Posted On 01/12/2018

The main duties of an employee are to comply with the rules of conduct enshrined in the Labor Code of the Russian Federation, other laws, collective agreements, an employment contract, internal labor regulations, other local acts and conscientious performance of functional duties in accordance with job description. Accordingly, failure to perform or improper performance of these duties is the basis for bringing the employee to disciplinary responsibility.

An employer can bring an employee to disciplinary liability only if he has created the appropriate conditions for the employee to observe labor discipline.

Thus, a prerequisite for disciplinary liability is the presence of the employee's fault. Therefore, it is impossible to raise the issue of bringing to disciplinary responsibility an employee who refused to perform work in the event of a danger to his life and health due to violation of labor protection requirements; or from performing hard work and work with harmful and dangerous working conditions not provided for by the employment contract; or refused to prematurely interrupt his vacation at the request of the employer.

To protect the employee, the law has established a clear procedure for bringing to disciplinary responsibility and a closed list of types of disciplinary sanctions.

Before applying a disciplinary sanction, the employer must obtain a written explanation from the employee. If the employee refuses to write, an act is drawn up in an arbitrary form. Refusal to give an explanation is not an obstacle to the application of a disciplinary sanction.

On the imposition of a disciplinary sanction, an order is issued signed by the head. The employee must be familiarized with the order against signature within 3 days from the date of its issuance. If the employee refuses to sign the specified order, an appropriate act is drawn up.

A disciplinary sanction is applied no later than one month from the day the misconduct was discovered. The specified period begins to run from the day when the person to whom the employee is subordinated by work (service) became aware of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions. This does not take into account 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 workers. The absence of an employee from work for other reasons, including in connection with the use of days off, does not interrupt the course of the specified period. Leave interrupting the course of a month should include all holidays provided by the employer in accordance with current legislation, including annual (basic and additional) vacations, vacations in connection with training in educational institutions, unpaid leave.

In addition, a disciplinary sanction cannot be applied later than six months from the date of the misconduct, and based on the results of an audit, financial and economic activity or audit- not later than two years from the date of its commission. The specified terms do not include the time of proceedings in a criminal case.

For each disciplinary offense, only one disciplinary sanction may be applied. As measures of disciplinary action, the Labor Code calls:

Comment;

Rebuke;

Dismissal.

Only their employer can apply them to the employee, taking into account the severity of the misconduct committed, the circumstances under which it was committed, the previous behavior of the employee, his attitude to work.

For certain categories of employees, federal laws, charters and regulations on disciplinary liability may establish other types of disciplinary sanctions. For example, measures such as a warning of incomplete official compliance, as well as the withdrawal of diplomas from captains and officers for up to three years with the consent of the employee to another job for the same period, taking into account the profession, can be applied to employees of the fishing fleet of the Russian Federation. (Decree of the Government of the Russian Federation No. 708 dated September 21, 2000).

Disciplinary measures, with the exception of dismissal, are temporary. If within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, he is considered not to have disciplinary sanction.

The employer, before the expiration of a year from the date of application of a disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or the representative body of employees. An appropriate order is issued for this.

If an employee is a member of a trade union and the employer wants to fire him under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation (repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction (not removed)), then he can do this no later than one month from the date of receipt of a reasoned opinion of the elected trade union body and taking it into account, the possibility of interruption or suspension of this period is not provided for by law. Temporary disability of the employee, being on annual leave and other circumstances do not affect the course of the specified period.

And the dismissal on this basis of the heads (deputies) of the elected trade union collegial bodies of the organization, its structural subdivisions (not lower than the shop and equated to them), not released from the main work, is allowed, in addition to observing the general procedure for dismissal, only with prior preliminary consent of the higher elected trade union body.

It is also important to know that the employer has the right to apply a disciplinary sanction to the employee even when the employee, before committing the misconduct, filed an application for termination of the employment contract on his own initiative, since labor relations in this case terminated only after the expiration of the term of notice of dismissal.

Dismissal of an employee for repeated non-fulfillment of labor duties without valid reasons, as well as for a single gross violation of labor duties by an employee; for committing guilty acts that give rise to a loss of trust, or committing an immoral offense, if the guilty acts that give rise to a loss of trust, or an immoral offense are committed by an employee at the place of work or in connection with the performance of his job duties; dismissal of the head of an organization (branch, representative office), his deputies or chief accountant for making an unreasonable decision that entailed a violation of the safety of property, its misuse or other damage to the property of the organization; dismissal of the head of an organization (branch, representative office), his deputies for a single gross violation of labor duties (clauses 5 - 10 of article 81 of the Labor Code of the Russian Federation) is a disciplinary measure. Therefore, dismissal on the indicated grounds is allowed only in compliance with the above procedure.

In any case, the employee has the right to appeal against the disciplinary sanction to the state labor inspectorate, to the commission on labor disputes or to the court.

The Labor Code of the Russian Federation does not limit the period for filing a complaint with the state labor inspectorate. An employee has the right to file a complaint with the Labor Dispute Commission within three months from the day when he learned or should have learned about the violation of his right.

The conditions for bringing to disciplinary responsibility can be distinguished based on the signs of a disciplinary offense, therefore, bringing to disciplinary responsibility is allowed if:

a) damage caused to labor discipline;

b) illegality;

d) a causal relationship between illegal behavior and harm caused to labor discipline.

The harm caused cannot always be expressed in the presence of material damage. Harm is caused to the very order in the organization, i.e., labor discipline, and may consist in the emergence of negative motivation among other employees.

Illegality consists in the fact that the employee, as a result of his action or inaction, did not fulfill his labor duties or violated the rules of internal labor regulations.

Guilt is expressed in the mental attitude of the violator of labor discipline to his unlawful behavior. Guilt can be expressed in the form of both direct or indirect intent, and in the form of negligence. The form of guilt affects the type of disciplinary sanction that is imposed on the employee. In case of negligent form of guilt, a reprimand may be issued. If there is direct intent, the employee can be immediately dismissed, for example, for absenteeism.

A causal relationship shows whether labor discipline was harmed if the employee had acted differently.

Submission for disciplinary action

The presence of unlawfulness in the actions of the employee is justified by the employer. In the order to bring to disciplinary responsibility, it should be indicated what the unlawfulness is specifically expressed, i.e. with. what rules of law have been violated.

It is not a violation of labor discipline that an employee's refusal to be transferred to another job, the employee's refusal to interrupt the next vacation and return to work, the refusal to legal requirements employer. Employees' ignorance of their official duties and releases him from liability. If the job description of an employee changes during the period of his work, then he must be familiarized with these changes against signature.

The grounds for exemption from disciplinary responsibility are:

1. Force majeure - for example, an employee was late for work due to the presence of large snow drifts on the road or floods.

2. The presence of extreme necessity or necessary defense - for example, the employee did not come to work due to the fact that he provided assistance to a citizen who suffered from a traffic accident, and thereby prevented the death of the victim.

3. The absence of one of the conditions for bringing to disciplinary liability (for example, wrongfulness) of an employee cannot be held disciplinary liable for failure to fulfill an obligation not provided for by him employment contract.

4. Failure by the employer to fulfill the obligations to create proper working conditions for employees.

The employer does not have the right to change the procedure for bringing to responsibility, provided for in Art. 193 of the Labor Code of the Russian Federation, but can concretize and clarify it in the rules of the internal labor order.

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

Before applying a disciplinary sanction, the employer must request a written explanation from the employee. If, after two working days, the specified explanation is not provided by the employee, then an appropriate act is drawn up.

The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction.

A disciplinary sanction 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 may not be applied later (i months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit - later than two years from the date it was committed. The indicated periods do not include the time of criminal proceedings.

The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance, not counting the time of absence

worker at work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then draw up the corresponding act.

A disciplinary sanction may be appealed by an employee to state inspection labor and (or) bodies for the consideration of individual labor disputes.

The day of detection of misconduct is established directly according to the report of the head or according to the testimony of witnesses.

The day the offense was committed is established by documents, for example, by the time sheet and the testimony of witnesses.

A disciplinary sanction is considered to have been imposed lawfully if all the conditions for bringing to responsibility and the procedure for bringing to responsibility have been complied with.

As a general rule, a disciplinary sanction is valid for 12 months from the date of its imposition. If the employee committed a new disciplinary offense and was brought to]) disciplinary liability, then the period of the first sanction is extended until the end of the second disciplinary sanction.

The penalty can be removed automatically or by order of the employer. The penalty is removed automatically upon dismissal of the employee and upon expiration of the penalty. Automatic withdrawal does not require the issuance of an order or instruction in this regard.

The employer, before the expiration of a year from the date of application of a disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.

The employer is obliged to consider the application of the representative body of employees about the violation by the head of the organization, the head of the structural unit organizations, their deputies of labor legislation and other acts containing labor law norms, terms of a collective agreement, agreement and report the results of its consideration to the representative body of employees.

In the event that the fact of a violation is confirmed, the employer is obliged to apply a disciplinary sanction to the head of the organization, the head of the structural unit of the organization, their deputies, up to and including dismissal.

Disciplinary sanctions in the form of remarks and reprimands are not entered in the work book.

The procedure for appealing disciplinary sanctions is general. That is, if a reprimand or remark is imposed on an employee, then the pre-trial procedure for resolving the dispute must be observed: if the organization has a commission on labor disputes, the dispute will be considered by this commission.

If the CCC has not been created, or has not considered the application within 10 days, or has made a decision with which the employee does not agree, then the employee may appeal against the imposition of a penalty in court. If a disciplinary sanction is imposed in the form of dismissal, then the employee has the right to immediately go to court.

A disciplinary sanction may also be appealed by the employee to the State Labor Inspectorate.

Topic 14 LABOR SAFETY

The concept of labor protection

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The Supreme Court recognized such demands of the prosecutor, set out in the submission, as unlawful. He noted: bringing employees to disciplinary responsibility is the right, not the obligation of the employer. The Armed Forces of the Russian Federation have come to similar conclusions more than once, for example, at the beginning of March last year.

The dispute considered in December was related to the fact that the prosecutor issued a motion to eliminate violations of the legislation on personal data. The prosecutor, among other things, demanded from the chairman of the board of the employing organization:

Consider the issue of bringing guilty officials to disciplinary responsibility;

Submit copies of the punishment orders along with the response to the submission.

The Supreme Court found such demands unlawful.

Bringing to disciplinary responsibility

The employer should not face administrative liability for their failure to comply.

If they are nevertheless brought to justice, we believe that this decision can be challenged, guided by the approach of the RF Armed Forces.

Recall that for legal entities, deliberate failure to comply with the legal requirements of the prosecutor entails a fine of 50 thousand to 100 thousand rubles. or administrative suspension of activities for up to 90 days.

Decree of the Armed Forces of the Russian Federation of December 16, 2016 N 78-AD16-38

The review was prepared by specialists of Consultant Plus

The prosecutor's office issued a presentation to the chairman of the board of the HOA on the elimination of violations of the legislation on personal data.

The submission contained the following requirements:

1) consider the submission with the participation of a representative of the district prosecutor's office, take specific measures to eliminate the identified violations of federal law, the causes and conditions that contributed to them, and also to prevent such violations in the future;

2) agree on the time and place of consideration of the submission;

3) in accordance with the established procedure, consider the issue of bringing to disciplinary responsibility the guilty officials who committed violations of the requirements of federal legislation;

4) report the results of the measures taken in writing to the district prosecutor's office within the period of one month established by law, attaching copies of the punishment orders.

The chairman did not comply with these requirements, for which he was fined under Art. 17.7 of the Code of Administrative Offenses of the Russian Federation for 2000 rubles.

The application to the court did not help to cancel the fine. The judges agreed that the chairman of the HOA deliberately failed to comply with the requirements of the prosecutor, which entails prosecution.

The Supreme Court of the Russian Federation also left the fine in force, but made one important clarification: the 3rd and 4th paragraphs of the prosecutor's office's submission contradict the law.

The application of measures of disciplinary liability to the employee is the exclusive prerogative of the employer.

Disciplinary responsibility: the procedure for attracting, types of penalties.

1 st. 192 of the Labor Code of the Russian Federation). The employer has the right, but is not obliged to impose a disciplinary sanction on the employee.

RESOLUTION Supreme Court RF dated December 16, 2016 No. 78-AD16-38

The document is included in the ATP "Consultant Plus"

Editor's note:

The Supreme Court has already made such decisions several times, recognizing as unlawful the demands of prosecutors to bring officials to disciplinary responsibility:

• Head of the Russian Department of Internal Affairs (Resolution of the Armed Forces of the Russian Federation of March 16, 2016 No. 47-AD16-1);
• directors management company(Resolution of the Armed Forces of the Russian Federation of 03.03.2016 No. 46-AD16-2);
• Deputy Chairman of the Regional Court (Resolution of the Supreme Court of the Russian Federation of July 17, 2015 No. 59-AD15-2).

the prosecutor's office believes that it has the right to do so, since, according to paragraph 2 of Art. 22 of the Law on the Prosecutor's Office, the prosecutor or his deputy, on the grounds established by law, initiates proceedings on an administrative offense, requires the involvement of persons who have violated the law, to another statutory responsibility, warns against breaking the law.

However, according to the Supreme Court of the Russian Federation, this paragraph does not apply to disciplinary liability under the Labor Code of the Russian Federation, since a separate procedure is established for its application by the code.

The process of labor relations is far from always connected with working moments and production activities. In any work collective, situations may arise in which there is a violation of labor legislation or industrial discipline. Such cases in without fail regulated by law, in addition, there is a wide base of court cases and legal practice to resolve such disputes and cases.

Normative base

Since the issues of disciplinary liability are important for both parties of labor relations (employee and employer) and often determine the future fate of the employee, the legislator has necessarily strictly regulated the process of resolving such disputes, as well as the actions of both parties in the presence of violations.

The main act regulating labor relations in our country is the Labor Code. c (but in which case the employee has the right to terminate the employment contract, you can read). In this issue, the imperative principle is used, that is, both parties to the conflict must adhere to strictly regulated rules when this type of responsibility occurs.

In turn, the Labor Code gives the concept of disciplinary responsibility. This is an event or a fact of action or inaction, in which the employee does not fulfill his duties in accordance with the employment contract (contract).

Grounds and conditions for bringing to responsibility

As a basis for bringing the employee to responsibility is the fact of violation of the labor schedule and non-fulfillment by the employee of his direct duties established by the employment contract. The employee is obliged to comply with labor legislation, as well as internal labor standards, daily routine and labor discipline, if they do not contradict federal law. Based on this, in case of violation of any norms and the fact of objective proof of such violations, the employee will be liable for a disciplinary nature. And about which ones are considered in criminal law, read our article.

The basis is most often a misconduct, that is, an active intentional action of an employee, however, cases of inaction in case of violation are not uncommon. Employment law grounds include:

• non-fulfillment by the employee of his direct regulated duties approved by the employment contract (Article 81). This ground also includes repeated violation of labor discipline (this concept is regulated by internal regulations enterprises). When committing these misconduct, the employee may be held liable for this type of liability. When a one-time misconduct is committed by the employer, this type of punishment may not be applied, but only an oral or written remark;
• gross violation of labor regulations. This concept includes several types of violations:
  • Absence of an employee without good reason(illness, difficult life situation) during the working day for more than 4 hours in a row or throughout the day. This type violations can be punished up to and including dismissal, however, if the employee provides written evidence of the good faith of the day off within a few days, the employer is not entitled to take any measures.
  • Also, if the employee appears during working hours in a state of any intoxication whether it be alcohol, toxic substances or drugs and their precursors, the employee must also be penalized, and such punishment may lead to the dismissal of the employee .
  • It is also a serious offense to divulge any secrets of the organization.(according to civil law, these include commercial, state, official secrets). In view of the fact that the disclosure of confidential information can cause significant harm not only to a private company, but also to the state, the employer is obliged to resort to punitive measures for the employee.
• failure to comply with the instructions of the labor inspectorate and, accordingly, violation of labor standards(labor protection) entails both the imposition of a fine on the organization, and organizational conclusions in relation to a certain employee. Committing a criminal or administrative offense during work and at the workplace associated with the performance of official duties; It is also worth paying attention to what exist and what they are.
• commission by an employee of actions discrediting his honor and dignity or immoral acts(this type of offense is common among civil servants, as well as among teachers educational institutions). These actions also attract sanctions from the management;
• commission of unlawful actions by an employee whose job contract involves working with money supply(values) in relation to these values ​​(waste, loss of property).

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On the video - a list of violations and prosecution:

Procedure for imposing a disciplinary sanction

In case of manifestation of an action suitable for the imposition of such a penalty, the employer must adhere to the following algorithm of actions:

• after the discovery of a misconduct, the employer is obliged to ask the guilty employee for a written explanation of his actions, as well as to stop this violation (if an employee appears in a state of intoxication, it is necessary to send the employee for examination in medical institution and prevent any work being done. It is also worth paying attention to the fact that);
• after receiving an explanation from the employee, it is necessary to form a special commission, which will include representatives of the board of the organization, personnel service, immediate supervisors of the subordinate and representatives of the trade union. The commission, within 4 days, analyzes the case of violation of labor discipline and makes a decision on the application of a penalty or the removal of all claims from the employee;
• if the employee does not agree with the decision of the commission, he remains to appeal this decision through the judiciary. If the employee agrees with the decision of the commission on guilt, a penalty is immediately imposed on him.

It will also be useful to know for what and in what case

M.E. DZARASOV,
cand. legal Sciences, ml. scientific collaborator sectors of labor law and law social security Institute of State and Law of the Russian Academy of Sciences

Types of disciplinary sanctions. The procedure for bringing an employee to disciplinary responsibility

The duration of the disciplinary action

The purpose of the rule of law is to ensure order in society. In the event that people in their behavior deviate from the rules contained in legal norms, there is a violation of law and order. The internal labor regulations of the organization are part of the general legal order, and it must also be observed.
Disciplinary responsibility is the employer's reaction to the employee's misconduct, i.e., to a disciplinary offense committed by him. However, it must be remembered that according to Part 2 of Art. 189 of the Labor Code of the Russian Federation, it is the employer who is obliged to create the conditions necessary for employees to comply with labor discipline.

Labor discipline is obligatory for all employees to obey the rules of conduct defined in accordance with labor legislation, collective agreement, agreements, labor contract, local regulations of the organization. Part 1 Art. 189 Labor Code of the Russian Federation

Grounds for bringing an employee to disciplinary responsibility. Disciplinary offense

The basis for bringing an employee to disciplinary responsibility is the commission of a disciplinary offense. The Labor Code of the Russian Federation understands a disciplinary offense as a failure to perform or improper performance by an employee through his fault of the labor duties assigned to him (part 1 of article 192 of the Labor Code of the Russian Federation).
A disciplinary offense is characterized by the presence of such features as the subject, the subjective side, the object, the objective side.
The subject of a disciplinary offense may be an employee who is in an employment relationship with a specific employer.
The subjective side is the fault on the part of the employee, which can be expressed in the form of direct or indirect intent, as well as negligence.
The object of a disciplinary offense is the internal labor schedule of the organization.
The objective side is the action (inaction) of the offender.
For the correct application of a disciplinary sanction, it is necessary to have a clear understanding of what labor law refers to labor duties. The main duties of the employee are set out in Art. 21 of the Labor Code of the Russian Federation. So, the employee must:
- conscientiously fulfill their labor duties assigned to him by the employment contract;
- comply with the internal labor regulations of the organization;
- observe labor discipline;
- comply with established labor standards;
- comply with labor protection and labor safety requirements;
- take care of the property of the employer and other employees;
- immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the property of the employer.
The labor obligations of both the employee and the employer can also be fixed in other regulations, collective agreements and agreements, and they are specified in labor contracts.
In paragraph 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 "On the application by the courts Russian Federation of the Labor Code of the Russian Federation "it is emphasized that when considering a case on the reinstatement of a person dismissed under clause 5 of article 81 of the Labor Code of the Russian Federation, or on contesting a disciplinary sanction, it should be taken into account that the employee's failure to perform labor duties without good reason is failure to perform or improper performance according to the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under the employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).
The Supreme Court of the Russian Federation in the said decision draws attention to the fact that such violations include:
1. Absence of an employee without good reason at work or workplace.
At the same time, it is explained that if the specific workplace of this employee is not stipulated in the employment contract concluded with the employee, or the local regulatory act of the employer (order, schedule, etc.), then in the event of a dispute over the question of where the employee is obliged be in the performance of their duties, it should be assumed that, by virtue of Part. 6 Article. 209 of the Labor Code of the Russian Federation, a worker is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

As a general rule, the application of a disciplinary sanction is the right, not the obligation of the employer

2. Refusal of an employee without good reason to perform labor duties in connection with a change in the established procedure for labor standards (Article 162 of the Labor Code of the Russian Federation), since by virtue of an employment contract, the employee is obliged to perform the labor function defined by this contract and comply with the rules in force in the organization internal labor regulations (Article 56 of the Labor Code of the Russian Federation).
It should be borne in mind that the refusal to continue work in connection with a change in the essential terms of the employment contract is not a violation of labor discipline, but serves as a basis for terminating the employment contract under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for by Art. 73 of the Labor Code of the Russian Federation.
3. Refusal or evasion, without good reason, of medical examination of workers in certain professions, as well as the refusal of an employee to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work (p. 35 of the decision of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
The participation of employees in a strike cannot be considered as a violation of labor discipline, and accordingly, in this case, disciplinary measures cannot be applied to them, except in cases where the strike is declared illegal by a court decision (parts 1 and 2 of article 414 of the Labor Code of the Russian Federation). If a strike is recognized as illegal, workers are required to stop it and start work no later than the next day after the copy of the said court decision is handed over to the body leading the strike (part 6 of article 413 of the Labor Code of the Russian Federation). If employees do not start work within the time limits established by law, they may be subject to disciplinary action for violating labor discipline (part 1 of article 417 of the Labor Code of the Russian Federation).
The employee, in the course of performing his/her work duties, must submit to the disciplinary authority of the employer. The application of disciplinary action in accordance with Art. 22 and 192 of the Labor Code of the Russian Federation is the right of the employer, he is independent in making a decision. An exception to the rule is provided for in Art. 195 of the Labor Code of the Russian Federation, which indicates the obligation of the employer to apply a disciplinary sanction to the head of the organization (or his deputies), up to dismissal, in cases where the facts of violations by the head of the organization (his deputies) of laws and other regulatory legal acts on labor, the terms of the collective agreement are confirmed, agreements specified in the statement of the employees' representative body.

Types of disciplinary sanctions. The procedure for bringing an employee to disciplinary responsibility

The employer is not entitled to establish in local regulations and apply other types of disciplinary sanctions other than those listed in Art. 192 of the Labor Code of the Russian Federation, federal laws, charters and regulations on discipline

The employer has the right to apply the following disciplinary sanctions:
- remark;
- reprimand;
- dismissal on the appropriate grounds.
Most employees may be subject to only those penalties that are defined by the Labor Code of the Russian Federation. In addition to the above-mentioned disciplinary sanctions, certain groups of employees may be subject to penalties provided for by federal laws, charters and regulations on discipline. Labor legislation does not allow the application of disciplinary sanctions that are not provided for by federal laws, charters and regulations on discipline.
The Labor Code of the Russian Federation does not directly indicate on what grounds dismissal should be considered as a disciplinary sanction. Such grounds include, for example, 5, 6, 9 and 10 st. 81 of the Labor Code of the Russian Federation.
It is necessary to pay attention to the following: part 2 of Art. 77 of the Labor Code of the Russian Federation establishes that the grounds for termination of an employment contract may be established by the Labor Code of the Russian Federation and other federal laws. In fact, it turns out that in the regulation or charter on discipline, approved. by a decree of the Government of the Russian Federation, no additional grounds for dismissal can be indicated other than those contained in the Labor Code of the Russian Federation and other federal laws.

The Presidium of the Supreme Court of the Russian Federation, by its resolution of 03.07.02 No. 256pv-01, recognized paragraph 18 of the Regulations on the discipline of railway workers of the Russian Federation, approved. Decree of the Government of the Russian Federation of 08.25.92 No. 621 (as amended by the Decrees of the Government of the Russian Federation of 12.25.93 No. 1341, of 04.23.96 No. 526, of 02.08.99 No. 134), illegal. It was recognized that the introduction by a by-law of an additional ground for dismissal (for an employee committing a gross violation of discipline that posed a threat to the safety of train traffic ... the life and health of people or led to a violation of the safety of goods ...) contradicts the requirements of the legislation of the Russian Federation.

Labor discipline of workers whose work is directly related to the movement Vehicle, should be regulated by the Labor Code of the Russian Federation and the provisions (charters) on discipline approved by federal laws. So far, no such statute or regulation has been adopted. In accordance with Art. 423 of the Labor Code of the Russian Federation, previously approved charters and regulations on discipline are valid until the relevant federal laws, which will approve the new statutes and regulations on discipline.
The procedure for bringing an employee to disciplinary responsibility is established by Art. 193 of the Labor Code of the Russian Federation. The employer, before applying this or that disciplinary sanction, must request a written explanation from him.

The refusal of the employee to give an explanation is reflected in the act.
The employee's refusal to give an explanation is not an obstacle to the application of a disciplinary sanction. Parts 1 and 2 Art. 193TKRF
The period for applying a disciplinary sanction (1 month) does not include 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. Part 3 Art. 193 Labor Code of the Russian Federation

An employee can be brought to disciplinary responsibility no later than one month from the day the offense was discovered .
When bringing an employee to disciplinary responsibility, remember:
- a one-month period for imposing a disciplinary sanction must be calculated from the day the misconduct was discovered;
- the day of discovery of the misdemeanor, from which the monthly period begins, is considered the day when the person to whom the employee is subordinate at work (service) became aware of the misconduct whether or not it has the right to impose disciplinary sanctions;
- within a month for the application of a disciplinary sanction, the time of illness of the employee, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation) are not counted; the absence of an employee from work for other reasons, including in connection with the use of rest days (days off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the course of the specified period;
- leave interrupting the course of a month should include all holidays provided by the employer in accordance with applicable law, including annual (basic and additional) holidays, holidays in connection with studying at educational institutions, holidays without pay ( paragraph 34 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 04 No. 2).
A disciplinary sanction cannot be applied to an employee later than 6 months from the date of the misconduct, and based on the results of an audit, audit of financial and economic activities or an audit - later than 2 years from the date of its commission. The indicated time limits do not include the time of proceedings in a criminal case (part 4 of article 193 of the Labor Code of the Russian Federation).
Thus, the legislation clearly establishes the time limits during which it is possible to bring an employee to disciplinary responsibility. The imposition of a disciplinary sanction after the expiration of these terms is illegal.
For each disciplinary offense, the employer can apply only one disciplinary sanction (part 5 of article 193 of the Labor Code of the Russian Federation). Often, employers issue a reprimand or make a remark and immediately dismiss the employee. This practice is unacceptable, since such a dismissal will be recognized by the court as illegal. In this case, the employer imposes a disciplinary sanction twice for the same disciplinary offence.

Citizen I. turned to the State Labor Inspectorate with a complaint about illegal dismissal. During the audit, it was found that I. worked in 000 "Lions" as an accountant for 3 years. During this period, she was repeatedly brought to disciplinary responsibility for the improper performance of her duties under the employment contract. At the next detection of the committed violation, she was reprimanded, then she was fired under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation for repeated failure to perform labor duties without good reason.

I. was reinstated at work, because the employer applied two disciplinary sanctions for the same disciplinary offense. In addition, he violated the procedure for applying disciplinary sanctions against I. - she was not familiarized against signature with any of the orders to bring her to disciplinary liability.

The Labor Code provided that the body considering a labor dispute has the right to take into account the compliance of the disciplinary sanction with the severity of the misconduct, the circumstances under which it was committed, the previous work and behavior of the employee. Unfortunately, the Labor Code of the Russian Federation does not contain such a provision. However, judicial practice, when considering cases of reinstatement at work, follows the path of taking into account these circumstances. It seems that when making a decision to bring an employee to disciplinary responsibility, these circumstances should still be taken into account, despite the fact that the obligation to take them into account is not yet contained in the Labor Code of the Russian Federation.

The order (instruction) of the employer on the application of a disciplinary sanction must be announced to the employee against receipt within three working days from the date of issue. If the employee refuses to sign the specified order (instruction), then an appropriate act is drawn up (part 6 of article 193 of the Labor Code of the Russian Federation).
Paragraph 33 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 states that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the misconduct, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the termination notice.
An employee can appeal against a disciplinary sanction to the state labor inspectorate or bodies for the consideration of individual labor disputes (part 7 of article 193 of the Labor Code of the Russian Federation). The bodies considering individual labor disputes are commissions on labor disputes and courts.
In accordance with Art. 391 of the Labor Code of the Russian Federation, individual labor disputes are considered directly in the courts on the applications of employees for reinstatement, regardless of the grounds for termination of the employment contract, for changing the date and wording of the reason for dismissal. If an employee believes that such a disciplinary measure as dismissal was unlawfully applied to him, then he should apply directly to the court, bypassing the labor dispute commission. At the same time, if an employee is held liable and such disciplinary measures as a reprimand or remark are applied to him, the employee can apply both to the court and to the labor dispute commission.

The duration of the disciplinary action

Part 1 of Art. 194 of the Labor Code of the Russian Federation establishes: if within a year from the date of application of a disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have a disciplinary sanction.

Before the expiration of the one-year period, the employer has the right to remove the penalty from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees (part 2 of article 194 of the Labor Code of the Russian Federation). At early withdrawal disciplinary sanction, it is necessary to issue an appropriate order (instruction).

Labor legislation establishes additional legal guarantees for certain groups of employees when they are brought to disciplinary responsibility by the employer.
Thus, the dismissal of workers who are members of the trade union, according to paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, which is also referred to as disciplinary sanctions, is taking into account the opinion of the elected trade union body this organization. Accounting for the opinion of the trade union organization must be carried out in the manner prescribed by Art. 373 of the Labor Code of the Russian Federation.
Representatives of employees participating in collective negotiations during the period of their conduct cannot without the prior consent of the authority that authorized them to represent, be subjected to disciplinary action, and also dismissed at the initiative of the employer, with the exception of cases of termination of the employment contract for committing a misdemeanor, for which, in accordance with the Labor Code of the Russian Federation or other federal laws, dismissal from work is provided (part 3 of article 39 of the Labor Code of the Russian Federation).
According to Art. 66 of the Labor Code of the Russian Federation, information on penalties is not entered in the work book, except in cases where dismissal is a disciplinary sanction.
The forms of orders for announcing a remark or reprimand are not unified; general rules, which are presented for registration of organizational and administrative documents.
In the event that a disciplinary sanction such as dismissal is applied to an employee, the order is drawn up in a unified form No. T-8. This form was approved by the Decree of the State Statistics Committee of Russia dated 05.01.04 No. 1 "On approval unified forms primary accounting documentation on the accounting of labor and its payment.
In conclusion, we note that employers are primarily interested in complying with the requirements contained in the legislation when applying disciplinary sanctions. By following the rules fixed in regulatory legal acts, they save their money and time.

An employee can either receive a bonus or lose it under certain circumstances. But how is the bonus deduction carried out and in what cases is this type of punishment for an employee possible?

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Let us analyze the main provisions of the Labor Code of the Russian Federation that relate to this issue.

In rare cases, accountants can answer all questions of an employee regarding the calculation of bonuses, if the company has not approved the Regulations on bonuses.

Therefore, we turn to the legislative documents of the Russian Federation, which indicate when the employer has the right to deprive bonuses, and when such actions will violate the interests and rights of personnel.

Such information will allow the company's specialists to defend their rights, and the employer to act in accordance with the letter of the law, which means avoiding liability.

What do you need to know?

When is the accrual of a bonus and the deprivation of such a payment, what is the essence of such concepts? What are the legal grounds for this type of punishment?

Basic definitions

A bonus is an incentive type of additional payment that is accrued one-time or systematically when certain tasks are completed, the plan is overfulfilled, etc.

Such payments are an allowance to the basic salary of the employee and are voluntary. That is, no one has the right to force the employer to make bonus payments.

Bonus deprivation is the deprivation of an employee of a bonus when committing a disciplinary offense. The deprivation of the bonus (or its reduction) is a penalty for failure to comply with certain rules, which does not apply to disciplinary sanctions.

The bonus is a variable component of earnings. The employer may not pay it, if there are grounds for this, prescribed in local acts or regulations on bonuses to personnel.

The legitimacy of the bonus deduction

If the organization does not have approved local regulations, then employers independently (and often illegally) decide to deprive the employee of the bonus.

When does the deprecation not contradict the legislation of the Russian Federation? Financial punishment is possible in such cases:

• if a person violates labor discipline and internal regulations approved by the company;
• if the employee does not perform labor duties, which are provided for by the job description, or they are performed improperly;
• if the head of the organization has given a task or assignment that is related to the direct obligations of the subordinate, but it is not fulfilled;
• if a citizen did not show up for work or was late;
• if material damage has been caused to the enterprise, the entrusted property objects have been damaged.

The issue of the legality of punishing an employee will be decided in each specific case in accordance with the approved local acts at the enterprise.

The principles of proportionality, fairness and loyalty must be respected. The provisions on bonuses should spell out the nuances of deprivation in full or in part.

The period of non-payment is determined (for example, it is prescribed that the employee does not have a disciplinary sanction in such a period when the bonus is accrued).

It is worth noting that the very concept of bonus deduction does not exist in the legislation of the Russian Federation. The employer may not accrue, but not deprive the bonus.

Non-payment of bonuses will not contradict, which says that under the action of a disciplinary sanction, the incentive measure will not be applied to the employee.

So, in order for the bonus deduction to be carried out within the framework of the law and not contradict the interests of any party, it is worth following the following rules:

1. The employer must approve the Regulations on bonuses at the enterprise.
2. If an employee is deprived of a bonus, this should be documented. An employee of the company gets acquainted with the order personally and signs the form.
3. It is necessary to prescribe the terms of deprecation in the internal regulatory act.

The procedure for depriving an employee of an employee's bonus under the Labor Code

Let's consider in what cases the deduction of an employee's bonus will be a reasonable action of the employer. How legal is a penalty in the form of deprivation of bonus?

Upon disciplinary action

A disciplinary sanction is understood as a punishment that is imposed on an employee in case of improper fulfillment of obligations in accordance with.

Art. 192 of the Labor Code of Russia contains information on such penalties:

• comment;
• rebuke;

Other disciplinary sanctions may be imposed on individual employees, which are regulated by federal laws, charters and internal regulations of the company.

The employer has the right, but is not obliged to hold the employee liable for a disciplinary offense (). But the organization must rely on legislative acts.

The deprivation of the award as a disciplinary sanction is not mentioned in. Therefore, the court may recognize the decision to deprecate the bonus simultaneously with the reprimand as an illegal action.

But since there are no clear provisions in regulatory framework, the judge has the right to make a different decision. Companies often forfeit bonuses to their employees when committing such disciplinary offenses (which is not always legal):

• when walking;
• when late;
• when rude to colleagues;
• when creating conflict situations in the team;
• if the dress code is not followed, etc.

Article 192 of the Labor Code does not provide for the simultaneous application of a disciplinary sanction and deprivation of bonuses. It says that for one offense one punishment (recovery) should be applied.

When determining the punishment, the company's management must take into account the severity of the misconduct, the circumstances that took place at the time of the violation.

In order to be able to reduce the bonus or cancel it, the employer must approve such provisions in local regulations.

Prescribed:

• accrual rules;
• the procedure for calculating the amount of payment, taking into account the results of work;
• cases where the premium is not charged.

This means that if the company's management deprives an employee of a bonus for failure to fulfill official obligations, the Labor Code of Russia will be violated.

Because of the prosecutor's warning

The prosecutor's warning must be in the form of a document. It can only be announced official after the verification. It is mandatory to reprimand the soldier.

An employee of the enterprise has the right to appeal such a warning to judicial order if there is reason to believe it is illegal.

A warning of this type should contain a list of certain measures that should be taken in order to avoid further liability of a criminal, civil, administrative nature.

A prosecutor's warning is not a type of disciplinary sanction. This is a conversation between the employee and the prosecutor, which cannot be considered sufficient grounds for depriving the bonus.

It also cannot affect the further career of a specialist if all the points prescribed in the document are fulfilled.

After its payment

The following question is often asked on the forums - can an employer take a bonus that has already been paid. Expert opinions differ on this matter. Some believe that the company has the right to such actions.

Since the bonus is not mandatory payment, but is carried out only at the initiative of the company's management, non-calculation of the premium will not be a violation.

But what if the person has already received such funds in his hands, and then the employee “changed his mind” and demands the bonus back?

This refers to cases where there was no dishonest behavior on the part of an individual, as well as counting errors.

The employee himself may agree to return the bonus, but if the employer deducts the required amount from earnings, the person has the right to go to court, putting forward a claim for compensation for non-pecuniary damage.

Attitude to reprimand

Legally, the deprivation of an employee's bonus is not a disciplinary sanction, therefore, there are provisions in the legislation according to which the employer has the right to recover material resources.

An employee of the company may lose the bonus and receive a reprimand at the same time (). Bonus deprivation is a fairly effective way to influence staff.

What to do in case of illegal deprecation?

Is it legal to accrue and pay bonuses to an employee while he is on sick leave or on maternity leave (during this period the employee did not officially work)? The Internal Labor Regulations provide for bonuses based on the results of the month, year and other bonuses based on the order of the head.

Answer

The employer independently develops a bonus system, including determining the conditions for paying bonuses in their local acts.

It is necessary to clearly and clearly prescribe the procedure for bonuses: to whom and in what cases bonuses are paid, which is the basis for non-payment of bonuses.

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Firstly, it is necessary to clarify whether bonuses were accrued for the period of work, and paid during the period of illness. Or charged for the period of illness? In the first case, there should be no dispute: if the employee has completed the accounting period or achieved some results that are the basis for bonuses, then paying him a bonus during the period of illness will be legitimate. If the bonus is accrued for the period of the employee’s illness and is in no way tied to the result of his work (for example, a bonus in connection with an anniversary date that coincided with a period of incapacity for work), then such a bonus may be provided for by a local act and paid to the employee. However, there are certain tax risks(see the last appendix to the answer).

Bonuses to employees on sick leave or maternity leave are accrued and paid in the same way as to all other employees, unless otherwise provided by the local regulatory act of the organization.

Secondly, the wording you cited is controversial: “according to the results of a month, a year” can mean both the results of the work of specific employees, and the results of the financial and economic activities of the entire organization. If, at the same time, the Internal Labor Regulations provide for the obligation of the employer to pay bonuses (not “may be paid”, but “paid”, “should be paid”, etc.), then in case of non-payment of the bonus and the employee goes to court, it is likely that the court decision will be in favor of the employee, and bonuses will need to be paid.

From the book you will learn what may arise difficult situations with the remuneration of employees and how to solve them, how to introduce piece-bonus wages, taking into account the latest changes. Let's consider in detail: how and when to provide compensation for work on weekends and non-working holidays, what common mistakes allow employers to pay overtime. We will also look at how to prepare for unscheduled inspection GIT, what fines and sanctions are possible for violations of wages.

If the Internal Labor Regulations provide that the employer has the right to reward employees, and is not obliged to do so, bonuses may not be paid, and even the reasons for non-payment may not be explained.

Thirdly, in order to avoid similar problems in the future, it is recommended that the local regulatory act establishing the bonus system establish that the payment of bonuses is the right of the employer, and not his responsibility.

It can also be provided that the bonus is accrued for the actually worked in reporting period times that do not include:

Stay on the next main or additional vacation;

Stay on maternity leave;

Stay on parental leave;

Time off from work, including caring for a sick family member.

If the employee fails to work half or more of the norm of working time for the billing period for calculating the bonus, the bonus is not accrued and is not paid.

The bonus at the end of the year is subject to accrual and payment to employees who have worked in reporting year at least 200 working days and working in LLC at the end of the reporting year, including those who had the last working day on December 31 of the reporting year.

The bonus is not accrued and is not paid to the employee in in full if available in billing period unremoved disciplinary sanction for violation of labor discipline.

Such provisions will make it possible to justify the non-payment of bonuses for the period of leave (annual, maternity or child care), temporary disability, as well as employees who have disciplinary sanctions.

If the employer decides to pay bonuses to employees who are on sick leave or on maternity leave, this can also be provided for in the local act, and payments can be made. However, in the latter case, there is a possibility of a dispute with the tax authorities about the legality of attributing such payments to the expenses of the organization, since these payments will be clearly not of a production nature, but from the point of view of Art. 252 of the Tax Code of the Russian Federation can be recognized as economically unjustified.

Thus, it is up to the employer to decide whether or not to pay a bonus to an employee on sick leave. The law does not prohibit paying a bonus in this case, too, if it is provided for by a local act, but depending on whether this bonus is related to the employee’s labor merits or is paid regardless of them (anniversaries or holidays), tax implications will be different.

More details in the materials of the System:

1. Answer: How to calculate bonuses

Types of premiums

The organization develops the bonus system independently.* That is, the organization has the right to establish any types of bonuses for employees.

Depending on the frequency of payment of the bonus, they are divided into:

Depending on the grounds for the payment of bonuses are divided:

for production (accrued for the employee's labor achievements);

to non-production (not related to the results labor activity employee).

According to the sources of payment of bonuses are divided:

for those paid out of the costs of ordinary species activities;

for those paid out of other expenses;

paid out of net income.

in a separate local document of the organization (, etc.) (, Labor Code of the Russian Federation).

In this case, a one-time bonus may be an integral part. Accordingly, one-time bonuses for production results can be taken into account when calculating.

However, one-time bonuses may not be part of the organization's remuneration system and may be assigned only by order (order) of the head.

The basis for the accrual of any one-time bonus is the order of the head to encourage an employee () or a group of employees (). The order is signed by the head of the organization. The employee (employees) must be familiarized with the order under the signature (instructions approved). For information on whether it is necessary to make entries about one-time bonuses in the work book and in the employee's personal card (), see.

Quarterly and monthly bonuses

Monthly and quarterly bonuses can be both operational (for example, monthly bonuses that are part of the salary) and non-productive (for example, monthly bonuses for employees with children). Usually, the payment of monthly and quarterly bonuses is still associated with the production activities of employees.

Monthly and quarterly bonuses can be paid from. Most often, monthly and quarterly bonuses are paid out of the costs of ordinary activities.

The procedure for paying monthly (quarterly) bonuses can be fixed:

in a separate local document of the organization (for example, in,) (, Labor Code of the Russian Federation).

The basis for calculating the bonus is the order of the head to encourage an employee () or a group of employees (). The order is signed by the head of the organization. The employee (employees) must be familiarized with the order under the signature (instructions approved).

Do not make entries about monthly (quarterly) bonuses in the work books of employees. This is due to the fact that such awards are of a regular nature. And bonuses paid regularly do not need to be entered into the employee's work book (Rules approved).

Annual bonus

in a separate local document (for example, in, etc.) (, Labor Code of the Russian Federation);

in the order for the payment of the premium ().

In the documents regulating the procedure for calculating and paying bonuses, indicate.

The basis for calculating the bonus is the order of the head to encourage an employee () or a group of employees ().

The order is signed by the head of the organization. Familiarize the employee (employees) with the order against signature (instructions approved).

Sergei Razgulin

Deputy Director of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia

Employee bonuses. How can employers protect themselves from claims?

How can an employer formulate the conditions of local acts so that the payment of bonuses is his right, not an obligation

Is the employer obliged to pay a bonus based on the results of work for the year to the employee if he worked less

How to properly regulate the conditions for reducing the premium

Where to write conditions

The bonus system in the organization is established by the collective agreement, agreement, labor contract, local regulations. The employer will reduce the risk of labor disputes on bonus issues if the first three types of documents indicate only reference norms to the relevant local acts regulating the procedure for calculating and paying bonuses. In the local acts themselves, adopted taking into account the opinion of the trade union body, the procedure should be spelled out in detail. If the rules for calculating the bonus, its amount and the frequency of payment are spelled out in the employment contract, it will be easier for the employee to obtain court support.

In local acts containing general norms (Internal labor regulations, Regulations on wages, etc.), questions about the payment of bonuses are usually not as clear as in narrowly focused ones (Regulations on bonuses, the procedure for remuneration of sales agents, etc.).

Firstly, they regulate legal categories, such as terms of accrual, billing period, payment period, etc., and secondly - in addition to this - they also provide for calculation formulas, premium recipients, minimum and maximum indicators necessary for accruing bonuses, other conditions her charges.

Let us consider separate wordings of narrowly focused local acts from the point of view of their indisputability from the position of the employer and the popularity of challenging by employees.

Condition 1. How to prescribe that the payment of the bonus is the right, and not the obligation of the employer

Correct wording: "The employer, in accordance with the Internal Labor Regulations, the Regulations on the Remuneration of Employees, the Regulations on Bonuses for Employees, has the right to apply incentives to employees in the form of bonus payments."

The controversial wording: "The employer, in accordance with the Internal Labor Regulations, the Regulations on the Remuneration of Employees, the Regulations on Bonuses for Employees, produces / undertakes to produce / must apply incentives to employees in the form of bonus payments."

Disputes arise precisely from the interpretation of the obligation to pay bonuses, and not the right of the employer to such an action. In case of disputable wording during the consideration of the case, the court, on the basis of an analysis of the local acts of the employer, as well as taking into account the testimony, customs (practice) of paying bonuses at the enterprise (based on data accounting) may conclude that the employer is obligated to pay the bonus.

Nevertheless, even by establishing the payment of a bonus as an obligation of the employer, it is possible to fix in the local act those circumstances, the presence or absence of which determines its occurrence. It must be remembered that the outcome of the dispute in court depends on the clarity of the requirements established by the local act of the employer.

Arbitrage practice . At the end of the month, R.'s bonus, unlike other employees, was 0%. The prosecutor, in the interests of R., filed a lawsuit against the company for the recovery of the premium. However, the court dismissed the claim. In accordance with the employment contract R. and the Regulations on the wage system, monthly bonuses are paid to the employee subject to the following three conditions: the company fulfills the production plan of activity, the employee has no violations of labor discipline, the fulfillment of individual bonus indicators approved by order CEO. R. did not have any violations of labor discipline. But the court found that he did not fulfill the production plan for products and individual indicators for promotion. The accrual of a bonus to other employees cannot serve as a mandatory basis for its accrual R.

Condition 2

The correct wording is: “All full-time employees, if there are funds in the payroll, can, by a separate order of the employer, be paid a bonus dedicated to the corporate holiday - the day the company was founded - April 04. The amount of the bonus is equal for all employees and amounts to 500 rubles each. In the absence of a payroll Money no bonuses are given for the specified purposes.

The controversial wording: "The employer pays an annual bonus for the corporate holiday, the day the company was founded, on April 4." The fallacy of the second wording is that it, in fact, establishes the obligation of the employer to pay the bonus, and its volume is not specified. As a result, even in the absence financial opportunity the employer will have to pay the bonus annually on the designated date.

Arbitrage practice . The court satisfied the claims of S. against the municipal enterprise for the recovery financial assistance, premiums by March 8 and interest for the delay in these payments. The court found that the plaintiff, in accordance with the collective agreement and the Regulation on remuneration of MUP, has the right to receive material assistance at the end of the year in the amount of salary and to receive a bonus by March 8 in the amount of 1000 rubles. The defendant substantiated his position by the fact that S. did not work for a full year, therefore she was not paid material assistance, and the bonus was paid to other employees for the timely submission of reports, conscientious attitude to the performance of official duties. The court found the defendant's arguments untenable and contrary to the collective agreement, as well as the Regulations on wages.

Condition 3. How to refuse to pay a bonus to a terminated employee

The correct wording is: “The bonus at the end of the year, provided for in paragraph 4 of the Regulations on Bonuses, is subject to accrual and payment to employees who worked at least 200 working days in the reporting year and work in LLC at the end of the reporting year, including those who had the last working day on December 31 reporting year".

IN this case the recipient of the bonus is clearly identified, which prevents the laid-off employees from claiming material remuneration by the end of the year.

Arbitrage practice. Eight plaintiffs filed a lawsuit against the military unit to change the date of dismissal, collect a bonus and recognize a certificate of average wages invalid. IN statement of claim they indicated that they worked in a military unit on various positions, but in connection with the defendant's organizational and regular activities dismissed. At the same time, none of them was paid a one-time remuneration for the year, which is provided for. The court dismissed the claim, since this order and the collective agreement do not contain provisions obliging the defendant to make these payments. A similar case was considered by Volgograd regional court. According to six plaintiffs, upon dismissal, they were not paid remuneration for the year, although it is due to all employees who have worked in the company for at least a year and have no penalties. The court found that, by virtue of paragraphs 3.1, 3.4 of the Provisional Regulations, bonuses to employees are made from the profits of the JSC within the funds allocated for bonuses when calculating the volume products sold, gross income and profit of society. Prizes are distributed at a joint meeting of the administration, foremen, production teams, members of the trade union. 06/07/2010 at such a meeting, it was decided to pay a monetary reward in the form of material assistance to annual leave employees working in OJSC as of 06/01/2010. According to the case file, the plaintiffs were dismissed prior to that date. The court recognized the actions of the defendant in non-accrual and non-payment of this type of material incentives as lawful. In addition, no decision was made to allocate funds for bonuses.

Controversial wording: "A bonus for the year is accrued to full-time employees of the LLC in the manner and amount provided for in Chapter N of the Bonus Regulations."

The controversial wording lies in the fact that the circle of recipients of the bonus is not defined, since the organization may have employees who did not work in the reporting year (for example, those who are on parental leave). In addition, during the year, employees in the organization are fired, hired, transferred, and the wording does not contain any differentiation, therefore, when applying some kind of emergency situation, the employer cannot avoid disputes.

Arbitrage practice . The prosecutor, in the interests of Z., I., D., applied to the court with a demand to oblige the MOU SOSH to determine the amount of their bonuses for the quality indicators of work at the end of the academic year and pay these amounts. The annual performance bonus is part of the remuneration, so employees who are dismissed before the end of the period for which the remuneration is paid can also apply for it. The Regulations on Incentive Payments to Employees of the Ministry of Education and Science of the Secondary Educational Institution indicate that a one-time bonus is provided for achieving high results in work, which is carried out on the basis of a decision of the commission for the appointment of incentive payments. The court satisfied the claim in full, since there was no condition on the exclusion from the number of bonus employees who left before the end of the year.

Condition 4. How to reduce the size of the bonus due to non-working hours

Correct wording: “The bonus is accrued for the time actually worked in the reporting period, which does not include:

stay on the next basic or additional leave;

stay on maternity leave;

being on parental leave;

time of disability, including caring for a sick family member.

If the employee does not work out half or more of the norm of working time for the billing period for calculating the bonus, the bonus provided for in paragraph 5 of the Regulations on bonuses is not accrued and not paid.

The controversial wording: "The bonus is accrued to employees of all departments for the past month / year."

The second wording does not clearly fix whether the employer has the right to reduce the amount of the bonus or not pay it at all to those employees who did not actually work in the billing period, which can provoke disputes. The first wording allows the employer not to pay bonuses to employees who were absent from work for half or more of the reporting period. At the same time, a clear regulation of the amount of bonus reduction puts the employer in a strict framework.

Arbitrage practice . Sh. filed a lawsuit to invalidate the orders to impose penalties on him, in connection with which he was deprived of 30% of the bonus for the results of December 2010 and 50% for January 2011. Since the term limitation period with regard to the order on the accrual of bonuses for December 2010, Sh. missed, the court refused to satisfy the requirement in this part. Further, during the consideration of the case, the court found that on February 18, 2011 Sh. the established procedure has been observed, therefore, there are no grounds for canceling the order in terms of imposing a disciplinary sanction. However, according to the Regulations on bonuses, when an employee is notified of a remark, the bonus is charged in the amount of 80% of its established amount. It follows from the text of the disputed order that the decision not to accrue 50% of the bonus to the plaintiff based on the results of work for January 2011 is a direct consequence of the remarks announced to the plaintiff. Thus, the employer had the right to deprive the plaintiff of the bonus only within the limits established by this Regulation. As a result, the court partially satisfied the claims of Sh., recovering from the employer a part of the undercharged bonus).

Condition 5. How to avoid paying a bonus to an employee who has a disciplinary sanction

The correct wording is: “The bonus is accrued only to full-time employees of the LLC who duly fulfilled the requirements of the Internal Labor Regulations in the reporting year. The bonus to an LLC employee is not accrued and is not paid in full if there is an unresolved disciplinary sanction for violation of labor discipline in the billing period.

This interpretation allows the employer not to encourage violators of discipline, which can even be used as a measure of influence on employees. However, this wording obliges the employer to pay a bonus to an employee who has no penalties for the billing period.

The presence of the correct wording in local acts regulating the accrual and payment of bonuses does not yet guarantee the employer the absence of disputes. So, for example, the “transparency” of the wording will give the employee the opportunity to challenge the accrual of a bonus in a reduced amount if the employer exceeds those powers that are fixed in the local act.

Controversial wording: "For violation of labor discipline, the employee is deprecated"; “For violation of labor discipline in an LLC, the following types of disciplinary sanctions are applied: remark, reprimand, deprecation, dismissal.”

Deprivation cannot be considered as a punishment. The list of disciplinary sanctions is contained in the Labor Code of the Russian Federation and is not subject to expansion by employers. Exceptions under Art. 189 of the Labor Code of the Russian Federation relate to federal laws, charters and discipline regulations in which other penalties may be provided.

Even the clarity and correctness of the wording cannot always protect the employer from labor disputes on the basis of inconsistency between the order to deprive the bonus and the provisions of the Labor Code of the Russian Federation.

Arbitrage practice . E. filed a claim for the removal of disciplinary sanctions and compensation for non-pecuniary damage. After examining the case materials, the court found that the defendant applied two penalties to the plaintiff: in the form of a disciplinary sanction and a partial reduction in the amount of the bonus, which is not allowed by law. Having established the employer's failure to comply with the procedure for imposing a disciplinary sanction in the form of a reprimand, the court concluded that the order was issued by him illegally. However, the plaintiff's claims to invalidate the order to de-bonus and collect the bonus are not subject to satisfaction, since the defendant, by virtue of the Regulations on bonuses for employees in force, had the right to reduce the amount of the bonus, since he established a violation of the plaintiff's labor duties, which is confirmed by the act. The court satisfied E.'s demands in part: the order to declare a reprimand was declared illegal, and the order to deprive the bonus was upheld.

Condition 6. How to set a target or individual premium

The correct wording is: “The employer has the right, for special services to the organization, to achieve the best results, by a separate order of the head, to encourage specific employees. As an encouragement at the choice of the employer, the following is used: a certificate of honor, a memorable gift, a bonus. Ready-made plan of the main affairs of the personnel officer for the first quarter of 2019
Read the article: Why should a personnel officer check accounting, is it necessary to submit new reports in January and what code to approve for a time sheet in 2019

The editors of the Kadrovoe Delo magazine found out which habits of personnel officers take a lot of time, but are almost useless. And some of them may even cause bewilderment in the GIT inspector.

Inspectors of the GIT and Roskomnadzor told us what documents should never be required from newcomers when applying for a job. You probably have some papers from this list. We have compiled full list and selected a safe substitute for each forbidden document.

If you pay vacation pay a day later than the deadline, the company will be fined 50,000 rubles. Reduce the notice period for the reduction by at least a day - the court will reinstate the employee at work. We have studied judicial practice and prepared safe recommendations for you.