If an employee is assigned a disciplinary penalty, the worker can challenge the employer’s decision in court and often courts side with the employee because of improperly drafted documentation of the disciplinary action. In this article, we explain in more detail how, in our opinion, to avoid court reversal of a court-ordered disciplinary action against a worker.
Fixing the violation and determining the severity of the penalty
First of all, if a misconduct is detected, fix the facts with reference to the documentation with which the employee is familiarized under signature. The Labor Code of the Russian Federation does not establish the form for the document-proof, so, it can be both a memo and a complaint from the boss. Draw up an act of misconduct, which will contain information about the fact, subject, place and time of the violation. Also include references to local acts, job description, employment contract and justification of the violation.
It is important that the violation be from a legal perspective, not a subjective one. Double-check whether the employee was required to do or not do the act for which you are imposing the penalty. For example, taking non-mandatory training unrelated to job duties or failing to prepare for a report at a remote meeting when the scheduled report deadline had not passed, but the meeting was not unscheduled and the cover letter did not specify mandatory attendance at the office.
- Determination of the Third Cassation Court of General Jurisdiction of 22.06.2022 No. 88-9322/2022
- Determination of the First Cassation Court of General Jurisdiction of 02.10.2023 No. 88-30621/2023
Also make sure that the employee had a real opportunity to fulfill the duty. The factor of guilt is important, if there is none, warn the car department and management about it. In such a case, we do not recommend announcing a penalty. Example — a lawyer did not file a lawsuit on time because another department failed to provide documentation.
- Determination of the Eighth Cassation Court of General Jurisdiction of 06.12.2022 N 88-22851/2022
Request a written explanation from the employee
Having recorded the misconduct, let the employee familiarize himself with it under signature and request a separate document with explanations from him. Courts take the position that information should be requested in writing and under signature; in practice, there are cases where an oral refusal to testify in front of witnesses has not been taken into account as a proper procedure for requesting explanations.
- Cassation ruling of the Ninth Cassation Court of General Jurisdiction of 22.06.2022 N 88a-5074/2022
Moreover, it is necessary to hand over a copy of the document on the fixation of misconduct to the employee to do it either personally, or read aloud in front of witnesses and send it to the address specified on the part of the employee in the employment contract. Note that the courts consider it a violation to send the document in a second way during sick leave or vacation.
Specify to whom and, within what timeframe, an explanation must be sent. The employee has two business days (not taking into account the day of service; you cannot shorten the deadline). Do not rush with the execution of documentation, in our experience, the courts are strict about the form of acts. Also, remember that refusal to give explanations is not an obligation, but a right of the employee.
Meet the deadline for penalties within one month from the discovery of the violation. This period does not include sick leave, vacations and time for the opinion of the union. Take into account that the moment when the employer discovers the violation is equal to the moment when the employee’s immediate superior discovers the violation.
- Labor Code of the Russian Federation Article 193. The order of application of disciplinary penalties.
Example — an assignment is not completed on time, the first day of delay is the day of detection for the employer, as he should be aware of such an omission. However, if the violation is detected only through an internal investigation — then, the day of detection is the date of the commission’s act.
Match the harm of the misconduct with the choice of discipline
We recommend conducting a performance review to assess the employee’s merits prior to the misconduct. Interview coworkers, summarize his performance, the harm caused by his misconduct, and how it was corrected. Formalize this into a separate document and on its basis choose the type of disciplinary responsibility.
Remember that the Labor Code provides only 3 types of liability: reprimand, reprimand and dismissal. For example, it is recommended to avoid the phrase «strict reprimand», as there is no such phrase in the Labor Code, use «reprimand», the courts may consider the prefix as a violation. Keep in mind that these types go from the least to the most severe punishment. If an employee has informed you that he is replaced by a colleague, then, assign him a reprimand for this, we believe, unrealistic, in this case is more suitable rather a remark. At the same time, take into account that being in a state of intoxication, safety violations, loss of important documents are gross violations and it is not necessary to limit yourself to reprimands, even if it is the first disciplinary action. Disciplinary action is only imposed by order, other acts or a combination of acts will not be valid.
- Determination of the Third Court of Cassation of General Jurisdiction dated 01.03.2023 No. 88-3503/2023