a good reason. In this case, the employer may limit himself to an oral warning, which is issued in the form act of disciplinary offense. With systematic delays, Ivanov A.A. may be reprimanded, however, the law does not allow a reprimand immediately after the first offense.
A reprimand may result, for example, in failure to comply with one’s official duties warehouse manager Petrov V.V., which resulted in financial losses for the enterprise in the form of a failure to sign an agreement with suppliers. An employee may be issued regular or strict reprimand(at the discretion of the employer).
A one-time violation, entailing dismissal, may be the appearance of an employee at the workplace in a state of intoxication, theft of official property, or actions that provoked an accident or accident at work.
Any decision on disciplinary action may be appealed by the employee in court. Then the assistance of a professional lawyer competent in matters of labor law RF.
6. A single gross violation of labor duties by an employee:
a) absenteeism, i.e. absence from the workplace without good reason throughout the working day (shift), regardless of its (its) duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);
b) the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer, the employee must perform labor function) in a state of alcoholic, narcotic or other toxic intoxication;
c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;
d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate destruction or damage, established by a valid court verdict or a decision of a judge, body, official authorized to consider cases of administrative offenses;
e) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation caused serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences.
Absenteeism is also considered to be leaving work: without notifying the employer of the intention to terminate the employment contract in writing two weeks in advance; before the expiration of the established notice period without the consent of the employer; before the expiration of the fixed-term employment contract.
Absenteeism recognizes both the unauthorized use of days from] the catch, and unauthorized departure on vacation (basic or additional).
At the same time, the use of rest days by an employee is not absenteeism in the event that the employer, in violation of the obligation stipulated by law, refused to provide them and the time the employee used such days did not depend on the employer's consideration (for example, refusal to provide a donor employee with a day of rest immediately after each day of donating blood and its components) (paragraph 41 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
The appearance at work in a state of alcoholic, narcotic or toxic intoxication is the basis for the dismissal of an employee, regardless of whether he was in work time in the specified condition at the workplace or on the territory of the organization or facility where, on behalf of the employer, he was supposed to perform labor functions. It does not matter when the employee was in a state of alcoholic, narcotic or toxic intoxication - at the beginning or end of the working day. It also does not matter whether the employee was suspended from work in connection with the specified condition.
The presence of an employee in a state of alcoholic, narcotic or toxic intoxication can be confirmed both by a medical report and other types of evidence, such as witness testimony.
Disclosure of state, official, commercial or other secrets protected by law is a legitimate basis for terminating an employment contract with an employee if the following conditions are present: the obligation not to disclose such a secret is expressly provided for by the employment contract with the employee; specifically information containing state, official, commercial and other protected secrets, what personal data of other employees this employee undertakes not to disclose; state, official, commercial and other secrets protected by law are entrusted (became known) to the employee in connection with the performance of his labor function and information , which, in accordance with the employment contract, he undertakes not to disclose, according to the current legislation, can be classified as information constituting state, official, commercial and other secrets protected by law.
Theft of someone else's property (including small property), embezzlement, as well as its deliberate destruction or damage is grounds for dismissal only if the fact of theft, embezzlement, deliberate destruction or damage to property is established by a court verdict that has entered into legal force or a decision on the imposition of an administrative penalties issued in the manner prescribed by the Code of Administrative Offenses of the Russian Federation.
Any property that does not belong to this employee, in particular property belonging to the employer, other employees, as well as persons who are not employees of this organization, can be regarded as someone else's.
A single violation by an employee of labor protection requirements may be grounds for dismissal of an employee if this violation caused serious consequences or knowingly created a real threat of serious consequences (for example, due to an employee’s violation of established safety rules, a fire occurred or could actually occur). At the same time, the violation by the employee of labor protection requirements must be established by the competent authority (official) and confirmed by the relevant documents (accident report, expert opinion, etc.).
7. The commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer.
The scope of this ground is limited to employees directly serving monetary or commodity values (for example, a cashier, a storekeeper). Moreover, the employer must prove the distrust of the employee with facts (acts on the shortfall, shortage, etc.).
When establishing in the manner prescribed by law the fact of committing theft, bribery and other mercenary offenses, these employees can be dismissed on the basis of loss of confidence in them and in the event that these actions are not related to their work (paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 17 March 2004 No. 2).
8. Commitment by an employee performing educational functions of an immoral offense incompatible with the continuation of this work.
For the application of this ground, it does not matter where the immoral offense is committed (a guilty act or omission that violates the basic moral norms of society) - at work or at home. However, the fact that educational activities should be the main content of the work performed is important (this applies to teachers, teachers of educational institutions, educators of children's institutions, masters of industrial training).
It should be noted that the dismissal of an employee for committing an immoral offense and in connection with the loss of confidence in cases where the relevant guilty actions were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of detection of misconduct by the employer.
9. Making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its misuse or other damage to the property of the organization.
“Unreasonable decision” is an evaluative concept and in practice it is evaluated by the employer.
10. A single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties.
According to established practice, among the gross violations of labor duties by the heads of organizations and their deputies is the failure to fulfill the duties assigned to these persons by an employment contract, which could result in harm to the health of employees or causing property damage to the organization.
The specified basis does not apply to the heads of other structural divisions of organizations.
11. Submission by the employee to the employer of false documents when concluding an employment contract,
The submission of false documents may be grounds for terminating the employment contract only if the valid documents and information contained in them, which the employee was obliged to submit, could affect the conclusion of the employment contract or be the basis for refusing to conclude it.
12. The grounds provided for by the employment contract with the head or members of the collegial executive body of the organization.
The legislator does not determine the list of such grounds. In this regard, in each case they are established by agreement of the parties. According to established practice, as additional grounds for dismissal, employment contracts with the heads of the organization provide for: failure to comply with the decision of the general meeting of shareholders; causing losses to the managed enterprise; admission by the manager due to inefficient work of more than three months of delay in the payment of wages to employees, as well as the formation of debts of the organization for the payment of taxes and fees established by the legislation of the Russian Federation.
In addition to those listed above, termination of an employment contract at the initiative of the employer is also possible in other cases, if this is expressly provided for by the Labor Code or other federal law. For example, Art. 278 of the Labor Code of the Russian Federation determines that an employment contract with the head of an organization may be terminated on the following grounds: 1) in connection with the dismissal of the head of the debtor organization in accordance with the insolvency (bankruptcy) legislation; 2) in connection with the adoption by the authorized body of the legal entity, or the owner of the property of the organization, or the authorized owner of the person (body) of the decision to terminate the employment contract. Article 336 of the Labor Code of the Russian Federation provides additional grounds for the dismissal of teachers.
It should be noted that the dismissal of an employee for repeated failure to perform labor duties without good reason, as well as for a single gross violation of labor duties by an employee; for committing guilty acts that give rise to loss of trust, or committing an immoral offense, if the guilty acts that give rise to loss of trust, or an immoral offense are committed by an employee at the place of work or in connection with the performance of his job duties; dismissal of the head of the organization (branch, representative office), his deputies or the chief accountant for making an unreasonable decision that entailed a violation of the safety of property, its misuse or other damage to the property of the organization; dismissal of the head of an organization (branch, representative office), his deputies for a single gross violation of labor duties (clauses 5-10 of article 81 of the Labor Code of the Russian Federation) is a disciplinary measure. Therefore, as stated in the decision of the Plenum Supreme Court RF dated March 17, 2004 No. 2, dismissal on the indicated grounds is allowed no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill, being 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.
The law specifically indicates which violations of labor duties by an employee should be classified as gross:
a) absenteeism (absence from the workplace without good reason for more than 4 hours in a row during the working day);
b) appearing at work in a state of alcoholic, narcotic or other toxic intoxication;
c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties;
d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a body authorized to apply administrative penalties;
e) violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences.
This list gross violations is exhaustive and is not subject to broad interpretation.
Absenteeism
Truancy is one of the most serious violations of labor discipline. Therefore, the legislation secured the right of the employer to terminate the employment contract with the employee, even for a single absenteeism without a good reason. Absence from work during the whole working day or a shift or absence from work (the employee's being outside the workplace) without a good reason for more than 4 hours in a row during the working day is recognized as absenteeism. The law of June 30, 2006 No. 90-FZ supplemented the concept of absenteeism with such a type as absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration. This addition was made due to the fact that in some cases, by decision of the employer, the working day can be set to less than 4 hours. Thus, now if the employee came to work, but then was absent from the workplace during the entire working day, which was less than 4 hours, his actions should be regarded precisely as absenteeism.
Special cases of absenteeism are also:
- leaving work without good reason by a person who has concluded an employment contract for certain period, without notifying the employer of dismissal due to own will;
- leaving work without good reason before the expiration of the two-week notice period for dismissal of one's own free will;
- abandonment of work without a valid reason by a person who has concluded an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice period for early termination of the employment contract;
- unauthorized, without the permission of the administration, the departure of the employee on vacation, at least within the time limits determined by the vacation schedule;
- unauthorized, without the consent of the administration, the use of days off (provided, for example, for work on weekends), except in cases where the employer, by virtue of the law, did not depend on the decision on the time of granting the specified days off or rest and he illegally refused to provide these days (for example, refusal to provide an employee who is a donor in accordance with part 4 of article 186 of the Labor Code and article 9 of the Law of the Russian Federation of June 9, 1993 No. 5142-1 "On donation of blood and its components" a day of rest directly after each day of donating blood and its components);
absenteeism from work after the transfer of the employee to new job produced by the employer in full compliance with applicable law.
However, if the transfer is recognized by the judicial authorities as illegal, then the dismissal of the employee cannot be considered justified and he must be reinstated in his previous job.
Absenteeism is absence from work. If the employee did not appear at events not related to work (although they are held during working hours), then this cannot serve as a basis for dismissal (for example, the employee did not go to a demonstration, other social events, the employee did not appear at the solemn meeting of a foreign the delegation visiting the company, the employee did not appear at the presentation of a new product of this company, etc.).
If, when resolving a dispute on the reinstatement of a person dismissed for absenteeism, and collecting the average earnings for the period of forced absenteeism, it turns out that the absence from the workplace was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account that the average in such cases, the salary of a reinstated employee in such cases may be recovered not from the first day of absenteeism, but from the day the dismissal order is issued, since only from that time absenteeism is forced.
In this note, I will talk about such a basis for terminating an employment contract as a single gross violation of labor duties by an employee. If an employee has grossly violated his labor duties, he may be dismissed under clause 6 of part 1 of article 81 of the Labor Code of the Russian Federation. Moreover, one single violation is enough for the termination of the contract to be possible.
The law refers to gross violations of labor discipline:
- absenteeism - that is, the absence of an employee from the workplace without good reason throughout the working day (shift), regardless of its (its) duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day (shift) );
- the appearance of an employee at work (at his workplace or on the territory of the organization - the employer or the facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic (drug or other toxic) intoxication;
— disclosure by an employee of secrets protected by law (including state, commercial, official and other), which became known to him in connection with the performance of his job duties, including disclosure of personal data of another employee;
- the commission by an employee at the place of work of theft (including small) of someone else's property, its embezzlement or deliberate destruction (damage), established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
- a violation by the employee of labor protection requirements established by the commission (authorized) for labor protection - if the violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of their occurrence.
The employer has the right to initiate the procedure for early termination of the employment contract in relation to one or another employee on the basis of documents proving the latter's guilt in the commission of actions (occurrence of circumstances) and, thus, making it possible to dismiss the guilty person. Documents confirming the guilt of the employee in the violation of labor duties can confirm:
- an act on the absence of an employee at the workplace. At the same time, the duration of continuous absence must be at least 4 hours in a row;
- a medical report on the results of the examination of an employee who appeared at work in a state of alcoholic (narcotic or other toxic) intoxication;
- conclusions based on the results of the investigation (if necessary - with the application of the materials of the investigation) of the fact that the employee disclosed secrets protected by law;
- a court verdict (decree of the body authorized to apply administrative penalties), which has entered into force and confirms the fact that the employee at the place of work has committed theft of property, its waste or deliberate destruction (damage);
- conclusions based on the results of the investigation (in necessary cases - with the application of the materials of the investigation) of the fact that the employee violated labor protection requirements, which entailed serious consequences or knowingly created a real threat of such consequences.
All of the above documents must be properly completed. It is necessary to pay attention to the fact that dismissal on the grounds provided for in paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation is a disciplinary sanction and, therefore, when implementing the procedure for early termination of an employment contract, the employer is obliged to adhere to the procedure for applying a disciplinary sanction, defined by Article 193 of the Labor Code of the Russian Federation.
Let's take a closer look at each of the grounds for dismissal.
Subparagraph "a" of paragraph b clearly defines what should be considered absenteeism. However, the employer needs to pay attention to the fact that:
- suspension of work due to delay in payment wages more than 15 days is not considered absenteeism. In this case, the employee must notify the employer in writing in advance of his intentions;
- the employee has the right to refuse to perform work not stipulated by the employment contract. Therefore, his absence from the workplace for this reason is also not absenteeism.
If the employee decided to quit and without notifying the employer in writing in two weeks, he left workplace, the employer has the right to consider such actions as absenteeism.
The appearance of an employee at work in a state of intoxication (subparagraph "b" of paragraph 6) can be confirmed not only by a medical report. The evidence will be an act signed by two witnesses and a representative of the employer. The offender must also sign the document. However, if he refuses to sign, an appropriate entry must be made in the act. The employer is obliged to remove the violator from the performance of work (Article 76 of the Labor Code of the Russian Federation), i.e. prevent him from entering the workplace as soon as it becomes obvious, for example, for some specific outward signs that the latter has consumed alcohol (drugs, etc.).
In the event that the employee was not suspended from work, the responsibility for the possible consequences of the performance of work duties by him in a state of intoxication lies with the employer. In the future, the employee may be allowed to perform work as soon as the circumstances preventing this disappear. However, this does not deprive the employer of the right to dismiss the employee for gross violation of labor discipline. If, despite the testimony given in relation to the employee by other persons, the subsequent medical report does not confirm the fact of his intoxication, then the employer does not have the right to refuse the employee admission to the workplace.
Dismissal for disclosure by an employee of a secret protected by law (subparagraph "c" of paragraph 6 of article 81 of the Labor Code of the Russian Federation) is possible if:
1. An employment contract or other document, with which the employee was familiarized against signature, contains a condition on the inadmissibility of disclosure by the employee of information constituting a secret protected by law.
2. The relevant information was entrusted to the employee for the performance of the work assigned to him (labor function).
3. The fact that an employee disclosed relevant information - for example, personal data of another employee - is documented.
Early termination of an employment contract with an employee for theft or deliberate destruction of someone else's property at the workplace (subparagraph "d" of paragraph 6) is possible if his guilt is established. This can only be done by a court or body ( executive), which is entitled to apply administrative penalties. The basis for dismissal is the decision of the above bodies to hold the employee liable.
Please note: dismissal under subparagraph “d” of paragraph 6 is possible if the court verdict indicates that the perpetrator is sentenced to punishment, which does not exclude the possibility for the employee to perform his job duties.
This circumstance must be taken into account when issuing a dismissal order and making appropriate entries in the work book.
Dismissal under subparagraph "e" of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation is possible if:
1. The employee was familiarized with the requirements for labor protection against signature.
2. The employer has provided the employee with safe working conditions that meet all the requirements of the law.
3. Violation by the employee of these requirements really entailed grave consequences or created a real threat to their occurrence.
4. The circumstances listed above are documented: an accident report at work, an expert opinion issued by an authorized body, a decision of the state inspector for labor protection, etc.
An order (instruction) is issued by the employer on the dismissal of an employee. On its basis, other necessary documents are drawn up.
