Disciplinary responsibility in Belarus

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  1. Application of disciplinary action
  2. Time limits for imposing a disciplinary sanction
  3. Types of disciplinary measures
  4. Are not penalties
  5. Choosing a disciplinary measure 

 Documenting: 

  1. Registration of the fact of a disciplinary offense
  2. Requesting a written explanation
  3. Verification of violations
  4. Issue of an order
  5. Order announcement

Disciplinary liability for an employee for misconduct occurs in the form of a disciplinary sanction, which is applied to the employee by the employer. A disciplinary offense is understood as unlawful, guilty failure to perform or improper performance by an employee of his job duties (i.e., the employee violated or did not fulfill his labor obligation, which is somewhere, but prescribed, and there is also the employee's fault).

1. Rules for the application of disciplinary sanctions

  • before punishing an employee by applying a disciplinary sanction to him, the employer must, at a minimum, request a written explanation of the employee himself on the case in question (an ideal situation is when the employee confesses in writing to the perfect and admits his guilt);
  • the rule "1 disciplinary offense = 1 disciplinary action." Only one disciplinary sanction can be applied for one disciplinary offense (several disciplinary sanctions cannot be applied for the same);
  • disciplinary action is always drawn up in writing (most often in the form of an order, less common options are in the form of an order or resolution);
  • an order (or an order or a resolution) on a disciplinary sanction with an indication of the motives must be announced to the employee against signature within 5 days (during this period we may not count the time of the employee's illness, as well as the employee's vacation). An employee who is not familiar with the order (order or decree) on a disciplinary sanction is considered not to have a disciplinary sanction (they did not familiarize the employee with the order - consider “there is no order”).

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2. Terms of imposing a disciplinary sanction

  • a disciplinary sanction must be applied no later than 1 month from the date of discovery of the disciplinary offense (not counting the time of the employee's illness and (or) his stay on vacation). Moreover, the day when a disciplinary offense was discovered is the day when the person to whom the employee is directly subordinate became aware of the offense (i.e., the period of 1 month for the application of a disciplinary sanction is not tied precisely to the day the employee commits a disciplinary offense, because the offense may not be detected immediately) ...

Exception: if materials about a disciplinary offense were considered by law enforcement agencies, the disciplinary sanction is applied no later than 1 month from the date of refusal to initiate or terminate a criminal case.

  • A disciplinary penalty cannot be applied later than 6 months from the date of the misconduct.

Exception: based on the results of an audit, inspection carried out by competent state bodies or organizations - later than 2 years from the date of the disciplinary offense. The specified time limits do not include the time of the criminal proceedings.

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3. Types of disciplinary measures

The list of disciplinary measures that an employer can apply to his employees is closed and clearly provided for by law:

- remark;

- reprimand;

- deprivation, in whole or in part, of additional incentive payments for a period of up to 12 months;

- dismissal (for example, for being at the workplace in a state of intoxication and violation of labor protection rules, resulting in the death or serious injury of other employees).

The measures are listed in order of increasing severity (i.e., a remark is the most innocuous, dismissal is a last resort).

The employer cannot apply any additional measures (other than those provided for by law).

Exception: for certain categories of workers with a special nature of work, the legislation provides for other disciplinary measures (for example, civil servants may additionally be applied: warning of incomplete official compliance; demotion in the class of a civil servant for up to 6 months).

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4. Are not disciplinary measures

In practice, the employer may additionally apply to employees who have committed a disciplinary offense:

- deprivation of prizes;

- change in the time of granting labor leave

- and other measures.

The types and procedure for the application of such measures may be determined by the internal labor regulations, collective bargaining agreements, agreements, and other local regulatory legal acts.

BUT!

All of the above is, in fact, additional measures of influence on the employee, but not measures of disciplinary action.

The deprivation of the bonus or the reduction of the duration of the labor leave to the one established by law (possibly in the case when the employer grants the employee a leave with a duration in excess of the one established by law) is not a disciplinary measure, because in this case the employer, for educational purposes, deprives his employee of those "buns" that he himself to the employee and provided in excess of the level established by law.

Example: The minimum vacation per year is 24 days. The employer has set a 28-day vacation for the employee. But for absenteeism committed by an employee, the employer has the right to reduce the employee's vacation by the number of days of absence (but the vacation cannot be less than 24 days).

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5. Choice of disciplinary action

The choice of the disciplinary measure, as well as the answer to the question "punish or forgive", lies entirely with the employer.

However, when choosing a measure, the severity of the disciplinary offense, the circumstances under which it was committed, the previous work and the employee's behavior in production must be taken into account. In general, "the severity of the offense must correspond to the severity of the punishment."

But in practice, employers often forget (inadvertently or intentionally) about the need to take all the circumstances into account when choosing a disciplinary measure. But this should not be done, if only because in the event of an unfair punishment, the employee can always go to court “to seek the truth,” and there the court will assess all the circumstances that the employer “forgot” about.

So, for example, often when considering claims for reinstatement at work of persons whose employment contract was terminated, say, for violation of labor discipline, the court establishes that although there was indeed a disciplinary offense, the dismissal was made without taking into account the degree of guilt of workers, the severity misconduct, the circumstances under which they were committed, as well as the previous behavior of workers and their attitude to work. In this case, the court satisfies the claim filed by the dismissed employee, while canceling the disciplinary sanction previously imposed on the employee in the form of dismissal.

Again, as a ladder to an employee, it is not necessary to apply disciplinary measures sequentially according to the severity (first a remark, then a reprimand, then dismissal). As the saying goes, you can immediately dismiss an employee if he "deserves it" and this is permitted by law.

But the employer may decide not to discipline the employee at all. But there is one "but" (or rather, there are two of them) when it is impossible to do this (even if the employer does not want to punish the employee):

  • appearance at work in a state of alcoholic, narcotic or toxic intoxication, as well as drinking alcoholic beverages, using narcotic drugs, psychotropic substances, their analogues, toxic substances during working hours or at the place of work;
  • violation of labor protection requirements, resulting in injury or death of other employees.

For these misdemeanors, the employer is obliged to ensure that the employee who committed the misconduct is unconditionally brought to disciplinary responsibility up to and including dismissal. If a decision is made to dismiss on these grounds, then it is necessary to document it in the manner prescribed instructions on dismissal for a system of violations, even though the employee was not previously brought to disciplinary responsibility.

Now about the specific measures of disciplinary sanction. There is no significant difference between a remark and a reprimand (the consequences for the employee are the same). Formally, a reprimand is worse than a remark.

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DOCUMENTING

Step 1. Registration of the fact of a disciplinary offense

The legislation does not indicate the type of document, which must be compiled in this case. Most often, this fact is recorded in labor discipline act either in memo.

The memo, as a rule, is drawn up by the head of the structural unit in order to inform the head of the organization about the current situation and encouragement to investigate what happened and bring the perpetrator to justice. In the text of the memorandum, the introductory and main parts are distinguished. The introductory part sets out the facts that served as the reason for the preparation of the document, and analyzes them. The main part of the memo contains conclusions. The date of this document is the date of its signing. Shelf life of memos is 3 years.

An act is a document drawn up by a commission (authorized persons or an official), confirming the established facts. In the text of the act, the introductory and stating parts are highlighted. The introductory part indicates the basis for drawing up the act and lists the persons who drew up the act and who were present at the same time. The established facts are recorded in the ascertaining part of the act. In the ascertaining part of the act, conclusions, recommendations and proposals of the compilers on the established facts may be stated. 

If the act reflects several facts, the text of the act is divided into paragraphs. The act is signed by its compiler (compilers) and persons who were present at the event being triggered. The surnames of the drafters of the act and (separately) the surnames of the persons who were present at the activated event, when signed, are in alphabetical order. When drawing up several copies of the act, signatures are affixed on all copies

Persons who have comments on the content of the act, sign it with the mark “Comments are attached”. As a general rule, the text of the comments is set out on a separate sheet, however, small comments are allowed to be recorded on the act itself. The storage period for a disciplinary offense act is 3 years.

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Step 2. Requesting a written explanation from the employee

The company is obliged to request in writing provide written explanations. Usually, in practice, the employee provides written explanations to the employer about what happened after verbally contacting the employee with such a request. But you can also play it safe by providing the employee with a written notice of the need to give written explanations for review (the employee draws up a record in the document that he is familiar, indicates the date and puts a signature). 

If the employee refused to give written explanations, this is drawn up statement of refusal to provide explanations / familiarization with an indication of the witnesses present.

We store the employee's explanations (the statement of refusal from the written explanation) 5 years.

If the employer still did not require written explanations from the employee, in the future (if the employee goes to court) this will not entail the cancellation of the disciplinary sanction, if there is evidence of the employee committing a disciplinary offense. But in practice, we recommend that you remember to take written explanations from the employee.

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Step 3. Verification of violations committed by the employee

If the company plans to fire an employee for repetition, then it is imperative to check the violations committed by the employee. If the employee's misconduct is of a one-time nature, then this step can be skipped.

It is necessary to publish order to appoint a commission / person to check.

Usually, after the memorandum and written explanations of the employee, the employer issues an order on the appointment of a person responsible (creation of a commission) for the inspection. It is better to create a commission (one chairman and two members of the commission), which will draw up an inspection report.

Commission (responsible person) is inspection report (memo).

In the introductory part of the act, we indicate the basis for drawing up the act, constituting the act and the persons present at the same time, in the main (ascertaining) part we indicate the established facts (for each fact a separate paragraph), conclusions.

We keep the act (memo) 5 years.

Step 4. Issuance of an order from the head of the company to impose a disciplinary sanction on the employee

Such a disciplinary order must contain the reasons for imposing a penalty. The heading of the order indicates the disciplinary measure to be applied. Disciplinary liability can usually be imposed in the form of a remark, reprimand or dismissal. An employee who has committed a disciplinary offense, regardless of the application of disciplinary measures, may be subject to: deprivation of bonuses, changing the time for granting labor leave and other measures.

Step 5. Announcement of the order to impose a disciplinary penalty on the employee

The company is obliged to announce an order to impose a disciplinary sanction on the employee against signature within five days, not counting the time of the employee's illness and (or) his stay on vacation. The employee's refusal to familiarize himself with the order is drawn up act indicating the witnesses present at the same time. The employee has the right to appeal against the disciplinary sanction.

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