Systematic failure to fulfill labor duties without good reason Art. What is meant by failure to perform or poor performance of official duties? The employee does not fulfill his duties

One of the grounds for dismissal at the initiative of the employer is dismissal due to repeated failure to fulfill job duties, if the employee has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation). However, when terminating an employment contract on this basis, the employer often makes mistakes, due to which the employee can be reinstated in his previous position. In this article we will consider in detail the procedure for dismissing a negligent employee, and also focus on its individual points.

Instead of a preface

First of all, it is necessary to determine what constitutes failure to fulfill labor duties. The main responsibilities of the employee are established Art. 21 Labor Code of the Russian Federation. Labor functions are specified in more detail in employment contracts and job descriptions. Let us note that certain labor functions can be enshrined in other acts of the employer (for example, in orders).

Naturally, the employee must be familiarized with his responsibilities by signature. In particular, Art. 68 Labor Code of the Russian Federation requires the employee to familiarize himself with the internal labor regulations, other local regulations directly related to the employee’s work activity, and the collective agreement. From this we can conclude that if in employment contract If only the name of the position or profession (type of work) is stated, but the functions are not specified, and the employer forgot to familiarize him with the job description, then he will be brought to disciplinary liability for failure to fulfill job duties (and even more so, dismissed for clause 5. part 1 art. 81 Labor Code of the Russian Federation) will be very problematic. This conclusion is confirmed by judicial practice. Thus, the Perm Regional Court in Resolution dated May 14, 2014 in case No.  33-4192 declared the orders to impose a penalty illegal and reinstated the employee in his previous position, and also recovered wages for the period of forced absence and compensation for moral damage due to the fact that in the absence of job description and official acquaintance with one’s official duties, it is impossible to establish the scope of the plaintiff’s duties and charge him with failure to fulfill duties.

Can being late for work be considered a failure to fulfill job duties? Yes, you can. The State Labor Inspectorate in St. Petersburg clarified: since the employee is obliged to comply with internal labor regulations, being late can be considered a violation labor discipline, for which the employer has the right to bring the employee to disciplinary liability, and in case of repeated lateness, even dismiss him.

In addition, according to clause 35 of Resolution No.  2 failure by the employee to good reasons is a failure to fulfill labor duties or improper performance through the fault of an employee of the labor duties assigned to him (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.)P.).

Such violations, in particular, include:

a) the employee’s absence from work or workplace without good reason;

b) refusal of an employee, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure ( Art. 162 Labor Code of the Russian Federation), since by virtue of the employment contract, the employee is obliged to perform the labor function defined by this contract, to comply with the internal labor regulations in force in the organization ( Art. 56 Labor Code of the Russian Federation).

We also note that dismissal due to clause 5, part 1, art. 81 Labor Code of the Russian Federation is a measure of disciplinary liability, which means that the employer is obliged to comply with the procedure for bringing it to such established Art. 192, 193 Labor Code of the Russian Federation.

Thus, the Plenum of the RF Armed Forces in Resolution No.  2 indicated: when resolving disputes of persons dismissed under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation for repeated failure to fulfill labor duties without good reason, it should be taken into account that the employer has the right to terminate the employment contract on this basis, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated failure to fulfill work duties without good reason, it has not been lifted and not repaid.

Please note that if a disciplinary sanction is lifted or an employee violates labor discipline for the first time, then dismissal clause 5, part 1, art. 81 Labor Code of the Russian Federation, will most likely be considered illegal. For example, the Moscow Regional Court, having reinstated the employee at work, indicated that the dismissal procedure was violated, since the employee violated his labor duties once, that is, there was no repetition ( Appeal ruling dated 06/04/2014 in case No.  33-12256/2014 ).

According to part 2 item 33Resolution No.  2 application of a new disciplinary sanction to the employee, including dismissal due to clause 5, part 1, art. 81 Labor Code of the Russian Federation, is also permissible in the event that failure to perform or improper performance, through the fault of the employee, of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction on him.

note

It should be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the offense, 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 notice period for dismissal.

Procedure for terminating an employment contract

So, when an employee commits disciplinary offense(that is, if he fails to fulfill his labor duties) and if he wants to dismiss such an employee, the employer should first check the existence of a valid disciplinary sanction (find out whether it has not been removed or extinguished), as well as the legality of its application (whether the labor duty has been properly established, for failure to comply with which the employee was subjected to punishment, whether the procedure for bringing to disciplinary liability was followed). For example, an employee was reinstated in his previous position and wages were recovered from the employer for the period of forced absence, since the disciplinary sanctions previously applied to the plaintiff at the time of his failure to fulfill his work duties without good reason were lifted and canceled ( Appeal ruling of the Murmansk Regional Court dated May 14, 2014 No.  33-1329 ).

For your information

According to Art. 194 Labor Code of the Russian Federation, if within a year from the date of application of the disciplinary sanction the employee is not subject to a new disciplinary sanction, he is considered to have no disciplinary sanction. The employer, before the expiration of a year from the date of application of the 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.

1. We record the employee’s failure to fulfill his job duties. This is usually done by an act, official or memorandum. All documents confirming the employee’s failure to fulfill his duties must be registered in the manner established by the employer. Let us give an example of such an act.

Society with limited liability"September"

about failure to fulfill labor duties

I, the head of the marketing department, Igor Mikhailovich Dubinin, in the presence of senior marketer Anna Viktorovna Berezina and brand manager Oksana Ivanovna Lipova, have drawn up this act on the following.

On August 4, 2014, the head of the marketing department gave instructions to marketer Ivin Oleg Petrovich to collect information from consumers about satisfaction with goods, claims and complaints about goods. The report was due on August 11. Contrary to the requirements of clauses 2.5 and 2.7 of the job description, Ivin O.P. did not carry out the named actions to study the demand for goods and submit reports specified in the job description, and did not submit a report.

Failure to fulfill his official duties by marketer Ivin O.P. led to a decrease in the number of buyers, which resulted in a decrease in sales.

Ivin O.P. was asked to give written explanation what happened.

We confirm the above facts with our signatures:

Dubinin I. M. Dubinin

Berezina A.V. Berezina

Lipova O. I. Lipova

Ivin O.P. refused to sign this act, motivating his refusal by the absence of guilt.

2. Ask for explanations regarding failure to fulfill labor duties. This is best done in writing, although there is no such requirement. We recommend that you request these explanations in writing, so that later, if a labor dispute arises, the employer can prove that the procedure for applying a disciplinary sanction was followed.

So, the notice of the need to provide explanations must be prepared in two copies: the employer gives one copy of the notice to the employee, and on the second copy (the employer’s copy), the employee writes that he has read the notice, received one copy, puts the date of receipt and signature.

If the employee provides a written explanation, it is reviewed by the employer and recorded in the appropriate register in accordance with the procedure established by him. If after two working days the employee does not provide the specified explanation, a corresponding act is drawn up ( Part 1 Art. 193 Labor Code of the Russian Federation). Please note that if the employee does not provide an explanation, this is not an obstacle to applying a penalty.

If an explanatory note is nevertheless provided, it is necessary to check the validity of the reason for the employee’s failure to fulfill his work duties.

In addition, it is necessary to take into account all the circumstances of the disciplinary offense: the employee’s guilt, the severity of the offense, the circumstances of its commission, the employee’s previous behavior and his attitude towards work. For example, in Ruling of the St. Petersburg City Court dated July 4, 2013 No.  33-9355/2013 order to dismiss an employee P.5 hours 1 tbsp. 81 Labor Code of the Russian Federation was declared illegal because the employer did not provide evidence that the employee’s repeated lateness resulted in adverse consequences for the organization, that is, when making the decision to dismiss, the severity of the offense, as well as the employee’s previous behavior, were not taken into account.

If, after considering all the circumstances of the misconduct, the employer decides to simply punish the employee, an order for disciplinary action (reprimand or reprimand) is issued.

We will consider the case when a decision is made to fire an employee.

3. We check the deadlines established for applying disciplinary sanctions. According to Part 3,4 tbsp. 193 Labor Code of the Russian Federation 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 necessary to take into account the opinion of the representative body of employees. Let us remember that due to clause 34 of Resolution No.  2 The day of detection of the misconduct, from which the month period begins, is considered the day when the person to whom the employee is subordinate for work (service) became aware of the commission of the misconduct, regardless of whether he is vested with the right to impose disciplinary sanctions.

The following are not included in the one-month period for applying a disciplinary sanction:

1. the time the employee was ill and on vacation;
2. the time required to comply with the procedure for taking into account the opinions of the representative body of employees.

The absence of an employee for other reasons, including in connection with the use of rest days (time off), regardless of their duration (for example, during a rotational work schedule), does not interrupt the flow of the specified period.

One more point must be remembered: a penalty cannot be applied later than six months from the date the employee committed the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

Compliance with the deadlines for applying punishment is very important: if they are violated, the employee’s reinstatement will be inevitable, even if he actually does not fulfill his job duties. Thus, the employee’s claim to declare the dismissal illegal was satisfied due to a violation of the procedure for bringing disciplinary liability: the penalty was imposed by the employer after one month from the date of discovery of the disciplinary offense ( Appeal ruling of the Supreme Court of the Komi Republic dated June 26, 2014 in case No.  33-3047/2014 ).

4. We check whether the employee belongs to the category of workers who cannot be dismissed at the initiative of the employer. Let us recall that according to part 6 art. 81 Labor Code of the Russian Federation Dismissal of an employee at the initiative of the employer is not allowed (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary incapacity for work and while the employee is on vacation.

By virtue of Part 1 Art. 261 Labor Code of the Russian Federation Termination of an employment contract at the initiative of an employer with a pregnant woman is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur.

Thus, the employee was reinstated at work, since his dismissal was made during the period of his temporary incapacity for work ( Appeal ruling of the Krasnoyarsk Regional Court dated May 21, 2014 in case No.  33-4103A-09).

5. We issue a dismissal order. Termination of an employment contract is formalized by order (instruction) of the employer ( Part 1 Art. 84.1 Labor Code of the Russian Federation). The employee must be familiarized with such an order and signed. If this is impossible to do (the employee is absent or refuses to read the order), a corresponding entry is made on the order.

In addition, according to part 6 art. 193 Labor Code of the Russian Federation If the employee refuses to familiarize himself with the order, it is necessary to draw up a corresponding report.

As a basis for dismissal, the order must indicate the details of the previous order on the application of disciplinary measures to the employee, as well as documents confirming the next failure to fulfill his job duties (memos, acts, etc.).

6. We make an entry in work book. According to clause 5.3 Instructions for filling out work books, approved Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 No.  69 , upon termination of an employment contract at the initiative of the employer, an entry about dismissal (termination of the employment contract) is made in the work book with reference to the relevant paragraph Art. 81 Labor Code of the Russian Federation. Let's give an example.

Entry no.	date			Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating the reasons and reference to the article, paragraph of the law)	Name, date and number of the document on the basis of which the entry was made
	number	month	year
6	15	08	2014	The employment contract was terminated due to	Order
				With repeated failure to comply	dated 08/15/2014 No. 5-u
				without valid labor reasons
				duties, paragraph 5 of part one of Article 81
				Labor Code Russian Federation
				Secretary Morozov
				M.P.

Remember that the employee must be familiarized with the notice of dismissal against a signature on his personal card, which repeats the entry made in the work book ( clause 12 of the Rules for maintaining and storing work books, approved By Decree of the Government of the Russian Federation dated April 16, 2003 No.  225 “About work books”).

After registration is made on the employee’s last working day, he must be issued a work book. The employee must confirm this fact with his signature in the book recording the movement of work books and inserts for them. If it is impossible to issue a work book on the day of dismissal due to the employee’s absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s application.

7. We make the final payment. Based Art. 140 Labor Code of the Russian Federation upon termination of the employment contract, payment of all amounts due to the employee is made by the employer on the day of dismissal of the employee. If the employee did not work on that day, the corresponding amounts must be paid to him no later than the next day after the dismissed employee submits a request for payment.

8. We complete the dismissal. The last stage Registration of dismissal may include the issuance of duly certified copies of work-related documents. This is done only if the employee asks the employer about this in a written statement.

But it is mandatory to issue a certificate of the amount of earnings for the last two years preceding dismissal. This is required clause 3, part 2, art. 4.1 Federal Law dated 12/29/2006 No.  255‑FZ “On mandatory social insurance in case of temporary disability and in connection with maternity." Let us remind you that the certificate form has been approved By Order of the Ministry of Labor of the Russian Federation dated April 30, 2013 No.  182n .

In addition, if the employee was liable for military service, information about his dismissal must be transferred to the military registration and enlistment office. Such information is submitted in the form given in Appendix 9 to Methodological recommendations on maintaining military records in organizations, approved by the General Staff of the Armed Forces of the Russian Federation on April 11, 2008.

Finally

To summarize, let us recall the main points, in the presence of which it will be problematic to challenge the dismissal. So, before issuing a dismissal order clause 5, part 1, art. 81 Labor Code of the Russian Federation For repeated failure by an employee to perform work duties without good reason, the employer should check:

• whether the employee has outstanding and outstanding disciplinary sanctions, whether they are properly formalized;
• Is the employee familiar with his job responsibilities, internal labor regulations and other documents relating to him? labor activity;
• whether the procedure for bringing an employee to disciplinary liability was carried out correctly ( Art. 192,193 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:

1. The absence of an employee from his workplace, which is not supported by any valid reasons. Repeated delays are also taken into account.
2. The employee’s reluctance to fulfill his labor obligations when labor standards or conditions change internal regulations.
3. 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. On 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 a violation does not entail serious consequences for a company, the employer may limit himself 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 entitled only wage and vacation pay (if 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:

1. 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).
2. If the offense does not correspond to the severity of the punishment.
3. When the violation occurred for the first time.
4. During the process of identifying the violation, no explanation was required from the employee.
5. The deadlines have been exceeded relative to those established by law.

Internal regulations are approved at each enterprise. This document is considered a kind of instruction for employees, which spells out all the features of the work procedure - from the number of working hours to the procedure for calculating bonuses or disciplinary sanctions. Employees often violate these rules. What are the consequences of non-compliance with labor regulations for employees and are the employer’s actions legal in cases where violations are recorded?

What is labor discipline?

Labor discipline is a set of rules developed by an enterprise in order to optimize the work process. It is based on the responsibilities of each employee prescribed by law.

Article 21 Labor Code RF “Basic rights and responsibilities of an employee:

“The employee is obliged:

• conscientiously fulfill his labor duties assigned to him by the employment contract;
• comply with internal labor regulations;
• observe labor discipline;
• comply with established labor standards;
• comply with labor protection and occupational safety requirements;
• treat with care the property of the employer (including the property of third parties located at the employer, if the employer is responsible for the safety of this property) 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 employer’s property (including the property of third parties located at the employer, if the employer is responsible for the safety of this property).”

In addition to the basic requirements, labor discipline rules may also specify other responsibilities of employees related to the specifics of each organization. These include: compliance with corporate ethics, keeping trade secrets, insubordination, etc. In case of a single violation of the regulations, a disciplinary sanction provided for by law may be imposed on the employee. Its type depends on the severity of the offense. The main violations of labor discipline include:

• non-compliance with labor safety rules resulting in an industrial accident;
• absenteeism or systematic tardiness;
• showing up to work while intoxicated;
• immoral acts;
• theft work or personal property of employees;
• intentional failure to fulfill duties or fulfill them not in full;
• falsification of legal documents;
• ignoring orders leader.

In private enterprises, the issue of choosing a disciplinary sanction is decided directly by the manager. Punishment is considered a manager's right, but not an obligation. Therefore, the employer independently decides on the advisability of imposing a disciplinary sanction. Systematic violation of labor discipline is considered as gross non-compliance with the rules and provides for more severe penalties, up to and including dismissal of the employee.

Types of disciplinary sanctions and their application

Disciplinary sanctions are aimed at improving the quality and organization of work. Based on the employment contract, employees are obliged to strictly comply with all regulations, since in case of violation of labor discipline in accordance with the Labor Code of the Russian Federation, penalties regulated by law may be imposed on the employee.

“For committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

• comment;
• dismissal for appropriate reasons.”

A disciplinary violation will be considered an offense committed only due to the employee's fault. The employer is obliged to demand compliance with all rules only if all conditions for this are provided at the enterprise. At the same time, each employee must be familiar with the work schedule, labor protection rules and his official duties, which is confirmed by his personal signature.

Article 81. Termination of an employment contract at the initiative of the employer

“An employment contract may be terminated by the employer in the following cases:

• repeated failure by an employee to perform labor duties without good reason, if he has received a disciplinary sanction.”

Article 192 of the Labor Code of the Russian Federation. Disciplinary action

“Disciplinary sanctions, in particular, include the dismissal of an employee on the grounds provided for in paragraphs 5, 6, 9 or 10 of the first part of Article 81, paragraph 1 of Article 336 or Article 348.11 of this Code, as well as paragraph 7, 7.1 or 8 of the first part of Article 81 of this Code in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by an employee at the place of work and in connection with the performance of his job duties.

When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.”

Disciplinary action may be issued based memo . If the employer considers this to be an insufficient reason, he can initiate disciplinary proceedings with the participation of the workforce. The result of the commission meeting will be an act with a decision on the type of disciplinary punishment.

Examples of violations of labor discipline

Practice knows many examples of violations of labor discipline. Most of them relate to minor offenses and are often limited to verbal remarks.

For example, employee Ivanov. A.A. violated work regulations by showing up for work an hour later than scheduled without a valid reason. In this case, the employer may limit himself to a verbal warning, which is issued in the form act of disciplinary violation. In case of systematic delays, Ivanov A.A. may be reprimanded, however, the law does not allow a reprimand to be issued immediately after the first offense.

A reprimand may result, for example, from failure to fulfill one’s official duties warehouse manager V.V. Petrov, which entailed financial losses for the enterprise in the form of failure to sign an agreement with suppliers. The employee may be issued ordinary or severe reprimand(at the discretion of the employer).

A one-time violation that entails dismissal can be an employee’s appearance at the workplace in a state of intoxication, theft of official property, or actions that provoked an accident or accident at work.

Any decision on disciplinary action may be appealed by the employee in court. Then the help of a professional lawyer competent in matters of labor legislation of the Russian Federation will be relevant.

Sofya Povzikova, head of the HR administration department at Coleman Services, continues to expand on the topic of dismissals at the initiative of the employer. Today we will talk about dismissals related to repeated failure to fulfill official duties by employees.

This basis is established by paragraph 5 of Article 81 of the Labor Code of the Russian Federation, but it must be used after thoroughly preparing personnel documentation on the one hand, and on the other – having a reserve of time, because on this basis, as a rule, it takes at least a month.

What is meant by failure to perform or poor performance of official duties?

Failure to fulfill labor duties is a violation of the requirements of labor legislation, the functions specified in the employment contract, local regulations in force at the employer: labor regulations, job descriptions, orders of the organization’s management, technical rules for preparing documentation or using equipment, labor protection and safety requirements, etc. .P.

Example: an employee works in a call center and his job description states the duty to “make 40 phone calls per work shift.” If an employee does not fulfill the specified norm during the day, this indicates poor performance of job duties. If during the day the employee for some reason did not make a single call at all (he invented a job for himself or found reasons to take time off from work), then this is a failure to fulfill his duties.

As can be seen from the example, one of the most important documents establishing requirements for the quality of job duties is another document that specifies the employee’s labor function.

Job description is not mandatory local normative act, but its presence and competent formulations help the employee, his immediate supervisor and HR specialists determine the quality of the employee’s work in controversial or conflict situations.

Very often, when drawing up a job description, streamlined formulations are used: “call customers” or “register customer orders.” Such vague responsibilities are not of a specific nature, which means that some other document is needed that establishes the criteria for assessing the quality of work, and the employee must be familiar with it and sign it. Otherwise, the employer’s actions can be appealed, pointing out that the calls to clients were completed, but the employee was not informed that exactly 40 calls were needed.

What is meant by “repeated failure”?

In practice, there are very often cases when managers complain to HR specialists about the quality of work of line personnel. However, just as often, managers refuse to document the identified violations: a lot of documents need to be completed, and, as always, there is not enough time. The HR specialist must understand that verbal complaints from the manager cannot be considered as a failure to fulfill official duties. Therefore, “repeated failure to comply” means several documented disciplinary sanctions for various violations of various official duties.

It is impossible to impose a disciplinary sanction for the same violation, otherwise two penalties will be applied to the employee for one offense, which is unlawful (Part 5 of Article 193 of the Labor Code of the Russian Federation).

Let's return to our example: the employee can take the first disciplinary sanction (if there is documenting) receive for poor performance of official duties, the second, for example, for being late for work.

In 2004 Plenum Supreme Court The Russian Federation (clause 33 of Resolution No. 2 of March 17, 2004) decided: in order for dismissal on this basis to be legal and justified, two conditions must be simultaneously met:

the employee does not perform job duties without good reason;

the employee commits the violation repeatedly, that is, he already has at least one outstanding or outstanding disciplinary sanction in the form of a reprimand or reprimand.

What documents should I fill out to impose a disciplinary sanction on an employee?

So, the employee did not work properly and made only 10 calls (instead of 40), and his manager demands that the HR specialist announce to him. We discussed in detail the actions of the personnel officer when filing a disciplinary sanction in the article “Loss of Trust.”

Let's repeat some points:

1. It is necessary to explain to the immediate supervisor that he must draw up a memo addressed to the head of the organization (since it is this person who, in accordance with the Charter of the organization, is authorized to be an employer). The memo should record:

• Full name of the employee;
• date and time of the violation. If the violation is detected after the end of the working day, this must also be indicated
• details of the violation itself and detection of the violation
• the manager's proposals on measures to influence the employee.

Indicative text of the memo for our example:

“On April 13, 2017, a call center specialist (full name) during work shift from 9.00 to 18.00, in violation of the requirements of the job description, made 10 telephone calls. ABOUT this fact I became aware of this in the process of summing up the results of the working day. I propose to reprimand (full name).”

1. It is necessary to explain to the immediate supervisor that a reprimand can only be issued if there are written explanations from the employee about the reasons for failure to fulfill official duties. In practice, there are two mechanisms for obtaining explanations: written (when the employee is given a Request for Explanation) and oral (when the manager verbally demands an explanation from the employee). I cannot advise my HR colleagues on the second option: if an employee appeals the employer’s actions, then without the appropriate document it will be very difficult to prove compliance with the requirements of paragraph 1 of Article 193 of the Labor Code of the Russian Federation.

The request for explanations is usually prepared by HR specialists and issued to the employee, making sure to record the time the document was issued. The request is issued to the employee against signature. At the request of the employee, he may be given a copy of the Requirement.

1. After two working days, the employee must provide a written explanation. If an explanation is not provided, it is necessary to draw up a Certificate of Refusal to Provide Explanations. The act is announced to the employee in the presence of witnesses. The employee may sign that he has familiarized himself with the Act, or he may refuse to familiarize himself with it. In this case, the Act is read aloud to the employee.
2. Two received documents documenting the violation are submitted to the head of the organization (or other authorized person) for consideration to make a decision. The manager, taking into account the available facts, can decide on a penalty or on the absence of grounds for it, and can mitigate the punishment or toughen it. The manager reflects his decision in a resolution, which he writes on a memo.
3. Based on the decision of the head of the organization, the HR specialist prepares an Order to impose a disciplinary sanction on the employee.

The procedure for HR specialists may vary depending on the traditions of the organization, but two primary document are required, because are the starting points for calculating deadlines.

Since we are talking about repeated violations, this procedure must be completed at least one more time.

There are two disciplinary sanctions. What's next?

So, the HR specialist has two orders to impose disciplinary sanctions, as well as two sets of justifications for them. The orders are signed by the employee and the employer. Certificates of refusal to familiarize themselves with documents were prepared and signed by witnesses.

If the next violation occurs, a third set of evidentiary documents is prepared and submitted to the head of the organization for decision. If the manager’s decision is dismissal, then it is necessary to prepare a dismissal order in the unified T-8 form, or in the form established in the organization. If the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, then a corresponding entry is made directly on the order (Article 81, paragraph 5 of the Labor Code of the Russian Federation).

Thus, preparing for dismissal due to repeated failure to fulfill official duties by employees requires:

Availability of a job description (or detailed job responsibilities in the employment contract)

Willingness to complete a lot of documents quickly and accurately.

Time, because dismissal due to repeated failure to perform job duties by an employee takes about a month

When applying for a job, the future employee must sign an employment contract with the employer and study the job description. However, if an employee ignores his job responsibilities in the course of his activities, then the employer’s reaction can be completely different: from a loyal attitude to a drastic action - dismissal from his position. What are the consequences for an employee if he fails to fulfill his duties?

All businesses need to have job descriptions for each position. In accordance with this document, the new employee will perform his duties. This instruction helps the employee work as expected by the employer, so it must list the functions and indicate the level of responsibility for each position. The consequences for an employee of failure to fulfill his job duties are described in Art. 192 Labor Code of the Russian Federation.

The employee does not fulfill his duties

For intentional failure to fulfill his direct duties, which are listed in the job description of the enterprise, the employee is given disciplinary sanctions in the form of a reprimand or. As a last resort, the employer has every right to dismiss an employee for this reason (Labor Code of the Russian Federation).

But this condition applies only if the employee was familiarized with his functional responsibilities upon taking up his position. If the manager several times noticed incidents of failure to fulfill direct duties by the employee, then in the first case the employer reprimands him, and in subsequent cases there will be a penalty, fine or dismissal of the employee.

For certain categories of employees, other disciplinary sanctions may be applied in case of failure to fulfill their labor duties (Article 189 of the Labor Code of the Russian Federation).

The most common causes of violation may be the following:

1. The job description is drawn up formally. It does not contain real details and information about the position, there is no list of clear responsibilities, and the level of responsibility and rights of the employee are not indicated.
2. Incorrect distribution functional responsibilities. The document, for example, describes universal responsibilities covering several positions. As a result, some people fulfill them and others don’t. In addition, this may be the case when an employee is given a lot of duties of a multi-level nature, which he, in principle, cannot perform. This is the employer's fault, not the employee's. The employee is required to perform the minimum standard of duties described in his employment contract, and he performs additional duties that arise in the course of work at his own request.
3. Dual subordination of the employee. We are talking about several managers of one employee. An employee must have one specific direct supervisor who gives him tasks and controls their implementation. It happens that the heads of other departments, whose work is related to the functions of the employee, control or require subordination and reporting from him, but he is not able to fulfill all his duties efficiently. This point should be taken into account when analyzing the problem.

There are many reasons why an employee does not fulfill his job duties. It is important to keep in mind that the tasks of the HR department are initial stage the work consists of carrying out introductory course, agree with the employee on his responsibilities, facilitate easy adaptation and then periodically monitor the level of performance of official duties and the business process itself.

Penalties and payments for failure to fulfill obligations

If an employee has not fulfilled his job duties, the employer has no right to impose fines by law. However, as for the irresponsible employee, payments are made in accordance with the terms of Art. 155 Labor Code of the Russian Federation. There are 3 conditions here:

• If an employee has not fulfilled his labor duties due to the fault of the employer, he is paid his average monthly earnings.
• If there was a failure to fulfill functional duties by the employee for reasons that did not depend on either the employer or the employee, then the payment is made in the amount of at least 2/3 of the full rate.
• If the fault for failure to fulfill functional duties lies entirely with the employee, then the employer has the right to pay wages to the plan based on the fact of work performed.

Dismissal for failure to perform official duties

In case of systematic violations of labor order and failure to fulfill labor duties, the employer has the right, on the basis of an order, which will indicate the appropriate reason for dismissal.

The procedure for punishment for systematic violation and failure to complete one’s work is described in Art. 81 Labor Code of the Russian Federation. The legislation does not specify clear criteria for violations; they are determined by the employer.

The procedure for dismissal for failure to fulfill official duties is carried out according to the following algorithm:

• Provision of documents by the employer on the basis of which it is possible to prove the employee’s guilt.
• Analysis of the job description, which should specify clear responsibilities of the employee.
• Clarification whether the employee belongs to the category of persons who are prohibited from dismissal at the initiative of the employer (Article 261 of the Labor Code of the Russian Federation).
• Receiving from the employee a written explanation of his violations.
• Analysis of the situation and all valid reasons for violations, if any.
• Drawing up a dismissal order based on violations.
• Familiarization with the order and its signing.
• Registration by the personnel officer of the dismissal order and making a corresponding entry in the employee’s work book.

IN mandatory on the day of dismissal, the employer must make a full settlement with the employee and return his work book to him.

Conclusion

The criteria for failure to fulfill official duties are quite vague, and they must first be established by the employer. Quite often, it is through the fault of the manager that the employee does not perform his work efficiently, and therefore dismissal for this reason is often illegal. At the same time, an illegally dismissed employee can safely file a claim in court, and if violations are discovered on the part of the employer, he will be reinstated and receive compensation.