Dismissal for violation of labor discipline: judicial practice

Any employment requires the employee to follow labor discipline. And if this part of the workflow is not respected or is being violated, dismissal may follow. Moreover, dismissal for violation of labor discipline is always an article. We will analyze the nuances of this process in more detail.

Labor discipline

Under labor discipline understand the main part of the work process. This is a set of rules of conduct and norms governing the relationship between the employee and the employer. If the team does not obey the established rules, a full-fledged work process will not work.

All principles are usually regulated and fixed by an employment contract. And for non-observance of discipline, various fines and penalties are provided. These include the dismissal as a tough measure in violation of discipline.

On the basis of what article is dismissal for violation of labor discipline? Article 81, paragraph 6, is usually applied when an entry is made in the work book, and Art. 192 governs disciplinary action for violation or failure to fulfill obligations.

Employee Responsibilities

According to the law, an employee must:

1. At the proper level to fulfill their duties.
2. Adhere to labor standards and discipline.
3. Observe safety at work.
4. Protect the organization’s property and keep trade secrets.
5. If there is a threat to the health of other employees, warn management.

If an employee has ignored at least one of the above items, this can be attributed to a violation of the internal routine, which, in turn, leads to punishment. The most extreme measure is dismissal for violation of labor discipline. In this case, before dismissing an employee, you need to prove his guilt.

Grounds

In order to dismiss the employee under the article, the employer must have good reason.

Regulates dismissal for violation of labor discipline article of the Labor Code of the Russian Federation. What article? Usually resort to article 81, which spells out specific reasons on the basis of which you can punish an employee.

These include:

• theft, embezzlement and other crimes in the organization;
• negligent attitude to the property of the head or his theft;
• amoral behavior;
• appearance at work in alcohol or drug intoxication;
• absence from work for more than three consecutive hours;
• one-time or permanent failure to fulfill their duties;
• availability of warnings and penalties for such violations.

Responsibility for violation

The employer may, depending on the severity of the violation, apply various types of punishment: from reprimand or remark to dismissal.

The first two cases are not included in the labor, but the fact itself must be recorded using an act. A reprimand or remark does not threaten the employee with anything terrible, if this was only once. But if misconduct leads to repeated reprimands, then the employer may resort to a harsh measure - this is dismissal for violation of labor discipline.

In any case, no matter what the penalty, the employee must draw up an explanatory statement within a few days. The employer on the basis of this document draws up a report. If the employee disagrees with the specified facts, he can appeal them and prove his innocence. In extreme cases, you can go to court.

The order of dismissal

If, nevertheless, the employer considers that dismissal for violation of labor discipline is the only way out, several steps should be taken:

1. Evidence of a violation. This stage is considered one of the most important, and it should be drawn up only in writing. A survey can be issued in several ways: by conducting an examination (if the employee is drunk) and by drawing up a protocol. You can also attach a video as evidence. The employer must remember that the lack of specific facts may serve as a reason for the reinstatement of an employee in a position through the court.
2. A warning. If for an employer an employee is a valuable person, but it turns out that discipline is for some reason violated, a warning can be dispensed with (but this also cannot be abused, the employee can sit on his neck).
3. Familiarization. If the employee is nevertheless guilty and all the evidence has been collected on him, then the employer must prepare a disciplinary order, which the employee must familiarize himself with on receipt. If an employee refuses to sign the document, it is necessary to draw up an act in the presence of witnesses.
4. Getting explanatory. An explanatory note from a delinquent employee is also an important part of the dismissal process. For example, if delays occur systematically, an explanatory note should be provided each time about this fact. The same applies to other cases when an employee violates the order established in the organization. An explanatory note can both help a citizen and establish a violation. Therefore, the employee must think what he writes and in what form.

Order

This document has the standard form T-8. The dismissal order should include the following points:

1. Full details of the organization (name, address, legal details).
2. Date and place of registration, as well as the number of the document.
3. Full information about the employee (last name, first name, patronymic, personnel number, position, unit).
4. A clear reason for dismissal for violation of labor discipline, article of the Labor Code of the Russian Federation.
5. Proof of disciplinary action (explanatory note from an employee, report, disciplinary action act).
6. Current date and signatures of both parties.

The timing

It is advisable to find out the dismissal for violation of labor discipline is possible for how long. Within two days from the moment of committing the misconduct, the employee must give an explanation, and within one month the dismissal process itself is carried out.

In this case, the employer must take into account that the measure of punishment for violations depends on the nature of the specific offense. And if the fact of the employee’s innocence is proved in court, the employer will have to not only restore the employee to his workplace, but also pay compensation.

There are executives who are trying for various reasons to process the termination of the contract retroactively. It is important to remember that these actions are illegal and bring disciplinary punishment for the authorities themselves.

So, dismissal for violation of labor discipline is possible within a month from the date of providing all the necessary evidence of misconduct.

Payment

On the last day, the employee must be paid the following:

• wages for the worked period;
• Bonus (if the employee is not deprived of these payments due to compensation for damage to the organization);
• compensation for unused vacation.

These payments are mandatory and prescribed by law, therefore, the employer cannot deprive the employee of these funds. The exception is the premium, which can go to repay the damage caused to the company (again, if this fact is proved).

No additional employee benefits are due.

Employment record

On the last day, in addition to payments, a work book is also filled out, where the basis is the dismissal for violation of labor discipline.Record in the labor should be regulated by article 81 of the Labor Code of the Russian Federation.

An example of the recording is shown in the photo below.

Arbitrage practice

If the dismissal procedure is not followed or the deadlines are violated, the employee can challenge the fact of dismissal in court. Consider the main contentious issues that may cancel the order of dismissal:

• non-observance of the procedure for fixing truancy;
• inconsistency of the data specified in the act with reliable information (very often, managers can inflate the time the employee is absent from the workplace during the day);
• employee disagreement to transfer to another unit or to another position, as well as a violation in the documentation;
• lack of a request for an explanation from the employee (there is no registered letter to the employee);
• exceeding the period allowed for imposing punishment.

If the court takes the side of the employee and the fact of absenteeism is interpreted as a forced absence, then judicial practice considers dismissal for violation of labor discipline as illegal.

The consequence of the protested decision is the cancellation of the order to terminate the employment contract, the restoration of the employee in the workplace, payment of compensation for moral damage to the employee, as well as its possible transfer to another unit.

A rather difficult case is the appeal of the dismissal of an employee for absenteeism, who has traveling work. In this case, the employer was able to dismiss the employee for absenteeism without evidence of such a fact.

The employee’s employment contract contained a clause on the traveling nature of the work, the employee did not have a specific workplace in the office, and the working day consisted of a free schedule. The main inconsistency in proving the employee's guilt was the inconsistency of the recorded data and the actual provisions proving its absence. In other words, in the absence of several hours, the worker was protected from absenteeism for the whole day. When considering such a case, the court sided with the employee and declared the actions of the employer illegal.

Termination of an employment contract on the basis of violation of labor discipline (for example, in the form of absenteeism) must be executed in strict accordance with legislative norms, the terms established by law and in a certain order. Violation of these actions may be appealed by the employee, and the employer will be required to pay various compensations for the moral damage caused, for the time that the citizen was unemployed.