The employer is endowed with broad powers in relation to the members of the work team. Among other things, the competence of the employer includes making decisions on the imposition or removal of disciplinary sanctions (this issue is also considered).
Moreover, each such decision must be based on the norms of the law. The imposition and removal of a disciplinary sanction is the result of the employee's actions. Respectively, said decisions affect the interests of both employees and management. Therefore, they must be correctly and competently drawn up (including the need to issue an appropriate order). Then, in the event of an appeal, the court recognizes it as legal.
Cancellation of a disciplinary sanction in accordance with the Labor Code of the Russian Federation
The Labor Code regulates in some detail the issues of lifting a disciplinary sanction from an employee. There are certain reasons for management to make such a decision. First of all, these grounds are contained in the Labor Code and other by-laws. For example, you can specify the Regulations on disciplinary sanctions in the Armed Forces of the Russian Federation and so on.
Each department, in one way or another, sets standards for the removal of punishments. They may have some differences from each other. But in general, all such local regulations are similar to each other and cannot contradict the law.
Grounds for cancellation
There are three main cases of cancellation of a disciplinary sanction. They should be considered in more detail:
- the punishment is lifted. If within one year after the imposition of punishment, the employee is not punished again, then the previous punishment is removed. This happens automatically and does not require the issuance of a special act;
- early withdrawal occurs at the discretion of management. To do this, you need a statement from the employee or it happens on your own initiative. This basis presupposes Good work personnel, high performance and other circumstances. The meaning of the removal is that the employee proves his correction and the management decides to remove the punishment from him;
- It is not uncommon for employees to appeal against the actions of management in court. When the complaint is recognized as justified and the court decides on the illegality of holding the employee liable. In this case, the illegal decision is subject to immediate annulment. Having received the specified court decision, the employee must present it to the personnel department. Based on the act of the court, the employer is obliged to issue an order to cancel the punishment.
Vasya, these grounds entail the same legal consequences in the form of the cancellation of punishment and all the consequences of such punishment.
How to write an order for the removal of a disciplinary sanction
The order to cancel the disciplinary sanction at the initiative of the employer must include a mandatory reference to the norms of the Labor Code of the Russian Federation. The reasons for imposing the penalty should be described.
After describing in a short form the reasons for the order, you should describe the reasons for its withdrawal. If this happens at the initiative of the employee, it is necessary to describe the changes in the employee's activities. That is, it is necessary to reflect his labor successes, an increase in performance in work and other positive dynamics.
A sample order based on a judicial act should include an indication of such a document. After all, it is the judicial act that will be the main condition for the order, which must be indicated in the sample.
Sample order for the removal of a disciplinary sanction in the form of a reprimand
A sample of such a document should include several mandatory details. They should be listed in more detail:
- You need the number and date of issue of the document. Correctly draw up a document, this is to lay the foundation for its legality. Compliance with the registration rules is necessary, otherwise the order will not have legal force;
- You should reflect the name of the enterprise and indicate the position and personal data of the employee from whom the reprimand is removed. Such data must be reflected in detail and specifically, otherwise the order of the document can be reasonably challenged;
- The descriptive part of the sample should include indications of the event in connection with which the reprimand is removed. It could be one of the previously mentioned reasons. In this case, the circumstances should be described in detail;
- The final part of the order must include a statement of the fact of removal of punishment.
The action of the order begins immediately on the day of its issuance. There is no need to wait for any additional period for the order to take effect. Moreover, if for some reason the document is appealed, this does not cancel its effect. All consequences will work regardless of the fact of the appeal.
Unremoved punishment can serve as a basis for deprivation, or rather, failure to provide other incentives on the part of the employer. But the most serious of the consequences is when the offense is repeated. It will be legal within a year from the date of the foreclosure. If we take as a basis a sample order for the removal of a disciplinary sanction, it will be considered withdrawn and will not lead to dismissal for repeated violations.
Compiling a document
The important points that a sample order for the early removal of a disciplinary sanction should contain include:
- name of the order;
- reason for withdrawal;
- surname and name of the employee;
- withdrawal date;
- the basis of the decision.
The reason for making such a decision may be high performance in work, the absence of facts of non-compliance. The basis is either a statement by the employee himself with a request to cancel the decision to punish him. It is convenient to have a sample order to cancel a disciplinary sanction on hand in case the situation recurs.
The application of disciplinary measures is often the cause, so it is important to do it right. Service and memorandums, explanatory notes must be drawn up taking into account time constraints. The employee is given three days to write an explanation, and the employer has the right to punish him within 1 month from the date of discovery of the misconduct.
An order to remove a disciplinary sanction is issued when the employee has fully served the disciplinary punishment due to him, as well as in cases where the disciplinary punishment has not yet expired, but for some reason the organization's management decided to change anger to mercy and cancel the earlier subject to personal sanctions.
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Who is writing the document
Any order is always issued on behalf of the head of the organization, however, directly drafting can do
- HR specialist,
- lawyer
- or company secretary.
Regardless of whose competence includes writing this document at a particular enterprise, this should be a person with the necessary level of knowledge and education, who knows the rules for issuing such internal orders, and is also familiar with the legislation of the Russian Federation in the field of labor and civil law.
Types of disciplinary punishments
Depending on the degree of violation, the employee may be subjected to different types disciplinary action.
For example, being late for work may result in a written reprimand, but absenteeism twice without explanation may result in dismissal. Also, punishment threatens for the disclosure of confidential information and trade secrets, immoral behavior, violation of labor protection and safety rules, abuse of office, etc.
Any type of disciplinary punishment (with the exception, for obvious reasons, dismissal) can be canceled ahead of schedule. Their automatic withdrawal occurs after a year.
What is the basis for issuing an order
The order to remove the disciplinary punishment is justified by a variety of reasons. It could be
- personal decision of the director, who considered that the employee fully atoned for his guilt,
- the request of the immediate supervisor of the employee subjected to the penalty,
- has the right to apply for the cancellation of the order trade union committee(if there is one at the enterprise)
- or the employee himself (in this case it is necessary personal statement in writing).
It should be noted that such requests are not a guarantee that the company's management will meet halfway the delinquent employee - in this case, the mutual consent of the parties plays a role.
When to ask for a cancellation of a collection order
There are no specific deadlines for submitting such an application. An employee can be released from punishment after a month, and after three, and closer to the end of the year from the date the penalty comes into force. Most often, the administration of the enterprise is guided by its own considerations regarding the period of the punishment.
How to write an order for the removal of a disciplinary sanction
There is no unified, mandatory model for the removal of a disciplinary sanction, so companies can go in two ways to draw it up: either draw it up in free form, or use a template developed within the enterprise (although in this case it must be approved in the accounting policy firms). The order has a completely standard and understandable structure, which should include a number of necessary information:
- Name of the organization,
- personal data about the employee,
- compilation date,
- information about the previous charge
- and the meaning of this order,
- as well as those responsible for its implementation.
How to place an order
The order can be written on a blank sheet of A4 format or on the letterhead of the enterprise, both by hand and in printed form (this does not play a role, but the computer significantly speeds up the process). In any case, the document must contain the original signature of the head of the company, as well as the autograph of the employee for whom the order was drawn up (thus the employee certifies the fact of familiarization with the document). The order can be certified by a seal, but since 2016, the presence of a stamp or seal in legal entities is not a legal requirement.
Once the order is issued, the employee is deemed not to have been subject to retaliation. All previously taken measures and restrictions that apply to him are cancelled.
The order is drawn up in a single copy and after its acceptance as a guide to action, it is sent for storage to the company's archive, which contains the time set for such documents.
Sample of drawing up an order for the removal of a disciplinary sanction
First, the order indicates the full name of the enterprise (in accordance with the constituent papers). Then the name of the document is written with a short designation of its meaning (here: “on the removal of a disciplinary sanction”), its number is put according to the internal document flow of the company, and the position and surname with the initials of the employee for whom it is issued are entered. The line below indicates the date of the order, as well as the locality in which the enterprise operates.
- the document that gave impetus to the procedure,
- as well as the specific actions that led to the mitigation of punishment.
After that, the word “I order” is written in the middle of the line and an appropriate order is made to cancel the penalty. This also includes an order to enter the necessary information in the employee's personal card and other personnel documents. The third point is the person responsible for the execution of this order.
At the end, the order must be signed by the director (or an employee acting on his behalf), as well as those employees who were mentioned in the document in terms of its execution. Also, under the order, the employee in respect of whom it was issued must leave his autograph. All signatures must be decrypted.
The issuance of a disciplinary sanction is a common and widespread practice. To punish an employee by imposing disciplinary sanctions, management must have grounds. The conditions for applying and the procedure for issuing penalties are spelled out in detail in labor legislation. They do not allow arbitrariness. And the grounds for lifting the penalty are also clearly spelled out in the laws.
Basic concepts
The term "disciplinary offense" in legal relation means: an unlawful guilty violation of labor or service discipline by an employee, for which disciplinary liability is provided.
Disciplinary responsibility is considered one of the most initial (soft) types of responsibility. In addition to it, there are material, civil, administrative and criminal types of liability.
Grounds and types of punishments
The main legal condition is the possibility of applying only disciplinary punishments provided for by labor legislation. Application of penalties not provided for in legislative order, is prohibited (Law No. 90-FZ of 06/30/2006).
It is allowed to issue a disciplinary sanction only when an employee commits a disciplinary offense. Labor legislation identifies three fundamental types of penalties:
- The remark, which is the mildest disciplinary punishment.
- Reprimand, as a penalty of moderate severity.
- Dismissal related to extreme measures of disciplinary punishment.
The legal status and issues of registration of disciplinary sanctions are set out in Art. 192 of the Labor Code of the Russian Federation. Part 1 of this article provides general definition the concept of "disciplinary offense": non-fulfillment or improper fulfillment by the employee through his fault of the tasks assigned to him job duties.
Failure to perform or poor performance of labor duties, bearing signs of a disciplinary offense, is:
- violation of legal requirements and obligations under an employment contract;
- non-compliance with internal regulations;
- ignoring job descriptions and safety precautions;
- failure to follow instructions from management.
Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004 supplements the list of disciplinary offenses as follows:
- absence from the workplace without good reason (truancy);
- refusal to perform work duties;
- evasion of medical examination;
- failure to sign an agreement on full liability.
In the Letter of the Ministry of Labor of the Russian Federation No. 14-2 / V-888 dated September 16, 2016, some points of the relationship between employees and with clients are explained, the violation of which can be considered a disciplinary offense. These include, for example:
- rude behavior;
- the use of obscene expressions;
- permanent conflict situations and so on.
The list of the most serious disciplinary offenses, the commission of which may lead to dismissal, is fixed in Art. 81 of the Labor Code of the Russian Federation (clauses 5, 6, 7, 8, 9, 10 of part 1), art. 336 (para. 1) and art. 348.11. The list of serious offenses includes:
- absenteeism;
- alcohol and drug use;
- disclosure of secrets;
- theft and damage to property;
- violation of safety requirements.
Timing
The period of time within which it is allowed to apply punishment, and the period of its action are regulated in part 3 of Art. 193 of the Labor Code of the Russian Federation.
It states that a disciplinary sanction is issued no later than one month after its discovery or six months after its commission. This time period does not include the days of illness and vacation of the guilty citizen. Moreover, not every vacation is taken into account, but only mandatory for submission (including unpaid).
And also in the case of disciplinary punishment in the form of dismissal, the period of consideration of the issue in the trade union is not included in the monthly period.
The term upon dismissal is especially calculated in accordance with subparagraph “d”, paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation (theft and embezzlement of company property). Then it starts from the day of the court verdict or decision of another authorized instance.
When more than six months have passed since the commission of the offense, the imposition of disciplinary punishment is not allowed. An exception takes place only for cases of detection of theft and shortages based on the results of an audit or other verification. In such a situation, the period of possibility of imposing a disciplinary sanction is extended to two years, not including the time of the trial.
The period of functioning of the imposed disciplinary sanction is one year. At the end of the one-year period, the penalty is removed automatically. If during the period of punishment for a disciplinary offense a new disciplinary violation is committed, then this period begins to be calculated in a new way - from the moment the order on punishment for the latest offense is issued.
There is no need to issue any orders to remove the penalty after its automatic removal. The record of the removal of the penalty in this case is included exclusively in the area of \u200b\u200bclerical work, which is handled by the employee of the personnel department.
Early withdrawal of penalty
Since the annulment of punishment for a disciplinary offense after a year occurs in automatic mode, then only its early withdrawal has legal meaning.
Early withdrawal is allowed under the following circumstances:
- The administration of the enterprise acts on its own initiative. There are many reasons for such an initiative. The most common are the following reasons: the details of the commission of a disciplinary offense become known, mitigating its severity; the worker deserves forgiveness for his conscientious work.
- The employee himself writes a reasoned statement with a request for rehabilitation.
- The immediate head of the department or workshop where the employee works takes the initiative before the management of the organization to cancel the penalty ahead of schedule.
- The trade union committee petitions for the employee.
At the legislative level, the terms for the abolition of punishment for a disciplinary offense are not defined. It is allowed to remove it even the next day after the order to impose a punishment.
The procedure for the cancellation of disciplinary punishment
The difference between documenting the process of lifting a disciplinary punishment from the design of most other management procedures is the almost complete absence of standard forms in office work. The main part of the documents drawn up during the removal of disciplinary punishments is written in free form.
The process of lifting the penalty and its documentation primarily depends on who is the initiator of this decision: the administration, the employee himself, the trade union committee or the court.
Withdrawal at the initiative of the employee
At the request and initiative of the employee, early cancellation of the punishment occurs in the following order:
- Drawing up an employee statement and a resolution from the authorities.
The application is written in any form on a standard sheet of A4. In the upper left corner of the document, the resolution of the head is affixed. Under the resolution is his signature with the decoding of the surname and the date of submission of the document.The application must indicate the reason for submitting the document.
- Registration of the application in the register of applications.
- Issuance of an order for the removal of punishment. The form of the order to remove the penalty is not provided for by regulatory enactments. The order is made in any form. It specifies:
- details of the employee from whom the penalties are removed, his position, department or workshop;
- grounds for withdrawal of the penalty;
- signature and date.
The day the order was drawn up is an important attribute of the document, since it is from the indicated date that the charge of committing a disciplinary offense is withdrawn. The order to remove the penalty in the general case is allowed not to be supported by any additional documents except for the employee's statement. True, quite often the statement of the employee is enhanced by his explanatory note.
- Registration of the order in the register of orders. After its publication, the order is recorded in the register, and all other documents on the disciplinary violation are destroyed.
An order to remove a disciplinary sanction, along with other orders on personnel, is subject to registration in the journal
- Employee introduction.
The order for the early removal of a disciplinary sanction must contain the signature of the employee, indicating that he is familiar with the contents of the document
Removal of penalty at the initiative of the employer
The cancellation of a penalty in this form differs from its removal at the initiative of the employee only in the absence of the first stage - the submission of an application by the employee. When the initiative comes from the employer, the process is simplified and accelerated.
To justify its decision, management can enlist memos from the direct superiors of the former violator of discipline. Then, references to these notes are made as a basis in the order.
But, in principle, it is allowed to do without additional links. It is quite enough to make a generally accepted record of the removal of the penalty as a result of the absence of new violations by the employee and the achievement of certain labor successes.
Removal of the penalty at the request of the collective body and the immediate supervisor of the employee
This withdrawal is quite common. It implies the submission of a recommendation with a positive characterization and a request for the removal of a penalty from a collective body or a note with similar content from the immediate superior of an employee who has once been at fault.
The head of the organization, who has the right to resolve this issue by issuing an order, cannot a priori file a petition with himself to lift the penalty. And the worker cannot intercede for himself. His case is to file an application with a request for early withdrawal of the penalty.
- the immediate supervisor of the employee;
- collective body.
The head submits his petition in the form of a memo drawn up in any form. The note is sent to the head of the organization, on which the decision depends. In the header of this document, the immediate supervisor of the employee indicates the position of the head of the company and his full name, as well as the name of his position and his initials.
The petition must indicate what punishment for a disciplinary offense that is proposed to be canceled is referred to in the document
The structure of the text of the note consists of two parts:
- The first part contains a request to remove the penalty, indicating the position and full name. employee, and also mentions the current disciplinary sanction with reference to the document by which it was assigned.
- The second part of the note contains a brief description of employee and indicate the facts that allow you to ask for early removal of punishment.
The document is signed by the applicant with the transcript of the signature. At the end of the note is the date of issue of the document.
A petition filed by a collective body has a similar content, usually it is a trade union committee, but there may be a council of veterans or another public organization. The form for filing a petition by a collective body is usually the minutes of the meeting or an extract from it. The minutes or extract are signed by the chairman and the secretary of the meeting.
Applications in the form of a memo, protocol or extract are usually submitted to the secretary of the head of the enterprise or sent by mail. In the first case, the second copy of the document with the incoming number remains with the applicant. In the second case, he still has a letter receipt.
It should be noted that in the case of an employee's application, the head of the company, in order to protect himself, has the right to demand explanatory note from the employee's supervisor and ask for a recommendation from the trade union committee.
Terms of storage of orders for early withdrawal of penalty
All orders for personnel are divided into two categories according to the terms of storage.
But orders to lift disciplinary sanctions belong to the second group of documents, covering more local (operational) moments labor activity. The retention period for such orders is five years.
Video: Labor Code of the Russian Federation on disciplinary sanctions
The use of such types of disciplinary action as disciplinary sanctions is an effective tool that strengthens discipline and contributes to the growth of labor productivity. Removal of penalties gives the system labor relations necessary flexibility, focusing on encouraging disciplined workers to succeed professional activity. The procedure for issuing withdrawal of penalties is clearly regulated by labor legislation.
The employer has the legal right to punish the employee if he violates labor discipline or work schedule. In case of primary or not serious misconduct, a penalty can be applied to him in the form of a remark or reprimand. If the remark or reprimand is systematic, such an employee may be fired.
It is very important to document the fact of a disciplinary offense. Issue an act of violation, on the basis of this document, an order is issued to impose a penalty on the perpetrator. Strong evidence of his guilt must be collected against such an employee. If there are insufficient good reasons, the employee may appeal the order to impose a disciplinary measure in the labor inspectorate or in court.
A disciplinary sanction is established for a period of 1 year, if the employee corrects himself for some time, the employer has the right to cancel the punishment. To appeal against the measure, an order to withdraw is drawn up ahead of schedule, a sample of which can be downloaded further in the text.
There are several ways to remove sanctions in the form of a reprimand or remark:
- At the request of the employee himself, for this, the violator must write a statement on his own behalf.
- At the initiative of the employer, if, in his opinion, the employee has corrected himself.
- From a trade union or other organization protecting the rights, a petition was received whether a memo was filed against an employee of the violator.
In case of a positive decision, a new order of the head for withdrawal is prepared.
If we talk about such a type of disciplinary sanction as dismissal, then it will be difficult to achieve the abolition of this type. It is possible to challenge the dismissal only by organizations authorized to resolve labor disputes between the employee and the employer. Also try to resolve the situation by resorting to judicial practice through the courts.
In case of a positive decision, the employee is reinstated at work in the position that belonged to the employee before the dismissal. In this case, the employer is obliged to issue an order to cancel the penalty on the basis of a court decision.
Is it possible to cancel the penalty at the initiative of the employee?
The employee, of course, can try to achieve the removal of the previously imposed punishment, but this will depend only on the immediate supervisor or other services that can help in this.
The last word remains with the employer, if he considers that the measure applied to the guilty person will serve as a lesson for other employees, nothing can be done about it, the only option is to wait for automatic withdrawal.
If the employee can prove his innocence, here, of course, the superior manager is obliged to act in accordance with the law.
The employee's initiative can be made in the form of a statement by writing in free form.
How to apply for early cancellation of an order:
- The application is made in the name of the head of the enterprise: full name, position and name of the organization;
- The text is drawn up in the form of a request and should look like this: “I ask you to remove the disciplinary sanction from me ahead of schedule in the form of a remark imposed by order No. 45-B of August 15, 2018, on the basis of Article 194 Labor Code RF"
- Then, the date is put, the signature of the employee.
- After that, the application is transferred to the head.
For the employee, a word can be put in, for example, by the trade union or the immediate supervisor of the perpetrator. In this case, you will need to provide a memo or.
Written documents: an application, a memo or a petition are submitted to the secretary for registration. After that, this of the documents, in case of a positive decision to withdraw, will be the basis for a new order.
How to correctly draw up an order for early withdrawal?
There is no unified form of order, legislation gives the opportunity to draw up this document how convenient the organization. Of course, there are rules and regulations for the execution of such documents.
The order can be drawn up on a special letterhead of the organization:
- The full name of the organization is written in accordance with the constituent documents;
- The heading is written below: “Order No., under it “On the removal of a disciplinary sanction”;
- Even lower, a number is assigned on the basis of document management, the date and place of registration;
- The text of the order should begin: with a document based on the early removal of a penalty or the employee changed his attitude towards himself by actions or actions;
- Then a reference is made to the previously created order on the application of the measure, its number and date;
- Further, the word “I ORDER” is fixed in capital letters;
- I use numbering, the superior manager orders the early removal: the position and full name of the offender, making appropriate entries in the personal file, appointing a person responsible for the execution of the order.
- Further, the basis that served for issuing the order, the employee’s personal statement, petition or memo is prescribed.
- The order is signed by the authorized head, as well as by the persons appearing in the order.
- Next, the employee is familiarized with the order.
