If an employee violates the provisions of the labor law, the employer applies sanctions to him. One of them is suspension from work. Art. 76 of the Labor Code of the Russian Federation establishes the grounds for applying this measure.
The list enshrined in the article is not exhaustive. Other cases may be established in federal legislation and other legal documents when a tenant is required to remove an employee from fulfilling his duties. Consider the features of the implementation of the provisions of Article 76 of the Labor Code of the Russian Federation with expert comments.
General information
Suspension from work, the grounds for which are established by Part 1 of Art. 76 of the Labor Code of the Russian Federation , - temporary prohibition of an employee to fulfill his labor duties. This measure is applied on the initiative of the employer or by order (request) of employees and bodies authorized by federal law and other industry standards.
Grounds
As established by Art. 76 of the Labor Code of the Russian Federation , the employer must remove the employee:
- Appeared intoxicated at the enterprise.
- Not trained and subsequent testing of skills, knowledge in the field of occupational safety (labor protection) according to the established rules.
- Not passed a mandatory medical examination.
- Having contraindications to the work.
- If the special right of a person is suspended for a period of up to two months.
- At the request of authorized bodies and employees.
- In other cases stipulated by law.
rules
In part 2 of article 76 of the Labor Code of the Russian Federation , it is stipulated that the employer must remove the employee until the factors that are the basis for taking this measure are eliminated, unless otherwise provided by the Code or other law.
At the time the employee is not allowed to work, the salary is not accrued to him. Exceptions may be provided for in federal law or the Labor Code.
If the reason for the suspension was the failure to complete training, testing skills, knowledge, and medical examination through no fault of the employee, all the time absenteeism is paid to him as simple.
Art. 76 of the Labor Code of the Russian Federation with comments of 2015
The considered norm establishes the measure of responsibility of the employee. Moreover, in 1 part of Art. 76 of the Labor Code of the Russian Federation it is said that its use is the responsibility of the employer.
Suspension is carried out until the elimination of the reasons for which it was imputed to the employee. For example, if a citizen appeared drunk at the enterprise, then he is not allowed to work only on the day in which he was in this state.
Accordingly, it will be unlawful to remove this employee in the following days, including, for example, before deciding on the imposition of a disciplinary sanction on him.
The obligation enshrined in Art. 76 of the Labor Code of the Russian Federation , is not dependent on respectfulness or disrespect for the reasons why a citizen did not undergo training, physical examination or testing of knowledge. In these cases, the citizen is suspended under any circumstances.
Drunk
Art. 76 of the Labor Code of the Russian Federation is applied by the employer if a citizen appears at the enterprise in a state of intoxication. Intoxication can be alcoholic, narcotic or caused by other toxic substances.
This condition can be confirmed by a medical certificate or other evidence, for example, testimony of witnesses. Witness testimony is drawn up in an act that is drawn up with the participation of a representative from the union, if the removed employee is a member of it.
Compulsory training and testing of knowledge on health and safety
The duty of an employee to undergo training, training in safe techniques and methods of work, training and testing skills, knowledge is fixed in article 214 of the Labor Code. The organization of these events was approved by the Decree of the Ministry of Education and the Ministry of Labor of 2003 No. 1/29.
If a citizen, suspended from the performance of his professional duties, has undergone training and subsequent testing of knowledge / skills, he is immediately allowed to work.
Mandatory physical examination
Periodic medical examinations and psychiatric examinations are mandatory for some workers. For example, a physical examination is provided for employees of harmful, hazardous industries, for teachers.
According to the results of the survey, a conclusion is issued. If contraindications to labor activity are indicated in it, the employee is suspended from work.
The rules for organizing and conducting medical examinations are approved by the Orders of the Ministry of Health and Social Development.
Suspension of Special Law
In Art. 76 of the Labor Code of the Russian Federation there is a clause stating that removal for the indicated reason is carried out if the restriction for the employee is set for a period of up to 2 months.
A special right may be the right to drive a vehicle, a license to carry weapons, and so on.
Moreover, in Art. 76 of the Labor Code of the Russian Federation, it is indicated that the suspension applies if the restriction imputed to the employee entails the impossibility of fulfilling his duties, and it is also not possible to transfer him to another position by his written consent.
In such cases, the employer must offer the employee all vacancies that are suitable for the employee. This may be a vacant post, professional activity corresponding to the qualifications of a person, a lower or lower paid position. One of the main conditions for the transfer is the absence of contraindications for the performance of the work. The employer must offer all the vacancies that he has in this area. He is obliged to offer work in other areas / regions, if this is provided for in the contract, collective agreement, other agreements with the employee.
If the period of suspension of the right exceeds 2 months, specified in art. 76 of the Labor Code of the Russian Federation, or a citizen is completely deprived / does not have the corresponding right, the tenant must terminate the contract with him, in accordance with the provisions of clause 9 of clause 1 of part 83 of Article Code.
Requirements of authorized bodies and employees for suspension
The competent structures include primarily the federal labor inspectorate.
A requirement for non-admission to work may be brought against a citizen accused / suspected of a crime. On the basis of Article 114 of the Code of Criminal Procedure, if necessary, temporarily suspend a person from performing his labor duties, an employee conducting production, with the consent of the head of the investigative unit (for the investigator) or the prosecutor (for the interrogating officer), initiates a petition about this before the court.
Within two days, the judge shall issue a decision satisfying or not satisfying the request. This document is sent to the place of professional activity of the accused / suspect.
As established in Article 51 of the Federal Law No. 52, state sanitary doctors and their deputies are empowered to temporarily suspend citizens who are carriers of infections and sources of the spread of pathologies in connection with the specifics of the work they perform.
In paragraph 4 of article 69 of the Federal Law No. 208, it is established that if the formation of executive structures is carried out by the general meeting of shareholders, the charter of the economic entity may fix the right of the supervisory board (board of directors) to suspend the powers of the sole executive body (general director, director). The relevant decision is the basis for the application of Art. 76 of the Labor Code of the Russian Federation.
Nuance
The removal from the activities of the head of the joint-stock company in accordance with the decision of the board of directors should be distinguished from the removal from the post of director of the debtor company on the basis of the provisions of Federal Law No. 127 (Bankruptcy Law). In the latter case, the measure taken acts as an independent additional basis for terminating the contract with the head of the company.
In accordance with paragraph 1 of Article 69 of the Federal Law No. 127, the court dismisses the director of the debtor company on the basis of a request from the interim manager.
Additionally
As established in article 76, at the time of removal a citizen does not receive a salary. Meanwhile, there are exceptions to a number of federal level regulations.
For example, article 59 of the Federal Law No. 79 stipulates that civil servants suspended from duty in connection with an internal audit shall retain earnings for the entire time of suspension.