Labor relations are regulated, as is known, by the Labor Code. When applying for a job, the applicant and the employer conclude an agreement. The document spells out the basic working conditions of the employee. The contract also establishes the obligations and rights of the parties.
By concluding an agreement, the employee voluntarily agrees to comply with labor laws and local documents. If they are violated, he will face disciplinary action. The Labor Code of the Russian Federation contains a special rule establishing the grounds and general conditions for applying sanctions against the guilty person - 192 article. Consider its features.
General information
According to the above article of the Labor Code of the Russian Federation, disciplinary sanction may be imputed to an employee who violates the provisions of the law or other regulatory documents. Violation can be expressed either in non-fulfillment, or in improper performance of professional duties by the employee through his fault.
Types of disciplinary sanctions under the Labor Code of the Russian Federation
The employer may choose one of the following sanctions:
- Comment.
- Rebuke.
- Termination of the contract (if there are grounds).
Federal laws, regulations on discipline, charters may provide for certain categories of employees and other, not fixed art. 192 of the Labor Code of the Russian Federation disciplinary sanctions. The norm should be applied taking into account the provisions of Art. 81.
Features of the norm
According to the Labor Code of the Russian Federation, dismissal on the grounds established in Art. 81 (5, 6, 9, 10 clauses 1 of the part), 336 (clause 1), 348.11, as well as provided for in clauses 7.1, 8, 7 of the first part of 81 norms, if the guilty actions of the employee give rise to loss of confidence in him or he committed an immoral act at the place and in the framework of labor activity.
The application of sanctions not enshrined in federal law, regulations and charters is not allowed.
According to Art. 192 of the Labor Code of the Russian Federation, disciplinary sanctions should be imputed only after assessing the gravity of the misconduct and analyzing the circumstances in which the perpetrator committed it.
What is disciplinary misconduct?
It should be understood as guilty, unlawful non-fulfillment or improper fulfillment by the employee of the duties assigned to him in accordance with the contract, law and other regulatory (local, including) acts.
The act may be expressed in violation of the requirements, the rules of the company, job descriptions, orders of the employer, technical rules and so on.
Guilt
Failure / improper performance of duties will be considered guilty if the citizen acted through negligence or intentionally.
The imposition of a disciplinary sanction under the Labor Code of the Russian Federation is not allowed if the corresponding violations were committed due to circumstances beyond the control of the person’s will. For example, an employee did not fulfill his duties due to the lack of necessary materials for work, due to disability, etc.
Wrongfulness
The unlawful behavior (inaction / action) of an employee is expressed in his non-compliance with the requirements of the law and other industry regulations.
The Plenum of the Armed Forces clarified the matter in the Decree No. 2 of 2004. The court indicated that the employee’s refusal to perform the production task in case of a threat to his life / health due to violations of labor protection rules before eliminating the corresponding danger cannot be regarded as misconduct.
The behavior of a person who refuses to perform hard work or in dangerous / harmful conditions, if they are not provided for in the contract, will also be recognized as legitimate. Exceptions may be established only by federal law.
Nuances
Due to the fact that there are no provisions in the Labor Code prohibiting the exercise of the right to such a refusal, in cases where the fulfillment of the relevant tasks is stipulated by a transfer on the grounds laid down in Article 72.2, a citizen's refusal to transfer should be considered justified.
It can not be regarded as a violation of discipline failure to comply with the order of the employer to go to work before the end of the vacation. The law does not provide for the right to call an employee ahead of time without his consent. The employee’s refusal to comply with such an order (regardless of the reason) should be considered legitimate.
Types of Discipline
As an offense for which a disciplinary sanction can be charged under the Labor Code of the Russian Federation , only such guilty illegal behavior that directly relates to the performance of professional duties can be advocated. It cannot be considered a violation of a person’s refusal to fulfill a public assignment or non-compliance with rules of conduct in a public place.
Violations of discipline at the enterprise are:
- The absence of a citizen without a good reason at the workplace or at work in general.
- Evasion / refusal to undergo a medical examination, special training, certification, passing examinations in occupational health and safety, equipment operating rules, if these procedures are a prerequisite for admission to production activities.
- Refusal, without good reason, to conclude an agreement on liability, if servicing with valuables is the person’s main labor obligation and was agreed upon upon admission to the enterprise, and with the citizen, in accordance with the provisions of the law, this agreement may be concluded.
Art. 81 of the Labor Code of the Russian Federation
A disciplinary sanction in the form of dismissal may be applied in connection with:
- Repeated failure by a citizen to fulfill his labor functions without a good reason in the presence of a penalty.
- Once gross non-fulfillment (violation) of duties.
- The adoption of the director of the enterprise (structural unit), his deputy, Ch. accountant of an unjustified decision, the execution of which entailed a violation of the preservation of values, their illegal use or other property damage.
- A gross violation of professional duties by the head or his deputy, committed once.
In addition to the disciplinary sanctions established in the Labor Code of the Russian Federation, sanctions are provided for in sectoral federal laws. For example, Federal Law No. 90 admits the dismissal of a teacher in connection with a gross violation of the charter of an educational institution committed repeatedly during the year.
Exceptions
Cited in Art. The 192 list is considered exhaustive. The application of any other penalties not provided for in the article is not allowed. For example, it would be unlawful to transfer an employee to a lower-paid position or to collect a fine as a sanction for violations.
Exceptions are allowed in cases expressly provided by law. For example, Federal Law No. 79 provides that, in addition to the penalties established by article 192 of the Labor Code, a civil servant may be warned of incomplete compliance with the position.
Sanctions Rules
They are secured by Art. 193 of the Labor Code of the Russian Federation. Disciplinary sanctions may be imputed only after receiving an explanation from the employee who committed the violation. They are provided in writing. An employee is given 2 days to write up an explanation. If no explanations are provided at the end of this period, the employer must draw up an appropriate act.
It must be said that the failure to provide an explanation is not recognized as an obstacle to the application of sanctions against the perpetrators.
The timing
They are also referred to in the 193 norm of the Labor Code of the Russian Federation. The time limits for disciplinary action are set as follows:
- The sanction is applied no later than 1 month. from the date of the violation. This period does not include the days the employee was on vacation, temporary disability, as well as the time allotted for taking into account the conclusions of the union.
- Sanction cannot be applied after 6 months. from the date of the violation, and based on the results of the audit, audit inspection, audit of financial and economic operations - after two years. In these terms, the time of criminal proceedings is not included.
For each violation, the perpetrator can be charged only one sanction. Otherwise, his constitutional rights will be infringed.