Question: At work I was involved in disciplinary liability, reprimanded. I don't agree with this. How, within what time frame and where can I appeal a disciplinary sanction imposed on me?

Answered by Assistant Zheleznogorsk Interdistrict Prosecutor T.Yu. Khmelevskaya: in accordance with Article 392 Labor Code Russian Federation, the employee has the right to go to court for resolution of an individual labor dispute within three months from the day he learned or should have learned about a violation of his right, and in disputes about dismissal - within one month from the date he was given a copy of the dismissal order or from the date of issue of the work book.

Article 193 of the Labor Code of the Russian Federation determines that the order (instruction) of the employer to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work.

Article 192 of the Labor Code of the Russian Federation provides that for committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions: 1) reprimand; 2) reprimand; 3) dismissal for appropriate reasons.

Federal laws, charters and regulations on discipline (part five of Article 189 of this Code) for individual categories employees may also be subject to other disciplinary sanctions.

When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.

The procedure for applying disciplinary sanctions is established by Article 193 of the Labor Code of the Russian Federation. This article establishes that before applying a disciplinary sanction, the employer must require a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, 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 commission of the offense, 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. IN specified deadlines The time of criminal proceedings is not included.

For each disciplinary offense, only one disciplinary sanction can be applied.

Thus, if the employer does not comply with at least one of the listed conditions, the imposed disciplinary sanction can be canceled. In this connection, the employee has the right to apply to the court to declare the imposed disciplinary sanction illegal

What to do if you don’t agree with the management’s order?

If you are assigned a job that is not directly indicated in your job description and you do not agree with this, it is better to write about it in the I am familiar with the order when you read the order, and it is best to immediately go to the manager and dot all the i’s. After all, you can appeal the order of punishment then it will be much more difficult and time consuming than finding out and clarifying everything at once. Perhaps this is some kind of one-time task that you can completely complete without compromising your main work and relationship with your manager.

Did your boss punish you?

Know! At any job, 2 unspoken rules have always existed, exist and will exist:

1. The boss is always right.
2. If you think that your boss is wrong, see point 1.

Now about the order. When an order is drawn up, it must be drawn up on the basis of something. For example, you violated your job description, which clearly states that your working day begins at 08:00 in the morning and ends at 17:00. Let's say you were late for work and arrived at 10:15. Then the order should say: Employee Yulia Aleksandrovna Kuznetsova 02/10/2016. came to work at 10:15, thereby violating paragraph 1 of her job description, which states that the employee’s working day begins at 08:00.

To say something, it would be wiser to read the text of the order. But we will consider my example. So, the order contains the employee’s job description, which the employee must be familiar with (must be signed and dated). If the job description does not contain evidence that the employee has read the job description (there is no signature and date), then management does not legally have the right to issue a reprimand and deprive you of bonuses, but in fact, management can do anything, and even fire you retroactively.

Therefore, before going into confrontation with management, weigh the pros and cons, evaluate your chances and think about whether the game is worth the candle. Even if you can prove that you are right, and consequently, NOT If your boss is right, then you will have a hard time working at this job.

As for your disagreement, try contacting your trade union, if you have one. It is very important to be legally prepared to clarify a controversial issue. Therefore, carefully study your job description and study the collective agreement.

You could sign that you have read it, but do not agree. This will at least justify you a little when you make this report. And you do it. Of course it's infuriating when management does this. You need to do everything competently, enter by order (for the enterprise) that you do the report, what you are entitled to for it. If this is permanent, then an additional agreement to the TD. But it's no use. In practice, it turns out that whoever is the boss is right. And don’t argue, the relationship will only deteriorate. If you want to stay in this position, if I were you, I would wipe the boss’s nose and make an excellent report, and turn for help to the one who did it before. I would thank you with a small gift. And when I started reporting, I would ask the question whether this is my responsibility on an ongoing basis or not. If the boss is not stupid, he will understand what we are talking about. Good luck.

The employee has the right not to familiarize himself with the order against signature for various reasons. For example, due to disagreement with an order, etc.

If the employee does not agree with the order and does not want to familiarize himself with it, the employer must take measures to bring the order to the attention of the employee (read it to the employee, send it by mail to his home address by registered mail with postal receipt acknowledgment, etc.) and formalize the refusal in writing .

Thus, an employee may refuse to familiarize himself in writing with the order disciplinary action. In this case, the employee is considered familiar if the order is announced to him, and the refusal to familiarize himself in writing is formalized by an act indicating the witnesses present (Parts 5, 7, Article 199 of the Labor Code). The legislation establishes a unified form of act on the employee’s refusal to familiarize himself with the order (instruction) imposing a disciplinary sanction ( Unified system organizational and administrative documentation, approved by Order of the Director of the Department for Archives and Records Management of the Ministry of Justice of the Republic of Belarus dated May 14, 2007 N 25). In the act, it is advisable to mention that the order was read to the employee, note the employee’s reaction to the order (for example, he reported an unwillingness to sign, disagreed with the order, tore up the order, etc.) and the reasons for refusing to sign. The date of the act should be the date the employee refused to familiarize himself with the order. The employee’s signature on the document is desirable, but in practice it is rarely possible to obtain it. As a rule, the act is signed by the employees who drew it up.

In addition, an employee may, for example, be fired for absenteeism and refuse to familiarize himself with the dismissal order. In this case, his refusal is formalized by an act in the same form.

The number of copies in which acts of refusal to familiarize employees with orders are drawn up is determined by the employer independently.

If the review period has been exceeded

An employee who is absent from the workplace due to vacation, illness, business trip, etc. is sometimes not familiarized with the orders (such employees are not sent documents by mail). If it is not possible to wait for the employee to go to work, you should still send him the order by mail, by registered letter with acknowledgment of receipt, since an employee who is absent from the workplace for a long time for valid reasons is not obliged to come and familiarize himself with the order.

Sometimes an employee who has committed a disciplinary offense is not informed of the order for disciplinary action. For example, on the day of issue wages the employee learns from the accounting department that he has been reprimanded and has not received a bonus, although more than five days have passed since the order for disciplinary action was issued. In this case, the employee is considered not to have had a disciplinary sanction (Part 6 of Article 199 of the Labor Code). Consequently, the employer must cancel the order, and if this is not done, the employee has the right to appeal to the court or the prosecutor's office with a demand to lift the disciplinary sanction against him and to declare the order invalid. Let us note that the employer is obliged to take exhaustive measures to familiarize the employee with the order of disciplinary action in deadline- five days from the date of its publication.

“I have read” does not mean “I agree”

Reading the order does not mean that the employee agrees with it. In some cases, the termination date labor relations requires agreement between the employer and employee. In such situations, it is necessary not only to familiarize the employee with the relevant order, but also to obtain his consent.

For example, an employee who works under an employment contract concluded for an indefinite period (clause 1, part 1, article 17 of the Labor Code) has the right to terminate it by notifying the employer in writing one month in advance, and he is not obliged to indicate the desired date of dismissal in the application ( Part 1 of Article 40 of the Labor Code). The employee has the right to withdraw the application in writing at any time before the expiration of the month, unless another employee is invited to take his place and, in accordance with the law, cannot be denied employment. employment contract(Part 3 of Article 40 of the Labor Code) (in particular, aimed at work public service employment on account of reservation, including citizens who are obliged to reimburse expenses spent by the state on the maintenance of children who are on state support; a person invited to work in writing by way of transfer from one employer to another as agreed between them, within one month from the date of issuance of the written invitation, unless the parties agree otherwise, etc. (Part 1 of Article 16 of the Labor Code)). In this regard, when dismissing such an employee before the expiration of the notice period, it is necessary to obtain his consent to dismissal before reading the order. If you do not make a note about the employee’s agreement with the order, the employee who has “changed his mind” about resigning has the right to challenge the dismissal in court, which may decide to reinstate him at work (Review of Judicial Practice Supreme Court Republic of Belarus dated June 16, 2011 “Review of cassation and supervisory practice of the Supreme Court of the Republic of Belarus in civil cases for 2010”).

If orders are issued in relation to an employee regarding certain types of changes in labor relations that require the employee’s consent (for example, transfer, change in essential working conditions (Articles 30, 32 of the Labor Code)), it is advisable to indicate in the order, along with “acquainted”, “agree”, “ I have read and agree."

For individual species changes in labor relations do not require the employee’s consent, but this does not mean that the employee should not be familiar with the orders about these changes.

For example, relocation does not require the consent of the employee (Part 3 of Article 31 of the Labor Code), but must be justified by production, organizational or economic reasons, therefore, before assigning work at a new workplace, on another mechanism or unit, the employee should be familiarized with the order for relocation ( Part 4 of Article 31 of the Labor Code).

In connection with the structural reorganization of production at the initiative of the employer, the terms of employment contracts with employees are changing. The workers were warned about this in writing. However, not all employees agree to the changes. What should the employer do in this case?

According to Part 1 of Art. 74 of the Labor Code of the Russian Federation in the case when, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be preserved, they are allowed to be changed at the initiative of employer, with the exception of changes in the employee’s job function. Thus, in the event of a structural reorganization of production, the employer really has the right to unilaterally change the terms of employment contracts.

However, please note that in this case two important conditions must be met:

The terms of the employment contract determined by the parties cannot be preserved,

Should not be changed labor function employee.

If a legal dispute arises with the employee in the future regarding changes to the terms of the employment contract, the court may require the employer to provide evidence of compliance with these terms. Also, in the event of a dispute, be prepared to prove that the change in the terms of the employment contract determined by the parties was a consequence of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization of production, and did not worsen the employee’s position in comparison with the terms of the collective agreement, agreement (clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2), and not the whim of the employer.

According to Part 2 of Art. 74 of the Labor Code of the Russian Federation, the employer is obliged to notify the employee in writing no later than two months in advance, unless otherwise provided by the code:

About upcoming changes to the terms of the employment contract determined by the parties,

About the reasons that necessitated such changes.

Failure to provide reasons in written notice to the employee is a common mistake. Check whether you have indicated the reasons that necessitated changes to the terms of the employment contract determined by the parties in the written notice sent to the employee. If not, then prepare and give the employee another notice, but this time properly drawn up (indicating the reasons). If proper notice is served again this time, in our opinion, the two-month period should begin to run anew.

The employee may not agree to work under the new conditions. What should the employer do in this case?

According to Part 3 of Art. 74 of the Labor Code of the Russian Federation, if an employee does not agree to work under new conditions, then the employer is obliged to offer him in writing another job available to the employer (as vacant position or a job that corresponds to the employee’s qualifications, as well as a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

In the absence of the specified work or the employee refuses the offered work, the employment contract is terminated in accordance with clause 7, part 1, art. 77 of the Labor Code of the Russian Federation.

The publication covers in detail the topic of transfers and movements of workers (permanent and temporary transfers, transfer to another job in accordance with a medical report, transfer of an employee together with the employer to another location and other features of the movement of workers). Everything is "laid out on the shelves." A lot of practical issues are considered, examples from personnel and judicial practice are given. The authors tried to cover as many questions as possible on the topic. The manual also provides numerous sample documents on the topics covered.