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Publication date: 14.05.2024
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On the lawful imposition of disciplinary sanctions on an employee
According to Article 139 of the Labor Code of Ukraine, employees are obliged to work honestly and conscientiously, to promptly and accurately carry out the orders of the owner or the body authorized by him, to observe labor and technological discipline, the requirements of regulatory acts on labor protection, to treat the property of the owner with whom the labor contract is concluded with care contract.
According to the second part of Article 140 of the Labor Code, measures of disciplinary and public influence are applied in necessary cases to individual dishonest employees.
At the same time, according to Clause 1 of the first part of Article 147 of the Labor Code, only one of the following sanctions may be applied to an employee for a violation of labor discipline: reprimand or dismissal.
Disciplinary sanctions are applied by the body that has been granted the right to hire (elect, approve and appoint) this employee (Part 1 of Article 147-1 of the Labor Code).
Disciplinary sanctions are applied by the owner or a body authorized by him directly upon discovery of a misdemeanor, but no later than one month from the day of its discovery, not counting the time of dismissal of the employee due to temporary incapacity for work or his stay on vacation. Disciplinary penalty cannot be imposed later than six months from the date of committing the offense (Article 148 of the Code of Criminal Procedure).
It should be noted the position of the Supreme Court of Ukraine in case No. 331/2395/20 that it is the employer who has the duty to provide evidence of the facts of the culpable commission of a disciplinary offense by the employee.When choosing the type of penalty, the owner or the body authorized by him must take into account all the circumstances from which the misdemeanor was committed. In order to bring the employee to disciplinary responsibility, guilt must be established as one of the important signs of violation of labor discipline. In the absence of guilt, the employee cannot be brought to disciplinary responsibility.
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In order to legitimately impose a disciplinary sanction by the employer, the presence of a set of the following conditions is necessary:
• the violation must concern only those duties that are part of the employee's job function or follow from the rules of the internal labor procedure;
• failure to perform or improper performance of labor duties by the employee must be culpable, committed without good reason intentionally or due to negligence;
• a sign of a violation of labor discipline by an employee, which can be grounds for disciplinary action in the form of a reprimand, is the presence of guilt in his actions or inaction, harmful consequences and a causal connection between them and the behavior of the offender.Thus, when solving the question of the legality of bringing an employee to disciplinary responsibility, it is necessary to find out what specifically manifested a violation of labor discipline, whether the employer complied with the rules and procedure for applying disciplinary sanctions, provided for in Articles 147-1, 148, 149 of the Labor Code of Labor Code, in particular, whether a disciplinary penalty was imposed by the competent authority, whether the prescribed period for this has not expired, whether a disciplinary penalty has already been applied for this misdemeanor, whether the severity of the misdemeanor and the damage caused by it, the circumstances under which the misdemeanor was committed, and previous work were taken into account when choosing the type of
