Internal memo on conducting an internal investigation. An internal investigation against an employee at an enterprise: where to start and how to conduct it

An official investigation- This is a serious procedure that does not apply to minor disciplinary offenses. If an employee has done something serious, there is a need to clarify all the circumstances of the events that occurred. The employer must understand the reasons and motives for the actions of the offending employee in order to make the only correct decision regarding him.

In what situation is an investigation necessary?

In the Russian Labor Code there is no precise definition of the term “internal investigation”, but there is a clear procedure for applying disciplinary action. It cannot be imposed on an employee without reason.

That is, the fact of guilt itself must be proven. To do this, it is necessary to collect explanations from employees, assess the scale of the damage caused, and understand whether there was malicious intent in the employee’s actions. The set of all these activities is called “internal investigation” or “internal inspection” if the guilty person is a civil servant.

Serious disciplinary offenses requiring verification by the employer include the following acts:

1. Absence from work.
2. Causing material damage.
3. Abuse of official position.

For an offense committed against an employee may be subject to disciplinary action up to and including dismissal or an order for compensation has been issued damage caused. In order for these actions on the part of the employer to be justified, it is necessary to conduct an internal investigation.

General procedure

The employer has the right to punish the employee only after following a certain procedure precisely described in Article 193 of the Labor Code of the Russian Federation. If even one point of the protocol is violated, the accused employee will be able to appeal the penalty in court and bring the enterprise administration to justice.

All people involved in the proceedings must adhere to certain principles:

• it is necessary to objectively evaluate the available facts. personal hostility or attachment cannot influence the progress of the inspection;
• Until the employee's guilt is proven, he is considered innocent. and guilt can be proven only after the presentation of irrefutable evidence;
• all actions of the appointed commission must be carried out in strict accordance with internal orders, instructions or instructions.

The head of the enterprise is obliged to act strictly within the law, using the following step-by-step instructions:

• issue an order to initiate an internal investigation. An order cannot be issued without reason. To issue an order to conduct an internal investigation, information about the existence of a misconduct must first be received. It is obtained from the following sources:
• a written statement from the guilty employee;
• memo from the immediate supervisor;
• complaints from clients or subagents of the organization;
• memos from employees of the organization;
• an inventory act indicating the presence of a shortage;
• report drawn up by an audit firm.
• appointment of commission members who are responsible for the progress of the audit;
• obtaining a written explanation from the offending employee. The violator gives explanations based on the notification received, which can be sent to him by mail by registered mail or delivered in person. The text of the document usually sets out the questions that the employee who has violated discipline must answer. He is given 2 days to respond in writing. If you refuse to provide explanations, you must draw up a report.

All further measures depend on whether the guilty person gives or does not give explanations and how the members of the commission interpret them.

If it is determined that a violation labor discipline happened by good reasons, then the investigation will end there, as evidenced by the corresponding act.

In case of absence from work

In order to consider an employee’s absence from the workplace absenteeism for 4 or more hours, there must be certain reasons. Until they are clarified, it is considered that the worker was absent due to unclear circumstances. If there are no valid facts, and failure to appear resulted in serious consequences, disrupted the normal functioning of the enterprise, the employee may receive a reprimand or dismissal from work. And for this there must be serous grounds that can only be obtained during the investigation.

First, the fact of the employee’s absence from the workplace must be recorded. A memo can be written by either the immediate supervisor or any employee of the organization. After appearing, the employee can give an explanation for his misconduct. The following reasons are considered valid:

1. Illness of the employee or members of his family. This circumstance must be confirmed by the relevant document: a certificate from a medical institution or a sick leave certificate.
2. Delays due to lack of transport. For example, skids on the road caused a temporary stop in bus service.
3. The presence of unforeseen circumstances beyond the control of the employee. For example, on the way to work, an employee’s personal vehicle was involved in an accident.

Based on Article 81 of the Labor Code of the Russian Federation, if an employee was not present at the workplace for the whole day, this can be considered absenteeism. To record this fact, it is necessary to draw up a corresponding act on the day of failure to appear.

The document is drawn up in free form. Its purpose is to record and confirm the fact of the employee’s absence. You can create several documents throughout the working day. When drawing up an act, it is important to record not only its date, but also the time of drawing up. The document is signed by team members of at least three people.

If the employee does not show up the next day, this must be recorded in the following act.

In case of material damage

Material damage to an enterprise can be caused due to negligence or malicious intent. On the part of the employee, the loss to the enterprise is caused as follows:

In this situation, first of all it is necessary to determine the amount of damage. In case of theft, this can be done by drawing up an inventory report. Breakdown or damage to equipment will require additional examination. The same need arises when damage is caused by non-compliance with safety regulations. For example, an employee left work and forgot to turn off the heating device, resulting in a fire. Only an expert commission can determine the extent of the loss.

Very it is important to understand the motivation for actions. Since it is important to understand whether the offense is ordinary irresponsibility or is of a malicious nature.

Abuse of authority

Abuse of power refers to the use of one's own position to obtain additional benefits. Wherein the interests of the enterprise itself and its employees may suffer. A striking example Such abuse is the conclusion of a supply agreement at inflated prices with the receipt of a certain amount of “premium” from the counterparty.

Such violations not always easy to identify. Very often the assistance of professional auditors or auditors is required. Without help independent experts It will be difficult to find out whether the price of a product being sold is understated or the premises are being rented out at a reduced cost.

Maximum terms

Legislation Exactly one month is allotted for the investigation. The period is determined from the date of issue of the order. This is established by Article 192 of the Labor Code Russian Federation.

The duration of the proceedings may be increased if during the period the “accused” employee was on vacation or absent due to illness.

The period cannot be extended by more than 6 months.

If the commission has not made conclusions before the deadline expires, an employee cannot be subject to disciplinary action, even if subsequently the final conclusion will not be in his favor.

If the commission has discovered a sufficient number of facts proving the guilt of the employee, punishment can be applied to him within 6 months from the date of registration final act.

Who is involved in the review?

An official investigation carried out by a commission appointed by the head of the enterprise. In large companies, this is entrusted to security personnel or internal audit. If the enterprise does not have such personnel, any responsible team members can be assigned to study the situation.

The main thing is that these employees were not personally interested in the outcome of the proceedings and could give an objective assessment of the collected facts. Therefore, it is impossible to invite close friends or relatives of the offending employee, as well as those who have personal hostility towards him, to the commission.

Another basic rule - members of the commission should not be in any way connected with the disciplinary offense. The composition of the group is determined by the corresponding order, which all members become familiar with upon signature.

There is no point in forming a group of employees who are categorically against participating in the proceedings. Otherwise, the situation will not be analyzed with complete care. A secretary is assigned to the group who will closely monitor correct composition all necessary documentation.

Registration of investigation results

After receiving and processing all information on the incident, a commission meeting takes place. Members must clearly answer the following questions:

1. Has there been a violation of labor discipline and what is it expressed in?
2. What was the cause of the offense?
3. What was the nature of the actions of the guilty person?
4. What consequences did the offense have for the organization as a whole?
5. The presence of circumstances that remove or alleviate guilt.
6. The presence of facts aggravating the offense.

These points are clarified through discussion. All theses and arguments are recorded in the protocol. After the end of the debate, the commission begins to draw up a final act, which consists of three parts:

1. Introductory part. It is descriptive. It describes the offense itself and the time it was committed. Information about the members of the commission and their positions must be entered. The basis for the initiation of an internal investigation and the timing of its conduct are indicated.
2. The second part sets out the actions that the commission members took to obtain facts confirming or refuting the employee’s guilt.
3. Conclusion. At the end, the commission must draw reasoned conclusions.

To the act in mandatory everything is applied collected documents. It can be:

• memos or memos;
• orders;
• conclusion of an expert or audit commission;
• inventory acts;
• and other documents confirming the guilt of the employee.

Not only the act, but also all annexes to it must be signed by the members of the commission. The document must be registered in a journal, where it is assigned a serial number and publication date. Then the act is certified by the signature of the director of the organization and the seal.

Only on the basis of an “indictment” can an employer decide to dismiss an employee who has committed a serious disciplinary offense. With others circumstances, dismissal may be considered illegal.

If the guilty employee does not consider the charges brought against him to be fair and does not trust the results of the internal investigation, he can always defend his rights in court. For an employer, an official investigation report, drawn up in accordance with all the rules, is a powerful argument for the legitimacy of its own actions.

This video talks about the main mistakes an employer makes when applying disciplinary sanctions.

The main goal of implementing an internal internal investigation in an organization is the need to impose sanctions on an employee if his guilt is proven. The investigation will also protect the company from litigation in court.

Following the procedure, all actions must be documented.

When is it held?

An official investigation must be carried out when charging a punished employee for material damage. The main task of its implementation becomes determining the causes of this damage. Understanding the reason will enable the employer to organize preventive measures in some areas, to stop the recurrence of similar situations in the future.

An investigation is a serious procedure that is not carried out to prove minor violations.

Often a preventative conversation with the offender is sufficient. If there are suspicions that an employee has caused major material damage or selfish use of official powers, strict measures must be taken.

Also, a special commission checks disciplinary violations related to evasion of medical examination (by specialists of some professions), passing occupational health and safety exams, and undergoing special training in work time, refusal to sign (if this is the specialist’s main job responsibility).

The perpetrators and eyewitnesses of the incident may be called in for questioning. The procedure is voluntary, so employees do not have to participate in it. They cannot be forced to undergo a polygraph test or to conduct an inspection or search without consent.

Regulations under the Labor Code of the Russian Federation

Compared to the investigation of a traffic accident, which is clearly defined in the relevant provision, the Labor Code does not provide for an official investigation. But imposing disciplinary liability on an employee can be compared with the procedure for carrying out an investigation in an organization. Based on Art. 189 Labor Code of Russia this procedure is regulated by labor regulations in the company, as well as specialized instructions or regulations.

The time for performing the check is regulated by Art. 193 TK. Based on Part 3 of Art. 247 of the Labor Code, a specialist or his representative has the right to study all investigation materials and appeal them if he disagrees with the final conclusion.

Who is taking part?

As a rule, an official check is carried out security Service, and internal audit department. In companies with a small number of employees, these issues can be dealt with personnel service. Other specialists (including accountants, lawyers).

The supervisor of the employee being inspected must take part in the work. But in order to obtain objective results, he cannot be a member of the special commission. As a result, the commission may include specialists from the personnel and security services, including the trade union committee. It should contain at least 3 people. The head of the security service should be at the head.

Procedure and timing

Legislatively, the investigation of violations of labor regulations is allocated 30 days. This period is counted from the time of decision or release.

If the investigation is carried out according to the employee, then it must be completed within a month from the day the document was submitted. This time does not include the duration of the employee’s vacation or illness, the period for recording information from the representative structure of employees (this time in total should not exceed 6 months). After 6 months from the date of commission of the offense, the disciplinary sanction loses its force.

The specialist is requested to provide an explanation in writing, which he must draw up within 2 days of receiving the notification. If there is no response, an act of refusal to assist in the verification is drawn up.

After a misconduct has been identified, an internal investigation order signed by the manager is issued within 24 hours. At the same time, a commission is appointed, which must include at least 3 disinterested professional employees of the company. They will draw up an inspection report.

At the final stage verification work The manager is provided with a report indicating the results obtained:

• the people at fault and the nature of the damage caused;
• conditions and factors that led to the violation;
• recommended types of punishments and advice to prevent similar cases in the future.

You can learn more about this procedure from the following video:

Compiled documents

An internal investigation begins with the boss or any employee of the company identifying the fact of misconduct, which is recorded in documents (memo, report on the head of the company). In accordance with this document, this procedure is prescribed. The fact that such information was carried out and the period for receiving such information is important, otherwise the inspection may be appealed in court.

The note must be accepted for execution and registered. From the time when the date and number recorded in the document flow journal are stamped on it, the period of verification is counted.

Also, the basis for an investigation may be an explanatory note, a statement from a specialist, a complaint or claim from a consumer, an inventory act, an audit report, a citizen’s request for information about an offense, etc.

The commission may require originals or photocopies of other documentation, which will confirm the employee’s innocence or guilt.

Test results

In, compiled in accordance with the collected materials, there should be several parts:

• the introductory part contains the fact of the offense, the time it was committed, the deadline for completing the inspection and the list of commission members;
• description - includes evidence;
• summary - reflects the perpetrators, the fact that they committed the incident, the presence of previously outstanding penalties.

Also attached to the act are all Required documents, which were used in the investigation. It is signed by the entire commission; in the office work, the act is given a serial number with the date of completion of the inspection. The conclusion is signed by the head and stamped.

All materials from the inspection are filed in the “Case” folder, and an inventory of the documentation is made.

After this, the employer must decide to impose a disciplinary sanction on the employee. In accordance with the Labor Code, it is provided reprimand, reprimand or dismissal with appropriate reasons. It is also allowed warning or reprimand.

The decision to impose a penalty is reflected, indicating the perpetrators, grounds and type of punishment. One penalty is imposed for each disciplinary violation.

On what basis does an employer have the right to conduct an internal investigation against its employee? What evidence of the employee’s guilt is subsequently recognized by the court as significant?

The labor legislation of the Russian Federation does not contain the concept of an official investigation as such. However, the Labor Code of the Russian Federation contains a strictly formalized procedure for bringing an employee to disciplinary liability. It is this procedure that can be called an official investigation conducted to clarify the circumstances of the employee’s misconduct. In accordance with Art. 189 of the Labor Code of the Russian Federation, an official investigation can be regulated both by internal labor regulations and by a separate local regulatory act (for example, a special regulation or instruction).

Urgent message for a lawyer! The police came to the office

The procedure for bringing an employee to disciplinary liability, duly approved by the employer, becomes mandatory for him, and any deviation from it will be regarded as a violation of labor law.

The court's position. 1 The employee filed a demand with the court to recognize the order to bring him to disciplinary liability as illegal and, in support of this, indicated that before the penalty in the form of a remark was applied to him, no official investigation was carried out. During the consideration of the case, the court found that, based on Art. 5 of the Labor Code of the Russian Federation, the provision on the procedure for conducting an internal investigation, approved by the employer, is a local regulatory act. In accordance with it, within three working days from the receipt of the application, a reasoned decision must be made either to initiate an internal investigation or to refuse to conduct it. However, despite the memo sent by the plaintiff on October 14, 2009 to the employer with a request for a comprehensive and objective study of the circumstances of the incident, none of these decisions was made by management. This is a violation of the procedure for bringing the plaintiff to disciplinary liability. This conclusion the trial court supported judicial panel in civil cases regional court. As a result, the employer's actions were declared illegal, and the employee's claim was satisfied.

The main task of conducting an official investigation is to collect and document evidence to bring the perpetrators to justice. That's why Special attention It is necessary to pay attention to the legal literacy of drawing up documents and their compliance with the requirements of labor legislation.

During the internal investigation the following must be established:

the fact that the employee committed a disciplinary offense; the employee’s guilt and its degree; the nature and extent of damage caused to the employer.

Additionally define:

reasons and motives for committing a disciplinary offense; circumstances mitigating and (or) aggravating the employee’s liability; the employer's ability to eliminate and prevent such violations of labor discipline; measures to bring perpetrators to justice.

The usefulness of conducting a thorough intra-organizational check upon the fact that an employee has committed a disciplinary offense is confirmed judicial practice, since its materials become the main evidence of his dishonest behavior 2.

Stage one: detection and recording of the offense

Grounds for conducting an internal investigation. In accordance with Art. 192 of the Labor Code of the Russian Federation, a disciplinary offense is the failure or improper fulfillment by an employee through his fault of the duties assigned to him labor responsibilities. According to paragraph 35 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, this includes violations of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc. Therefore a necessary condition to establish the fact of misconduct, the presence of internal regulations, instructions and other acts regulating the employer should be considered labor activity employee. Otherwise, the process of proving the employee’s guilt can cause significant difficulties.

The reasons for starting an inspection may be:

memo from the head of a division, department and (or) immediate superior; statement from the employee himself; counterparty claim or consumer complaint; act of discovery of a shortage of goods; auditor's conclusion, inventory report; written and oral appeals from citizens, representatives of organizations containing information about an employee committing an offense, etc.

If at least one of these grounds exists, the manager or other person authorized to make personnel decisions has the right to issue an order to conduct an internal investigation.

Kurochkin Denis Borisovich,
prosecutor of Karymsky district Trans-Baikal Territory
Aprelkova Victoria Sergeevna,
Assistant Prosecutor of the Karymsky District of the Trans-Baikal Territory

Internal investigation provides a wide choice of personnel decisions

In most cases, the prosecutor's office is faced with questions regarding the procedure for conducting an official investigation, either in the course of resolving citizens' appeals, or when presenting an opinion to the court in cases of reinstatement. Based on practice, we can conclude that an internal investigation should facilitate the timely and complete collection of materials on the fact of a disciplinary offense committed by an employee. Typically, the person subject to such an investigation will be notified and asked to give written explanation what happened. However, according to labor legislation, such information is not mandatory. Presumably because the employer must request an explanation from the employee in accordance with Art. 193 Labor Code of the Russian Federation.

There are cases when the mechanism for conducting an internal investigation is clearly established and secured by a local legal act of the organization, which defines the list of documents prepared by the employer. Thus, in July 2010, citizen S. contacted the prosecutor’s office of the Karymsky district of the Trans-Baikal Territory regarding a violation of labor legislation against him. During the inspection, it was found that he was fired under clause. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for appearing at work while intoxicated. In accordance with the regulations in force at the enterprise, its director has formed an evidence base for the employee’s guilt. In particular, reports were collected from S.’s immediate supervisor, reports on appearing at work while intoxicated, reports from the site foreman on S.’s removal from work dated 06/10/2010, 06/11/2010, orders from the employer that 06/10/2010 and 06/11/2010 were counted by S. as days of absenteeism that were not subject to pay, and he was dismissed on 06/15/2010. In this regard, on the basis of orders from the director of the enterprise, June 10 and 11, 2010 were considered days of absenteeism that were not subject to payment. In addition, the next day, on his shift, S. did not come to work at all, which was confirmed by a report from the site foreman and S.’s absence from the workplace. Thus, the employer proved the validity and legality of applying a disciplinary sanction to the employee (refusal of the complaint by the prosecutor dated July 21, 2010).

At the same time, cases are more common when the process of internal investigation in an organization is not regulated. Thus, V., a former cook at the State Educational Institution, filed a lawsuit in the Karymsky District Court for reinstatement at work and payment for the time of forced absence. During the investigation of the case, it turned out that on January 17, 2010, a report was sent to the director of the private security company providing security services to the defendant that V. was taking food out of the canteen at the end of the working day. This document was handed over to its management and formed the basis of the procedure for bringing to disciplinary liability. She was fired under clause 7, part 1, art. 81 of the Labor Code of the Russian Federation due to loss of trust. One of the plaintiff’s arguments was the employer’s violation of the procedure for conducting an internal investigation. Namely: during the inspection, the authorized commission drew up only one document - a report on its results, which, moreover, did not contain conclusions about the presence or absence of the employee’s guilt. The plaintiff was not familiar with the order to conduct an internal investigation and the said act. However, the court found all these arguments unfounded and found the employer to be right.
In order to avoid unwanted reinstatement of an employee, it is recommended to take measures to establish whether the reasons for his behavior are valid or not. But here everything depends on the nature of the offense. Thus, if an employee causes material damage, an audit or inspection of financial and economic activities is necessary.

I would like to note that if the employer does not have the opportunity to ask the employee for an explanation of the misconduct (does not contact him for a long time), then it is quite acceptable to terminate his employment employment contract according to sub. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for absenteeism. It is quite enough to record the fact of his absence from the workplace through an act and memos from his colleagues.

If there is a crime in the actions of the person in respect of whom an official investigation is being conducted, all materials are transferred to law enforcement agencies according to the jurisdiction determined by Art. 151 Code of Criminal Procedure of the Russian Federation. The Criminal Code of the Russian Federation does not provide for liability for failure to report a crime (at any stage of its commission). The actions of an employer who fails to report the unlawful behavior of an employee cannot be regarded as concealment. But in the legal assessment of such a decision, the employer’s lack of personal gain and selfish goals will play a big role.

Of course, it should be recalled: he may not take such an extreme measure as terminating the employment contract or even bringing the employee to disciplinary action, since this is his right, not his obligation.

The court's position. 3 The security guard filed a lawsuit for reinstatement at work, recovery of payment for forced absence, compensation for moral damage, and legal expenses, arguing that the results of the internal audit were erroneous and did not contain a certificate of his medical examination. In its decision, the court referred to paragraph 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” according to which the state of intoxication of an employee can be confirmed both by a medical report and other types of evidence, which the court gives the appropriate legal assessment. At the same time, the use of dismissal as a penalty on the grounds provided for by the Labor Code of the Russian Federation must correspond to the severity of the disciplinary offense. That is, the employer is obliged to take into account the extent to which the state of intoxication affected the employee’s performance of his work function. In particular, the seriousness of the violation of labor discipline committed by the plaintiff (appearing in a drunken state) is expressed in the possible occurrence of adverse consequences, since due to their official duties he ensures the established order in the organization, the safety of workers, the security of buildings during working hours, and his work involves carrying weapons.

Persons responsible for conducting an internal investigation. A commission is formed to conduct an official investigation. Usually it consists of an odd number of people (at least three). The chairman of the commission most often becomes the head of the security service, the personnel department, or the head of the organization himself. The personal composition and number of members of the commission responsible for the timely and correct execution investigation is determined by the order to conduct it.

Time frame for conducting an internal investigation. Any verification of the fact of violation of labor discipline must be completed no later than a month from the date of the decision to conduct it. If the investigation is carried out on the basis of a memo from one of the employees - no later than a month from the date of its submission. This condition is related to the requirement of Art. 193 of the Labor Code of the Russian Federation on the application of disciplinary sanctions no later than a month from the date of discovery of the offense. In this case, during the specified period, the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees is not counted.

According to paragraph 35 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, the day when the violation was discovered, from which the period begins, is considered the day when the manager of the offending employee became aware of his committing illegal actions (inaction). It does not matter whether he has the authority to bring his subordinates to disciplinary liability or not.

It should also be taken into account that a disciplinary sanction cannot be applied later than six months from the date of commission of 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.

Stage two: clarification of legally significant circumstances

Limits of conducting an official investigation. Article 193 of the Labor Code of the Russian Federation establishes the obligation of the employer to request a written explanation from the employee before applying a disciplinary sanction. If an employee evades receiving the corresponding request of the employer, it is necessary to draw up a report about this. It would be quite logical to send the demand by registered mail with a list of the attachments or by telegram to the employee’s place of residence. If after two working days they have not provided an explanation, this is regarded as a refusal to assist in clarifying the circumstances of the incident and is recorded in another act. The forms of these documents are not established. However, it is recommended that they be signed by all committee members.

During the investigation, the employer has the right to take explanations from the organization’s employees, interview eyewitnesses of what happened (with their consent), check internal documentation, and engage experts (auditors, appraisers and other specialists from third-party organizations) on a contractual basis to give professional opinions; carry out an inventory of property, take samples, take measurements using technical means; send requests to government bodies, institutions and other organizations.

It should be especially emphasized that the employer can receive information and documentation from third parties only on a voluntary basis. He does not have the right to conduct searches, body searches, interrogations or require employees to undergo a polygraph test.

Evidence of truancy. Practice shows that the fact of absenteeism should be recorded in an act of absence of a person from the workplace, which is drawn up every day in a separate document from the first day of his absence from work. Additional evidence of this violation of labor discipline may include: the fact that the employee’s signature is missing in the logbook at the checkpoint; information in electronic system personnel access control; reports from colleagues and the person’s immediate superior, etc.

If the employee does not appear for the second day in a row, it is necessary to send him a request to appear for work and provide an explanation of his behavior by registered mail with a list of attachments or by telegram at the employee’s place of residence.

It is recommended to count the period for giving explanations from the date of receipt of the letter (telegram) by the addressee. It should also be taken into account that for good reasons he may not get to work and send his explanations by letter, which will take a few more days.

When there is confirmation that the correspondence was not received, the employer has the right to take additional measures to search for the employee and find out the reasons for his absence: for example, file a search report with the police and (or) send inquiries to hospitals. And although the current legislation does not oblige the employer to perform such actions, we must not forget that if the reasons for absence are subsequently recognized by the court as valid, the employee will be reinstated and the employer will suffer losses in the form of monetary compensation to the employee for the entire period of his absence from work.

Evidence of property damage. To determine the size and nature of the damage caused, based on the order of the head of the organization, a special commission conducts an inventory of property. According to Art. 12 Federal Law dated November 21, 1996 No. 129-FZ “On Accounting”, an inventory is mandatory when facts of theft, abuse or damage to property are detected. Before making a decision on compensation for damage by specific employees, establishing the reasons for its occurrence and its amount is mandatory.

In accordance with Art. 246 of the Labor Code of the Russian Federation, in the event of loss or damage to property, the amount of damage is determined by actual losses based on market prices prevailing in the area on the day it was caused. At the same time, it cannot be lower than the value of the property according to data accounting minus depreciation charges. Therefore, employers often engage an independent appraiser or, to save their costs, determine the amount of damage based on the book value of the property.

Evidence of abuse of power. Abuse may be recognized as issuing discriminatory orders, concluding obviously unprofitable transactions, irrational disposal of property, unlawful expenditure of organization funds, hiring persons who do not perform their job duties, obtaining loans on unfavorable terms and other actions committed for reasons of personal interest. At the same time, unfavorable transactions are transactions on conditions that are significantly worse than similar ones concluded under comparable circumstances (with similar goods, works or services). In order to identify facts of such behavior, it is possible to conduct an audit or engage an independent appraiser on a contractual basis (to establish, for example, the validity of the release of goods, the lease of property at reduced prices, etc.). The decision on the audit is made by the general meeting of participants (shareholders) legal entity(for LLC, JSC) in order to confirm the accuracy of accounting documentation, financial statements, as well as the state of current affairs of the organization.

The court's position. 4 Guilty actions of an employee can be either systematic or a one-time, but gross violation. In particular, the report on the results of the internal investigation indicated the reasons contributing to the shortage: the employee took goods for personal needs without registering the purchase through the accounting department; lent goods to clients without completing paperwork; admitted facts of appropriation Money from selling goods without registration through a cash register; in violation of cash discipline, he appropriated excess funds from the hall's cash register, while distributing some of them among his subordinates; did not provide control over their operating mode; signed reports on the receipt and consumption (movement) of goods without the necessary verification. The document contained the conclusion that an increase in the shortage of commodity- material assets contributed to the plaintiff’s negligent attitude towards the performance of official duties. Additional evidence included witness statements. If the employee’s actions contain the signs provided for in Art. 201 of the Criminal Code, - the use by a person performing managerial functions of his powers contrary to the legitimate interests of his employer and in order to obtain benefits and advantages for himself or other persons - means there is a basis for bringing him to criminal liability. Therefore, the materials of the official investigation, together with the application to initiate a criminal case, can be transferred to the investigative authorities. In case of harm to interests commercial organization which is not a state or municipal enterprise, criminal prosecution carried out, including with her consent, i.e. without a special statement from her.

Stage three: registration of the results of the internal investigation

The results of the internal investigation are formalized in the form of a written conclusion or act, which is drawn up on the basis of the materials collected during the inspection. The final document indicates the fact of violation of labor discipline, the date of the violation, the period of the investigation and the composition of the commission. It also cites evidence base investigations indicate the persons who committed the offense, the circumstances of the offense, conclusions about their guilt and the need to bring them to disciplinary liability or its absence, and provide a list of appendices.

The court's position. 5 The cassation court overturned the city court's decision to refuse to reinstate the plaintiff at work, since the evidence presented, including the official investigation report, did not contain conclusions about the guilt of her actions. While in order to properly resolve a labor dispute, it is necessary to find out what culpable actions of the employee served as the basis for causing material damage to the employer.

The following is attached to the conclusion (report) on the results of the internal investigation:

memos on the discovery of a disciplinary offense, acts of absence of an employee, other documents that are the basis for an investigation; targeted demand to provide explanations, documents confirming the direction (delivery) of this request, an explanatory note from the employee (or an act of refusal to submit it); reports, official and explanatory notes of officials and eyewitnesses of the incident; inventory act, auditor's report; opinions of independent experts, as well as testimony of special technical means, etc.

The final document is signed by all members of the commission, after which - with all the materials attached to it - it is handed over to the person authorized to make decisions on the application of disciplinary sanctions. It is recommended to familiarize the employee against whom the investigation was conducted with the entire package of documents against signature. Although this is not necessary, it can prevent the employee from subsequently filing a claim, since he will know in advance about the employer’s reasoned position.

According to Article 193 of the Labor Code of the Russian Federation, the employee must be familiarized with the order to apply a disciplinary sanction within three working days from the date of its publication, not counting the time of his absence from work. If he refuses to familiarize himself, then a corresponding act is drawn up. In accordance with Art. 248 of the Labor Code of the Russian Federation, an order to recover from the financially responsible person the amount of damage caused is issued no later than one month from the date final establishment an employer of his size. The employee must also be familiar with the order against signature. It should be remembered that financial liability is imposed regardless of whether a disciplinary sanction was applied to the guilty person or not.

To attract or not to attract - that is the question

The decision to bring an employee to disciplinary liability is made by the employer at his discretion in each case and depending on the severity of the offense and the circumstances under which it was committed. If the management of the organization considers it possible to limit itself to measures of psychological influence without resorting to penalties (for example, to hold a conversation, express reproach, etc.) - this is its right. An exception is the case when the head of an organization or its structural unit or their deputies is held accountable for violating labor legislation and other acts containing labor law norms, the terms of a collective agreement, or agreement. In this case, on the basis of Art. 195 of the Labor Code of the Russian Federation, the employer is obliged to consider the application of the representative body of employees and - if the violation is confirmed - to bring the said official to disciplinary liability, up to and including dismissal.

To the director of branch No. 5 of YugWestStroy CJSC
Pyatnitsky Sergei Yurievich
from the foreman of workshop No. 2 Nikolai Viktorovich Perepelkin

Memorandum

I would like to bring to your attention that on August 12, 2010, the skating rink driver Oleg Vitalievich Saprykin came to work at 10:25 (i.e., an hour and 25 minutes late) and in a drunken state. This is evidenced by the strong smell of alcohol, poor coordination of movements, drowsiness and lethargy. To my questions about using it before work shift any alcoholic beverages responds with aggression.

In connection with the above, I ask you to take measures to remove O.V. Saprykin from work.

Perepelkin N.V. 08/12/2010

Conclusion
about the internal investigation
(extraction)

Commission conclusions:

Based on the facts identified, it was established that the skating rink driver Oleg Vitalievich Saprykin committed a one-time gross violation of his labor duties, namely, he appeared at his workplace in a state of alcoholic intoxication.

In connection with the above, it is necessary to consider the issue of bringing O.V. Saprykin to disciplinary liability.

Applications:

copy job description skating rink operator; copy of the employment contract with Saprykin O.V. from 04.10.2008; memorandum from the foreman of workshop No. 2 Perepelkin N.V. dated 08/12/2010; act on appearing at the workplace while intoxicated and being suspended from work in connection with this dated 08/12/2010; a copy of the work time sheet dated 08/12/2010; memo from the head of the service internal security Klitschko S.A. from 08/12/2010; requirement to provide written explanations for the offense dated 08/13/2010; act on the employee’s refusal to give an explanation for the misconduct dated 08/13/2010; act on the employee’s refusal to give written explanations dated 08/18/2010.

Signatures:

Deputy Director Olpikhina N.N. Head of the HR Department Boyko N.S. Legal Adviser Praidin A.A.

ACT
about appearing at work while intoxicated
and removal from work due to this

We, the undersigned,

Director of Branch No. 5 of YugWestStroy CJSC Sergey Yurievich Pyatnitsky; foreman of workshop No. 2 Perepelkin Nikolay Viktorovich; Head of the HR Department Boyko Nadezhda Stepanovna; Head of the Internal Security Service Klitschko Sergei Afanasyevich

in the presence of the skating rink driver Oleg Vitalievich Saprykin
drew up a document stating the following:
skating rink driver Oleg Vitalievich Saprykin showed up at his workplace on 08/12/2010 at 10:25 am in a drunken state.
In particular, he observed external signs alcohol intoxication:

the smell of alcohol; rambling speech; red eyes; impaired coordination of movements; aggressive behavior(attempt to start a fight).

The fact that O.V. Saprykin was drunk cannot be confirmed by a medical report, since he was against a medical examination. He also refused to give any explanations about his condition.
Since the performance of labor duties of O. V. Saprykina is related to the management vehicle(a source of increased danger), a decision was made to remove him from work. He was asked to leave workplace and leave the enterprise.
The head of the security service, Klitschko S.A., was appointed to accompany him home.

We confirm the above facts:

Saprykin O.V. refused to sign this document.
We confirm the refusal to sign:

director of branch No. 5 of YugWestStroy CJSC Pyatnitsky S. Yu. foreman of workshop No. 2 Perepelkin N. V. head of the personnel department Boyko N. S. head of the internal security service Klitschko S. A.

1 Cassation ruling of the Smolensk Regional Court dated 03/02/2010.
2 See, for example: cassation rulings of the Kaliningrad Regional Court dated March 31, 2010 in case No. 33-1502/2010; Moscow City Court dated July 1, 2010 in case No. 33-19482 and others.
3 Decision of the Yakut City Court of the Republic of Sakha (Yakutia) from 2009 (date and case number not specified).
4 Review judicial practice in cases arising from labor relations considered by the courts of the Republic of Khakassia in 2009 (definition No. 33-363/2009).
5 Ibid (definition No. 33-1553/2009).

In cases where an employee commits a disciplinary offense or causes damage to the employer’s property, a mandatory verification of the circumstances of the offense is carried out, which in practice is called an internal investigation. Let's consider what norms of law it is regulated by, how and in relation to whom it can be carried out.

What does the law say about internal investigations?

Labor legislation does not mention an internal investigation as a necessary procedure prior to the imposition of a penalty or the issuance of an order for compensation by the employee for damages. However, some norms of the Labor Code of the Russian Federation provide for the procedure for the employer to act in certain situations. This is an official investigation.

In relation to employees in state, municipal service or in the service of law enforcement agencies, the term “official inspection” is used.

Investigation of an employee’s disciplinary offense

The procedure for imposing disciplinary sanctions, regulated by Art. 193 of the Labor Code of the Russian Federation, determines that:

• Initially, the employer will request a written explanation from the employee, which the latter can submit within two days. But he can refuse to give explanations; a corresponding act is drawn up about this;
• based on the employee’s explanations (acts of refusal to give them), reports (office) notes from the immediate supervisor, data from electronic pass systems, etc. the employer decides on the advisability of bringing the employee to disciplinary punishment from the list provided for in Art. 192 Labor Code of the Russian Federation;
• the period during which a penalty can be imposed must not exceed general rules one month;
• upon completion of studying the collected materials and making a decision to punish the employee, an order is issued to impose a disciplinary sanction, which must be announced to the employee against signature.

That is, an official investigation of a disciplinary offense can be considered the process of studying all the above-mentioned materials that prove the event of a violation, its consequences, the employee’s guilt, mitigating circumstances and other points important for applying a penalty to the employee.

Investigation of damage caused by an employee

The direct obligation of the employer to conduct an inspection to establish the amount and causes of damage caused to him by the employee is established by Art. 247 Labor Code of the Russian Federation. This check, referred to by practitioners as an internal investigation, must be carried out before making a decision on compensation for damages by specific employees. It can be carried out by a commission created by order of the employer, with the involvement of specialists (legal adviser, economist, personnel officer).

During the investigation, it is necessary to establish the mandatory points without which it is impossible to legally recover damages from the employee:

• are there any circumstances excluding his financial liability (Article 239 of the Labor Code of the Russian Federation);
• whether the employee’s actions/inaction that caused damage to the employer’s property were illegal (whether he violated the law, or the terms of the employment contract, or other norms);
• whether there is his fault (intention or negligence) in the damage;
• whether there is a causal relationship between the employee’s behavior and the damage;
• whether direct actual damage was caused to the employer.

The amount of such damage can be established during the inventory by identifying discrepancies between the actual availability of property and the data of the accounting registers (Article 11 402-FZ of December 6, 2011 “On Accounting”).

In this case, the employer determines the list of objects subject to inventory, as well as the cases, timing and procedure for its implementation independently (except for cases of mandatory inventory).

When conducting an inspection, the commission must require a written explanation from the employee. If the employee refuses or evades explanations, then a corresponding act of refusal is drawn up.

The result of the inspection carried out in accordance with Art. 247 of the Labor Code of the Russian Federation, is an act of official investigation.

An internal investigation is an event that is carried out if an incident occurs at an enterprise: for example, an accident or theft of material assets. Let's consider the algorithm for conducting an internal investigation and samples of documentation that needs to be prepared during the work.

Employers must conduct an internal investigation in case of violation of labor discipline and other incidents. For example, if a shortage or leak of information constituting a trade secret is detected. Such an event is necessary to identify the perpetrators and apply disciplinary measures to them, as well as withhold from them the losses caused to the company. Most likely, a special commission will have to investigate facts of employees’ evasion from medical examinations, passing exams on labor protection, safety precautions and operating rules, as well as refusal to conclude an agreement on the employee’s full financial responsibility, if this is provided for by his main job function.

If the amount of the offense is insignificant, for example, when submitting internal reports, it is not necessary to conduct an investigation. It is enough to simply take a written explanation from the person whose guilt is already obvious and then act according to the law. But if the situation is ambiguous or the organization has suffered significant damage, it is impossible to do without creating a commission and conducting an internal investigation.

Situations in which an internal investigation is necessary

Below is a basic list of possible offenses for which the employee is personally responsible:

• absenteeism or absence from work;
• showing up to work drunk or under the influence of drugs;
• causing serious material damage;
• abuse of authority.

Now let's look at the algorithm for conducting an internal investigation. The procedure should begin with recording the fact of a violation.

Step 1. Recording a violation

There is no unified document that must be drawn up when a fact is discovered that gives rise to an official investigation. In practice, such a fact is usually recorded in a memo by the person who discovered it. This document is drawn up on behalf of the employee to his immediate superior or the head of the organization. In such a note you need to indicate:

• last name, first name, patronymic and position of the employee who discovered the violation;
• the circumstances under which the violation was committed or discovered;
• date and time of the event.

When receiving information about illegal actions of an employee from third parties or even directly from law enforcement It is not necessary to prepare a memorandum. In addition, if the reason for starting an internal investigation was the loss of inventory items or funds identified as a result of the inventory, a corresponding act must be attached to the note. Based on these documents, the employer creates a commission to identify the culprit.

Step 2. Creation of a commission and its tasks

The expediency of all measures necessary within the framework of the event, as well as the degree of guilt of the person whose actions became the subject of the proceedings, is determined by a specially created commission.

The commission is formed by order of the enterprise from competent employees who are not interested in the outcome of the proceedings. If the organization has special services, such as security or internal audit, then their representatives will form the majority of such a commission. In their absence, the personnel service takes over such functions.

As a rule, the commission should include three people. The order must indicate the names and positions of the members of the commission, the purpose and date of its creation, the period of its validity (it may not be limited to a specific case), as well as the powers with which it is vested. Typically, the tasks of such a commission include the following.

1. Determining the circumstances of the incident, including time, place and manner.
2. Identification of property that has been or could be damaged.
3. Inspection of incident sites (if necessary).
4. Determination of the cost of caused (or possible) damage based on the fact under investigation.
5. Identification of the persons directly responsible for the act.
6. Collecting evidence of the guilt of these persons and establishing its degree for each of them (if there are several culprits).
7. Determination of the causes and conditions conducive to the commission of an offense.
8. Collection and storage of documentary materials of the investigation.

The competence of the commission includes the right to demand explanations from all employees suspected of misconduct.

A commission can be created even if the company has not yet suffered direct damage, but the employee’s actions could lead to similar consequences. The commission may be permanent and renew its work if necessary.

The order for the organization on the creation of the commission must be familiarized with the signature of all its members. A sample order to conduct an internal investigation (sample) should look something like this:

Step 3. Gather information and evidence

The procedure for conducting an internal investigation is not directly defined in labor legislation, therefore, in each organization it must be regulated by rules internal regulations and internal regulations(orders, instructions, regulations). That is, the commission may receive the right to interview employees and study any accounting documents if the management of the enterprise decides so.

Although such an event is purely internal matter each organization and only its employees and management can take part in it, to it in help You can involve third-party specialists if this is necessary to clarify the facts related to the incident. For example, to determine the degree of intoxication and the severity of the error made by the employee when making calculations according to the estimate. This is usually necessary when the qualifications of the company’s specialists are not sufficient to draw professional conclusions. In this case, a separate order is issued for the enterprise. The following may act as contract experts:

• auditors;
• appraisers;
• medical workers;
• engineers;
• lawyers;
• other specialists.

In addition, inquiries may be made to government agencies and third parties as part of the investigation. They are obliged to provide the necessary information if it is not secret. All collected materials must be attached to the case as evidence in the same way as acts, certificates and memos drawn up by members of the commission during the investigation. After all, any sample of an official investigation against an employee, especially if it concerns a shortage, can be considered as a matter of transferring investigation data to law enforcement agencies.

Step 4. Obtaining employee explanations

Before the completion of the internal investigation and the issuance of an order to impose disciplinary sanctions on the perpetrators, it is imperative to request an explanation from employees. This is provided for by the provisions of Art. 193 of the Labor Code of the Russian Federation and confirmed by the position Supreme Court RF (clause 47 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). The form of such an explanation can be arbitrary, since it is not regulated by labor legislation. It is better to request an explanation in writing. This is especially necessary if the situation is of a conflict nature and the chances of obtaining an explanation are small. The request must be given to the employee against signature. If he refuses to sign, a corresponding act is drawn up. However, if the employee refuses to provide explanations on the basis Article 51 of the Constitution of the Russian Federation, which states that a person is not obliged to testify in relation to himself or his loved ones, directly in the text of the explanatory note, such an act need not be drawn up.

The employee has 2 working days from the date of receipt of the request to prepare an explanatory note. If an explanation is not provided, it is necessary to draw up another act - about refusal to give explanations. It must be signed by the chairman of the commission and several of its members (at least 2 people). After the investigation is completed, the explanatory note itself or a document indicating that an explanation was requested from the employee may serve as the basis for taking disciplinary measures against those responsible, up to and including dismissal.

Step 5. Commission meeting, consideration of circumstances

After the commission has collected and summarized all the information, it must hold a meeting. There, authorized persons will report:

• whether there was a violation (causing damage) and what it consisted of;
• circumstances, time and place of the incident;
• consequences of the violation and the amount of damage caused;
• reasons for the misconduct;
• the degree of guilt of each of the accused in the incident;
• mitigating and aggravating circumstances.

Step 6. Creation of an official investigation report

The results of the commission's work must be reflected in a special act summarizing the results of the investigation. In particular, this document should make it clear:

• culpable actions committed by the employee;
• the circumstances of such actions;
• type and amount of damage caused;
• the degree of guilt of the employee;
• possible punishment for the guilty person;
• proposals to prevent similar situations in the future.

The act must be signed by all members of the commission. If any of the commission members has special opinion about what happened, he cannot refuse to sign the act. However, he has the right to draw up a separate document stating his position and attach it to the materials.

If, in order to establish the volume and amount of material damage caused, an inventory was carried out, its inventory should be attached to the documents of the official investigation. Documents of third-party institutions and organizations related to the case (court decisions, inspection reports, protocols, etc.) can also be attached to the act and referred to in the text.

A sample conclusion of an internal investigation should look like this:

The employee against whom an internal investigation was carried out must be familiarized with all the results against himself against his signature. If the investigation was carried out against several persons, they must be familiarized with the materials separately, taking into account the protection of personal data.

Timing of internal investigation

The period for conducting an internal investigation according to the Labor Code () should not exceed 1 month from the discovery of the event that served as its cause. Usually the deadline is specified in the order itself. It should be noted that there is a statute of limitations for holding an employee liable, which does not include:

• employee's sick time;
• the length of time the employee is on vacation;
• the time required to take into account the opinion of a trade union or other representative body of workers.

In total, it is possible to bring the culprit to disciplinary liability no later than six months (and in cases related to corruption - three years). After this period, it will no longer be possible to prosecute. Based on the results of an audit, inspection of financial and economic activities or an audit, this period is no more than two years from the date of commission or discovery of the offense. These periods do not include the period of criminal proceedings (if it has been opened).