A warning or a reprimand?

PUBLICATIONS \ 21.09.2021

Employers may have difficulties with the procedure for applying a warning and a reprimand. The fact is that neither the substance of these nor the cases in which they are applied are determined by the Labour Code in any way. Acsour’s Internal Auditor, Ekaterina Lutenko  explained the difference between these corrective actions.

WARNING

A warning is the most common type of disciplinary punishment. As a rule, companies impose one for a minor offence committed by an employee, when the offence did not entail significant consequences for the enterprise.

The purpose of such punishment is to prevent conflicts within the team, to stop the actions of the employee that result in minor harm being caused to the production process, or to carry out disciplinary measures.

Since the legislation does not define a list of actions as a result of which an employee is warned, for the purposes of discussion, such grounds may be:

• a violation of the generally established rules of the dress code, working hours, corporate culture, behaviour in the team, etc.;
• failure to fulfil part of work duties, which did not entail serious consequences;
• being late for work by less than an hour (including from lunch);
• showing rudeness to colleagues and other persons with whom the employee interacts at work.

A verbal warning as a type of disciplinary punishment is stipulated only for employees from specific industries. However, if the employer does not want to express the warning officially, then the offence can be reported verbally.

The term of the punishment is one calendar year. After the specified period, the liability of the employee is automatically lifted.

An employee can be released from the threat of having a warning imposed ahead of time. An employee, an employer or a labour union organization can initiate such a procedure. The decision on whether it is possible to lift the punishment is made by the company. At the same time, the employee can appeal this decision by contacting a special committee. The appeal period is 10 days from the date when the claim is announced.

REPRIMAND

The most severe measure of disciplinary punishment is a reprimand. It is characterized by two main aspects: a reprimand is one of the legal grounds for dismissing an employee in the case of a repeated violation of labour discipline (clause 5 of article 81 of the Labour Code of the Russian Federation), but it is possible to part with an employee only if the reprimand is not lifted and if the employee continues to violate labour discipline. In addition, a reprimand is one of the measures to improve production discipline, which increases the extent of an employee’s responsibility when performing his or her job function.

Cases in which an employee may receive a reprimand are when he or she:

• performs an action that has affected the company’s reputation (for example, sending unverified information to a client);
• is systematically late for work by more than an hour;
• fails to fulfil his or her work duties, which has affected the production process (for example, being late for an important meeting, which caused the conclusion of a new transaction to not take place);
• makes mistakes that affect the company’s financial results (submits a report late).

It is not necessary for the employer to reprimand an employee if he or she was previously punished for something by being given a warning. After all, the Labour Code does not distribute punishments according to the extent of fault and does not establish a strict sequence for imposing them. The main thing is to assess the severity of the offence committed and whether there are sufficient reasons for the punishment.

FUNDAMENTAL DIFFERENCES

The main difficulty in applying these corrective actions is that a reprimand and a warning do not contain characteristic differences from each other. In practice, employers are guided by the principle of “from easier to stricter”.

Since a warning is mentioned in the relevant article of the Labour Code of the Russian Federation first and it is handed down for the most minor violations, this is the most lenient type of punishment. A reprimand requires more serious grounds to be issued. Therefore, this type of punishment will be more severe. The employer can determine in its internal regulatory documents (IRD) cases of disciplinary violations regarding which a particular punishment will be applied to employees.

DOCUMENTATION

These two types of punishment have an identical procedure in terms of documentation, which includes several stages.

It all starts with the drawing up of a certificate or a report. It is impossible to impose a disciplinary punishment without the fact of an offence. It is required to collect all the necessary evidence of the employee’s improper work (written complaints, disrupted plans or schedules, interviews of witnesses, etc.), and to issue a certificate or a report.

Next, it is necessary to request arguments in writing from the employee. There is no set form for this document. When drawing it up, the employee should record the essence of the probable offence and the name of the document (with reference to a specific clause), in which the violated obligations are fixed. The period for receiving an explanatory report is two working days. If the document is not submitted on time, the employer draws up a certificate of the employee’s refusal to provide explanations. In addition, the document could be received after the specified period, but the main thing is that this should be done before the verification is completed. The absence of arguments in writing is not an obstacle to the application of a disciplinary punishment. If the employer considers the submitted explanations to be sufficient, then the punishment will not be applied to the employee.

The next step is to issue an order for disciplinary punishment. It is possible to draw up a document in any form with the following details: the date when the order was drawn up, the full name and position of the employee who committed the offence, the reason for declaring the punishment, indicating the violated clauses of the contract or the Labour Policies and Procedures, the type of punishment applied (a reprimand or warning), and the basis for issuing the order (details of the certificate, report). The procedure for the employee to familiarize himself or herself with the order is three working days from the date when it is issued. If an employee refuses to sign a document, the employer has the right to announce its contents verbally and to draw up an appropriate certificate of refusal.

VIOLATION CHECKLIST

In order to avoid possible proceedings and conflicts with employees and the State Labour Inspectorate, the employer should remember several crucial points when imposing a disciplinary punishment on an employee.

Give the employee a chance to explain himself or herself

This way you will protect yourself from further proceedings with the labour inspectorate and judicial authorities by observing the requirements of the legislation, and you will also be able to make the most thorough assessment of the offence that was committed.

Measure the severity of an offence committed against the type of punishment applied

The extent of the punishment should be commensurate with the severity of the offence; for example, it is extremely doubtful that an employee can be reprimanded if he or she violated the rules of the dress code once by coming to the office in jeans.

Collect the evidence base

You can punish an employee only if there are appropriate grounds and evidence for doing so.

Observe the procedure for applying the punishment

Carefully draw up the documents, and comply with all the established deadlines.

Punish for the non-fulfilment of an obligation that is stipulated in the IRD or in the employment contract

It is possible to apply a disciplinary punishment to an employee if the employee has not fulfilled or has improperly fulfilled one of his or her work duties, and the company has no other grounds for imposing a disciplinary punishment.