Disciplinary punishment: the edges of the possible
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Disciplinary punishment: the edges of the possible

Disciplinary punishment: the edges of the possible

PUBLICATIONS \ 20.09.2021

Both employees and employers know that the latter can apply measures of disciplinary punishment to the former. But how many such measures are there and how do they differ from each other? Acsour’s Internal Auditor, Ekaterina Lutenko, spoke to “Raschet” magazine about the types of punishments.

Compliance with labour discipline is the key to effective and safe work. If it is violated, whether this takes the form of a refusal to perform a task, absence without leave, or being late, measures of disciplinary punishment can be applied to the employee.

THE CONCEPT AND TYPES OF DISCIPLINARY PUNISHMENT

Disciplinary punishment is usually understood to be the type of liability that is applied to an employee in the event of an offence, namely, the non-fulfilment or improper fulfilment of their work duties.

An employee can be punished for non-compliance with the terms of a work contract or with the company’s internal policies and procedures (IPP), which may include a provision regarding the keeping of trade secrets, technical instructions and other internal regulatory documents (IRD). In the first case, the offence may be expressed as a failure to fulfil the obligations assigned to the employee, and in the second one as non-compliance with the company’s internal regulations.

It is important to remember that a disciplinary punishment can be applied if: provisions regarding disciplinary offences are enshrined in the company’s IRD, while the employees have been familiarized with the organization’s internal regulations and have signed to acknowledge this. If these conditions are not met, the employee retains the right to challenge the liability imposed on him or her in court.

The procedure for determining and applying a disciplinary punishment is regulated by articles 192-194 of the Labour Code of the Russian Federation. Thus, article 192 of the Labour Code of the Russian Federation establishes three types of punishment that an employer has the right to apply: a warning, a reprimand or dismissal.

When choosing a particular measure, it is necessary to take into account the gravity of the offence committed and the circumstances that such an act could entail. It is required to assess the incident that has occurred, to establish and prove the employee’s fault, to obtain an explanation from him or her, and to make an appropriate decision. In addition, it is worth considering several special characteristics of the imposition of punishment.

NOTHING BUT

Employment legislation does not provide for the application of types of disciplinary punishment other than a warning, a reprimand or dismissal. The exception is organizations from specific industries for which other types of punishment, for example, a strict reprimand or a warning for incompetent performance, are directly provided for by a federal law, or by such organizations’ charters or regulations on discipline.

This means that a corrective action such as a fine will not be legal, because the Labour Code does not provide for it to be applied (part 4 of article 192 of the Labour Code of the Russian Federation, the Ruling of the Moscow City Court dated June 17, 2010 in case No. 33-18087).

ONE FOR ONE

Remember: one measure of punishment is applied for one disciplinary offence. An employer’s action will be illegal if it decides to influence an employee by applying several types of punishment at once for the same offence. For example, it is impossible to dismiss an employee for lateness on a single occasion by more than four hours if he or she has already been reprimanded for this.

MISSING THE DEADLINE

It is impossible to apply a disciplinary punishment if the statute of limitations is missed. According to employment legislation, it is possible to punish an employee:

  • not later than one month from the date when the violation is detected. This period does not include: a period of the employee’s illness; time when the employee is on vacation (whether annual, educational, or unpaid); the time required to take into account the opinion of the representative body of employees. The moment when an offence is detected is the day when the person to whom the employee is subordinate became aware of the commission of the disciplinary offence in question. After this period, the employee cannot be punished;
  • not later than six months from the date of the offence;
  • not later than two years from the date of the offence, if the violation has been identified during an inspection or a check (including an audit);
  • not later than three years from the date when the offence is committed in a case of non-compliance with the requirements established by Law No. 273-FZ “On combating corruption”.

MISTAKES OF EMPLOYERS

It would seem that the algorithm for applying a disciplinary punishment does not contain any difficulties, but companies can make mistakes that lead not only to the punishment being cancelled, but also to its being recognized as illegal. Here is a list of such omissions.

Error No. 1. Imposing liability in the absence of an offence.

It is impossible to punish an employee for expressing an opinion that is radically different from the opinion of colleagues, or for being late owing to a traffic accident. This is especially so if the reasons for the violations are not specified in any way in the company’s IRD.

The Sverdlovsk Regional Court cancelled a reprimand issued to an employee for refusing to be sent on a business trip by his employer. According to the investigation, the statement of liability did not specify that there was an obligation for the employee to be sent on a business trip, and therefore the presentation of a reprimand was recognized as illegal (Appellate Ruling No. 33-6781/2018 of the Sverdlovsk Regional Court dated April 20, 2018).

What to do: punish an employee only for violations of those obligations that are directly listed in the internal documents of the company or in the employment contract.

Error No. 2. Failure to comply with the procedure for receiving explanations from an employee.

It is a mistake to believe that an employee should take the initiative himself or herself and explain the reasons for the offence. This obligation is imposed on the employer (the Appellate Ruling of the Astrakhan Regional Court dated October 23, 2013 in case No. 33-3162/2013).

What to do: send the employee a written notification of his or her right to provide explanations, and have him or her sign to acknowledge this, indicating the date when he or she was familiarized with such notification.

Error No. 3. Violation of the procedure for applying the punishment.

If during the punishment procedure there is no time limit for detection or with respect to a particular document that needs to be drawn up, the employer will not be able to prove the lawfulness of the charges. This situation occurred with an employee who was reprimanded for not fulfilling the sales plan. During the investigation, it turned out that the order imposing a disciplinary punishment did not specify the period during which the employee could be held liable (Decision No. 2-2158/2017~M-1336/2017 of the Vasileostrovsky District Court of St. Petersburg).

What to do: carefully check all the documents that need to be issued for the procedure at hand. Remember: an order for the application of a disciplinary punishment should be issued only if not more than one month has passed since the offence was detected.

THE HIGHEST MEASURE

Dismissal is the “highest measure” of disciplinary punishment and, as such, should be applied only in the case of gross violations or systematic non-compliance with the rules of labour discipline by an employee.

If an employee does not have sufficient reasons for violating his or her work duties by ignoring the comments of the management, then his or her dismissal will be recognized as lawful as long as there are reasonable grounds for it. The list of such grounds is fixed in article 81 of the Labour Code of the Russian Federation.

Read about the rules for imposing on employees such corrective actions as a warning and a reprimand in the following article.

Ekaterina Lutenko

Internal Auditor