Disciplinary misconduct: concept, signs, composition.

18.06.2018, 2:36

The workflow is not always smooth. Disciplinary misconduct is one of the types of labor violations committed through the fault of an employee. The reasons for its commission may be different, but the bottom line is that the obligations prescribed in the employment contract have been violated. The immediate superior should monitor their observance. Read more in the material.

Discipline

It is worth clarifying that it is possible to talk about such a concept as a disciplinary offense only with regard to labor relations between a subordinate and a boss. The employer may resort to punishment if there has been a violation of labor discipline. The following features of this violation can be distinguished:

• the subordinate did not fulfill the predetermined and documented duties, or did, but not fully or not as required;
• there should be a job description that the employee is familiar with, where these responsibilities are clearly and clearly spelled out. It is important that the employee is familiar with them in advance.
• there is the employee's fault and there is evidence that it was his actions or, conversely, inaction that led to the violation.

Only in the presence of all three signs can we say that a disciplinary violation has been committed.

The employer has the right to independently decide whether to apply the punishment. However, the subordinate can challenge his decision. In any case, the employee retains the right to provide written information about the reasons for his actions (or inaction). Only after that does the administration raise a decision on punishment.

In practice, a distinction is made between repeated and continuing offenses. The first ones were once suppressed, the guilty one was punished. However, after a while, the situation repeats itself. In the second case, the violation was not stopped at all, that is, the subordinate continues to behave in such a way that it provokes these violations.

What awaits the intruder

The question of the application of punishment is decided by the immediate superior of the perpetrator. One penalty may be imposed for each disciplinary offense. You cannot use 2 types of punishment at once for the same violation.

There are 4 types of impact on the offender:

If the boss immediately after detecting a violation reprimands the employee, then dismiss him, provided that there have been no repeated violations. However, if the situation repeats itself and a second reprimand is issued, the dismissal is quite possible and it will not work to challenge it in court.

Any penalty can be applied within six months after the offense was committed and within a month after its discovery. Otherwise, the punishment cannot be applied, since the terms have already passed.

It is worth mentioning that no disciplinary offense is subject to fines. An employer can only punish a person by depriving him of a bonus, but he cannot cut wages or demand fines. If the employee has caused material damage to the organization, then you can recover from the violator the amount that covers the damage.

What violations are disciplinary offenses

The Labor Code lacks a clear list of violations that relate to disciplinary offenses. The document contains only types of punishments and signs of misconduct.

Therefore, such issues are resolved privately. The employer himself determines whether there was a violation, and the subordinate can dispute this and explain in writing. If we talk about serious misconduct, then among them we can name:

• absence from the workplace for more than 4 hours. It is considered absenteeism if the employee cannot provide evidence of a valid reason for absence;
• purposeful refusal to work for one reason or another;
• constant delays;
• presence at work in a state of alcoholic intoxication;
• submission of false information or forged documents when applying for a job.

It is clear that the list of violations is not limited to this. According to the law, if working conditions change, all subordinates must be familiarized with them, as evidenced by the signature in the corresponding document. It should be borne in mind that these conditions should not worsen, otherwise employees will be able to refuse such changes and it will be impossible to apply punishment in this case.

The whole life of a full-fledged citizen is tied to the observance of codes of rules and laws. Social norms and rules are governed by separate legal institutions. Depending on the nature of the violation, it is classified either as a crime or as a misdemeanor. In turn, the latter can be divided into three main types: disciplinary, administrative and civil law.

What is a disciplinary offense

In any developed society, non-observance of the norm and order entails punishment. The labor activity of a citizen is no exception. When performing his job duties, an employee may commit a deliberate or unconscious violation of labor discipline, which will entail subsequent recovery.

This is any non-fulfillment and non-compliance by an employee with his labor duties, which he officially agreed to fulfill when concluding an employment contract. The punishment for this type of violation is imposed by the employer.

Examples of disciplinary misconduct

Each organization has its own standards of conduct, which the employee can familiarize with when concluding an employment contract. However, you can list the most common types of offenses:

• being late for work,
• appearance at the workplace in an improper form,
• ignoring the dress code,
• drinking alcoholic beverages during working hours,
• refusal to undergo a medical examination,
• failure to comply with the orders of the management,
• leaving the workplace without the permission of the superiors,
• damage to the property of the employer, theft of funds,
• violation of the norms of behavior and communication with clients, if the list of such is established in this organization.

For the commission of a disciplinary offense, the employer has the right to apply the following disciplinary sanctions:

• Fine;
• Demotion and salary reduction;
• Suspension from performance of official duties;
• Dismissal;
• Dismissal with a corresponding mark of disciplinary action in the work book.

This issue is considered in more detail.

Gross disciplinary offenses of military personnel

For servicemen, prosecution is carried out on the basis of a violation of military discipline. The most rude ones include:

• arbitrary withdrawal from the territory of a military unit without a permit;
• violation of the statutory rules for guard duty, patrolling, alert duty, border service;
• deliberate damage, theft of military property;
• deliberate careless handling of weapons, ammunition, chemicals or other items / substances that may pose a danger to others;
• improper operation or damage to military equipment;
• carrying a guard, border service, watch, patrol in a state of narcotic or alcoholic intoxication;
• failure to take the necessary measures by servicemen when an offense is committed by one of his subordinates, as well as concealment of the fact of violation and failure to report the incident to the higher leadership.

The difference between a disciplinary offense and an administrative offense

If a citizen can commit a disciplinary offense while performing labor discipline, then administrative offenses are regulated by administrative law and imply the commission of socially dangerous actions. For example, an employee in a state of alcoholic intoxication left the workplace at an inopportune time without warning the management, and then he went to the playground, where he continued to drink alcohol. In such a case, the citizen violated both labor discipline and the norms of administrative law. Accordingly, a citizen expects two types of punishment: disciplinary from the employer and administrative from the relevant authorities.

Can two penalties be applied for a disciplinary offense?

As a punishment for this type of violation, the employer can apply three types of punishments, which are classified according to the degree of severity:

• comment,
• rebuke,
• dismissal.

For each offense, the employer has the right to apply only one penalty, and not necessarily incrementally: from the least to the most severe with the commission of each offense. If the employer considers the offense to be extremely serious, he has the right to immediately apply the most severe punishment: dismiss the employee.

If two or more penalties were applied to an employee for one violation at the same time, his rights were violated, he must file a complaint with the federal labor inspectorate. However, the employer has the right to apply a penalty for the violation in parallel with bringing to material liability, if the employee did not comply with labor discipline material damage to the property of the employer.

The act of committing a disciplinary offense by an employee - sample

There is a universal sample of an act on non-compliance by an employee with work ethics, which is filled out by the employer.

L. I. Romankevich

1. The basis for bringing to disciplinary responsibility is the commission of a disciplinary offense.

An unlawful, guilty failure to perform or improper performance by an employee of his labor duties is recognized as a disciplinary offense (Article 197 of the Labor Code of the Republic of Belarus). From this definition it follows that a disciplinary offense is characterized by the presence of the following elements:

Wrongfulness;

Guilt;

Non-fulfillment or improper fulfillment of labor duties;

The presence of a causal relationship between the illegal actions (inaction) of the employee and the consequences that have occurred.

The acts (actions or omissions) of an employee who violate specific labor obligations stipulated by the relevant legal acts (for example, regulations, job descriptions, internal labor regulations, statutes, labor contracts, etc.) are recognized as illegal.

The second mandatory element of a disciplinary offense is the employee's guilt in committing an illegal act, which can be expressed in the form of intent or negligence. If the failure to perform (or improper performance) by an employee of his job duties was not his fault, there is no reason to consider such behavior as a disciplinary offense. For example, being late for work due to a public transport accident cannot be regarded as a disciplinary offense. there is no employee fault. In the same order, it is necessary to consider the failure of the employee to fulfill his job duties for reasons beyond his control due to insufficient qualifications or ability to work (disability), lack of proper working conditions, etc.

A disciplinary offense does not include illegal actions of an employee that are not related to work duties (refusal to perform work that is not included in the scope of his duties provided for by the employee's labor contract, violation of order in public places, etc.). However, it should be borne in mind that some officials (for example, prosecutors, investigators, lawyers, government officials) are disciplined for misconduct that is not a violation of their job responsibilities. This is allowed only in cases stipulated by the Law.

Non-fulfillment or improper fulfillment of labor duties is expressed in non-fulfillment (or improper fulfillment) by the employee of the labor duties determined for him by the labor contract or arising from the norms of labor legislation. It will not be a violation of labor discipline for an employee to refuse to perform work that is not stipulated by the employment contract (for example, the refusal of an engineer employee to do the work of a locksmith, etc.).

The last mandatory element of a disciplinary offense is the presence of a direct causal link between the illegal actions (inaction) of the employee and the resulting consequences (for example, the occurrence of material damage to the employer or theft of the employer's property).

The absence of at least one of these elements does not constitute a disciplinary offense, and the employee cannot be brought to disciplinary responsibility.

According to clause 31 >>, violations of labor discipline include, in particular:

Absence of an employee without a valid reason at work, as well as being without a valid reason not at his workplace, but in other premises of the organization, premature leaving work, refusal of a business trip without valid excuse, absenteeism on weekends and holidays, if the employee is legally involved in work;

Refusal or evasion, without good reason, from passing medical examinations by workers of certain categories in accordance with the established procedure during working hours (Article 228 of the Labor Code), as well as refusal to instruct, train and test knowledge on labor protection issues (clause 4 of Article 232 of the Labor Code).

2. Disciplinary responsibility is the application of disciplinary sanctions for the commission of disciplinary offenses by employees. The legislation provides for two types of disciplinary liability: general and special.

1. General disciplinary liability arises on the basis of the internal labor regulations. This responsibility applies to all employees, with the exception of employees with special responsibilities.

When bringing to this type of disciplinary liability, only offenses directly related to work can be taken into account, i.e. with the implementation of the internal labor regulations. According to Art. 195 of the Labor Code, the internal labor regulations are established by the employer with the participation of trade unions on the basis of the standard internal labor regulations (hereinafter referred to as the PVTP).

Labor law distinguishes between standard, industry and local internal labor regulations.

Typical PVTPs are approved by the decree of the Ministry of Labor of the Republic of Belarus No. 46 dated April 5, 2000 and include the following sections: general provisions, the procedure for hiring and dismissing employees, the duties of the employee and the employer, working hours, rewards for success in work, responsibility for violation of labor discipline.

On the basis of the Standard PVTP, industry and local PVTP are approved, which should not contradict the Model. In the absence of local PVTPs, there are industry-specific or Typical PVTRs.

Employers and employees are obliged to comply with internal labor regulations, otherwise general disciplinary liability arises.

2. Special disciplinary liability arises on the basis of special regulations (statutes, regulations on discipline) and applies only to certain categories of workers with a special nature of work (part 2 of article 194 of the Labor Code).

When studying these provisions, discipline charters, it follows that the purpose of special liability is to apply more stringent penalties to violators. For example, in accordance with the Regulations on Service in the Prosecutor's Office of the Republic of Belarus, a disciplinary penalty is applied to a prosecutor's employee not only for violation of official duties, labor discipline, but also for committing actions that discredit the title of a prosecutor's employee.

This material is published in part. The full material can be read in the journal "Human Resources Department" No. 2 (12), February 2002. Reproduction is possible only from

Any management must monitor the observance of the labor order, reward conscientious employees and apply penalties for every serious disciplinary offense. What you need to know so that such a collection is not recognized as illegal? About this - in our material.

Characteristics and types

Administrative, civil or disciplinary offenses have a negative impact on the economic performance of the enterprise. Therefore, managers try to maintain order in the work collective.

In practice, confusion often arises between disciplinary and administrative offenses. What is an employee's disciplinary offense? This is non-fulfillment or improper fulfillment of labor duties through his fault (Article 192 of the Labor Code of the Russian Federation). It has 3 features:

1. In the course of inspections or litigation, it is necessary to prove that the violation occurred through the fault of the employee, and the procedure for imposing a penalty was carried out in compliance with the law.
2. Only the employer has the right to punish a subordinate, and not authorized bodies, bailiffs, etc.
3. Liability is not provided for every violation.

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

When can the guilty be punished

The following are the most common examples of disciplinary offenses that can be punished:

• poor quality work performance;
• groundless refusal to perform labor duties;
• violation of the job description;
• non-compliance with internal regulations;
• failure to comply with labor standards, etc.

A prerequisite for the application of the sanction: the violation occurred solely through the fault of the employee, while his labor duties are spelled out in the employment contract, the Labor Code of the Russian Federation or the internal document of the enterprise.

It is interesting that in the signs of a disciplinary offense under the Labor Code of the Russian Federation, nothing is said about its negative consequences for the employer. This means that you can reprimand an employee, even if his absence did not affect the production process.

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

• for violations not related to the performance of labor duties;
• for misdemeanors in which there is no employee's fault.

Also, a penalty for a disciplinary offense is not applied if there is no causal link between negative consequences and violations on the part of the employee.

What to do when labor discipline is violated

What punishment to choose an employer

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

• comment;
• rebuke;
• termination of employment.

Remember: it is impossible, for example, to give a reprimand and terminate the contract at the same time.

The most severe punishment is dismissal for a disciplinary offense. It is used:

In order to maintain a normal level of labor discipline at enterprises, rules are introduced, instructions and technological processes are approved. Their violation gives the employer the right to apply to the employee various sanctions stipulated by the legislation.

What it is

The guilty actions of an employee aimed at deliberate violation of labor, technological or service discipline are called disciplinary offense... All actions of an employee at the enterprise are regulated by internal regulatory documents (rules governing working conditions, service or job descriptions, instructional documents on labor protection issues), which are brought to the employee before starting work against signature.

The administration will be able to bring the employee to disciplinary responsibility in cases, when:

• the fact of non-compliance with the current regulatory document has been proven;
• the fault of a particular employee has been proven for this fact;
• the employee was previously familiar with the documents (rules, instructions, regulations) prohibiting illegal actions against signature;
• it was proved that the guilty act was committed consciously, there were no circumstances that would relieve the employee of responsibility.

All this should be checked during the official investigation. until the decision is made to punish the employee.

Is there a concept in laws / regulations

The concept of "disciplinary offense" is regulated by Article 192 of the Labor Code of the Russian Federation. The legislator interprets this term as non-performance or improper performance by a citizen of the labor functions assigned to him through his fault.

As a measure of punishment, remark, reprimand, dismissal... Here it is necessary to indicate that the employer has the right to apply to the employee only one of the types listed.

Special federal laws, various statutes, regulations governing discipline for civil servants may contain other types of measures.

Difference between administrative offense and disciplinary offense

An administrative offense is considered to be illegal actions of citizens aimed at minor violations of public rules determined by the Code of Administrative Offenses of the Russian Federation. Such actions differentiated by separate categories and characteristics.

Considered by authorized officials with security rights in a particular industry.

The main difference between an administrative offense and a disciplinary one is scope and procedure of application... The punishment is carried out exclusively by the employer in relation to his subordinate employee. According to administrative law, any citizen (even a foreigner) who violated the Code of Administrative Offenses can be held accountable.

The concept of "administrative offense" was replaced by "Administrative offense"... The concept of "disciplinary offense" has not changed.

Signs, composition, varieties

You can hold an employee accountable just for real wrong action... Previously, the employer must outline the rules in specific internal regulations. Their list usually includes:

• applicable internal labor regulations;
• job, technological, work instructions;
• documentation regulating labor protection issues;
• individual labor contract;
• general legislative documents.

The employee must be familiar with all this. before the start of employment against signature... If, due to guilty actions, at least one of the clauses of such documents is violated (even without the onset of grave consequences), the employer has the opportunity to bring the employee to justice.

Labor violations are considered any illegal actions deviating from the labor, technological, executive discipline established at the enterprise.

In the process of considering a disciplinary case, it is necessary to take into account all the nuances in which it was admitted. All deviations should be considered as combination of factors:

1. The presence of a violation of the current regulatory document.
2. The presence of employee guilt.
3. The relationship between the violation and the employee (how he personally could influence the outcome of the incident). Here it is worth considering the situation from the point of view of action or inaction.
4. Illegal actions should be part of the individual duties of the employee.

Before applying a punishment to an employee, the employer is obliged to study all the circumstances in which a deviation from the instructions was recorded, to consider them from various angles, to demand written explanations on this fact from all involved (guilty) persons.

The norms for the violation of which liability is provided for can be established at the legislative level (for example, absenteeism, violation of labor protection, being at the workplace in a state of intoxication, and others), local provisions on discipline (ethics of business communication, dress code when performing work functions), as well as an employment contract (volume and direction of work according to the position).

Degree of punishment directly will depend on the arisen or possible consequences for a specific violation. The legislator has determined that the employer can, but is not obliged to prosecute subordinates for all types of disciplinary violations. In the future, if such a right was not realized, and this caused more serious consequences, the employer will be blamed for this.

For example, an employer found an employee drunk at the workplace, but did not fire him. In the future, due to a drunken state, the employee creates industrial emergency... When considering a specific case, the guilt can be divided between the employee (performing labor functions while drunk) and the administration (not taking action against the offender who was previously caught in this state).

Employer on one's own determines the level of responsibility of the employee for wrong actions. For example, for absenteeism, the law allows you to immediately formalize the dismissal of an employee. But if the administration decides to reprimand or warn such an employee, this is will not be a violation.

Therefore, each violation must be considered comprehensively, taking into account the past merits of the citizen, his professionalism, qualifications, characteristics in the team. Sometimes the conclusion of trade unions can be important.

Responsibility for misconduct

The law provides three main types of disciplinary responsibility... This includes:

1. Warning, it is also a remark.
2. Rebuke.
3. Dismissal.

Each violation must be duly documented, the employee is informed of the punishment imposed on him. in writing against signature... A document confirming the fact of the imposition of a penalty is stored in the personal file. The measure of responsibility will depend on the severity of the offense, as well as the presence of repetition in such acts on the part of the worker.

Federal laws may provide for additional types of penalties for employees (for example, a severe reprimand, a warning about official inconsistency, demotion).

Liability is regulated solely on the basis of legal regulations.

Is there a punishment for everything?

Whether or not to prosecute the employee, the employer decides after the relevant official investigation... Consider here nuances:

• whether the employee is directly related to the misconduct that happened;
• whether the employer familiarized the employee with the provisions of the regulatory document that was not fulfilled;
• in the process of considering a case, it is imperative to require an explanatory note from the employee;
• the employer (who has the right to hire and fire employees) is obliged to consider the misconduct and make a decision on punishment;
• the entire fact-finding procedure must be followed.

The degree of guilt of employees is established individually... In the process of deciding on punishments, one should take into account all the previous merits of the worker, the presence of other violations, rewards.

When the violation of labor discipline is committed for the first time, does not have serious consequences (for example, the employee was late for work for the first time by 30 minutes), the employer has the right to limit himself to a usual remark.

It is advisable to consider when and what penalties should be applied.

1. Comment... It is considered the easiest type of punishment. Usually, it simply “signals” that the employee has violated the established rules for the first time. At the same time, collective agreements for such a violation may provide for a reduction in the level of bonus remuneration by a certain percentage.
2. Rebuke... The most common type of punishment for a disciplinary offense. It is used when the violation entailed certain consequences, or for systematic minor violations that were recorded earlier. With this type of punishment, all types of rewards are removed for the period of the punishment.
3. Dismissal... The most severe form of punishment. To dismiss an employee under the article, it is necessary to prove that such a violation actually took place (for example, being drunk at work, proven by a medical report, loss of confidence due to unlawful actions that caused a loss for the company, absenteeism, absence from work for more than 4 hours in one day of work).

Local regulations governing bonus issues may provide for a reduction in bonus payments in the event of certain actions that are not considered a serious labor inconsistency.

Is it possible to assign a double punishment

The law does not stipulate the possibility of punishing twice for the same violation of labor discipline. The punishment can be applied no later than 6 months from the date of the violation (for financial violations, the limitation period is 2 years).

It is drawn up by an order, which is given for familiarization to the offender during three days after registration. The absence of his signature does not stop the order.

These rules do not apply to cases where different types of liability are considered. A citizen can twice be punished in the event of disciplinary, material, administrative and criminal liability.

For example while doing his job, the citizen stole the property of the enterprise. He can be fired from his job and at the same time brought to administrative (for petty theft) or criminal (theft was large) responsibility. The next example: for violation of fire safety standards, an employee may receive a reprimand (for failure to comply with the job description), as well as pay an administrative fine (as a responsible person).

One more example... Due to the proven misconduct of a financially responsible accountant, the company suffered significant losses. The employee can be reprimanded (or even fired), as well as judicially obliged to return the material damage caused.

What is not recognized as a disciplinary offense

In the process of considering illegal actions, the employer is obliged to take into account the positions of all parties, be sure to require a written explanation from the employee. If, during the official investigation, objective reasons are established proving that the employee did not have a real opportunity to fulfill the obligations imposed on him, the employer has no right to reprimand him.

Examples of:

1. The employee was absent from work due to a visit to the doctor and brought the relevant certificate. This will not be absenteeism.
2. The employee was not initially familiarized with the instructions for the correct use of the equipment, because of which, by his actions, he damaged the unit. This is also the fault of the administration.
3. The employer decided to oblige the employee to do additional work not described in his work instruction. After the employee refused, he decided to bring him to disciplinary responsibility. Such actions in the future will also be recognized as illegal.

Objective reasons that are considered respectful and relieve the citizen from punishment are:

• failure to provide the employee with materials and equipment necessary for work;
• violation of working conditions and the creation of a situation dangerous to life and health;
• temporary disability;
• visiting (by summons) the court of the prosecutor's office and other law enforcement agencies;
• emergency situation, natural disaster, other force majeure circumstance.

If such circumstances are not taken into account in the process of the initial investigation, then the collection can be canceled through the court.

Additional information is provided in this show.