Drawing up an order for a remark to an employee can occur in a variety of cases. As a rule, these are minor violations of labor discipline, minor errors in work, neglect of labor protection and compliance with safety measures at work, etc.

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What is a remark and how does it threaten an employee

The remark refers to the most common types of disciplinary action (read) and is the most lenient punishment. Usually, the employer resorts to just such a measure of influence when he wants to warn the employee about the inadmissibility of such violations in the future.

It is not necessary to make a remark in the employee's personal file, but sometimes employers do it. In addition, the remark may be accompanied by such an action as the cancellation of bonus payments (if this type of encouragement is provided for by the employee's employment contract).

How long is the notice valid?

After the employer has issued a remark to his subordinate, the latter should keep in mind that a year after that he is under close supervision.

If there are no repeated violations during this period, then the remark will be automatically canceled and all the rights of the employee will be restored in full, but if something like this happens again, the offender can be punished more severely: with a reprimand or even dismissal.

It should be noted that the employer has the right to prematurely cancel the disciplinary sanction previously applied to the employee. It is quite simple to do this: you just need to release the appropriate one and familiarize the responsible persons with it, as well as the employee himself. Usually the reason for the cancellation of the penalty is repentance, clear signs of correction of the employee, strict observance of labor discipline and excellent performance.

Who writes the notice order

The function of writing a notice order may be the responsibility of any employee of an enterprise who has certain knowledge of the labor and civil law of the Russian Federation and the skills to draw up such documents. Usually this is a legal adviser, a specialist in the personnel department, a secretary, or the head of an enterprise. However, regardless of who exactly writes the document, it should be borne in mind that it is created on behalf of the company and must be endorsed by its director.

Basis for the order

Absolutely any order drawn up on behalf of the company's management must have a written basis. In most cases, this is

• or from the head of the structural unit in which the offending employee works,
• as well as an act fixing the misconduct and.

Without these papers, the document will not be considered justified and in which case it will be very easy to refute it, moreover, for the absence of a basis for writing an order, and hence the penalty itself, the employer may be subject to administrative punishment.

The order of declaration of the remark

Before announcing a remark to an employee, according to the law, the employer is obliged to first record the violation itself (for this, the essence of what happened, the date and time of the event are detailed in a special act), and then receive an explanation from the employee on the fact of the violation.

Explanations must be given in no more than two working days - if they are not available, it is considered that the employee does not have good reasons to justify the misconduct committed.

If there are explanations, but the employer did not consider them weighty enough (and this opinion is confirmed in the law), this also serves as the basis for a disciplinary sanction.

If the offender does not want to sign the document, an appropriate act should be drawn up about this.

The employee in respect of whom the order is issued must be familiarized with it against signature within three days, as well as those employees of the enterprise who are responsible for the implementation of this order.

The procedure for imposing a disciplinary sanction should be treated very carefully, because if it comes to proceedings in the labor inspectorate or court, the entire process and every piece of paper in it will be considered “under a microscope”.

Rules for drawing up an order

Today, there is no unified sample order for a disciplinary sanction, so employers can write it in any form or according to a template developed within the enterprise. However, this document must contain a number of specific information, including:

• name of company,
• Document Number,
• the date and place of its compilation,
• personal data about the offending employee (his position and full name).

In the order, it is necessary to indicate the reason for its creation (i.e., indicate the essence of the claim against the employee), the date of the misconduct, and also provide links to the basis. The latter are usually an act fixing the violation and a memorandum or memo from the head of the offender and an explanatory note (if any).

Rules for issuing an order

The order can be drawn up in different versions: both in handwritten format and in printed form, both on a simple A4 sheet and on the letterhead of the enterprise. However, he must have original autograph of the company director or a person authorized to sign such papers. It is not necessary to endorse it with a seal, since it refers to the company's internal administrative documentation, moreover, since 2016, legal entities have been exempted from the need to certify their documentation with seals and stamps.

Does the employee have the right to challenge the order?

An employee of the enterprise who does not agree with the disciplinary sanction imposed on him has every right to challenge this order. True, you should first stock up on any written evidence of innocence or legislative acts confirming the correctness of the employee. If the employer does not agree with the arguments given, you can apply to the labor inspectorate or, as a last resort, to the court.

Disciplinary action is always a conflict between the employer and the employee. And conflicts threaten to escalate into litigation. The chances of the parties in litigation depend on the correctness of the documentation for collection.

From the article you will learn:

In accordance with Art. 192 of the Labor Code of the Russian Federation, a reprimand is one of the disciplinary sanctions. Its imposition is subject to the general rules for the application of disciplinary liability, provided for in Art. 193 of the Labor Code of the Russian Federation. This article provides for the procedure for explaining the employee, the timing of the application of penalties, the principles of punishment.

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With regard to documenting the recovery by order, it is said that the order (or order) on the application disciplinary action is announced to the employee against signature, for this the employer has three working days from the date of its publication, not counting the time the employee is absent from work. In case of refusal to get acquainted with the specified order against signature, an appropriate act is drawn up, where in the presence of two employees (witnesses) the fact is recorded that the employee saw the order, but refused to sign it. Refusal to sign the order, as well as refusal to provide an explanation, is not an obstacle to the application of a penalty.

General requirements for an order

Since an order is an administrative act, it must meet certain general requirements, as a document:

• have a clear presentation that does not allow for double interpretations;
• there should be an indication of the grounds for bringing to responsibility (a clear indication of the employee's illegal action);
• information must be complete and reliable;
• concise and clear presentation of information in business clerical language using established formats.

Required details

Reprimand as a measure of punishment

Rebuke is one of the disciplinary actions. In terms of severity, this measure is more severe than a remark, but less than a dismissal. The employer independently determines what measure of influence to apply to the employee for a particular misconduct.

The Labor Code of the Russian Federation says only that a reprimand can be announced for non-performance or improper performance of labor duties. Of course, such non-performance may vary in degree of importance for the company's business processes, consequences and circumstances. When choosing such a measure as a reprimand, it is necessary to take into account all the nuances, mitigating and aggravating circumstances, the degree of guilt of the employee, his attitude to what happened.

Announcement of a reprimand

In accordance with the clarifications of clause 53 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", the employer must provide evidence indicating not only that the employee has committed a disciplinary offense, but also that that when imposing a penalty, the severity of this misconduct and the circumstances under which it was committed were taken into account (part 5 of article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee, his attitude to work.

A reprimand order (a sample will be below) is drawn up according to the same rules as any disciplinary order. The main thing is that it clearly indicates this measure - a reprimand.

Despite the fact that the legislation expressly prescribes for each misconduct to apply only one penalty, in practice one can often encounter such a phenomenon when, in the presence of an order to reprimand, an employee is deprived of a bonus. The situation here is this. The law does not prohibit the employer to independently form a system of material incentives for his employees for the fulfillment of certain conditions in the course of their labor activity. One of these conditions may be the absence disciplinary actions. Then the presence of a reprimand will be a sufficient reason not to pay the employee a bonus for the period when the corresponding penalty is applied, or for another period provided for by the provision on bonuses.

The Ruling of the Supreme Court of the Russian Federation dated April 7, 2005 N KAS05-126 states that a prerequisite for the employer's actions to be legitimate is the presence in the company of a local regulatory document, which clearly spells out the criteria for calculating bonuses. The absence of disciplinary action should be one of those criteria.

Punishment for absenteeism

Absenteeism is a gross violation of labor discipline. According to Art. 81 of the Labor Code of the Russian Federation, the employer has the right to dismiss an employee who has committed absenteeism, subject to a certain procedure, because dismissal is one of the measures disciplinary action. Note that this is precisely the right of the employer, that is, he may apply a different punishment to the employee, or may not apply at all.

Thus, it is also possible to punish for absenteeism (taking into account all the circumstances of its commission, guilt, motives, the attitude of the employee to his actions, his value to the employer and reputation) by reprimanding. Then an order is issued (reprimand for absenteeism).

A common employer mistake is to apply two penalties to an employee for one violation. For absenteeism, for example, two orders are issued: one is to reprimand the employee for absenteeism, and the other is to dismiss the employee for absenteeism. In this case, the actions of the employer are illegal, since the law prohibits the application of two penalties simultaneously for the same violation.

When issuing an order for absenteeism of an employee without dismissal, the sample can be used the one that is used for an order for disciplinary action in the form of a reprimand.

A reprimand for failure to perform duties is an effective measure of influence on violators of labor discipline. In order to establish the procedure for the performance of official functions by an employee, the employer has in its arsenal such documents as an employment contract, job description, internal labor regulations and other local regulations. In fact, for one reason or another, an employee often violates the provisions approved by the organization. Depending on the nature, severity and frequency of violations, the manager has the right to apply an appropriate disciplinary sanction. The article will consider the procedure, as well as give a sample order for a reprimand.

The procedure for applying the penalty

The rules for applying a particular disciplinary sanction are described in Art. 193 Labor Code of the Russian Federation, according to which any punitive measure is accompanied by the issuance of an appropriate order. By law, before classifying an action as a misdemeanour, an employer must seek an explanation from the employee who committed it. Refusal to give an explanation is fixed by drawing up an act and, according to Art. 193 of the Labor Code of the Russian Federation, cannot prevent the application of disciplinary measures. The term for providing an explanatory note does not exceed two working days. In addition, the Labor Code provides for other terms for the application of penalties:

• no more than one month after the discovery of the violation;
• no more than six months after the commission of the violation;
• no more than two years after the discovery of misconduct based on the results of the audit by the auditor or auditor.

It is important to remember that, in accordance with the Labor Code of the Russian Federation, only one punishment can be imposed for one specific violation (Article 193 of the Labor Code of the Russian Federation).

Reprimand as a disciplinary sanction

In Art. 192 Labor Code of the Russian Federation this concept is mentioned as one of the types of punishment along with reprimand and dismissal on appropriate grounds. However, the legislative act does not give a clear definition of this term and does not explain its difference from the remark. In practice, it is generally accepted that a reprimand is assigned for a violation of moderate severity. Sometimes the heads of organizations or personnel officers operate with such a concept as a strict reprimand. This is probably done to enhance the effect of punishment on a psychological level, since. this term is not related to the Labor Code and is officially applied, for example, to employees in the armed forces of the Russian Federation.

The application of penalties, according to the law, is formalized by an order, which is submitted for signature to the employee within three working days (Article 193 of the Labor Code of the Russian Federation). The following is an example of a reprimand for improper performance of official duties.

sample order

Consequences for the worker

During the discussion of violations of discipline and types of punishment, the question inevitably arises: does a reprimand received at work have consequences? Contrary to popular belief, information about the censure cannot be recorded in the work book, which means it does not become known to another employer. This is evidenced by Art. 66 Labor Code of the Russian Federation. A reprimand with entry in a personal file at the level of documents implies, as mentioned above, the issuance of an order. In addition, the employee responsible for personnel records management may (but is not obliged to) record this fact in the violator's personal card. In fact, the presence of such a penalty may act as a factor in the subsequent dismissal. P. 5 Art. 81 of the Labor Code of the Russian Federation states that the employer has the right to terminate the employment relationship with the employee in the presence of the fact of "repeated failure by the employee of duties, if he has a disciplinary sanction." In this case, an entry is made in the work book with a link to the above article of the Labor Code.

M.G. Sukhovskaya, lawyer

We announce a remark or reprimand

How to properly apply these disciplinary sanctions to an employee

Negligent employees, of course, need to be influenced. In particular, with the help of disciplinary sanctions, of which there are only three Art. 192 Labor Code of the Russian Federation:

• comment;
• rebuke;
• dismissal (in cases strictly stipulated by law).

Other penalties no and cannot be. There are no strict reprimands or reprimands with entering into a personal file.

Attention

Behind one misdemeanor can only be applied one penalty Art. 193 Labor Code of the Russian Federation.

If you subject an employee to a non-existent penalty, and then dismiss him for repeated misconduct paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, the court may recognize the dismissal as illegal only on the grounds that the originally imposed penalty is not provided for by the Labor Code see, for example, Cassation ruling of the Judicial Collegium for Civil Cases of the Orenburg Regional Court dated 05.10.2011 No. 33-6209/2011.

And even more so, fines cannot be applied to employees as a penalty. see, for example, Decision of the Moscow City Court dated June 17, 2010 No. 33-18087, demotion, transfer of vacation and the like. With regard to the deduction of the so-called disciplinary fine from the employee’s salary, in the event of an appeal against such a penalty, the employer will have to pay the employee all the money withheld, together with interest for the delay in paying wages. Art. 236 of the Labor Code of the Russian Federation.

For example, for civil servants, this is a warning about incomplete job compliance and p. 3 h. 1 art. 57 of the Law of July 27, 2004 No. 79-FZ. There is a similar penalty for employees of the customs service and internal affairs bodies, and a strict reprimand can also be applied to them. Art. 29 of the Law of July 21, 1997 No. 114-FZ; Part 1 Art. 50 of the Law of November 30, 2011 No. 342-FZ.

WARNING THE MANAGER

If the labor inspectorate finds the fact of applying to the employee a penalty not named in the Labor Code of the Russian Federation, employer faces fines Part 1 Art. 5.27 of the Code of Administrative Offenses of the Russian Federation:

• for a company - 30,000-50,000 rubles;
• for the head - 1000-5000 rubles.

The order for such a penalty will be obligated to be canceled. And if this is not done, then the company and its directors can again be fined for failure to comply with the legal order of the regulatory authority. Part 1 Art. 19.5 Administrative Code of the Russian Federation.

In the article we will consider the procedure for issuing such penalties as a remark and a reprimand. But first, we want to remind you of this. The employer has the right to apply a disciplinary sanction in case of non-performance or improper performance by the employee of his duties. Art. 192 Labor Code of the Russian Federation. But these obligations must be documented - in an employment contract, job description or local regulatory act (for example, in the internal labor regulations), and the employee must be familiarized with them under signature Art. 68 Labor Code of the Russian Federation. In other words, the rule applies here: if the employer has not familiarized the employee with the document where his duties are fixed, then the employee is exempted from liability for their failure to perform see, for example, Determination of the Samara Regional Court dated July 30, 2012 No. 33-6996.

Deadlines for applying penalties

The employer has 1 month from the day the disciplinary offense was discovered Art. 193 Labor Code of the Russian Federation, that is, from the day when the misconduct became known to the immediate supervisor of the offending employee (for example, the head of department a).

Monthly term clause 34 of the Decree of the Plenum of the Supreme Court of March 17, 2004 No. 2:

• is extended during the illness of the employee or his being on any vacation (annual paid, additional, educational, at his own expense, etc.);
• not renewed on days on which the employee was absent from work for some other reason, for example, on extra days off.

TELLING THE MANAGER

Even if it's obvious what a particular employee has committed a disciplinary offense, he cannot be reprimanded or reprimanded outside the statute of limitations for disciplinary action.

At the same time, it will not be possible to announce a remark or reprimand if 6 months Art. 193 Labor Code of the Russian Federation. The six-month period is extended to 2 years if the misconduct was identified as a result of an audit or audit (for example, during the inventory, a shortage of goods and materials was discovered due to the fault of the storekeeper).

The mentioned terms are restrictive for the employer and are not recoverable. Their omission excludes the possibility of applying a disciplinary sanction to the employee see, for example, Appellate rulings of the Novgorod Regional Court dated December 11, 2013 No. 2-5088-33-2076; Omsk Regional Court of 08/07/2013 No. 33-5026/2013.

Procedure for disciplinary action

STEP 1. We fix the presence of certain circumstances that can later be qualified as a misconduct of the employee. This can be done by composing:

• memorandum or memo addressed to the general director;
• act;
• decisions of the commission (for example, based on the results of an investigation into the fact of causing damage to the employer).

Note that the act is the most optimal document, since the facts set forth in it will be witnessed by several people (usually three).

If the employee goes to court over the imposed penalty, it is these people who can be witnesses on the part of the employer.

Here is a sample act of absence from the workplace.

Certificate of absence from work

dated August 25, 2014 No. 2

We, the undersigned:
N.L. Zotova - head of personnel department,
K.D. Bushueva - accountant,
IN. Klintsova - Distribution Department Manager, -
drew up this act stating that on August 25, 2014, Secretary Natalya Mikhailovna Petrova was absent from the workplace throughout the working day, from 10.00 to 19.00, and it was not possible to contact her by phone.

STEP 2. We demand a written explanation from the employee, handing him the appropriate notice.

Limited Liability Company "Character"

Secretary N.M. Petrova

Notification
about the need to submit written explanations

Moscow

I inform you that within 2 working days The employee has 2 full working days to submit explanations Art. 193 Labor Code of the Russian Federation, which are considered from the date following the day of presentation of the relevant request to him. Reducing this period is a violation of the rights of the employee and a strong argument for the court in favor of canceling the penalty Determination of the Moscow City Court dated 06.07.2010 No. 33-19977 from the date of receipt of this notice, you must submit to me written explanations The employer is obliged to request a written explanation from the offending employee in writing Art. 193 Labor Code of the Russian Federation. If this is not done, the procedure for imposing a disciplinary sanction will be violated and the penalty applied to the employee will be considered unlawful. see, for example, Ruling of the St. Petersburg City Court dated 03.10.2013 No. 33-15303/2013 about the reasons for your absence from the workplace on August 25, 2014 during the whole working day, from 10.00 to 19.00.

TELLING THE MANAGER

The fact that the employee did not provide a written explanation for his misconduct, does not prevent the employer from bringing him to disciplinary responsibility and Art. 193 Labor Code of the Russian Federation. And if, as a result of a misconduct, any material damage is caused to the employer, then to material liability and articles 192, 248 of the Labor Code of the Russian Federation.

Further actions of the employer depend on the following:

• <если>the employee presented an explanatory note - the manager must decide whether the reason for the misconduct is valid. If the reason is disrespectful - whether it is necessary to punish the employee and (if so) what penalty to apply to him;
• <если>the employee did not give any explanation - it is necessary to draw up an act of non-submission or refusal to provide an explanation in any form Art. 193 Labor Code of the Russian Federation. And then decide on the issue of bringing the violator to justice.

If the employee immediately refused to give any explanation for his misconduct, do not rush to draw up an act of refusal and issue an order to impose a penalty right on the day the explanations are requested. It is better to wait for the 2 working days allotted by law. So you deprive the employee of the chance to declare later in court that he was not given the opportunity to change his mind and give an explanation.

Although some courts do not see anything illegal in bringing an employee who refused to “explain himself” to disciplinary liability right on the day when he was asked for explanations see, for example, Appellate ruling of the Altai Regional Court dated July 9, 2013 No. 33-5006-13; Determination of the St. Petersburg City Court dated 08.09.2010 No. 12408.

STEP 3. We draw up in any form an order to announce a remark or reprimand. It should briefly describe the offense (the so-called ascertaining part of the order) and refer to all papers drawn up in connection with this.

Limited Liability Company "Character"

Order No. 11

Moscow

About the reprimand

Due to the absence of Secretary Natalya Mikhailovna Petrova on August 25, 2014 at the workplace from 10.00 to 19.00 without a good reason on the basis of Articles 192, 193 of the Labor Code of the Russian Federation

I ORDER:

For violation of labor discipline (clause 3.4 of the Internal Labor Regulations of Character LLC), declare N.M. Peter's reprimand.

Applications:
1) certificate of absence from the workplace dated August 25, 2014 No. 2;
2) explanatory note by N.M. Petrova dated 27.08.2014.

Familiarized with the order The employee must be familiarized with the order against signature within 3 business days since its publication. If for some reason the employee was absent from work (was temporarily disabled, was on a business trip, etc.), then the period of his absence freezes the course of this period. In the case when the employee refuses to get acquainted with the order, it is necessary to draw up an act in any form about this. Art. 193 Labor Code of the Russian Federation

Secretary