What is understood as a disciplinary misconductor - a list of gross violations. Examples of application of recovery

The Labor Code of the Russian Federation in Articles 192-195 establishes the procedure for attracting workers to disciplinary responsibility. At the same time, the norms relating to the procedure for the use of disciplinary penalties can be specified in local regulatory acts. For example, in the rules of the internal labor regulation, the types of documents and the procedure for their provision, when applied to an employee of disciplinary recovery, are specified by persons who have the right to request an employee of an explanation on the fact of the perfect misdeed.

The concept of disciplinary offense is given in Part 1 of Art. 192 of the Labor Code of the Russian Federation), namely, non-performance or improper performance by the employee for his fault of labor duties assigned to him.

Deciding on attracting disciplinary responsibility is preceded by a service proceedings or qualification of the violation (disciplinary offense). And it should be added that under the qualification of the disciplinary misconduct it is understood as the establishment of the identity between the circumstances of the act, its content and signs of the composition of the disciplinary misconduct.

In order to determine whether disciplinary misconduct was performed, it is advisable to analyze its composition - a set of objective and subjective signs characterizing the act as a violation of employment duties. It includes four elements: object, objective side, subjective side, subject.

Object disciplinary offense - something that encroaches the intruder. The objects can be attributed to the rights and obligations of the parties to the employment contract, the interests of the employer, the property of the organization or employee, the rules of the internal labor regulation, etc.).

The main responsibilities of workers are listed in part 2 of Art. 21 TC RF. Through this rule, the employee is entrusted with the obligations arising from the rules of the internal labor regulation and the employment contract.

In addition, in paragraph 35 of the decision of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2, as amended from December 28, 2006 "On the application of the courts of the Russian Federation of the Labor Code of the Russian Federation") (hereinafter referred to The behavior of the employee who can be considered as disciplinary misconduct:

Lack of an employee without good reasons at work or workplace (where the employee must be or wherever he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer (part 6 of Article 209 of the Labor Code of the Russian Federation) for more than four hours in a row;

Employee's refusal without good reasons for the implementation of labor duties in connection with the change in the prescribed manner of labor standards (Article 162 of the Labor Code of the Russian Federation), since due to the employment contract, the employee is obliged to fulfill the employment function defined by this contract, to comply with the organization's internal labor regulations that operate in the organization ( Art. 56 of the Labor Code of the Russian Federation). It should be borne in mind that the refusal to continue work in connection with the changes in the conditions of the employment contract is not a violation of labor discipline, but serves as a basis for termination of the employment contract under paragraph 7 of Part 1 of Art. 77 Tk of the Russian Federation in compliance with the conditions of Art. 74 TC RF;

Failure or evasion without good reasons from medical examination of employees of certain professions, as well as a refusal of an employee from passing during the working hours of special training and passing examinations for labor protection, safety and operating regulations, if it is a prerequisite for admission to work;

The refusal of the employee from the conclusion of the contract for full material liability) if the fulfillment of obligations for the maintenance of material values \u200b\u200bis the main labor function of the employee, which was stipulated when taking a job.

But paragraph 19 of the above-mentioned resolution of the Plenum says that by paragraph. 5 h. 1 Art. 219, Part 7 of Art. 220 TK RF employee cannot be subjected to a disciplinary recovery for the refusal to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except in cases provided for by federal laws, before eliminating such a danger, or from committing heavy work and work with harmful or hazardous working conditions not provided for by the employment contract.

For some categories of workers in the Labor Code of the Russian Federation, their reasons for the imposition of disciplinary action are stipulated. In particular, teachers, teachers of educational institutions and educators of children's institutions are subject to dismissal by virtue of paragraph 1 of Art. 336 of the Labor Code of the Russian Federation, if during the year a roughly violated the Charter of the educational institution or carried out an immoral act at the place of their work (paragraph 8 of Art. 81 of the Labor Code of the Russian Federation).

It should be noted that the employer must have written evidence confirming the familiarization of the employee with their work responsibilities. This, as noted above, familiarization with the CTR, the employee must also be familiar with the partnership with the job description by the position or work being performed. One of the evidence confirming the circle assigned to the employee of the duties is the employment contract with him. The proof of the failure to comply with the assigned task included in the employment function of the employee allows us to conclude the failure to fulfill labor duties assigned to it and, as a result, committing a disciplinary misconduct. Upon presentation of the employee of claims on the improper performance of labor duties, it should be proven which particular actions did not make an employee who should have done in accordance with his labor function).

When analyzing an object of disciplinary misconduct, a completely natural question arises: is it possible to attract an employee to disciplinary responsibility for violation of labor duties, if the guidance indication was expressed in oral form? In principle, the ban on the oral imposition on the employee is no duties. Thus, the immediate supervisor about performing a particular operation included in the employment function of the employee may provide him with mandatory instructions. But in this situation, in the case of a dispute, it will inevitably arise the question of the evidence of the imposition on the employee of the relevant duty. In practice, a reliable evidence is usually recognized as an employee's painting that he is familiar with the document providing for this or another duty. That is why, in particular, among the main responsibilities of the employer in Art. 22 of the Labor Code of the Russian Federation is called and duty to acquaint workers under the painting with the received local regulatory acts directly related to their employment).

By its objective side, disciplinary misconduct can be expressed in an unlawful non-fulfillment or improper execution by the employee of its employment duties, that is, it can be both an action and inaction. Action and inaction are combined with one concept - "misconduct". In some cases, for the appearance of an offense, the presence of consequences in the form of harm and, accordingly, the causal relationship between act and consequences)

The subjective side is the attitude of the employee to its actions in the form of guilt. Disciplinary misconduct covers only guilty failure or improper performance by an employee of labor duties. Wines must be proven by the employer. As a general rule, it is possible both in the form of intent and in the form of negligence. The Labor Code of the Russian Federation, unfortunately, does not contain criteria for establishing fault forms. Here it is necessary to refer to the Criminal Code of the Russian Federation) (hereinafter referred to as the text of the Criminal Code of the Russian Federation) and adapt the relevant rules to the labor law. So, Art. The 25 Criminal Code distinguishes direct and indirect intent, and Art. 26 of the Criminal Code divides negligence for frivolity and negligence.

Direct intent occurs if the employee:

a) conscious of the public danger of its actions or inaction;

b) foresaw the possibility and inevitability of socially dangerous consequences;

c) wished their offensive.

Indirect intent occurs when an employee:

a) conscious of the public danger of his behavior;

b) foresaw the possibility of occurrence of socially dangerous consequences;

b) did not want, but deliberately allowed these consequences either treated them indifferent.

Levity takes place if the employee:

a) foresaw the possibility of the occurrence of socially dangerous consequences of its actions (inaction);

b) without sufficient reason, the foundations arrived arrogantly to prevent these consequences.

The carelessness is that the worker:

a) did not foresee the possibility of the occurrence of socially dangerous consequences of its actions (inaction);

b) With the necessary attentiveness and prudency, it was necessary and could have foreseen these consequences.

If from a particular situation, it will flow out that the worker did not conscious and could not be aware of the harm of what he does (not), and the consequences of this, then he is considered innocent.

The subject of disciplinary misconduct always acts as an employee, and the attraction of an employee to disciplinary responsibility is possible from the moment when an employment contract is concluded. The conclusion of the employment contract is allowed with persons who have reached the age of sixteen.

In cases of obtaining general education, or the continuation of the development of the main general educational program of general education according to another, the form of training, or leaving in accordance with the Federal Law of the General Education, the employment contract may affect the age of fifteen years to perform light labor without harm their health.

With the consent of one of the parents (trustee) and the guardianship and guardianship authority, the employment contract can be concluded with students who have reached the age of fourteen years, to fulfill the time of easy work, which does not harm its health and does not violate the learning process.

In cinematography organizations, theaters, theater and concert organizations, the circuses are allowed with the consent of one of the parents (guardian) and permits of the guardianship and guardianship authority. Conclusion of an employment contract with persons under the age of fourteen years to participate in the creation and (or) execution (exhibiting. ) Works without prejudice to health and moral development.

It should be noted that only those violations are considered disciplinary misdeferences for which disciplinary measures are supposed to be applied. If the legal responsibility measures are applied for the offense in the work of labor to the employee, such as in the Criminal Code of the Russian Federation, in the Code of the Russian Federation on administrative offenses, then such acts are regarded as crimes or as administrative misconduct.

Only in the presence of all listed components of the composition of the disciplinary offense can only be said that it really takes place. If at least one of the elements of the branch of the offense is absent, then there is also no disciplinary offense.

In the science of labor law, the following types of disciplinary misconduct are distinguished: the last, repeated, discontinued).

Logging disciplinary misconduct - that is, the offense, which is continuing for a long period of time. If, finding disciplinary misconduct, the employer applied a disciplinary penalty, but this disciplinary misconduct continues (this is this offense, and not the next, even if it is similar), then a new disciplinary penalty can be applied to the employee (including dismissal on the relevant basis).

The nasty misconduct continues continuously before its suppression. The employer applies disciplinary penalty just to curb the behavior expressed in non-fulfillment or improper performance of a particular labor duty. If this is not executed (that is, the involvement of an employee to disciplinary responsibility failed to stop this disciplinary misconduct), the employer has the right to apply a new disciplinary penalty for the same offense. For example, an employee announced a comment for late preparation. However, after applying disciplinary recovery, the employee did not prepare reports on the period alloted by the employer. In this case, the employer with the use of disciplinary recovery is not an offense presets and it is entitled to take advantage of its right to apply new disciplinary recovery. Naturally, all said is legitimate only if the employee is really guilty of misdeed.

Repeated disciplinary misconduct is a misdemeanor, perfectly after the expiration of a certain time after the suppression of a similar misdeed. For example, an employee after the announcement of the remarks for being late for a job for a while comes on time, but after some time it is late for work again. In this case, both misconduct are regarded as two separate, for each of which the employer can apply the imposition of disciplinary recovery in the case of the perpetrators of the employee.

Discontinued misconduct. If the employee made disciplinary misconduct (for example, it made an error in the report), independently detects it and applies all the ways accessible to it to eliminate the error and minimize or eliminate the negative effects of his offense, then it will undoubtedly be regarded as a softening circumstance and be the basis for Untested to the employee of disciplinary recovery or softening it.

By object, disciplinary misconduct can be divided into four groups:

Encroachment on full use of working time (driving, late);

Encroachment on the careful and proper use of the employer's property;

Encroachment on the procedure for managing production processes in the organization (non-execution of orders, orders);

Encourse, creating a threat to life, health, morality of a separate employee or the entire labor team (violation of the rules of labor protection).

And the responsibility for its violation is important in each institution.

People who committed disciplinary misconduct are involved in disciplinary responsibility. Consider this question more.

Disciplinary misconduct is improper performance or non-fulfillment of labor obligations by the employee. What is characteristic of him?

Disciplinary misconduct is characterized by the following mandatory elements:

• guilt;
• non-fulfillment of labor obligations (improper performance);
• illegality;
• the presence of communication between unlawful actions of workers and consequences.

The action or inaction of the employee is recognized as an unlawful if a specific labor duty is violated provided for by the relevant legal act.

The guilt of the unlawful action workers can be expressed both in so and simply by negligence. If the improper performance or non-fulfillment of his labor obligations was not due to its fault, then considering this behavior as disciplinary misconduct does not make sense. This rule is applicable in any similar case.

Disciplinary misconduct is not such that unlawful actions have been fulfilled by the employee who are not related to labor duties.

Failure to fulfill labor obligations is expressed in non-fulfillment by the employee of labor obligations, which are determined by the contract or labor legislation.

If there is no one element, it is not considered a disciplinary offense, that is, the employee should not be rapidly responsible.

18.06.2018, 2:36

The workflow does not always go smoothly. Disciplinary misconduct is one of the types of labor disorders made by the fault of the employee. The reasons for its commit may be different, but the essence is that the duties prescribed in the employment contract were violated. Monitor their observance should immediately boss. Read more - in the material.

Violation of discipline

It is worth clarifying that it is possible to talk about such a thing as disciplinary misconduct, it is possible only about labor relations between the subordinates and the boss. The employer can resort to punishment if there has been a violation of work discipline. You can highlight the following features of this violation:

• the subordinate did not fulfill the pre-agreed and documented duties or fulfilled, but not fully or not as required;
• there must be an official instruction with which the employee is familiar with, where these responsibilities are clearly spelled out. It is important that the employee is familiar with them in advance.
• there is a fault of the employee and there is evidence that it is his actions or, on the contrary, inaction led to a violation.

Only in the presence of all three signs it can be said that a disciplinary violation was committed.

The employer has the right to decide independently, whether the punishment is applied. However, the subordinate may challenge his decision. In any case, the employee remains right in writing to provide information on the reasons for their actions (or inaction). Only after that the administration rises a decision on punishment.

In practice, they distinguish repeated and scratching. The first were once stopped, the guilty - punished. However, after a while, the situation is repeated. In the second case, the violation was not suspended at all, that is, the subordinate continues to behave in such a way that provokes the data of the violation.

What awaits the intruder

The question of the use of punishment is solved by the immediate boss of the perpetrator. For each disciplinary misconduct, one punishment can be applied. It is impossible to use 2 types of punishment for the same violation.

4 types of impact on the intruder are distinguished:

If the head immediately, after detecting the violation, the employee will reprimand, then dismiss it, provided that there were no repeated violations. However, if the situation is repeated and the second reprimand will be made, the dismissal is quite possible and it will not be possible to challenge him through the court.

You can apply any measure of punishment during the six months after the misconduct and within a month after it is detected. Otherwise, the punishment cannot be applied, since the deadlines have already passed.

It is worth mentioning that no disciplinary disorder entails fines. The employer can punish a person only by depriving award, but to cut wages or demand fines cannot. In the event that the employee caused material damage to the organization, then you can recover from the violator the amount covering the damage.

What violations are disciplinary misconduct

The Labor Code does not have a clear list of violations that relate to disciplinary misconduct. The document contains only types of punishments and features of the offense.

Therefore, such questions are solved in private. The tenant himself determines whether there was a violation, and the subordinate may challenge and explain in writing. If we talk about serious misconduct, then among them you can call:

• lack of workplace for more than 4 hours. This is a belt if the employee cannot provide evidence of a valid reason for the absence;
• a targeted rejection of work for one reason or another;
• permanent delay;
• presence at work in a state of alcohol intoxication;
• submission of false information or fake documents when taking a job.

It is clear that this list of disorders is not limited. According to the law, if working conditions are changed, all subordinates must be familiar with them, which will indicate the signature in the relevant document. It should be borne in mind that these conditions should not deteriorate, otherwise employees will be able to abandon such changes and apply the punishment in this case will not be possible.

L. I. Romankevich

1. The basis for attracting disciplinary responsibility is to perform a disciplinary offense.

The disciplinary misconductor recognizes the unlawful, guilty failure or improper performance by the employee of its employment duties (Art. 197 of the Labor Code of the Republic of Belarus). From this definition it follows that for disciplinary offense, the following elements are characterized by:

Illegality;

Guilt;

Non-performance or improper performance of labor duties;

The presence of a causal connection between the unlawful actions (inaction) of the employee and the consequences.

Activities (actions or inaction) of an employee who violates the specific employment responsibilities provided for by the relevant legal acts (for example, provisions, job descriptions, internal labor regulations, charters, labor contracts, etc.).

The second mandatory element of the disciplinary misconduct is the guilt of an employee in committing an illegal action, which can be expressed in the form of intent or negligence. If the failure to fulfill (or improper execution), an employee of his employment duties occurred not by its fault, there is no reason to consider such behavior as disciplinary misconduct. For example, late to work in connection with the accident on public transport can not be regarded as disciplinary misconduct, because There is no wines of an employee. In the same order, it is necessary to consider the non-fulfillment by an employee of labor duties for reasons, from it independent of insufficient qualifications or disability (disability), the lack of appropriate working conditions, etc.

The disciplinary misconduct does not include unlawful actions of the employee who are not related to labor duties (the refusal to fulfill work that is not included in its duties stipulated by the employment contract of the employee, violation of the order in public places, etc.). However, it should be borne in mind that some officials (for example, prosecutors, investigators, lawyers, government officials) are disciplinary responsibility for misconduct, which are not a violation of their employment duties. This is allowed only in cases provided by law.

Failure or improper performance of labor duties is expressed in non-fulfillment (or improper performance) by the employee of the work duties defined for him by the employment contract or arising from the norms of labor legislation. It will not be a violation of the labor discipline of the employee's refusal from the performance of work, not caused by the employment contract (for example, the refusal of the engineer employee to perform the work of the locksmith, etc.).

The last obligatory element of the disciplinary misconduct is the presence of a direct causal connection between the unlawful actions (inaction) of the employee and the consequences (for example, the occurrence of material damage to the employer or the presence of the estimated property).

The absence of at least one of these elements does not form a disciplinary offense, and the employee cannot be involved in disciplinary responsibility.

According to paragraph 31 \u003e\u003e to the violations of labor discipline, in particular, belong:

Lack of an employee without good reason at work, as well as finding without good reason not at its workplace, but in other rooms of the organization, premature care from work, refusal without good reasons for a trip to a business trip, a nebody to work on a weekend and a holiday, if The employee is attracted to work on legal grounds;

Refusal or evasion without good reasons for passing in the prescribed manner during the working time of medical examinations by employees of some categories (Art. 228 TC), as well as the refusal of briefing, learning and testing knowledge on labor protection issues (clause 4 of Art. 232 TC).

2. Disciplinary responsibility is the use of disciplinary recovers for committing disciplinary misconduct. The legislation provides for two types of disciplinary responsibility: general and special.

1. The total disciplinary responsibility comes on the basis of the rules of the internal labor regulation. Such responsibility applies to all employees, with the exception of employees who carry special responsibility.

When attracting disciplinary responsibility to this type, only an offense directly related to work can be taken into account, i.e. With the execution of the rules of the internal labor regulation. According to Art. 195 TC Rules of the internal labor regulation are established by the employer with the participation of trade unions on the basis of typical rules of the internal labor regulation (hereinafter referred to as PVT).

Labor legislation distinguishes standard, sectoral and local internal labor regulations.

Typical PVPs approved by Decree of the Ministry of Labor of the Republic of Belarus dated April 5, 2000 No. 46 and include the following sections: general provisions, the order of admission and dismissal of workers, the obligations of the employee and the employer, working time, promotion for success in work, responsibility for violation of labor disciplines.

Based on typical PVPs, industry and local PVTs are approved, which should not be contrary to typey. In the absence of local PVTs, there are sectoral or typical PVTs.

The employers and employees are obliged to comply with the rules of the internal labor regulation, otherwise the overall disciplinary responsibility comes.

2. Special disciplinary responsibility occurs on the basis of special regulations (charters, discipline regulations) and applies only to individual categories of workers with a special nature of labor (Part 2 of Art. 194 TC).

When studying these provisions, the discipline charters implies that the purpose of special responsibility is to apply more stringent recovers to the violators. For example, in accordance with the Regulations on the passage of the Service in the Prosecutor's Office of the Republic of Belarus, disciplinary recovery to the Prosecutor's employee is applied not only for the violation of official duties, work discipline, but also for the accomplishing actions that discrediting the title of the prosecutor's employee.

This material is published in part. Fully material can be found in the journal "Frames" No. 2 (12), February 2002. Playback is possible only with

Any guide should control the observance of labor order, encourage conscientious employees and apply the penalty for each serious disciplinary misconduct. What you need to know so that such recovery is not recognized illegal? About it - in our material.

Characteristic and species

The offense of an administrative, civil-legal or disciplinary nature is negatively reflected in the enterprise's economic indicators. Therefore, the leaders are trying to maintain order in the working team.

In practice, confusion often arises between the disciplinary and administrative offense. What is a disciplinary misconduct of an employee? This is non-fulfillment or improper performance of labor responsibilities for its fault (Art. 192 of the Labor Code of the Russian Federation). It has 3 features:

1. In the process of inspection checks or court proceedings, it is necessary to prove that the violation occurred by the employee's fault, and the procedure for imposing the penalty was carried out in compliance with the law.
2. The only employer is entitled to punish the subordinate, and not authorized bodies, bailiffs, etc.
3. Responsibility is provided for every violation.

When analyzing the disciplinary offense and its characteristics, the following types can be distinguished:

When you can punish the guilty

Below are the most common examples of disciplinary misconduct, for which you can impose a penalty:

• poor-quality performance;
• unfavorable refusal to execute labor duties;
• violation of the job instruction;
• non-compliance with the internal regulations;
• failure to fulfill labor standards, etc.

The obligatory condition for the application of the sanction: the violation occurred exclusively for the fault of the employee, while his labor responsibilities are spelled out in the employment contract, the Labor Code of the Russian Federation or the internal document of the enterprise.

Interestingly, in the signs of disciplinary misconduct on the TK RF, nothing is said about its negative consequences for the employer. This means that you can declare a reprimand to the employee, even if his absence did not affect the production process.

It is important that the law does not provide for responsibility:

• for violations that are not related to the execution of labor duties;
• for misconduct, in which there is no wines of the employee.

Also, the recovery for disciplinary misconduct does not apply if there is no causal relationship between negative consequences and violations by the employee.

What to do when labor discipline is broken

What punishment to choose the employer

Based on Art. 193 of the Labor Code of the Russian Federation for one disciplinary misconduct can be applied only one punishment. Labor legislation provides 3 of their options:

• comment;
• rebuke;
• termination of labor relations.

Remember: It is impossible at the same time, for example, declare a reprimand and terminate the contract.

The most strict measure of punishment is dismissal for disciplinary misconduct. It is used: