How to issue a reprimand for failure to fulfill duties. The procedure for issuing a reprimand for improper performance of official duties - procedure, sample documents

So, the employer can fire you in the event of “repeated failure by the employee to fulfill his job duties without good reason, if he has a disciplinary sanction” (Labor Code Article 81, Part 1, Clause 5). To understand the meaning of this article, it is necessary to clarify such concepts as “disciplinary action”, “good reasons”, “job duties” and their “failure to fulfill”.

Let us remind you that when applying for a job (see section “Employment contract”), you had to sign an employment contract and other documents (internal rules, job descriptions, etc.), which list your job responsibilities. These documents certify that

a) there is a certain rule;

b) you are familiar with it.

The employer only needs to prove in writing that:

c) you violated it - and disciplinary action can be imposed on you. If, for example, a job description exists, but you did not read it and did not sign on it, then there is nothing to punish you for. Moreover, there is nothing to punish you for if such instructions do not exist at all.

A disciplinary sanction is a punishment that is imposed on an employee for “the failure or improper performance by the employee, through his fault, of the labor duties assigned to him” (Labor Code Article 192). The following disciplinary penalties exist:

a) remark;

b) reprimand;

c) dismissal “for appropriate reasons” (for example, for absenteeism).

That is, if you somehow violate your work duties, you should be reprimanded or reprimanded. In fact, there is no difference between them, and both can become grounds for dismissal if work duties are repeatedly violated.

It is important to remember the duration of the disciplinary action. The employee is considered subject to disciplinary action within a year (LC Article 194). That is, if he commits a second violation within a year, then he may be fired, but if later, not.

A typical mistake made by employers when imposing a disciplinary sanction is the absence of an explanatory note from the employee subjected to disciplinary action. After you have violated something, the employer must first demand a written explanation from you (LC Article 193). You must write it within 2 working days (that is, if you violated something on Friday, you can submit the explanatory note on Tuesday). In practice, employers require the employee to write an explanatory note immediately (“in half an hour”, “after lunch”, “in the evening!”, etc.). Such a demand is illegal! Say that you will write the document within 2 business days, as required by law. During this time, you can consult with a specialist or simply gather your thoughts and write an explanatory note that presents you in the most favorable light. You can even attach documents proving that you violated labor discipline for good reasons (for example, a doctor’s certificate).

If after 2 working days you have not provided an explanation, then the employer draws up a corresponding act (LC Article 193). In the absence of an explanatory note or an act confirming the employee’s refusal to provide one, the dismissal will be considered illegal.

Another mistake of the employer is violation of the deadlines for bringing to disciplinary liability. Penalty can be imposed within 1 month from the date of discovery of the offense (TC Art. 193).

The employer's order to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, a corresponding act is drawn up.

Attention! In this regard, the dates of reports on the employee’s misconduct, explanatory notes, orders for disciplinary action, time sheets and other documents are very important. Based on them, the court or labor inspectorate will be able to determine whether the deadlines established by law have been met.

In addition, a violation is considered such only if you committed it without good reason. Let's say you were unable to complete a task because you were injured. If you prove this - for example, bring a certificate from a doctor - then it is illegal to impose penalties on you. True, whether a reason is “good” is a relative concept. But if you have been subject to disciplinary action, you can appeal this decision.

When dismissing under the article, the employer must follow the following scheme: violation - demand for an explanatory note - explanatory note (within 2 days) - written reprimand or reprimand (within 1 month from the date of violation) - repeated violation (within a year from the date of the order for reprimand or remark) – dismissal.

Thus, you can be fired if

a) you violated your labor duties (which are recorded in the documents you signed);

b) the employer demanded an explanatory statement from you and no later than 1 month from the date of the violation issued an order for a reprimand or reprimand;

c) within a year you again violated your work duties.

A job description is a basic organizational document that defines the rights and responsibilities of each employee, as well as the ways in which various positions interact.

What are the consequences for employees and employers for violating job descriptions and failing to comply with regulations? Let's figure it out.

It is the job description that determines the main functions of the employee, his duties, as well as his responsibility when carrying out labor activities in a certain position.

The development of a job description is based on the regulations on the structural unit of the organization. Both documents are interrelated, since the responsibilities of each specific employee follow from the general objectives of the enterprise. Therefore, contradictions in them are unacceptable!

The job description must contain extremely clear formulations, since every incomplete or insufficiently clear definition leads to ineffective actions by the employee and, as a consequence, to instability of the entire enterprise.

It is developed for each position in the organization’s staffing table.

As a rule, development is carried out by the heads of structural divisions, since they are the ones who have the greatest understanding of the specifics of the production processes of their department. When writing instructions, each employer himself determines the level of detail: whether it will be one printed sheet or a multi-page volume. In this case, it is better to avoid extremes and reflect in the document the main aspects of work activity that are used in his daily work.

The document drawn up must be approved by the legal department of the organization and its immediate supervisor.

Registration requirements

A job description is an administrative document related to a unified documentation system, therefore certain requirements are imposed on its execution.

The title part of the instruction must contain the name of the organization and structural unit, the name of the document and the place of its preparation, as well as the title of the text, consistent with the title of the document in the case.

The contents of the document can be agreed upon with a certain circle of people at the discretion of the employer, however, this is not a mandatory requirement.

Coordination is required not to give the instructions legal force, but only to improve its content.

The head of the structural unit must be familiar with the instructions on what a note is being made (approval visa), containing the position and signature of the approving person, its transcript and the date of endorsement.

After the document is signed by its originator and other interested parties, it is approved by the manager. The approval stamp consists of the word APPROVED, the name of the manager’s position, his signature and transcript, as well as the date of approval.

A job description acquires legal force only if the above requirements are met, but its quality is determined solely by its content!

What is the procedure for familiarizing an employee with a job description?

According to the Labor Code of the Russian Federation, when hiring a new employee, the employer is obliged familiarize him with all internal organizational documents related to his work activity; the job description is in first place on this list!

The employee is familiarized with the instructions for signature, about which the mark “Introduction visa” is made. This detail contains the name of the employee’s position, his personal signature and transcript and the date of familiarization.

The approval visa is affixed at the very end of the document, on its last page, after the approval visas of other interested officials.

If several employees are employed in one position, then there may be several job descriptions. In this case, a special journal is drawn up in which the employee signs that he has read all the local documents of the enterprise.

After reading the instructions, the employer, as a rule, gives the employee a certified copy. This is not necessary, but it is quite logical, since in this case the employee will not be able to justify his misdeeds as forgetfulness.

What responsibility does an employee bear for violating a job description?

Art. 192 of the Labor Code of the Russian Federation provides for the responsibility of an employee for committing a disciplinary offense, that is, non-fulfillment or incomplete fulfillment of labor duties. This responsibility is assigned to the employee in the form of disciplinary sanctions. Labor legislation recognizes 3 types of penalties: , and . Other types of punishment for guilty employees are unacceptable and illegal, unless we are talking about special punishment. In this case, in addition to the three main penalties, the legislation provides for additional ones: warning about and exemption from it.

In this case, an employee who has violated not only the job description, but also other local regulations of the organization, as well as the provisions of the Labor Code of the Russian Federation, may be brought to disciplinary liability.

In addition to penalties, violation of job descriptions may result in financial penalties. This is possible if real damage is caused to the organization’s property. Real damage is understood as a decrease in the actual property of an enterprise or a deterioration in its condition, entailing material costs for the restoration of damaged property or the acquisition of new property to replace the lost one.

Also, an employee may face administrative and criminal liability if his violation of his job description leads to corresponding consequences.

What responsibility does the employer bear for violating the job description?

Violation of the job description by the employer also entails certain penalties. An employer can violate the instructions in two ways.

In the first case, the employer is considered as an employee of the enterprise, therefore compliance with labor instructions is his direct responsibility. This offense is punishable, as well as in certain cases, by material, administrative and criminal punishment.
In the second case, the employer may be held liable for violating the employee’s rights listed in the labor instructions. Most often, the employer is held accountable for the following violations: failure to pay additional remuneration to an employee for combining several positions or increasing the volume of work, failure to comply with the vacation schedule, etc.

Such violations of the job description by the employer imply administrative responsibility, as well as compensation to the employee for material and material damage.

How to register at the labor exchange to receive benefits for the unemployed - read our detailed information.

Resolving controversial issues in court

In judicial practice, there are often cases of declaring the provisions of a job description illegal. In this case, the wording should be excluded from the document, and disciplinary sanctions imposed due to their violation should be removed.

The following points of the job description are most often disputed in judicial practice:

Implementation of the monthly plan for the sale of retail goods. This requirement was declared illegal because it contradicts the equality of rights and responsibilities of workers: the needs of buyers do not always coincide with the volume of goods offered, so regular implementation of the plan is not possible.
Performing additional work not provided for in the instructions. The illegality of this paragraph of the instructions is that the performance of additional duties is possible only with the written consent of the employee. Therefore, the dismissal of an employee for refusal is illegal and is declared invalid by the court.
Constantly speaking about the organization in a positive manner. In this case, the citizen’s right to freedom of thought and expression is violated, so requiring an employee to give exclusively positive feedback about the organization is illegal.

It is possible to dismiss an employee on this basis if he repeatedly ignores his duties and already has a disciplinary sanction on this basis.

When hiring a new employee, the employer must familiarize him with his immediate responsibilities. General responsibilities must be specified in the employment contract. A more complete scope of them is listed in the job description.

The employee must familiarize himself with this document against signature. This is stated in paragraph 3 of Art. 68 Labor Code of the Russian Federation. This must be done before signing the employment contract. Otherwise, the employer will not be able to apply disciplinary action to him, and subsequently dismiss the employee for failure to fulfill official duties.

In addition to the job description, the employee must familiarize himself with the internal regulations and other documents that are relevant to his new job.

Failure to fulfill one's job duties is a violation of labor discipline. It is possible to dismiss an employee on this basis only if there are 2 factors:

if the non-compliance has already occurred and the employee is subject to disciplinary action in any form on this basis;
if the employee did not perform his direct labor duties without a good reason.

In the case when an employee violates labor discipline under this clause for the first time, the employer has the right to apply any form of disciplinary action to him, except dismissal. This is stated in the Resolution of the Plenum of the Supreme Court dated March 17, 2004 No. 2.

The disciplinary sanction should not be withdrawn or extinguished; only then the employer can dismiss the employee if the violation occurs again. Otherwise, he must punish him again.

The Labor Code of the Russian Federation does not indicate which reasons are valid. This must be determined by the employer himself. But when dismissing an employee, he must justify his opinion.

Since dismissal for dishonest performance of duties is a dismissal at the initiative of the employer, it must be properly formalized.

The procedure for dismissal on this basis is as follows:

Collection of documents. The employer must prove that there was a repeated disciplinary offense.
It is necessary to check the job description for the exact inclusion of duties that the employee does not perform.
It is necessary to check whether the violator belongs to the category of workers who are prohibited from being dismissed at the initiative of the employer. For example, pregnant women or women who have children under 3 years of age. The full list is specified in Art. 261 Labor Code of the Russian Federation.
It is necessary to check the validity period of the previous disciplinary sanction and the period of imposition of the new one. In Art. 193 of the Labor Code of the Russian Federation states that the employer has the right to impose a disciplinary sanction on the employee within a month after the moment of detection.
It is necessary to require a written explanation from the employee for his violation;
It is necessary to take into account all the circumstances of the commission of a new offense and balance them with the punishment applied;
Check for a valid reason;
Issue a dismissal order. The employee must read the order and sign it;
The employer must then register the order.

On the day of dismissal, it is necessary to make a full settlement with the employee and issue him a work book, in which a record of dismissal will be made and the basis will be indicated, as well as the norm of the article of the Labor Code of the Russian Federation.

All employees, when they get a job, sign an employment contract, which spells out a list of their job responsibilities. Also, employees are required to obey the internal regulations of the organization, observe the work schedule and follow the job description. Improper performance of official duties leads to dismissal, and in some cases employers fire negligent employees precisely under this article.

What the law says

Let's take a closer look at the violations that may result in dismissal:

The absence of an employee from his workplace, which is not supported by any valid reasons. Repeated delays are also taken into account.
The employee’s reluctance to fulfill his labor obligations when labor standards or internal regulations change.
Periodically recurring violations in work activity or work regime. If a violation is detected once, a disciplinary sanction is imposed on the employee.

Who determines that an employee is not coping?

Failure to perform or improper performance of duties is when an employee has certain work obligations, and he is quite capable of handling them on his own, but does not do so for unknown reasons.

Anyone can identify this fact: from a manager to an ordinary client who was not served by an employee. If the non-compliance is identified by the head of the department, then he must record this event in a memo to senior management. If it was a customer, then he can file a complaint and also forward it to management. Such a document is the basis for checking an employee for improper performance of official duties.

The complaint itself is not grounds for bringing a person to disciplinary liability, but if during the inspection the facts stated in it are confirmed, this may serve as the beginning of the dismissal process.

There are cases when an employee’s responsibilities include performing various tasks. In order to protect themselves from possible misunderstandings, management should set out such assignments in writing and allow them to be read under signature. In the case where a task is ignored, this also needs to be recorded.

The legislation does not establish a list of persons who can detect improper performance of work. As stated earlier, it could be anyone. It is important that all information contained in the note is truthful.

A sample for an employee is presented below:

And before punishing an employee, you should find out the reason for this behavior. It may turn out that he simply does not know how to do what is required of him. But he cannot and does not want to be able to - these are two different concepts. And this must also be taken into account.

It is better to say that the employee cannot cope with these responsibilities if he really does not have the necessary skills or abilities that are needed for a successful outcome of the case.

By law, an employer is not required to train its employees, but practice shows that many applicants need it. Therefore, before demanding anything from a new employee, it is better to provide him with an unpaid internship with a more experienced employee.

Registration procedure

If improper performance of official duties has been proven, then management can proceed to the dismissal process. This procedure occurs in several stages:

1. Acknowledgment of facts. Any task that an employee must perform must be reflected in writing and given to him for signature. If this instruction is not fulfilled, this event is recorded in a special act or in a report (an example of a report is presented below).

2. Conducting an inspection upon non-compliance. At this stage, all information that proves improper fulfillment of obligations must be collected.

3. Obtaining explanations from the employee. This stage is considered mandatory. If an employee did not complete the assigned task and did not write an explanatory note about this, this does not mean that the process leading to punishment should be stopped. An explanatory note can both serve as a basis for holding a person accountable and prove his innocence, in other words, confirm that the failure to comply did not occur on purpose. It is important to know that if the manager assigned a task that is not part of the employee’s job responsibilities, and he did not complete it, this is not grounds for disciplinary punishment.

If an explanatory note is provided, then:

the stated facts must be studied and verified, and a conclusion must be made about the validity of the information provided;
the presence and degree of guilt of the employee is revealed;
it will be found out why the non-fulfillment occurred;
the employee’s attitude towards work before the incident is revealed.

When the violation does not entail serious consequences for the company, the employer may limit itself to a remark or reprimand. More serious misconduct must result in the termination of the working relationship with the employee.

4. Issuance of an order. An order is issued when a disciplinary sanction is imposed. It must reflect the facts about the presence of previous comments or reprimands, acts that reflect unfulfilled duties, as well as a description of the violations (place, time period, circumstances and documents confirming this).

The submitted documents are the grounds for termination of the employment contract at the initiative of the employer.

Deadlines

In order to submit an explanatory note to management, the employee is given two days from the moment he has read the request for this document. If punishment is inevitable, then the employer must carry it out within a month from the moment when improper performance of official duties is discovered. This period may be extended if the employee was on sick leave.

Disciplinary sanctions are not applied if more than six months have passed since the violation.

In case of violations that are revealed by audits or audits, the employee must be punished within 2 years from the date of their discovery.

According to legislative norms, there are categories of employees who cannot be subject to disciplinary action in any case. These include:

pregnant women;
an employee who is on sick leave or on vacation.

Dismissal. Payments

If the employer has not violated paragraphs of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, and the employee’s failure to fulfill his labor obligations has been adequately proven, a dismissal order can be issued. This document must contain all the necessary information to prove the fact of guilt.

The employee himself must be familiar with this order. If he did not want to do this, it is necessary to draw up an act recording this circumstance. And in the dismissal order, indicate all the grounds for termination of the employment contract at the initiative of the employer and the relevant documents confirming the employee’s guilt.

As for compensation payments, dismissal due to the circumstances described above does not provide for the payment of any special benefits. The employee is only entitled to wages and vacation pay (if the vacation is earned and not taken off).

Recording in labor

Entries in the work book and personal file must be made on the basis of the order. Personnel workers are referred when registering at the station. 81 Labor Code of the Russian Federation.

Employer's liability

If an employer applies such a type of punishment as a penalty for failure to fulfill official duties, then this must be approached with all seriousness. If there are the slightest shortcomings and there is an opportunity to challenge the employer’s decision in court, the latter may be subject to penalties.

When leaving, you need to check:

whether the employee has any pending disciplinary sanctions;
correct execution of all penalties (it is necessary to attach a sample memo to the employee);
availability of the employee’s signature confirming familiarization with job responsibilities and other documents that are directly related to his work activity;
the correctness of the entire process of bringing an employee to disciplinary liability.

If the employer made mistakes and the result of the dismissal was challenged in court, he will be held administratively liable. In addition, he will be obliged to reinstate the employee and pay him compensation.

By the way, managers are also subject to responsibility as prescribed in Art. 5.27 Code of Administrative Offenses of the Russian Federation. In this case, any administrative punishment is applied only by government agencies.

Consequences for the employee

As such, the legal consequences of dismissal under Art. The citizen does not have 81. But the entry corresponding to this article will not have a very good effect on a person’s status when he wants to triple for another job.

Dismissal for improper performance of official duties is not a reason to end your working career, but you still don’t need to make such entries on your employment form.

Arbitrage practice

Judicial practice shows that the fact of dismissal can be challenged:

If the order was completed incorrectly. The specific action that led to the violation was not indicated (an example of the report was given earlier).
If the offense does not correspond to the severity of the punishment.
When the violation occurred for the first time.
During the process of identifying the violation, no explanation was required from the employee.
The deadlines have been exceeded relative to those established by law.

The Labor Code (Article 192) stipulates the right of the employer to attract workers who do not fulfill their labor duties to

When imposing a repeated penalty in the form of dismissal, the order must refer to the order imposing punishment for the previous offense.

It is also necessary to refer to the act, which stipulates the obligation not fulfilled by the employee, and a description of the violation committed (time, place, circumstances, supporting documents).

Further actions

Other necessary actions:

Familiarization of the employee with the order against signature.
Entry into the work book for repeated failure to fulfill job duties.
Issuance of documents and invoices to the employee.

Entitled payments

The fact that the dismissal occurred under the article does not in itself affect the amount and procedure of calculation.

The only exception can be the case when, as a result of the employee’s failure to fulfill his job duties, the employer suffers material damage. If this happens, then with the consent of the employee, the amount of damage may be from the payments due to him.

As a general rule, upon dismissal, salary and compensation for unused vacation time are subject to payment.

Consequences for the employee

There are practically no legal consequences for dismissal under this article. But such an entry in the work book can provoke a wary attitude towards the employee on the part of potential employers.

After all, everyone wants to get a responsible and competent employee, but not everyone wants to hire someone who has already failed at work once.

Employer's liability for wrongful dismissal

If the rules for recording misconduct committed by an employee are violated, dismissal for repeated violations of labor functions can be considered unlawful.

After all, if one is fired for repeated violations, and the previous penalty was imposed in violation of the law, then it must be removed and the grounds for dismissal disappear.

If an employee is punished for refusing to perform actions that were not within the scope of his duties, this is also grounds for lifting the penalty.

If the grounds used by the employer for dismissal are recognized by the court, then the employee will need to be paid the wages not received (lost) from the moment of dismissal. That is, the employer will pay in rubles for the violations committed.

Resolving disputes in court: examples from practice

The Perm Regional Court reinstated the plaintiff, who was dismissed for repeated failure to fulfill his job duties.

The basis for making such a decision was that the employee’s job responsibilities were not clearly defined in the employment contract, and he was not familiarized with job descriptions.

Thus, the court found it difficult to determine the scope of the employee’s duties and, as a result, declared the imposition of penalties and dismissal illegal.

The Kirovsky District Court found the dismissal of the employee under paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation due to the fact that the employer did not refer in the orders to impose disciplinary sanctions on her to the act, the duties recorded in which she did not fulfill.

In addition, after the employer provided information about this act, it turned out that the employee was only partially familiarized with it by email.

Subsequently, despite the fact that it was established that the employee actually violated the rules established by her employer, the court, based on the identified violations in the execution of the order, reinstated her in her position.