Appealing a disciplinary sanction: what should an employee do?

Author of the article: Anastasia Ivanova Last modified: January 2020 1171

Punishment imposed on an employee due to his failure to comply with discipline is often erroneous. In such a situation, the employee has the right to protest against the application of sanctions imposed on him. Appealing a disciplinary sanction will help restore justice. The procedure involves both pre-trial and judicial consideration. The request can be submitted to the labor inspectorate or to the judicial authorities.

Labor relations are subordinate in nature. The employer, by virtue of its powers, can abuse rights and impose disciplinary sanctions with violations. If the employee is confident that he is right, then he needs to appeal the penalties, since the employee may be dismissed in the future. Termination of an employment agreement is possible if an employee grossly violates labor discipline and repeatedly fails to fulfill his or her job duties without a good reason.

General provisions on disciplinary action

The articles of the Labor Code establish that the administration can carry out disciplinary sanctions against its employees in the following form:

Remarks - established for minor employee misconduct and failure to fulfill duties.
Reprimand - it can last for one month, after which it is removed. It is important to remember that the concept of a strict reprimand does not exist.
Dismissals are established for serious offenses.

Establishing disciplinary liability requires studying the materials of the misconduct and recording all the facts in paper form that determine the guilt of the employee. The procedure should begin with obtaining an explanation from the perpetrator.

When management decides on the choice of punishment, they must take into account the severity of the misconduct of the guilty employee, as well as the circumstances that accompanied the violation.

Legislation, as well as the enterprise's Regulations on Penalty, may provide for other penalties not prohibited by the code for certain categories of employees. However, the use of such measures as a fine or deprivation of bonuses is unlawful.

Attention! An important point when establishing a disciplinary sanction is that its basis is an order of the head of the company, signed by the director.

If the employee believes that he was subjected to this responsibility unfairly, they will appeal the disciplinary action.

For these purposes, he can draw up and submit an application to the following authorities:

Labor Dispute Commission.
State Labor Inspectorate.
To court.

Attention! An offended employee can apply to the judicial authorities immediately as soon as he decides that his rights have been violated, or he can try to restore his rights pre-trial through a commission or labor inspectorate.

Mistakes that are made in the foreclosure procedure

No explanation requested. In no case should measures be taken against an employee without finding out the reasons for the misconduct; perhaps his lateness is due to illness or another valid reason. Subsequently, the presentation of evidence by the allegedly guilty party will serve as a cancellation of all measures taken and the collection of compensation from the organization.
The blame was placed on something that was not initially part of the employee’s duties. It happens that employees are required to perform those works that are outside the scope of their job description, and therefore, they cannot be punished for non-fulfillment, but must be approached to change internal documents, the terms of the employment contract, and only then apply measures.
Deadlines. Disciplinary measures cannot be applied beyond the deadline. Not only does the employee have deadlines for appealing, but the law also requires the employer to strictly adhere to the time intervals. A month is given for everything; it is during this period that the final decision must be made.
Repeated punishment for one offense. The rule of one offense = one punishment must be followed in any case. It will be fair. Otherwise, everything will lead to discrimination and violations of workers' rights, which is unacceptable.

Often, simultaneously with recovery, the employer recovers from the employee, for example, recovery of damages from the employee in court. In this case, the process becomes even more complicated.

To file an application in court, it is better to seek professional legal assistance; only specialists can competently and correctly, referring to the rules of law and judicial practice, draw up a statement of claim and represent your interests at all stages until a positive solution to the problem. Is it possible to challenge a disciplinary sanction? Now you know that yes, let's do this together.

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Grounds for appealing a collection order

Challenging a disciplinary sanction requires mandatory clarification of the grounds in order to challenge the order. After all, only indicating the reasons for the appeal will allow the penalties imposed on the employee to be reviewed.

There are the following grounds on which an established disciplinary sanction may be appealed:

Procedural - that is, in the process of bringing the employee to disciplinary liability, the procedure for imposing penalties on him was violated. Thus, the release from liability is not because he is not guilty, but because of a violation of the procedure, which includes obtaining an explanation of what happened from the offender (2 days), issuing an order to hold him accountable, and drawing up an act on the employee’s refusal to sign the order. It is important to remember that any failure to follow the procedure may be grounds for a challenge.
Material - when the employee considers himself completely not guilty, and the imposition of a penalty is illegal. In this case, these grounds depend entirely on the circumstances of the case.

Deadlines for imposing a penalty and familiarizing the employee with the order

Once a violation has been identified, the employer has a certain period to sort everything out and make a decision to bring the perpetrators to disciplinary action. Depending on the circumstances, the period for imposing a penalty should not exceed:

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Term

In which case
One month	In all cases where the culprits are at work. It is possible to perform a full internal investigation or audit.
Six months	If the worker who committed the violation is not at work (illness, long business trip, vacation).
Two years	If the fact of violation was discovered by an audit of economic activities. It is counted from the day the offense was committed, not its discovery.

It should be taken into account that if, for reasons beyond the control of the employer (for example, the union deliberately delays the consideration of the administration’s appeal), the deadline for making a decision is postponed, this is not a gross violation.

The review of misconduct must include the offender's personal written explanation of the matter. Refusal to write an explanation does not relieve a citizen from disciplinary liability. This fact is documented in an act attached to the case materials.

The consideration of a case of a disciplinary offense must be carried out in the presence of persons who committed such violations. Moreover, if previously collected materials, reports and explanations are sufficient to make a decision, it can be carried out without the perpetrators.

The violator must familiarize himself with the order to impose a disciplinary sanction, drawn up and signed by the employer, within a three-day period. The refusal to sign is formalized by an appropriate act in the presence of persons who observed it.

If at the time of signing the order the employee is absent from the workplace (sick, on vacation), he must be informed immediately after leaving no later than the third working day. The entire introductory procedure must be completed no later than a month after the reprimand is issued.

Remember, the absence of the violator’s personal signature on the order or act confirming the refusal to put it is a formal reason for extending the statute of limitations period for appealing such a decision and restoring one’s rights.

How to prove your innocence?

In a situation where a punished employee does not agree with the charges brought against him, he, according to the norms, can defend his innocence. For this purpose, the employee is recommended to draw up an explanatory note addressed to management.

This document describes in detail the current situation and provides all the facts confirming his innocence. If the employee can confirm the absence of his guilt with the help of witnesses, then he can involve their testimony and explanations.

If management ignores the document submitted by the employee, he can turn to the competent authorities to protect his rights. To do this, he simply chooses a way to challenge the disciplinary sanction imposed on him.

Dismissal of an employee due to violation of labor discipline

Employees are sensitive to both comments and reprimands. After a penalty has been imposed, their attitude towards work may change - this can manifest itself in behavior, a decrease in negligence, and compliance with regulations.

Dismissal is the harshest punishment for an employee.

This is only possible in the following cases:

If the employee has a valid penalty and commits a repeated offense (for example, being late).
If he commits a serious offense (truancy, theft, etc.).

If the employee does not agree with the management’s decision, then the employer must be ready to argue in court that the employee repeatedly violated labor discipline or committed a gross misconduct.

The employer may be held administratively liable, so all relevant documents must be correctly drawn up to prove the existence of grounds for dismissal.

Pay attention to:

A memo indicating the offense. It is especially important if this is a repeated offense.
An act recording violations.
The decision of the commission - or any other documents confirming the fact of the act committed by the employee.

If these documents are drawn up correctly from a legal point of view, and contain all the information about violations, then the citizen can be fired.

Form and deadlines for filing an appeal

Russian legislation establishes the time limits for employees to appeal disciplinary sanctions imposed against them, as well as the procedure for drawing up an application.

Recommended written form

A complaint about a disciplinary sanction must be submitted only in writing. It is recommended that the authority that will review it provide two copies - one will remain in place, and the second will be marked with receipt.

It is advisable to formulate a complaint in the following format:

Name of the body to which the complaint is sent;
Information about the applicant - his full name, residential address, contact information;
Title of appeal;
Information about the employer - its name, registration codes (if any), information about officials;
A detailed description of the violation committed;
Result of the appeal (cancel the order, pay compensation, punish the employer, etc.);
If necessary, a request to conduct an inspection without disclosing information about the applicant;
Date and signature;
List of attached documents.

Attention! The complaint must always contain information about the citizen who is filing it. The law prohibits the consideration of anonymous appeals. If an employee does not want information about him to become known to the employer, he must indicate this in the text of the application.

Period for pre-trial appeal of a disciplinary sanction

You can file a complaint with the labor inspectorate or the Labor Disputes Committee within 3 months from the date of the violation of rights, or within 1 month from the date of dismissal (if it was the result of a disciplinary sanction).

If the statute of limitations has been missed due to a valid reason, then it is necessary to file an appeal to the Committee and attach supporting documents. The circumstances of the omission will be reviewed, and if the outcome is positive, the period will be restored.

Time limit for appealing a disciplinary order in court

Appealing a disciplinary sanction through court is subject to the same deadlines as other claims in labor disputes.

A claim must be filed with the court within 3 months from the date of violation of rights. If an employee was dismissed as a result of a disciplinary sanction, the claim must be filed within 1 month.

An employee may miss the deadline for appealing a disciplinary sanction in court for a good reason (for example, he was in the hospital). In this case, he must provide the court with documents that would confirm this reason.

Attention! If the court considers this to be justified, it will reinstate the deadline for filing the application.

Grounds for disciplinary action

The law does not allow an employee to be held accountable without an investigation. The basis for such a check will be a report from the immediate superior, internal inventories, and other reasons. Disciplinary measures are applied according to the following rules:

punishment may be imposed for any guilty violation of the rules established in legislative and local acts, employment contracts and job descriptions, internal regulations;
An internal investigation must be carried out - for this purpose the manager issues an order and creates a commission;
the employee subject to the inspection must be familiarized with the order;
to establish all the circumstances of the misconduct, the employee is asked to give written explanations - the law allows for at least 2 days for this;
after the investigation, the final decision will be made by the boss - he has the right to use one of the types of sanctions specified in the Labor Code of the Russian Federation, or limit himself to verbal reprimand.

Note!
The Labor Code of the Russian Federation provides for only 3 types of disciplinary sanctions - reprimand, reprimand, dismissal. In certain areas of activity and service, other types of punishment are permitted.

The procedure for applying and appealing disciplinary sanctions cannot be arbitrarily changed by the enterprise administration. Investigations are not permitted without the involvement of an employee. The final decision must be made taking into account all the circumstances of the offense, including the validity of the reasons for the violation. For example, if the reasons for absenteeism are valid, an employee cannot be fired for guilty actions.

The most severe sanction is dismissal at the initiative of the employer. This is allowed only in cases directly specified in the law - absenteeism, showing up at work while intoxicated, theft, etc. However, even if such violations are identified, the manager can apply a milder sanction.

Where can I appeal a disciplinary sanction?

You can appeal a disciplinary sanction to the labor inspectorate, the labor dispute committee, and, last but not least, to the court.

How to appeal a penalty to the Labor Inspectorate

A complaint against an employer can be filed either in paper form or via the Internet using the Onlineinspektsiya.RF website.

The appeal is made in free form. It must contain the name of the inspection where the document is sent, information about yourself and the employer. Next, the text of the form must state the circumstances of the violation that occurred.

A paper complaint can be brought in person to the government agency, or sent by registered mail with notification.

Based on its results, an audit should be carried out. If the outcome of the case is positive, the inspector will issue an order to cancel the disciplinary punishment.

Appeal by appealing to the Labor Disputes Committee

An appeal against a penalty can be made by contacting the Labor Disputes Committee. It is vested with the authority to consider individual complaints from employees and can be formed, among other things, at the request of employees. Most often, committees operate in those companies where a trade union has been formed.

The application to the Committee is drawn up in free form, which details the circumstances of the event. It is best to make an application in two copies, one will be submitted for consideration, and the second should be marked with receipt.

The application must be reviewed within 10 days from the date of receipt of the application. On the day of consideration of the dispute at the meeting, the employee must be present in person, send his representative, or fill out an application with a request to consider the dispute without the applicant.

Important! You can appeal the Committee's decision in court within 10 days.

Judicial authorities

You can file a claim in court both at the location of the employer and at the place of residence of the employee or actual place of work.

Where can an employee appeal against a punishment?

The relationship between the employer and employees is based on compliance with job descriptions and work procedures. In a situation where the latter ignore labor standards and are negligent in their duties, the manager has the right to restore order by using various forms of punishment.

They are divided into soft ones - reprimand and reprimand, as well as hard ones - dismissal. Any penalty may be justified or biased.

Verification upon application

Based on the results of submitting an application to the labor inspectorate, it will have to conduct an extraordinary inspection. According to general rules, when conducting an inspection, the government agency must notify the company at least 24 hours before it begins.

But in the case when a statement was filed about a violation of an employee’s labor rights, or about any violations committed that pose a threat to the life and health of workers, an inspection is carried out immediately. The employer is not notified.

When appearing at the enterprise, the inspector must present a certificate and an order to conduct an inspection. If it is carried out due to a complaint, the inspector must check only the information specified in the complaint.

The employer may be asked to provide documents that relate to the work activities of the employee who filed the complaint. The inspector cannot request other documents and information that is not related to the purpose of the event.

If during the inspection process any facts are revealed that indicate the presence of other violations, then after the completion of the current visit, a new unscheduled inspection may be initiated.

Attention! Based on the results of the inspection, a report is drawn up listing the violations found. An order is also issued with measures to eliminate violations that the organization is obliged to fulfill.

The inspector is also authorized to issue an administrative fine in accordance with the Code of Administrative Offenses.

Results of the appeal

The ruling made by the judicial authorities is subject to execution from the moment the act enters into legal force. Also, the decision itself may indicate that the defendant (manager) is obliged to fulfill the plaintiff’s demands immediately. Similar formulations can be found in cases of non-payment of wages or illegal dismissal.

The decision of the State Tax Inspectorate or the CTS can be appealed in court; the court decision is challenged in the appellate instance.

If a disciplinary sanction has not been repeated, as a general rule it is considered lifted after a year. It can also be canceled by order of the head or by decision of the relevant authorities.

In addition to canceling the measure, a judicial act may award compensation for delayed payment of wages if the dismissal is declared illegal (Article 236 of the Labor Code of the Russian Federation). The employer may also be held administratively liable for violating the labor code.

Judicially

If the specified bodies (the commission on official disputes or the labor inspectorate) discover during the inspection that the disciplinary sanction was imposed in violation of the law, it will be cancelled. If the applicant is not satisfied with the response from the commission on official disputes and the labor inspectorate, he can appeal the disciplinary sanction in court.

An employee can go to court immediately, without pre-trial appeal. The application is submitted to the court of first instance at the place of residence of the employee or the location of the employer. Ask your question to a lawyer If you have any problem that requires legal assistance, you can directly address your question to a lawyer or lawyer - to do this, you need to fill out a form and send an application to the legal service. In a few minutes you will receive a response from a lawyer or lawyer. In this case, the initial consultation is free of charge.

Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), the employer has the right to apply disciplinary sanctions to an employee who does not fulfill his duties or performs them improperly in the form of:

reprimand;
comments;
dismissal from office.

Other types of disciplinary liability provided for by federal laws, charters, and discipline regulations may be applied to certain categories of employees. When a decision is made to apply a penalty, a corresponding order is issued. Note: when choosing a measure of responsibility, the employer must take into account the circumstances surrounding the violation of labor discipline, as well as the severity of the offense (Part 5 of Article 192 of the Labor Code of the Russian Federation). Where can I appeal a disciplinary sanction? According to Art.

An illegally dismissed citizen, when applying to a legal authority, must adhere to the following algorithm of actions:

Preparing a claim.
Participation in the meeting.
Getting the result.

Within the established period from the moment of receiving information about the application of a disciplinary sanction to the employee, the employee files a claim in court.

It should be submitted to the district department at the place of legal registration of the employer or the place of residence of the plaintiff. Allowed Art. 24, 28, 29 of the Code of Civil Procedure of the Russian Federation, apply at the place of execution of the employment agreement.

The content of the application should indicate, based on Part 2 of Article 131 of the Code of Civil Procedure of the Russian Federation:

name of the government agency;
personal data of the plaintiff;
information about the defendant;
purpose of application;
the circumstances under which the disciplinary sanction was announced;
amount of claim;
an appendix describing the attached documents.

The claim is signed personally by the applicant and registered in the reception room of the district court.

The law allows you to submit documents by email or postal mail.

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Participation in the meeting

A personal visit by the applicant or his representative on the basis of a notarized power of attorney may influence the court’s decision on the issue of appealing the penalty.

When giving evidence, the plaintiff orally is able to present data more clearly than on paper. In addition, if the applicant’s failure to appear is for a good reason, and the court considers it to be such, then the consideration of the case will be postponed. In other cases, the judge makes a decision without the plaintiff.

The list of measures taken in relation to the employee cannot go beyond the current Labor Code of the Russian Federation. A detailed description of the types of disciplinary sanctions can be found in article No. 192. This could be a reprimand, reprimand or dismissal. The basis for their use is the action (inaction) of the responsible person in the performance of official duties.

Disciplinary sanctions do not include:

Fines. Salaries cannot be changed at the whim of management. Imposing a monetary fine on salary is illegal. An indirect type of material penalty can be considered a justified partial or complete deprivation of the premium.
Transfer to a lower position with a reduction in salary. An exception is a forced measure, since the employee does not meet professional requirements or is physically unable to perform duties (injury, disability).

Disciplinary action can only be taken after certain procedures have been followed. They are described in Article No. 193 of the Labor Code of the Russian Federation.

Correct procedure.

Request an explanation from the employee. It must be presented no later than two working days. The absence of a document is not a reason for cancellation of the penalty.
Upon submission of an explanatory note, a protocol is drawn up that describes the situation and the measures taken in relation to the employee.
After the penalty is applied, this fact is indicated in the personal file.

The employee has the right to appeal these actions to the state labor inspectorate or in court.

Terms of use

It is important to know the statute of limitations for certain misconduct or violations in the workplace. The employer does not have the right to take a disciplinary sanction if a certain period has passed since the date of disclosure of the fact that the action did not comply with official duties.

The limitation periods are also described in Article No. 193 and have the following meanings:

No later than one calendar month from the date of detection. Exceptions - the employee was on sick leave or on vacation. In some cases, the expert opinion of trade union specialists is necessary. The time of its preparation is also not taken into account in due time.
No later than six months after the offense was committed.
No later than 2 years, if the activity is related to financial or economic activities. This period does not include the time of the criminal case.

Only one penalty can be imposed for each offense. After all formalities have been completed, the employee is provided with the protocol for review. These actions must be completed within 3 days from the date of registration. The absence of an employee for a valid reason (vacation, sick leave) is not included in this period.

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If any of the above conditions were not met by the employer, the employee has the right to challenge the disciplinary sanction. To do this, he must argue the reason for the dispute and try to resolve the conflict situation at the place of work. But in practice this rarely happens.

The process of challenging the court or labor safety inspectorate is most often initiated for the following reasons:

the penalty does not correspond to the severity of the offense;
registration formalities were not followed;
the employee’s actions were due to ignorance, which will need to be proven additionally;
the penalty does not belong to any official category.

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If there are suspicions about the presence of such violations, they must be checked. The best option is to consult with specialists or contact a trade union. The functions of the latter include protecting the interests of employees and suppressing abuse of power by managers.

If negotiations with management about an incorrect punishment are unsuccessful, you must contact the labor inspectorate at your place of work. For this, an evidence base should be prepared. These may be documents confirming the illegality of the act, testimony of witnesses (in writing) or similar materials. It is advisable to send copies to the employer or provide them personally.

To challenge the state labor inspection body, the following actions are taken.

Before filing a claim, you must make sure that the statute of limitations has not passed. If before this the case was considered by a special commission, it is 10 days. Filing a claim is possible within 3 months from the moment of familiarization with the protocol from the place of work, if the case has not been checked by the labor inspectorate. This period is one month after dismissal and issuance of the work book.

Nuances of starting a trial to challenge a disciplinary sanction:

a package of documents is submitted to the district court at the place of registration or work;
an evidence base must be formed;
for such processes, payment of state duty is not provided (Article 393 of the Labor Code of the Russian Federation).

Since the essence of the case may differ from the standard one, it is recommended to conduct a preliminary consultation with a lawyer. He will help you draw up the necessary documents and indicate what can be used as evidence in court. The law provides for the representation of the employee’s interests at meetings by a third party. But for this you need to draw up a power of attorney certified by a notary.

Evidence base

It is important to correctly determine which legal provisions were violated by the employer. The peculiarity of the consideration of such cases is not the evidence from the plaintiff, but the counter-arguments of the defendant. Those. in fact, he must argue the legality of his actions regarding the employee.

The following may be used as evidence:

a copy of the organization's order on disciplinary action;
the fact that there are no official documents justifying the dismissal;
the norms of Article No. 76 of the Labor Code of the Russian Federation, which prescribe the rules for removal from work, were violated;
the penalty was not expressed in a legal form - a reduction in wages.

All documents from the organization can be requested by the employee. To do this, a statement is first drawn up in which he indicates the reason for the provision. The HR department and accounting department are required to record the fact of filing the application and provide copies or originals of the necessary documents. Failure to do so may be used as evidence in court.

Additionally, you can attract witnesses and the conclusion of the labor inspection commission. The latter is mandatory if it has been formed and the issue has been considered by representatives of the inspection.

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Consideration of cases challenging a disciplinary sanction is carried out on the basis of a filed claim. Therefore, it is important to draw up this document correctly and attach evidence to it. The latter can be used by the court partially or completely. If necessary, the judge requests additional extracts and certificates to clarify the details of the case.

The statement of claim is drawn up in a standard form.