Disciplinary misconduct form signs. What is meant by a disciplinary offense - a list of gross violations. Examples of application of penalties
50. The concept and composition of a disciplinary offense
Disciplinary liability is a type of legal liability that provides for state condemnation (reprimand) for committing a disciplinary offense in the form of a disciplinary sanction.
The basis for disciplinary action is disciplinary offense- non-performance or improper performance due to the fault of the employee assigned to him job duties. Composition of a disciplinary offense- object, objective side, subject, subjective side. The object of a disciplinary offense is what the violator encroaches on (internal labor regulations, property of the organization). The objective side of a disciplinary offense is illegal actions (inaction), harmful consequences and a causal relationship between these actions (inaction) and the harmful consequences that have occurred. The subject of a disciplinary offense is an employee who is in a specific labor relationship with the employer and who has violated labor discipline. The subjective side of a disciplinary offense contains guilt, expressed in the form of intent and negligence.
For violation labor discipline The administration may apply the following disciplinary sanctions:
a) remark;
b) reprimand;
c) dismissal.
Federal laws, statutes and discipline regulations for certain categories employees may be subject to other disciplinary sanctions.
Dismissal is possible in the following cases:
repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;
a single gross violation of labor duties by an employee;
committing guilty acts by an employee directly servicing cash or commodity values if these actions give rise to a loss of confidence in him on the part of the employer;
the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;
making an unreasonable decision by the head of the organization, his deputies and the chief accountant, which resulted in a violation of the safety of property, its unlawful use or other damage to the property of the organization;
a single gross violation by the head of the organization, his deputies of their labor duties;
submission by the employee to the employer of forged documents or deliberately false information at the conclusion employment contract;
provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization;
in other cases established by the Labor Code of the Russian Federation and other federal laws.
51. Disciplinary sanctions under the legislation on state. Service, rules for their appointment
The means of bringing to disciplinary responsibility is a disciplinary sanction. Disciplinary sanctions are measures of influence enshrined in regulatory legal acts and imposed by competent, specially authorized subjects of linear authority on employees who have committed a misconduct in connection with the performance of official duties or who have committed other acts that affect their special legal status. The purpose of their application is twofold: on the one hand - to punish the guilty, on the other - the general and particular prevention of offenses - is achieved both by the content and the procedure for their appointment. The application of penalties to guilty persons not only forces the offender to comply with the norms of official discipline, but also encourages them to consciously perform their official duty, while exerting a general preventive effect not only on the offender himself, but also on other employees. Since disciplinary sanctions are carried out within the framework of stable teams, among them there are many moral and legal sanctions (remark, reprimand), sanctions that change, terminate the relationship of a person with the team (demotion, dismissal).
Characteristic for all types of public service is the presence of "general" sanctions, such as: remark, reprimand, severe reprimand, warning of incomplete service compliance, dismissal. However, other types of sanctions are established for certain types of service. So, for example, for police officers"demotion" is provided for, and "their own" specific types of penalties are provided for military personnel, such as "deprivation of another dismissal from the location of a military unit", "appointment out of turn to a work order", "deprivation of a badge" and some others. For those and others, there are penalties in the form of "decrease in a special rank by one step", and for the customs service and service in the bodies of the State Drug Control these types of sanctions are not provided at all.
feature military service is the differentiation of penalties depending on: on the conditions of service (under contract, on conscription); from belonging to a certain composition (soldiers, sailors, sergeants; ensigns, midshipmen; officers); by gender (some types of penalties are not imposed on women).
A very important question is mechanism for bringing to disciplinary responsibility, overlay order and enforcement of disciplinary action against civil servants. There are a number of features here. Firstly, this mechanism has been carefully developed for civil civil servants, military personnel, as well as for police officers, customs authorities and the State Drug Control authorities, but for bailiffs it is practically non-existent. Until now, employees of the Federal Bailiff Service of the Ministry of Justice of Russia have been subject to disciplinary liability on the basis and in the manner prescribed by the Labor Code of the Russian Federation.
Secondly, the representative of the employer, who, as a rule, is the head of the state body, has the right to apply a disciplinary sanction in the civil public service, while in the law enforcement public service, the direct superior appoints the disciplinary sanction. On military personnel, disciplinary sanctions may be imposed not only by superiors in position, but also by rank, in accordance with the disciplinary power of the commander. Thirdly, the decision to hold liable must be implemented on civil service immediately after the discovery of a disciplinary offense, but not later than one month from the date of its discovery. A similar procedure is provided for customs officials. And in military service, service in the internal affairs bodies and in the service of the State Drug Control Service - no later than 10 days from the day when the commander (chief) became aware of the misconduct committed.
Fourthly, it is forbidden to impose several disciplinary sanctions for the same offense or to combine one penalty with another. Fifth, in military service it is forbidden to impose a penalty on the entire personnel of the unit. Sixthly, the imposition of a disciplinary sanction for misconduct committed by a serviceman while serving as part of a daily order is carried out after a change or replacement by another serviceman.
Seventh, in relation to persons who are in a state of alcohol intoxication, disciplinary sanctions can be applied only after sobering up. Eighth, the state of punishment for military personnel does not stop automatically, as for other civil servants, after a certain period (as a rule, one year from the date of imposition of a penalty), since the Disciplinary Charter of the Armed Forces of the Russian Federation establishes that a penalty can be removed by order only in the manner encouragement. For those civil servants to whom the Regulations on Service in the Internal Affairs Directorate of the Russian Federation apply, and employees of the Gosnarcocontrol bodies, deadlines have been set for lifting penalties, depending on the procedure in which they were announced. Oral ones are removed in a month from the date of imposition, and those announced in the order, in a year.
These are just some of the features of the application of disciplinary sanctions for certain types of public service.
The last thing I would like to focus on is the possibility of applying disciplinary measures to military personnel, persons called up for military training, as well as employees of internal affairs bodies, bodies of the penitentiary system, the State Fire Service, bodies of the State Drug Control and customs authorities for committing administrative offenses. In accordance with Art. 2.5 of the Code of Administrative Offenses of the Russian Federation, these categories of civil servants "are liable for administrative offenses in accordance with disciplinary charters" and "regulatory legal acts regulating the procedure for serving in these bodies." Exceptions are violations of the legislation on elections and referendums, in the field of ensuring the sanitary and epidemiological welfare of the population, the rules of the regime of the State Border of the Russian Federation, the border regime, the regime at checkpoints across the State border, traffic rules, etc. In these cases, administrative responsibility occurs on a general basis .
It seems that fixing this rule in modern conditions development of legislation on civil service does not correspond to the very spirit, the meaning of its existence for a number of reasons. Firstly, it violates the principles of the unity of the civil service and the principles of legality in the application of administrative responsibility, in particular, enshrined in Art. 1.4 of the Code of Administrative Offenses of the Russian Federation the principle of equality before the law. Secondly, as a rule, the operation of this norm means either an unreasonable mitigation of responsibility, or vice versa - its unreasonable strengthening. Thirdly, if this is an additional guarantee for civil servants with specific conditions official activity, then why is the question of the possibility of applying disciplinary measures given to the authorities (officials) who are granted the right to impose administrative penalties? And, finally, fourthly, only the Disciplinary Charter of the Armed Forces of the Russian Federation provides a basis for bringing military personnel to disciplinary liability for "violations public order", which is not the same as committing an administrative offense. In other regulatory legal acts named in Article 2.5 of the Code of Administrative Offenses of the Russian Federation, this issue is not even stipulated.
Thus, in modern conditions, to determine the legal status of militarized employees, the features of disciplinary responsibility are quite relevant. Improving the legal framework in this direction seems to be an extremely necessary condition for increasing the efficiency of this type of federal public service. It is also worth thinking about introducing the Fundamentals of Disciplinary Liability and Disciplinary Proceedings common to all types of militarized service, with uniform criteria, sanctions and a mechanism for applying disciplinary measures.
And responsibility for its violation is important in every institution.
Persons who have committed a disciplinary offense are brought to disciplinary responsibility. Let's consider this question in more detail.
A disciplinary offense is an improper performance or non-performance of labor obligations by an employee. What is characteristic of him?
A disciplinary offense is characterized by the following mandatory elements:
- guilt;
- failure to fulfill labor obligations (improper performance);
- wrongfulness;
- the existence of a connection between the illegal actions of employees and the consequences.
The action or inaction of an employee is recognized as unlawful if a specific labor obligation provided for by the relevant legal act is violated.
The guilt of employees of illegal actions can be expressed both in and simply through negligence. If the improper performance or non-performance by the employee of his labor obligations was not his fault, then it does not make sense to consider this behavior as a disciplinary offense. This rule applies in any such case.
A disciplinary offense is not such if the employee has performed illegal actions that are not related to labor duties.
Non-fulfillment of labor obligations is expressed in the non-fulfillment by the employee of precisely labor obligations, which are determined by the contract or labor legislation.
If at least one element is missing, then this is not considered a disciplinary offense, that is, the employee should not be held accountable.
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federal state budgetary educational institution higher professional education
"Samara State Economic University"
Test
P about discipline: "Law"
On the topic: "Disciplinary offense and disciplinary responsibility"
Completed by: 1st year student
Bezgin P.A.
Checked by: Bolgova V.V.
Samara 2015
1. Disciplinary offense and disciplinary liability
1. 1 The concept of a disciplinary offense
A disciplinary offense is an unlawful guilty violation of labor or service discipline by an employee (employee), for which liability is provided in disciplinary proceedings.
· Disciplinary proceedings - a type of administrative jurisdictional proceedings, regulated by administrative and legal norms, the activities of authorized entities, aimed at bringing persons guilty of committing disciplinary offenses to disciplinary responsibility.
A disciplinary offense is characterized by a failure by an employee (employee) to fulfill his functional (labor) duties stipulated by labor legislation, the rules of internal work schedule, military regulations and regulations on internal discipline, job descriptions arising from an employment agreement (contract) concluded by an employee (employee) with a particular organization.
The behavior of an employee that is not related to his labor duties is not a disciplinary offense. A disciplinary offense is distinguished by an unlawful nature, that is, such behavior of an employee that violates applicable law, other regulations about labor.
Refusal to comply with an illegal order is not a disciplinary offence. Judicial practice regards disobedience of an employee to an order of the head of an organization that violates the requirements of the Law as lawful behavior.
A disciplinary offense is always a guilty action (intentional or careless). Failure to perform labor duties through no fault of the employee cannot be considered a disciplinary offense.
For committing a disciplinary offense, an employee is subject to disciplinary liability with the imposition of a disciplinary sanction.
1.2 Disciplinary offense and other types of offensesears: grounds for delimitation
Of particular importance in the theory of Russian criminal law and in law enforcement is the distinction between actual crimes and other types of offenses. This is necessary in order, firstly, to clearly limit the range of acts that fall under the criminal law; secondly, to determine what kind of act was committed by a particular person, and in accordance with this, to implement the main provisions of the branch of law in the scope of which it falls.
The following offenses are similar:
1) disciplinary offenses (violations of state and official discipline, entailing disciplinary sanctions) and crimes against the interests of service in commercial and other organizations (Chapter 23 of the Criminal Code of the Russian Federation), against state power, the interests of public service and service in local governments (Chapter 30 of the Criminal Code of the Russian Federation), as well as those directed against military service (Chapter 33 of the Criminal Code of the Russian Federation);
2) civil law torts (violations of the requirements of civil law) and crimes against property (Chapter 21 of the Criminal Code of the Russian Federation), as well as some crimes in the field of economic activity(Chapter 22 of the Criminal Code of the Russian Federation);
3) administrative offenses (provided for by administrative legislation) and part of crimes in the sphere of economic activity (Chapter 22 of the Criminal Code of the Russian Federation) directed against public safety and public order (Section IX of the Criminal Code of the Russian Federation), as well as against the order of administration (Chapter 32 of the Criminal Code of the Russian Federation).
The distinction between these types of offenses is made on two grounds:
1) the nature of the public danger (material criterion);
2) the type of wrongfulness (formal criterion),
If a specific offense is provided for by any article of the Special Part of the Criminal Code of the Russian Federation, this is a crime. If not, then either one of the types of offenses (depending on the norm of which branch of legislation provides for it), or an immoral act (if only the generally accepted rules of human behavior in society are violated). There is no administrative prejudice in the Criminal Code of the Russian Federation (when the repeated commission of an offense during the year, for the previous one of which a person was brought to administrative responsibility, made it a crime). We also note the presence of special legal consequences for a person convicted of a crime - the presence of a criminal record.
At the legislative level, the distinction between crimes and other offenses is achieved through the use of various techniques.
In a number of cases, the form of guilt, motive or purpose (for example, intentional infliction of minor bodily harm, provided for by Article 115 of the Criminal Code of the Russian Federation, and a similar act committed through negligence) acts as a delimiting feature.
1.3 Disciplinary offense as a basis for disciplinary responsibility
All types of legal liability are provided for civil servants: criminal, administrative, material, disciplinary, with the exception of civil (property) liability, which reflects the comprehensive legal regulation of the entire institution of public service.
So, criminal liability civil servants is regulated by the norms of chapter 30 of the Criminal Code of the Russian Federation, which apply to all civil servants without exception, by the norms of chapter 31 of the Criminal Code of the Russian Federation, which provide for the responsibility of subjects of inquiry, preliminary investigation, i.e. employees of the law enforcement public service, and the norms of Chapter 33 of the Criminal Code of the Russian Federation, which provides for the responsibility of military personnel.
Disciplinary responsibility civil servants is regulated by the rules different levels legal acts both in terms of legal force and meaning. With respect to civil servants as the most Russian Federation, and its subjects, disciplinary liability is applied on the basis of the norms of Chapter 12 " On the State Civil Service of the Russian Federation".
Soldiers are subject to the rules disciplinary statute Armed Forces, approved by Decree of the President of the Russian Federation of December 14, 1993 No. 2140.
The disciplinary responsibility of civil servants of the law enforcement service is regulated by various Regulations or internal Charters.
In legal theory general fundamentals disciplinary responsibility of civil servants, including "militarized" ones, have been quite fully and widely studied by various authors. This allows us to highlight its main features:
Disciplinary responsibility - special kind legal liability;
For her real application the presence of three grounds is characteristic: normative, factual and procedural, associated with the issuance of a legal act of management on the application of specific measures of influence on a specific offender;
Disciplinary responsibility comes, as a rule, for a disciplinary offense, but it can also come for the commission of other offenses and even discrediting actions;
It consists in the application of punitive sanctions - disciplinary sanctions;
Disciplinary responsibility is carried out by subjects of linear authority within the framework of official subordination;
Regulated by the norms of administrative and service law.
The means of bringing to disciplinary responsibility is disciplinary action.
Characteristic for all types of public service is the presence of "general" sanctions, such as: remark, reprimand, severe reprimand, warning of incomplete service compliance, dismissal.
However, other types of sanctions are established for certain types of service. So, for example, for police officers there is a “demotion”, and for military personnel there are “their own” specific types of penalties, such as “deprivation of another dismissal from the location of a military unit”, “appointment out of turn to a work order”, “deprivation of a breastplate sign" and some others. For those and others, there are penalties in the form of "decrease in a special rank by one step", and for the customs service and service in the bodies of the State Drug Control these types of sanctions are not provided at all.
1.4 The concept of purpose, grounds for the application of disciplinary sanctions
A disciplinary sanction may be applied only for non-performance or improper performance of labor duties, that is, duties that have arisen on the basis of labor relations between employee and employer.
Such obligations are usually stipulated in the employment contract or in separate acts of the employer. Article 22 Labor Code Republic of Kazakhstan, the duties of an employee include the following:
Compliance with labor discipline;
Compliance with safety and labor protection requirements, fire safety and industrial sanitation at the workplace;
respect for the property of the employer and other employees;
inform the employer about a situation that poses a threat to the life and health of people, the safety of the property of the employer and employees, as well as about the occurrence of downtime;
not to disclose information constituting state secrets, official, commercial or other secret protected by law, which became known to him in connection with the performance of his duties;
Compensate the employer for the damage caused within the limits established by the labor legislation of the Russian Federation.
1.5 Types and order of cashdisciplinary sanctions
Before applying a disciplinary sanction, the employer must request an explanation from the employee in writing.
If the employee refuses to give the specified explanation, an appropriate act is drawn up.
The employee's refusal to give an explanation is not an obstacle to the application of a disciplinary sanction.
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, and the time required to take into account the opinion representative body workers.
A disciplinary sanction may not be applied later than six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the day it was committed. IN specified dates time of criminal proceedings is not included.
For each disciplinary offense, only one disciplinary action.
The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against receipt within three working days from the date of its issuance. If the employee refuses to sign the specified order (instruction), an appropriate act is drawn up.
A disciplinary sanction may be appealed by an employee to state labor inspectorates or bodies for the consideration of individual labor disputes.
If within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have a disciplinary sanction.
The employer, before the expiration of a year from the date of application of a disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.
The employer is obliged to consider the application of the representative body of employees about the violation by the head of the organization, his deputies of laws and other regulatory legal acts on labor, conditions collective agreement, agreements and report the results of the consideration to the representative body of employees.
If the facts of violations are confirmed, the employer is obliged to apply a disciplinary sanction to the head of the organization, his deputies, up to and including dismissal.
With special labor discipline, the procedure, terms of application and types of disciplinary sanctions may be different.
The procedure for applying a disciplinary sanction in the Labor Code of the Russian Federation is not regulated in detail. This often leads to violation of the labor rights and freedoms of the employee.
1.6 Stages of disciplinary proceedings
disciplinary actiondstvo includes several stages
First, before applying a disciplinary sanction, the head invites the employee to give a written explanation of the circumstances indicating a violation of the internal regulations of the organization. If the employee refuses to provide the employer with an explanation in writing, after two working days an appropriate act is drawn up. This document must contain the following details: place and date of the document; surname, name, patronymic, position of the compiler and employee, short description alleged violation of labor discipline; an offer to the employee to give an explanation and his refusal, actual or by default; an explanation of what exactly was manifested by the employee's failure to fulfill his labor duties.
Secondly, the employer (his authorized representative - the head of the personnel department, deputy director for personnel) will require from the immediate supervisor of the employee Required documents, confirming the employee’s violation of labor discipline, one hundred opinions on the election of a certain (necessary in the circumstances) disciplinary measure to the violator.
Thirdly, evaluating the materials collected on the fact of violation of the internal labor regulations, the employer decides on the guilt of the employee, that is, on the commission of a disciplinary offense by him.
Fourthly, before imposing a disciplinary sanction, the employer takes into account the severity of the offense committed, the circumstances extenuating the employee's guilt.
Fifth, in accordance with Part 1 of Art. 192 of the Labor Code of the Russian Federation, the employer exercises his right to apply a disciplinary measure to the violator of the internal labor schedule or limit himself to other means of educational influence
Sixthly, the employer chooses a measure of disciplinary action, issues an appropriate order. An order (instruction) on the application of a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance, not counting the time the employee is absent from work. If the employee refuses to get acquainted with the order (instruction) against signature, then the authorized representative of the employer draws up an appropriate act (part 6 of article 193 of the Labor Code of the Russian Federation). The details of the act are similar to those set out for the act of refusal to give an explanation on the fact of violation of the internal labor regulations.
disciplinary offense liability penalty
2 . Exercise 1
1. The specified items do not belong to the house, unless an act on the composition and quantity of property, furniture, etc. was drawn up during the execution of the purchase and sale transaction. passing into the ownership of citizen Granin. Due to the fact that the condition of the task does not say whether there is an inventory of property, accordingly, citizen Shvets had every right to take his personal belongings when the house was vacated, especially those that did not affect the capital and integrity of the sold residential building.
2. On the fact of the incident, a criminal case has been initiated under Article 116 of the Criminal Code of the Russian Federation, the bodies of the territorial Ministry of Internal Affairs will conduct an inspection, the victim and the suspect will be interviewed. as a result, the materials on this case will be sent to the victim, for a decision to take the case to court. In the event of reconciliation, the case most likely will not go to court and the criminal case will be terminated.
3. This application had to be certified by a notary. In this case, in the presence of all documents*, the application can be accepted even in the absence of one of the newlyweds.
Joint application for marriage;
Documents proving the identity of those entering into marriage - passports (check their validity);
Certificates of registration in this city(if the future newlyweds are from other cities)
Certificate of divorce or death certificate of the former spouse (if there was a previous marriage);
Marriage permit (for minors);
Receipt for payment of state duty. In accordance with subparagraph 1 of paragraph 1 of Article 33326 of the Tax Code of the Russian Federation, the cost per state registration marriage, including the issuance of a certificate, is equal to 1 minimum wage and today is 200 rubles.
Note: The following are exempted from payment of state duty:
Heroes Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory (subparagraph 11 of paragraph 1 of Article 33335 of the Tax Code of the Russian Federation);
Participants and disabled people of the Great Patriotic War(subparagraph 12 of paragraph 1 of Article 33335 of the Tax Code of the Russian Federation).
3. Task 2
|
Branch of law |
Subject of legal regulation |
Legal regulation method |
main sources |
|
|
Constitutional law |
Constitution |
imperative |
Constitution |
|
|
Administrative law |
regulation |
order, prohibition, permission |
external forms of expression of administrative and legal norms |
|
|
Financial right |
property |
affects public relations |
external form of existence of the content of the law |
|
|
environmental law |
special complex education, which is a set of legal norms governing social relations in the field of interaction between society and nature |
monitoring |
||
|
Civil law |
property, as well as related and non-related personal non-property relations |
|||
|
Family law |
system of legal norms governing family relations |
Family code |
Family code |
|
|
labor law |
labor and other directly related relations |
The principles of regulation of labor relations are enshrined in Art. 2 of the Labor Code of the Russian Federation. |
1. the constitution of the Russian Federation, federal constitutional laws; 2. labor legislation (Labor Code of the Russian Federation, other federal laws and laws of the constituent entities of the Russian Federation containing norms labor law); 3. other regulatory legal acts containing labor law norms (decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation |
|
|
Criminal law |
responsibility |
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The composition of the disciplinary offense includes the subjective side, that is, the mental attitude of the employee to the illegal action (inaction). Guilt in any of its forms can only be proven in relation to an employee who is able to give an account of his actions and manage them. In this connection, an employee who is recognized by the court as incompetent cannot commit guilty acts, and, consequently, become the subject of disciplinary liability.
The composition of a disciplinary offense includes an object, that is, a specific provision of the internal labor regulations or specific labor duties that are not performed by the employee or performed improperly by him. No specific rule violation labor activity also does not allow legally to bring the employee to disciplinary responsibility.
The composition of the disciplinary offense also includes the objective side, which consists in the occurrence of adverse consequences for the employer, which are in a causal relationship with the guilty and unlawful actions (inaction) committed by the employee.
The evidence of the considered legally significant circumstances, as well as the presence of the listed elements of the composition of the disciplinary offense, which are largely related to these circumstances, and allows you to legally resolve the issue of bringing the employee to disciplinary liability.
1.4 Classification of disciplinary offenses
Disciplinary offenses can be classified into types on various grounds. For example, they can be divided into types depending on the object that has become the subject of the violation. In particular, an employee may commit violations of safety regulations, internal labor regulations of the organization, work and rest regime, etc.
Disciplinary offenses can be classified depending on which employee committed them, that is, according to the subjective criterion. A disciplinary offense can be committed by a worker, an employee, a minor employee. This classification also has legal significance, since there is a special procedure for bringing minors to disciplinary responsibility.
Disciplinary offenses can be classified according to the legal consequences that may occur for the employee who committed them. IN this case it is possible to single out offenses for which dismissal may follow as a measure of disciplinary action, and other disciplinary offenses punishable by other measures of disciplinary responsibility.
Disciplinary offenses can be classified depending on what consequences they entailed for the employer. This classification is also of legal importance to justify the disciplinary measure applied to the employee.
Disciplinary offenses can be classified depending on the form of guilt of the employee who committed them. In particular, they can be committed intentionally or by negligence. This classification may also be important when applying a disciplinary measure to an employee.
2. General disciplinary sanctions: concept, types, procedure for imposition and removal. Special disciplinary liability for certain categories of employees
2.1 Types of disciplinary action
Unlike a crime, a disciplinary offense is not characterized by a public danger, but is a socially harmful act. As a consequence, it entails the application of disciplinary measures.
Article 192 of the Labor Code of the Russian Federation provides the following types disciplinary action:
- remark;
- reprimand;
- dismissal on the appropriate grounds.
At the same time, it is indicated that federal laws, charters and regulations on discipline for certain categories of employees may also provide for other disciplinary sanctions. It is not allowed to apply disciplinary sanctions that are not provided for by federal laws, charters and regulations on discipline, that is, local regulations.
All disciplinary measures are imposed by the employer.
The most severe, extreme measure of disciplinary action is dismissal. It is possible in the following cases:
1) repeated failure an employee without good reasons labor duties, if he has a disciplinary sanction (clause 5, article 81 of the Labor Code of the Russian Federation);
2) a single gross violation of labor duties by an employee (clauses 6, 9 and 10 of article 81, clause 1 of article 336 and article 348.11 of the Labor Code of the Russian Federation), namely:
absenteeism (absence from work without good reason for more than four consecutive hours during the working day);
- appearing at work in a state of alcoholic, narcotic or other toxic intoxication;
- 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;
- committing at the place of work theft (including small) of another's property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, official, body authorized to consider cases of administrative offenses;
- Establishment by the labor protection commission or the labor protection commissioner of a violation by the employee of labor protection requirements, if this violation entailed grave consequences(accident at work, accident, catastrophe) or deliberately created real threat occurrence of such consequences.
In addition, dismissal is possible under paragraphs 7 and 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation in cases where the guilty actions that give grounds for the loss of confidence, and an immoral offense, respectively, are committed by the employee at the place of work and in connection with the performance of his labor duties.
Separate grounds for dismissal at the initiative of the employer are provided for the heads of the organization, his deputies and the chief accountant (clauses 9 and 10 of article 81 of the Labor Code of the Russian Federation):
- making an unreasonable decision that entailed a violation of the safety of property, its misuse or other damage to the property of the organization;
- a single gross violation of labor duties.
The employer is obliged to consider the statement of the representative body of employees about the violation by the head of the organization, the head of the structural unit, their deputies labor law and other acts containing the norms of labor law, the terms of the collective agreement, agreement and report the results of its consideration to the representative body of employees.
In the event that the fact of a violation is confirmed, the employer must apply a disciplinary sanction to the head of the organization, the head of the structural unit, their deputies, up to and including dismissal.
2.2 The procedure for applying disciplinary sanctions
The procedure for bringing to disciplinary responsibility is regulated by Art. 193 of the Labor Code of the Russian Federation. On the basis of labor legislation, the following stages of disciplinary proceedings can be distinguished.
The employer interrogates witnesses and gets acquainted with the proposal to bring the employee to disciplinary responsibility, received from a person who does not have the right to impose disciplinary measures. The employer must demand from the employee who allegedly committed a disciplinary offense a written explanation. If, after two working days, the specified explanation is not provided by the employee, then an act of refusal to give written explanations is drawn up. The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction.
When imposing a disciplinary sanction, the following circumstances must be clarified:
- what was the offense and whether it can be the basis for imposing a disciplinary sanction;
- whether the offense was committed without good reason;
- whether the performance of actions that the employee did not perform (performed improperly) was included in the scope of his duties and what document provides for these duties;
- whether the employee is familiar with the local act, which provides for the relevant duties, against signature;
- whether the disciplinary measures applied to the employee are provided for by law or regulation or charter on discipline;
- whether the terms and procedure for imposing a disciplinary sanction have been observed;
- whether the official imposed a penalty. A disciplinary sanction can only be imposed by a leader. Other persons may impose a penalty only on the basis of documents where such powers are specifically prescribed.
When imposing a disciplinary sanction, the gravity of the misconduct committed and the circumstances under which it was committed must be taken into account. The following rules must be observed:
- a disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees. The day when the misconduct was discovered is the day when the immediate supervisor became aware of the misconduct, regardless of whether he had the right to apply disciplinary measures;
- a disciplinary sanction cannot be applied later than six months from the date of the misconduct, and a penalty based on the results of an audit, audit of financial and economic activities or an audit - later than two years. The specified time limits do not include the time of criminal proceedings;
Disciplinary offense- one of the concepts that labor law operates on. What is meant by this definition, how it differs from other offenses and how an employer can react to it, you will learn from our article.
How is a disciplinary offense different from other types of violations?
- If there are rules, then, accordingly, there may be those who violate them. The norms and rules established in society are divided into groups, which are regulated by separate legal institutions. Depending on which branch of the law the committed offense belongs to, it can be classified either as a crime or as a misdemeanor. In this case, the offense can be administrative, disciplinary or civil law.
An employee, while at his workplace, may well commit any of the above offenses. However, a disciplinary offense has one characteristic feature only for him: he, unlike others, is firmly connected with the performance of labor duties.
What is the responsibility of the employer of the employee for the commission of the violation?
An employee who has committed a violation of the norms of the law or the rules of labor discipline, depending on the severity of the deed, may be brought to justice. different types responsibility. Accordingly, different persons/organizations have the right to be held liable.
Thus, an employee can be brought to criminal responsibility only by a court decision, to administrative - by a decision of authorized bodies or their officials. Only the employer has the right to punish for a disciplinary offense.
This happens by issuing an appropriate order approved by the head of the organization (or the head of the unit, if such powers are vested in him by a local act), and familiarizing the violator with it. At the same time, the employer, even before punishing the employee for a disciplinary offense, must demand a written explanation from the person who committed it in order to decide on the imposition of punishment and the choice of specific sanctions, taking into account all the circumstances.
True, in some cases it is problematic to correctly qualify a misconduct committed by an employee. If we take, for example, the division of criminal and administrative responsibility, then in the Code of Administrative Offenses of the Russian Federation the legislator often uses the wording "if such an action does not contain a criminally punishable act."
The boundary between administrative and disciplinary offenses or the crime of an official is somewhat blurred. As a result, the employer sometimes has to wait until the competent authorities refuse to initiate criminal proceedings and administrative offense based on the absence of signs of their commission, and only after that independently bring the employee to disciplinary responsibility.
How many sanctions can be applied for each disciplinary offense?
There is an immutable rule in the Labor Code of the Russian Federation, enshrined in Part 5 of Art. 193, which states that only one penalty can be imposed for one disciplinary offense. That is, it is impossible, for example, to reprimand an employee and dismiss him under Art. 81 of the Labor Code of the Russian Federation. The employer will have to wait until the employee commits the next disciplinary offense - only he can serve as a basis for dismissal in this case.
And it does not matter whether the offense is such that in itself it can serve as a reason for dismissal, and whether there is a mandatory condition in the law about the repetition of the violation. If instead of dismissal, the employer initially chose a reprimand, then so be it. The term for bringing to disciplinary liability is limited to 6 months from the date of its commission and 1 month from the date of its discovery.
However, in life, situations often occur when an employee’s violation of labor duties also causes damage to the employer. For example, Ivanov, being in a state of intoxication, did not follow the line, as a result of which defective parts were stamped. And what should an employer do about this?
For such cases, it is envisaged to involve the employee in liability under which the employee is fully or partially compensated for the damage caused to him. It is important to distinguish between material and disciplinary responsibility, since these are different concepts and they have various grounds for occurrence. Thus, if a disciplinary offense served as the basis for the occurrence of damage, the employee can be punished both disciplinary and financially (that is, according to separate procedures).
Signs of a disciplinary offense
In order to be able to talk about the fact of committing a disciplinary offense, the violation must have the following features:
- Violation is expressed in non-performance (or improper performance) of labor duties by a specific employee.
- Obligations that have been violated are imposed on the employee within the framework of labor legislation, an employment contract or other local acts of the organization.
- The violation is recognized as a guilty act (or omission). The form of guilt does not matter.
Moreover, all these signs must be present necessarily. That is, the absence of even one of them deprives the employer of the opportunity to talk about a disciplinary offense and hold the employee accountable for this type of violation. However, it is important to remember that such a sign as Negative consequences for an employer not listed above. In other words, the manager can reprimand the employee for being absent from the workplace even if manufacturing process it had no effect.
Types of disciplinary offenses
There is no special part in the Labor Code of the Russian Federation where possible disciplinary offenses and specific punishments for them would be described. In Art. 192 of the Labor Code of the Russian Federation, which defines a disciplinary offense, lists only types of sanctions.
At the same time, the most serious types of violations are mentioned in the text of the Labor Code of the Russian Federation even as possible grounds for dismissal. According to Art. 81 of the Labor Code of the Russian Federation, such are recognized:
- Non-fulfillment of labor duties by an employee, expressed as:
- in the absence of an employee at the workplace;
- refusal to continue work after a change in labor standards;
- avoiding a medical examination or training when it is prerequisite permission to work.
However, even for these disciplinary offenses, other types of penalties may be assigned if the manager so decides. After all, it is he who is authorized to determine sanctions for committing a disciplinary offense - while his choice must be motivated, because otherwise the employee will be able to challenge it.
Other examples of disciplinary offenses are scattered throughout the text of the Labor Code of the Russian Federation, but may well be specified in the local acts of the organization.
Conclusion
So what have we found out?
- A disciplinary offense occurs only within the framework of labor relations.
- For violation of the rules and regulations, the employee is held accountable by the head. However, if the act contains signs of an administrative offense or crime, punishment for it may also be imposed by a court or other competent authority (but already within the framework of administrative or criminal liability).
- In addition to the penalty, the employer can apply monetary sanctions to the violator working for him - of course, if there are grounds for bringing him to liability.