The theory of everything. Theory of everything Judicial practice under article 193 of the Labor Code of the Russian Federation

The procedure for the application of disciplinary sanctions

1. The commented article establishes the procedure (rules) for bringing employees to disciplinary responsibility.

In accordance with part 1 of this article, the employer before applying disciplinary action must require the employee to explain in writing... Such an explanation is necessary to clarify all the circumstances of the commission of a disciplinary offense, its unlawfulness, as well as the degree of guilt of the employee who committed the offense. However, the employee's failure to provide a written explanation is not an obstacle to the application of the penalty. If after two working days the specified explanation is not provided by the employee, then an appropriate act is drawn up. In the event of a dispute about the legality of the application of a disciplinary sanction, such an act will be evidence of the employer's compliance with the disciplinary rules.

2. Part 3 of the commented article limits the possibility of applying a disciplinary sanction to certain periods of limitation.

A disciplinary penalty may be applied to an employee no later than one month from the date of his discovery. The one-month period for imposing a disciplinary sanction is calculated from the day the offense was discovered. The day of detection of the misdemeanor, from which the period of one month begins, is the day when the person to whom the employee is subordinate at work (service) becomes aware of the commission of the misconduct. It does not matter whether this person has the right to impose disciplinary sanctions.

The period established for the application of the penalty does not include the time during which the employee was absent from work due to illness or in connection with being on vacation. At the same time, all holidays provided by the employer in accordance with the law, incl. annual (main and additional) leaves in connection with training in educational institutions, vacations without retention wages(Clause 34 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2).

In cases where dismissal is used as a disciplinary sanction, the specified period does not include the time required to comply with the procedure for taking into account the opinion of the representative body of employees, if such opinion is taken into account (Articles 82, 373 of the Labor Code of the Russian Federation, see comment . to them).

The absence of an employee at work on other grounds, incl. in connection with the use of days of rest (time off), regardless of their duration (for example, when on a rotational basis organization of work), does not interrupt the course of the specified period.

When applying a disciplinary sanction in the form of dismissal, the monthly period is calculated from the date of entry into force of a court verdict or a decision of a judge, body, official authorized to consider cases of administrative violations (clause 44 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2).

It is not allowed to apply a disciplinary sanction after one month from the date of discovery of the offense or after six months from the date of its commission. If a disciplinary misconduct is discovered as a result of an audit, inspection of financial and economic activities or an audit, the employer has the right to apply a disciplinary sanction to the employee within two years from the date of the misconduct. The specified time limits do not include the time of criminal proceedings.

3. For each disciplinary offense, only one disciplinary sanction may be applied to an employee. However, in cases where non-performance or improper performance through the fault of the employee entrusted to him job responsibilities continued, despite the imposition of a disciplinary sanction, the employer has the right to apply a new disciplinary sanction to him, incl. dismissal on the basis of clause 5 of h. 1 of Art. 81 of the Labor Code of the Russian Federation. In this case, it must be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when he submitted an application for termination before committing the misdemeanor. employment contract on its own, since labor attitude in this case, it is terminated only after the expiration of the notice of dismissal (clause 33 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2).

However, an employee who terminates employment with an employer cannot be disciplined.

Disciplinary action is applied by the head of the organization. Other officials can apply disciplinary sanctions if such powers are provided to them by the relevant documents (the organization's charter, order of the head, etc.).

The imposition of a penalty for a disciplinary offense is a right and not an obligation of the employer. Therefore, the employer may, taking into account all the circumstances of the case, not impose a penalty on an employee who has committed a disciplinary offense, but limit himself to a conversation with him or an oral remark. When applying disciplinary action, it is necessary to strictly adhere to the rules established for this. If, when imposing a disciplinary sanction, these rules are violated by the employer, the body considering the labor dispute on the legality of imposing a sanction may recognize the application of the disciplinary sanction as unlawful.

4. The application of a disciplinary sanction is formalized by the order (order) of the employer. The order (instruction) indicates the basis for the application of the penalty, i.e. specific disciplinary offense, for the commission of which the employee is subject to disciplinary sanction, and its type (remark, reprimand, etc.). It should be borne in mind that in the case of a disciplinary sanction in the form of dismissal, one order of dismissal is issued, and not two separate orders (an order to impose a penalty in the form of dismissal and an order to terminate an employment contract), as is sometimes the case in practice ...

This circumstance drew attention to the Judicial Collegium for Civil Cases The Supreme Court RF. In the Appellate ruling of 09.11.2012 N 60-APG12-7 in the case of Sh. It is indicated that the execution of the application of a disciplinary sanction to an employee in the form of dismissal and termination of an employment contract with an employee by separate orders is based on an erroneous interpretation of the norms labor law.

The issuance of an order on the application of a disciplinary sanction in the form of dismissal to the plaintiff in itself testified to the termination of the employment contract with him, since the grounds for dismissal indicated in this order, namely paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, is contained in the list of grounds for terminating an employment contract on the initiative of the employer, provided for in Art. 81 of the Labor Code of the Russian Federation. By virtue of paragraph 4 of Part 1 of Art. 77 of the Labor Code, termination of the employment contract on the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation) is the basis for termination of the employment contract. Thus, the defendant had no grounds for issuing an order dated 04.07.2012 N 236-k to terminate the employment contract with the plaintiff after his dismissal on the basis of order dated 30.05.2012 N 194-k.

The order (order) on the imposition of a penalty 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, for one reason or another, refuses to familiarize himself with the order (order) on the application of a disciplinary penalty against him or her against signature, then an appropriate act is drawn up.

According to the established practice, the order on the application of the penalty is brought to the notice of all employees of the organization.

If, in the employee's opinion, a disciplinary sanction was applied to him or her unreasonably or the sanction measure does not correspond to the severity of the offense committed, he has the right to appeal the disciplinary sanction to the state labor inspectorate and (or) the bodies for the consideration of individual labor disputes in the manner prescribed by law.

Labor Code Russian Federation:

Article 193 of the Labor Code of the Russian Federation. The procedure for the application of disciplinary sanctions

Before a disciplinary action is taken, the employer must request a written explanation from the employee. If after two working days the specified explanation is not provided by the employee, then an appropriate act is drawn up.

The employee's failure to provide an explanation is not an obstacle to disciplinary action.

A disciplinary penalty is applied no later than one month from the date of discovery of the misconduct, not counting the time of the employee's illness, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

Disciplinary sanctions, with the exception of disciplinary sanctions for non-compliance with restrictions and prohibitions, failure to fulfill obligations established by the legislation of the Russian Federation on combating corruption, cannot be applied later than six months from the date of the misconduct, and based on the results of an audit, audit of financial and economic activities or an audit - later than two years from the date of its commission. Disciplinary action for failure to comply with restrictions and prohibitions, failure to fulfill obligations established by the legislation of the Russian Federation on combating corruption cannot be applied later than three years from the date of the misconduct. The indicated time limits do not include the time of the criminal proceedings.

Only one disciplinary sanction may be applied for each disciplinary offense.

The employer's order (order) 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 familiarize himself with the specified order (order) against signature, then a corresponding act is drawn up.

A disciplinary sanction may be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

Return to the table of contents of the document: Labor Code of the Russian Federation in the current edition

Comments on Article 193 of the Labor Code of the Russian Federation, judicial practice of application

Clause 34 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" contains the following clarifications:

Calculation of the term for imposing a disciplinary sanction. The day the misdemeanor was discovered. Time not included in the time limit for the application of a disciplinary action.

In cases of reinstatement at work of persons dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation (for repeated failure by the employee without good reason labor duties, if he has a disciplinary sanction) the employer must prove that:

1) the violation committed by the employee, which was the reason for the dismissal, actually took place and could be the basis for terminating the employment contract;
2) the employer complied with the time limits for the application of a disciplinary sanction provided for in parts 3 and 4 of Article 193 of the Labor Code of the Russian Federation.

It should be borne in mind that:

a) month period for imposition the disciplinary penalty must be calculated from the day the offense was discovered;
b) day of discovery of misconduct from which the period of one month begins, is the day when the person to whom the employee is subordinate for work (service) becomes aware of the misdemeanor, regardless of whether he or she is entitled to impose disciplinary sanctions;
v) the time is not included in the one-month period for the application of a disciplinary sanction the employee's illness, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation); the absence of an employee at work for other reasons, including in connection with the use of rest days (time off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the specified period;
d) all holidays provided by the employer in accordance with the current legislation, including annual (main and additional) holidays, holidays in connection with studies in educational institutions, unpaid leave should be referred to the vacation that interrupts the monthly period.

Clarifications of the Supreme Court of the Russian Federation in the review of practice

Clause 4 of the "Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2004" (approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation of February 9, 2005) contains the following clarifications:

The employee's refusal to give an explanation about the actions he has committed cannot be regarded as a disciplinary offense

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation upheld the decision of the regional court, which declared illegal the order to apply a disciplinary sanction in the form of a reprimand to the plaintiff, indicating the following.

According to Part 1 of Art. 193 of the Labor Code of the Russian Federation, the obligation to request an explanation in writing about the actions committed by the employee, before the disciplinary sanction is applied to him, lies with the employer. If the employee refuses to provide an explanation, an appropriate act is drawn up.

Since the aforementioned norm does not contain the obligation to give an explanation by the employee, the defendant had no right to regard the plaintiff's refusal to give explanations as a violation of official discipline.

The defendant (employer) has not provided evidence of other violations of service discipline by the plaintiff (for example, violation of subordination or failure to comply with the legal requirements of immediate and direct superiors) (clause 4 of the Review of judicial practice of the Supreme Court of the Russian Federation dated 09.02.2005 "Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2004 ").

Positions of the Constitutional Court of the Russian Federation

Part 1 of Article 193 of the Labor Code of the Russian Federation on requesting a written explanation from the employee, drawing up an act complies with the Constitution

By concluding an employment contract, the employee undertakes to conscientiously fulfill his labor duties, observe labor discipline and the rules of the internal labor regulations of the organization (RF). Repeated culpable failure to perform or improper performance by an employee of his duties may entail the imposition of a disciplinary sanction, including termination by the employer of an employment contract in accordance with paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation (subject to the previous application of a disciplinary sanction to the employee, which was not lifted and not extinguished for the moment of repeated violation), which is one of the ways to protect the violated rights of the employer.

The specified norm provides only the appropriate basis for termination of the employment contract and does not establish the procedure for dismissing the employee.

The procedure for the application of disciplinary sanctions, including in the form of dismissal, is established by Article 193 of the Labor Code of the Russian Federation. In particular, the first part of this article obliges the employer, prior to the application of a disciplinary sanction, to request an explanation from the employee in writing. This provision is aimed at ensuring an objective assessment of the factual circumstances that served as the basis for bringing the employee to disciplinary liability, and at preventing the unjustified application of disciplinary sanctions.

The employer's decision to impose a disciplinary sanction on an employee can be appealed to the state labor inspectorate and the bodies for the consideration of individual labor disputes, including the court, which, based on general principles legal and, consequently, disciplinary liability (in particular, such as fairness, proportionality, legality), establishes the fact of a disciplinary offense, the employer's compliance with the procedure for bringing the employee to disciplinary liability, the proportionality of the disciplinary sanction imposed on the employee, assessing the totality of the specific circumstances of the case.

Thus, the contested norms cannot be regarded as violating the constitutional rights of the applicant (determination of the Constitutional Court of the Russian Federation of 23.04.2015 N 778-O)

Part 3 of Art. 193 of the Labor Code of the Russian Federation on the monthly period for the application of a disciplinary sanction does not contradict the Constitution

Part three of Article 193 of the Labor Code of the Russian Federation, establishing a monthly period for the application of a disciplinary sanction, limits the employer's right to bring employees to disciplinary liability for a certain period, is aimed at protecting the rights of the employee and cannot in itself be considered as violating the rights of citizens working under an employment contract (definition Of the Constitutional Court of the Russian Federation of December 25, 2008 N 860-O-O).

The exclusion from the specified monthly period of the employee's illness and his stay on vacation is consistent with part six of Article 81 of the Labor Code of the Russian Federation, which prohibits the dismissal of an employee at the initiative of the employer during these periods (Definition of the Constitutional Court of the Russian Federation of 05/29/2012 N 1000-О).

Part 5 of Art. 193 of the Labor Code of the Russian Federation does not violate the rights of citizens

The procedure for the application of disciplinary sanctions established by Article 193 of this Code provides for a number of guarantees aimed at ensuring an objective assessment of the factual circumstances that served as the basis for imposing a disciplinary sanction, including dismissal, and at preventing its unjustified application.

In addition, the employer's decision to impose a disciplinary sanction on the employee can be reviewed in court. At the same time, carrying out such a check and resolving a specific case, the court does not act arbitrarily, but proceeds from the general principles of legal and, consequently, disciplinary responsibility (such as, in particular, fairness, proportionality, legality) and establishes the fact of a disciplinary offense, assesses the whole set of specific circumstances of the case, the employee's previous behavior, his attitude to work, etc.

Part five of Article 193 of the Labor Code of the Russian Federation does not provide for the issuance of two orders to dismiss an employee and does not imply its arbitrary application (definition of the Constitutional Court of the Russian Federation of 03.24.2015 N 434-O).

The employee's failure to provide an explanation is not an obstacle to disciplinary action.

Only one disciplinary sanction may be applied for each disciplinary offense.

A disciplinary sanction may be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

Commentary on Art. 193 of the Labor Code of the Russian Federation

1. When applying disciplinary sanctions, it is mandatory to simultaneously comply with the deadlines (from the day the offense was discovered and from the day it was committed), taking into account the circumstances in which the offense was committed, the degree of its severity, the employee's previous behavior. Simultaneous application of several disciplinary sanctions to an employee for one disciplinary offense is inadmissible. 3. In case of causing the employer material damage it is possible to involve an employee in both disciplinary and material responsibility(see commentary to Chapter 39 of the Labor Code). 4. The employer, if the employee refuses to familiarize himself with the order (decree) on the application of a disciplinary sanction against signature, draws up an appropriate act. 5. Disciplinary sanctions are imposed by the head of the organization or other officials who have been granted such a right by the organization's statutory documents. 6. Disciplinary measures should be distinguished from disciplinary measures (deprivation of bonuses in whole or in part, reduction or non-payment of remuneration based on the results of work for the year - the so-called 13th salary - etc.), established in local regulations.

Judicial practice under article 193 of the Labor Code of the Russian Federation

Determination of the Constitutional Court of the Russian Federation of November 16, 2006 N 507-О

As for the provisions of the articles and the Labor Code of the Russian Federation, then, formally appealing their constitutionality, G.G. Galeeva, in fact, expresses disagreement with the legality of her dismissal from work and the court decisions made on her labor dispute. Meanwhile, the resolution of this issue, including checking the correctness of the interpretation of the norms that were to be applied in the applicant's case, the legality and validity of the court decisions made on their basis based on the results of the establishment and investigation of the factual circumstances, by virtue of Article 125 of the Constitution of the Russian Federation and Article 3 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" is also not within the competence of the Constitutional Court of the Russian Federation, but refers to the powers of higher courts of general jurisdiction.

Clarifications of the Higher Qualification Collegium of Judges of the Russian Federation from 15 - 18.07.2002

Consequently, when a disciplinary sanction is imposed on a judge, the terms established by the article of the Labor Code of the Russian Federation do not apply.

The issue of bringing a judge to disciplinary responsibility in each specific case is decided on the basis of the severity of the offense and the prescription of its commission.

Decision of the Supreme Court of the Russian Federation of 05.24.2002 N GKPI2002-375

The procedure for the application of disciplinary sanctions is established by article of the Labor Code of the Russian Federation.

Determination of the Supreme Court of the Russian Federation of 05.11.2002 N GKPI2002-375

In this part, the court made a judgment on the illegality of the contested norm to the requirements of Part 3 of Art. Of the Labor Code of the Russian Federation, which provides for circumstances interrupting the monthly period for the application of a disciplinary sanction.

However, from the content of the operative part of the court decision, it can be concluded that part 1 of clause 26 of the Regulation is completely illegal.

Decision of the Supreme Court of the Russian Federation of 08.16.2002 N GKPI2002-552

In accordance with the article of the Labor Code of the Russian Federation, a disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of the employee's illness, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

A disciplinary sanction cannot be applied later than six months from the date of the misconduct.

Determination of the Supreme Court of the Russian Federation of 13.01.2006 N 46-B05-44

In accordance with the article of the Labor Code of the Russian Federation, before the application of a disciplinary sanction, the employer must request an explanation from the employee in writing. In case of refusal to give the specified explanation, an appropriate act is drawn up.

However, in violation of this norm of substantive law, which establishes the procedure for the employer's application of a disciplinary sanction, the employer did not request a written explanation on the fact of the illegal supply of diesel fuel prior to K.'s application of a disciplinary sanction in the form of dismissal (by order of December 26, 2002 N 628).

Review of judicial practice of the Supreme Court of the Russian Federation dated 09.02.2005

According to Part 1 of Art. The Labor Code of the Russian Federation is obliged to request an explanation in writing about the actions committed by the employee, before the disciplinary sanction is applied to him or her, lies with the employer. If the employee refuses to provide an explanation, an appropriate act is drawn up.

The employee's failure to provide an explanation is not an obstacle to disciplinary action.

Only one disciplinary sanction may be applied for each disciplinary offense.

A disciplinary sanction may be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

Commentary on Art. 193 of the Labor Code of the Russian Federation

1. When applying disciplinary sanctions, it is mandatory to simultaneously comply with the terms (from the day the offense was discovered and from the day it was committed), taking into account the circumstances in which the offense was committed, the degree of its severity, and the employee's previous behavior.

2. It is inadmissible to simultaneously apply several disciplinary sanctions to an employee for one disciplinary offense.

3. In the event of material damage to the employer, it is possible to bring the employee to both disciplinary and material liability at the same time (see the commentary to Chapter 39 of the Labor Code of the Russian Federation).

4. The employer, if the employee refuses to familiarize himself with the order (decree) on the application of a disciplinary sanction against signature, draws up an appropriate act.

5. Disciplinary sanctions are imposed by the head of the organization or other officials to whom such a right is granted by the organization's charter documents.

6. Disciplinary measures should be distinguished from disciplinary measures (deprivation of bonuses in whole or in part, reduction in the amount or non-payment of remuneration based on the results of work for the year - the so-called 13th salary - etc.) established in local regulations.

Second commentary on Article 193 of the Labor Code

1. In accordance with part 1 of the commented article, prior to the application of a disciplinary sanction, a written explanation of the reasons for the misconduct must be requested from the employee. The employee is obliged to give an explanation within two working days, if such is not provided, an appropriate act is drawn up. Refusal to provide an explanation is not an obstacle to disciplinary action. Requiring an employee to provide an explanation is one of the guarantees that the imposition of a penalty will be lawful.

The absence of an explanation must be confirmed by an appropriate act on the employee's refusal to give an explanation.

The employer has the right to bring employees to disciplinary responsibility (see article 22 and the commentary thereto). On behalf of the employer - legal entity(of the organization) the head has such a right. He can delegate this right to another person, for example, one of his deputies, heads of a branch, representative office, etc. This applies to remarks and reprimands. With regard to dismissal as a punishment measure, this right is granted to those persons who are entitled to hiring and dismissal.

2. The day of discovery of a disciplinary offense is the day when the official to whom the employee is subordinate becomes aware of the offense, regardless of whether this person has the right to impose penalties or not. The time of the employee's illness or on vacation (regular, educational, paid or without pay) is not included in the monthly period for imposing a penalty. Absence from work for other reasons does not interrupt the specified period. However, in practice, the time of absence, when the employee might not have known about the imposition of a penalty, is usually not included in this monthly period, and the latter begins to be calculated from the moment the employee leaves work.

But in any case, a penalty cannot be imposed upon the expiration of six months from the date of the commission of the offense, regardless of the time of its discovery. The exception is the misconduct that was discovered as a result of audits and inspections of financial and economic activities or an audit. In this case, the term is extended to two years from the date of the misconduct. The indicated time limits do not include the time of the criminal proceedings.

3. Part 5 of Art. 193 of the Labor Code of the Russian Federation does not allow the application of several disciplinary sanctions for one offense. However, if damage is caused by an employee, a combination of disciplinary and material sanctions is possible, since disciplinary and material liability have different purposes and can be combined.

The same rule applies to the so-called continuing offenses, when the illegal action (inaction) continues, despite the application of a penalty. Here it is also possible to repeat the sanction for non-fulfillment of labor duties until the cessation of the offense.

4. If the employee is dismissed according to sub. "G" clause 6 of Art. 81 of the Code, the monthly period in this case will be calculated from the date of entry into force of the court verdict, which established the employee's guilt in committing at the place of work the theft of other people's property (including small property), embezzlement, deliberate destruction or damage to property, or a decision of a body, authorized to apply administrative penalties.

5. The imposition of a disciplinary sanction on the guilty employee does not prevent him from being held liable for damage caused to the employer (see article 238 and the commentary to it).

6.In work book the employee, information about the imposition of penalties is not entered. They are not included in the employee's personal card ( uniform form N T-2, approved by the Resolution of the State Statistics Committee of Russia dated April 6, 2001 N 26). An exception is the dismissal of an employee as a disciplinary sanction.

7. An order (order) on the application of a disciplinary sanction is announced to the employee against receipt within three working days from the date of its issuance, not counting the time the employee is absent from work. In case of his refusal to sign, an appropriate act is drawn up, which is signed by the persons who testify to this fact.

8. The Labor Code of the Russian Federation has established additional guarantees for certain categories of workers when disciplinary sanctions are imposed. So, Art. 374 of the Labor Code of the Russian Federation established additional guarantees for employees who are members of elected trade union collective bodies and who are not released from their main job. And in st. 376 of the Labor Code of the Russian Federation provides guarantees for employees who were previously members of an elected trade union body.

In addition, guarantees for workers participating in the strike are enshrined, with the exception of cases of failure to fulfill their obligation to end the strike in accordance with Part 6 of Art. 413 of the Labor Code of the Russian Federation (see article 414 and the commentary to it).

9. The imposed disciplinary sanction may be appealed by the employee to the reviewing authorities individual disputes(commission on labor disputes and court) or the state labor inspectorate.

10. The body considering the employee's labor dispute on the unlawfulness of the imposed penalty may cancel it if it finds that it, in particular, does not correspond to the gravity of the offense. However, he has no right to replace him with another. The administration, in this case, can apply a different penalty, but only in compliance with the terms specified in parts 3 and 4 of Art. 193 of the Labor Code of the Russian Federation.

The text of article 193 of the Labor Code of the Russian Federation in the new edition.

A disciplinary sanction cannot be applied later than six months from the date of the misconduct, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The indicated time limits do not include the time of the criminal proceedings.

Only one disciplinary sanction may be applied for each disciplinary offense.

N 197-FZ, Labor Code of the Russian Federation, current edition.

Commentary on Art. 193 of the Labor Code of the Russian Federation

Comments on the articles of the Labor Code will help to understand the nuances of labor law.

§ 1. In accordance with part 1 of the commented article, prior to the application of a disciplinary sanction, a written explanation of the reasons for the misconduct must be requested from the employee. The employee is obliged to give an explanation within two working days, if such is not provided, an appropriate act is drawn up. Refusal to provide an explanation is not an obstacle to disciplinary action. Requiring an employee to provide an explanation is one of the guarantees that the imposition of a penalty will be lawful.

The absence of an explanation must be confirmed by an appropriate act on the employee's refusal to give an explanation.

The employer has the right to bring employees to disciplinary responsibility (see article 22 and the commentary thereto). On behalf of the employer - a legal entity (organization), the head has such a right. He can delegate this right to another person, for example, one of his deputies, heads of a branch, representative office, etc. This applies to remarks and reprimands. With regard to dismissal as a punishment measure, this right is granted to those persons who are entitled to hiring and dismissal.

§ 2. The day of discovery of a disciplinary offense is the day when the official to whom the employee is subordinate becomes aware of the offense, regardless of whether this person has the right to impose penalties or not. The time of the employee's illness or on vacation (regular, educational, paid or without pay) is not included in the monthly period for imposing a penalty. Absence from work for other reasons does not interrupt the specified period. However, in practice, the time of absence, when the employee might not have known about the imposition of a penalty, is usually not included in this monthly period, and the latter begins to be calculated from the moment the employee leaves work.

§ 3. Part 5 of Art. 193 of the Labor Code of the Russian Federation does not allow the application of several disciplinary sanctions for one offense. However, if damage is caused by an employee, a combination of disciplinary and material sanctions is possible, since disciplinary and material liability have different purposes and can be combined.

§ 4. If the employee is dismissed according to sub. "g" clause 6 of Art. 81 of the Code, the monthly period in this case will be calculated from the date of entry into force of the court verdict, which established the employee's guilt in committing at the place of work theft of other people's property (including small property), embezzlement, deliberate destruction or damage to property, or a decision of the body, authorized to apply administrative penalties.

§ 5. The imposition of a disciplinary sanction on the guilty employee does not prevent him from being held financially liable for damage caused to the employer (see Art. 238 and the commentary to it).

§ 6. Information about the imposition of penalties is not entered in the employee's work book. They are not included in the employee's personal card (unified form N T-2, approved by the Resolution of the State Statistics Committee of Russia dated April 6, 2001 N 26). An exception is the dismissal of an employee as a disciplinary sanction.

§ 7. The order (order) on the application of a disciplinary sanction is announced to the employee against receipt within three working days from the date of its issuance, not counting the time the employee is absent from work. In case of his refusal to sign, an appropriate act is drawn up, which is signed by the persons who testify to this fact.

§ 8. The Labor Code of the Russian Federation established additional guarantees for certain categories of employees when imposing disciplinary sanctions. So, Art. 374 of the Labor Code established additional guarantees for employees who are members of elected trade union collective bodies and who are not released from their main job. And in st. 376 of the Labor Code provides guarantees for employees who were previously members of an elected trade union body.

§ 9. The imposed disciplinary sanction may be appealed by the employee to the individual dispute resolution authorities (labor dispute committee and court) or to the state labor inspectorate.

§ 10. The body considering the employee's labor dispute on the unlawfulness of the imposed penalty may cancel it if it finds that it, in particular, does not correspond to the gravity of the offense. However, he has no right to replace him with another. The administration, in this case, can apply a different penalty, but only in compliance with the terms specified in parts 3 and 4 of Art. 193 TC.

The next comment on article 193 of the Labor Code of the Russian Federation

If you have questions about art. 193 TC, you can get legal advice.

1. To understand the essence of the employee's act, the employer must take an explanation from him in writing. In the explanation, the employee must indicate the reasons for the act and the circumstances under which it was committed. The employee may refuse to explain that it should not be considered as an independent disciplinary offense, but may affect the employer's assessment of the employee's personality.

If the employee does not provide an explanation, the employer must draw up an act about this after two working days. It must indicate the calendar date, place and reason for drawing up, as well as indicate the witnesses who were present when the employee was asked to provide an explanation and his refusal to do so. The deed must be signed by the employer's official and the witnesses present.

The employee's refusal to give an explanation cannot be an obstacle to bringing him to disciplinary liability in the presence of other evidence of the misconduct (for example, memoranda of the immediate supervisor) and an act of refusal to give an explanation. They may constitute documentary grounds for the application of disciplinary measures.

2. The educational value of a disciplinary sanction remains if it is applied directly after the commission of a misdemeanor. Therefore, a rule has been established that the penalty must be applied no later than one month from the day the offense was discovered. The day of detection must be considered the day when the immediate supervisor of the violating employee became aware of the misconduct. In the case when there is a question about the dismissal of an employee for theft (including small) another's property, embezzlement, deliberate destruction or damage at the place of work, the monthly period will be calculated from the date of entry into force of a court sentence or an act of a body authorized to application of administrative penalties.

The specified period can be increased by the time:

a) the employee's illness;

b) finding him on vacation;

c) necessary to take into account the motivated opinion of the elected body of the primary trade union organization.

The time of illness of an employee is understood as a period of temporary incapacity for work. The time spent on vacation should be understood as the periods of all leave provided by the employer to the employee (including study, in connection with pregnancy and childbirth, as well as provided without pay). The procedure for taking into account the opinions of the elected body of the primary trade union organization is established by Art. 373 TC.

Other circumstances that seem objective to the employer cannot serve as a basis for extending the time limits for the application of disciplinary sanctions. So, by the decision of the RF Armed Forces of May 24, 2002 N GKPI 2002-375, it is illegal to extend the time limits for applying disciplinary sanctions to employees. railway transport for the period of their stay on the route in passenger and freight trains, as well as for the period of their use of the summed days of rest.

This position of the legislator and judiciary due to the need to protect the interests of the parties to the employment contract. First, the effectiveness of any punishment depends on its promptness and inevitability. Secondly, the employee should not be under the threat of disciplinary sanctions for a long time.

In any case, a disciplinary sanction must be applied no later than six months from the date of the offense, and based on the results of an audit, audit of financial and economic activities or an audit, no later than two years. These terms can be extended only for the period of criminal proceedings by the bodies of inquiry and investigation.

3. By general rule for each disciplinary offense, the employer can apply only one disciplinary sanction provided for by the Labor Code or the statutes and regulations on discipline. Along with this, it is possible and necessary to simultaneously involve the employee in property (material - according to the norms of labor law or civil liability if his misconduct entailed the infliction of property damage). In this case, the rules and terms stipulated by labor and civil legislation must be observed. Along with disciplinary measures, disciplinary measures may be applied to the employee at the same time. For example, an employee may be reprimanded and he may be deprived of the bonus for the period when a violation of labor discipline was committed.

4. As a general rule, the authority to apply disciplinary measures is fully exercised by the head of the organization. However, local regulations redistribution of competence to bring employees to disciplinary responsibility between the officials of the organization can be carried out at various levels... For example, the head of the shop may be authorized to announce remarks and reprimands to the workers of the shop, and the head of the branch or representative office, on the basis of a power of attorney, may have full disciplinary powers, including the dismissal of employees for violations of labor discipline. In some cases, the distribution of competence for the application of disciplinary measures is carried out in a centralized manner. For example, the Charter on the Discipline of Crews of Support Vessels Navy, approved Decree of the Government of the Russian Federation of September 22, 2000 N 715, provides that the commander of the ship (captain) can issue a remark, reprimand, severe reprimand and warn of incomplete official compliance, and enjoys full disciplinary powers executive, who has the right to hire, is the commander of a formation of ships or a military unit (clauses 15 and 16 of the Charter).

5. The order (order) on punishment is announced to the employee no later than three days from the date of publication against signature. This is necessary to confirm that the employee is familiar with the penalty applied to him. To optimize and fix this procedure, it is advisable to provide a note on the employee's familiarization with it on the order (instruction) form itself. If the employee refuses to sign on acquaintance, then an act is drawn up, in form and content similar to the act of refusal to give an explanation of the fact of committing a disciplinary offense.

6. The employee may disagree with bringing him to disciplinary liability or with the applied type of penalty. In this case, he can appeal the actions of the employer to the authorities. state inspection labor or labor dispute bodies. For this, see Art. Art. 357, 385 - 393 TC and comments to them.