Practice of applying disciplinary liability standards against an employee (based on analysis of court decisions)

Shishulina Tat'yana Petrovna ORCID: 0000-0001-9977-496X PhD in Law Associate Professor; Department of DPR, GEND; Russian State Vocational Pedagogical University, UMMC Technical University 620012, Russia, Sverdlovsk region, Yekaterinburg, Mashinostroiteley str., 11, room 2-527 zvezdochka.76@inbox.ru Other publications by this author

1. Introduction

Ensuring the proper performance of their work duties by employees in the modern conditions of functioning of various spheres and branches of the national economy determines the importance of applying disciplinary measures as the main legal means for violating labor and official disciplines ^[1].

The issues of disciplinary responsibility were studied by M.M. Osmanov, E.V. Chuklova, L.A. Lomakina, O.V. Korablina. It should also be noted the scientific work in the field of application of the norms of general and special disciplinary responsibility by such authors as: E.L. Leshchina, Yu.V. Zabramnaya, A.Yu. Naniz, V.N. Ushakov and others. Thus, the study of disciplinary responsibility issues cannot be called new. However, certain aspects of the application of disciplinary measures that require special attention from lawmakers remain to be fully studied and require separate consideration.

The imperfection of legislation regulating the application of measures of this type of responsibility, and, consequently, their insufficient effectiveness, lead to the fact that violations in the field of disciplinary responsibility are becoming more widespread.

The trend noted above is confirmed by statistical data, according to which, as of 2023, the number of cases considered by the courts on the recognition of the unlawful use of disciplinary penalties amounted to 2,152, of which only 47% were satisfied ^[2]. It should be noted that a significant proportion of cases in this category are annually cases of illegal application of disciplinary penalties, mainly in the form of dismissal.

The key reason for the current situation in the practice of applying the norms of disciplinary responsibility is the existence of an ambiguous approach to their interpretation. This leads to the unreasonableness of the application of disciplinary punishment, as well as the inconsistency of its legal regulation, which generally contributes to a decrease in the effectiveness of the institution of disciplinary responsibility and its role as a means of maintaining and ensuring labor and official discipline ^[3]. All this defines the problem of this study, which consists in the need to analyze key aspects of the application and legal regulation of disciplinary liability standards in order to determine the main directions for their improvement.

2. The main part

The main purpose of the norms of disciplinary responsibility contained in the provisions of labor legislation, which regulate the right of an employer to impose disciplinary penalties on employees in the event of their committing disciplinary offenses, is to ensure labor discipline. Meanwhile, despite this, the existing trends in the development of the institution of disciplinary responsibility indicate its lack of effectiveness due to its complexity and imperfection of labor legislation. This creates a number of significant problems related to its practical application ^[4].

First of all, as the main problem of applying the norms of disciplinary responsibility, it is necessary to note the limited list of disciplinary penalties set out in the provisions of art. 192 of the Labor Code of the Russian Federation and affecting employees who do not have a special status. The consequence of this problem, in turn, is the inability to effectively regulate issues of ensuring labor discipline through the use of such types of disciplinary action as a remark or reprimand, as well as abuse of their use by the employer. This, as a rule, entails the dismissal of an employee on the grounds specified in clause 5, Part 1, Article 81 of the Labor Code of the Russian Federation.

An example is the decision of the Mikhailovsky District Court of the Altai Territory dated 11/26/2020 No. 2-211/2020 in case No. 2-211/2020 on the claim of Larchenko E.V. to Mikhailovsky Chemical Reagents Plant LLC on the cancellation of disciplinary orders and reinstatement at work. In support of the claims stated in the statement of claim, Larchenko E.V. indicated that he was in an employment relationship with the defendant as head of the mechanical department. By an order dated 06/11/2020, disciplinary punishment was imposed on him in the form of a reprimand for absence from the workplace on 05/28/2020, and by an order dated 06/19/2020, he was dismissed due to repeated failure to perform official duties without valid reasons under clause 5, Part 1, Article 81 of the Labor Code of the Russian Federation. The defendant's representative at the court hearing, in support of her objections, indicated that Larchenko E.V. had multiple disciplinary actions for improper performance of work duties. In particular, reprimands from 06/11/2020 for absence from the workplace and from 04/21/2020 for violation of the security clearance and removal of the employer's property from the territory of the enterprise in the form of a laptop. In explanation, Larchenko E.V. indicated that on 05/28/2020 he was in his office, locked from the inside to work with documentation, and he could not take his laptop outside the administrative building. It was established from a copy of the log from the checkpoint that Larchenko E.V. was on the territory of the enterprise during the entire working day. After analyzing the case materials, the court concluded that the fact of the employee's absence from the workplace for disrespectful reasons had not been proven by the employer, and the evidence presented by him did not confirm this fact. The defendant also failed to prove the fact that the laptop was taken outside the territory of the enterprise, as well as the fact that the employee repeatedly committed disciplinary misconduct, on the basis of which the orders to apply disciplinary punishment and dismissal to Larchenko E.V. were declared illegal by the court.

Another example is the appellate ruling of the Judicial Board for Civil Cases of the St. Petersburg City Court dated 02/13/2020 No. 33-2809/2020 in case No. 33-2809/2020 on Shakirov R.R.'s appeal against the decision of the Krasnogvardeisky District Court of St. Petersburg dated 11/08/2019 on the claim against CJ Raviollo Rus LLC, which refused to satisfy the claims for recognition of illegal orders for disciplinary responsibility and dismissal. In substantiating the claims, Shakirov R.R. referred to the fact that he was in an employment relationship with the defendant as a regional sales manager. By orders dated 26.02.2019 and 26.03.2019, disciplinary penalties were applied for failure to comply with the established sales plan for January and February. By order dated 05/21/2019, he was dismissed under clause 5, Part 1, Article 81 of the Labor Code of the Russian Federation. Reviewing the case file, the court of appeal pointed out the violations committed by the court of first instance, which led to a misinterpretation of substantive law and the adoption of an unreasonable decision. In particular, the court explained that bringing an employee to disciplinary responsibility in connection with the failure to achieve the established result stipulated by the plans and sales volumes is unacceptable in the framework of the employment relationship and violates the employee's rights. The court also found that there was no evidence from the employer confirming the employee's inaction, which led to a loss of profit. Resolving the dispute, the court came to the conclusion that Shakirov's claims were justified, the decision of the court of first instance was canceled, and the case was sent for a new hearing.

The examples presented above demonstrate that the approach of the courts to resolving disputes about the illegal application of disciplinary punishment and dismissal for repeated failure to perform work duties without valid reasons mainly takes the side of the employee.

Nevertheless, in law enforcement practice, there is also a contradictory position of the courts regarding the application of disciplinary punishment, in particular, dismissal, as an extreme disciplinary measure for repeated gross violation of labor duties by an employee in the form of absenteeism ^[5], which is confirmed by the following examples. Thus, by the Ruling of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation dated 09.02.2015 No. 5-KG14-153 on the cassation appeal of Mashinsky A.S. against the decision of the Meshchansky District Court of Moscow dated 11.11.2013 and the appellate ruling of the Judicial Board for Civil Cases of the Moscow City Court dated 16.04.2014, the claims of Mashinsky A.S. on the illegality of the dismissal order were recognized as justified. In substantiating his claims, the plaintiff indicated that by the order of 05.10.2012 he was dismissed under subclause "a" of clause 6 of Article 81 of the Labor Code of the Russian Federation for absenteeism committed on 05.10.2012, while he was absent from work for a valid reason, namely for health reasons, which was confirmed by the availability of a medical certificate and notification of the supervisor. By the decision of the Meshchansky District Court of Moscow, the claims were denied, which was then changed by the court of appeal only in part of the court's conclusion on the legality of the dismissal. Meanwhile, the Court of Cassation, having studied the case materials, concluded that the employee's claims were justified, citing the lack of grounds for the legality of the dismissal.

An opposite example is the Ruling of the Constitutional Court of the Russian Federation dated 07/16/2015 No. 1626-O "On the refusal to accept for consideration the complaint of citizen Kozlov Evgeny Vladimirovich for violation of his constitutional rights by Part one of Article 81, Articles 153, 192, parts one and three of Article 193 of the Labor Code of the Russian Federation and Article 36 of the Code of Civil Procedure of the Russian Federation." In his complaint, the applicant challenged the legality of disciplinary action in the form of dismissal under subclause "a" of clause 6 of Article 81 of the Labor Code of the Russian Federation. In refusing to accept the complaint, the Constitutional Court of the Russian Federation argued that the applicant had arbitrarily used rest days (time off) for work on holidays and weekends, since rest days can be provided to an employee solely on the basis of an employer's order.

Disputes related to the application of special disciplinary liability standards constitute a significant category of cases. First of all, it is worth highlighting the problems related to the disciplinary responsibility of state civil servants for corruption offenses, including for violating the requirements of anti-corruption legislation, and expressed in the formal approach of the courts to making decisions on the legality of dismissal under Article 59.2 of the Federal Law "On State Civil Service" in connection with the loss of trust., without establishing the employee's guilt, the conditions and circumstances of committing a corrupt disciplinary offense, as well as determining the nature and amount of harm caused by them ^[6].

As an example, the decision of the Zheleznodorozhny District Court of Samara dated 23.10.2017 No. 2-2443/2017 on the claim of a former employee to the UFSSP for recognition of an illegal dismissal order due to loss of trust. During the trial, the court found that the plaintiff held the position of the Federal State Civil Service in the UFSSP of Russia as a leading specialist in the Department of anti-corruption, human resources and security issues, protection of state mobilization training of civil defense, whose official powers were then terminated prematurely, and the service contract was terminated due to loss of trust.

The reason for the dismissal was the audit materials and a memo, according to which the plaintiff provided false information about income. At the same time, neither the plaintiff nor her spouse received any income other than income from their main place of work. All available income information was entered on the basis of 2-personal income tax certificates provided by the accounting department from their places of work. At the same time, the documents did not reflect information on accounts with a zero balance and lack of funds. Meanwhile, passing a decision, the court decided to dismiss the claims for recognition of the dismissal order as illegal.

The Sverdlovsk Regional Court also found no grounds for the disproportionality of the disciplinary penalty applied for the offenses committed in the case of T. in a lawsuit against the Department of Roszdravnadzor in the Sverdlovsk region for declaring illegal the dismissal order due to loss of trust due to the provision of incomplete and unreliable income information. During the consideration of the case materials, the court of appeal found that T. had committed violations in filling out income certificates for three years, which was confirmed by the absence of an account with a balance of more than 100,000 rubles and income from deposits in the amount of 6,578.63 rubles in the certificate, providing incorrect information about the area of the property, as well as information about availability of a vehicle. In view of the violations identified, the court of appeal agreed with the earlier decision of the court of first instance on the proportionality of the disciplinary penalty applied to T. in the form of dismissal due to loss of trust, and therefore left it unchanged and T.'s complaint without satisfaction.

The presented example shows that a legitimate approach to recognizing dismissal as legitimate in such cases is the failure of civil servants to provide significant information regarding income, real estate and bank accounts with cash balances of more than 100,000 rubles at the end of the reporting period.

The formal nature of the courts' position is also recorded when considering disputes related to the recognition of an illegal order to dismiss civil servants in the event of a possible conflict of interest ^[7]. Thus, the appellate ruling of the Judicial Board of the Irkutsk Regional Court dated 09/08/2016 No. 33-11456/2016 on M.V.'s appeal against the decision of the Kirovsky District Court of Irkutsk dated 05/24/2016 on M.V.'s claim to the Ministry of Natural Resources and Ecology of the Irkutsk region declaring the dismissal order illegal. During the consideration of the case, the Court of Appeal found that the West Baikal Interdistrict Prosecutor's Office had filed a lawsuit for recognition of illegal mining activities carried out by a legal entity.

The Ministry of Natural Resources and Ecology of the Irkutsk Region in this case acted as a third party, whose representative, being an official, actually acted to protect the interests of the legal entity, without informing the participants in the process that his son was an employee of the respondent organization. This fact served as the basis for the dismissal of a civil servant due to loss of trust. At the hearing, the plaintiff explained that, while filling the position of deputy minister, he sent a written notification to the employer's representative about the possibility of a conflict of interest. When applying for this position, the notification was carried out verbally, which was confirmed by witness testimony.

Meanwhile, despite this, the court of appeal agreed with the decision of the court of first instance on the legality of the dismissal of a civil servant due to loss of trust, referring to the fact that an oral notification of the possibility of a conflict of interest, confirmed by testimony, cannot be considered as proof of duty performed.

As an example, we should also consider the decision of the Kuibyshevsky District Court of St. Petersburg dated 07/09/2020 No. 2-3883/2020 in case No. 2-3883/2020 on the claim of R.V. Kortenko to the Federal Customs Service (North-Western Customs Administration – Vyborg Customs) on the recognition of the unlawful dismissal order due to loss of trust. R.V. Kortenko motivated his claims in court by the fact that he held the position of senior state customs inspector of the customs clearance and customs control department in the specified department, from which he was dismissed due to loss of confidence as a result of the audit and criminal prosecution. Meanwhile, the plaintiff pointed out that the employer violated the procedure for applying disciplinary penalties, referring to art. 48 of the Federal Law "On Customs Service in the Customs Authorities of the Russian Federation." When reviewing the case materials, the court found that a criminal case had been initiated against the plaintiff for receiving monetary compensation for the plaintiff's inaction in the performance of his official duties in the form of unhindered passage of three cars with goods disguised as personal goods imported from the Republic of Finland into the territory of the Russian Federation. Having studied the case materials, the court concluded that the claims of R.V. Kortenko are not subject to satisfaction on the grounds of violation of the requirements of anti-corruption legislation.

An analysis of judicial practice in cases involving the dismissal of civil servants due to loss of trust due to non-compliance with the requirements of anti-corruption legislation indicates that not in all cases the issue of proportionality and severity of offenses classified as corruption is comprehensively studied by the courts ^[8].

A special category of cases consists of disputes related to the appeal of the legality of dismissal on non-official grounds, in particular, for misconduct discrediting the honor of a law enforcement officer and representing a type of disciplinary misconduct. At the same time, according to the norms of current legislation, the main and non-alternative measure of disciplinary responsibility for committing this type of misconduct is dismissal ^[9].

Meanwhile, the non-alternative nature of this measure does not determine its mandatory and unconditional application, since not every violation of ethical standards can be considered as the basis for its application ^[10]. At the same time, cases of incorrect interpretation of the law by courts are common in practice, which leads to frequent refusals to satisfy claims for recognition of dismissal as illegal. As confirmation of this, it is necessary to cite the decision of the Leninsky District Court of Rostov-on-Don dated 08/17/2017 No. 2-2889/2017 on the claim of Solodovnikov A.V. to the Ministry of Internal Affairs of Russia in the Rostov region on recognition of dismissal as illegal and reinstatement in the internal affairs bodies.

During the consideration of the case, it was established that Solodovnikov A.V., following an internal audit, was dismissed from service in the internal affairs bodies from the post of head of the documentary research department of the Department of Economic Security and Anti-Corruption with the rank of lieutenant colonel of the police for committing misconduct discrediting the honor of an employee of the internal affairs bodies. Driving under the influence of alcohol was considered an offense committed by him. At the same time, in court, Solodovnikov A.V. explained that this offense had not been committed, since he had not consumed alcoholic beverages on the specified day, and the positive result of the examination was related to taking the drug Valemidine. At the same time, the plaintiff did not deny the results of the examination in court, but also explained that after taking the medicine, his wife was driving the car. When making the decision, the court indicated that the misconduct committed by Solodovnikov A.V. contradicts the requirements for employees of the internal affairs bodies, and therefore the claims were denied.

A similar position of the court can be traced in the case of Konovalov A.V., who filed a lawsuit with the Ministry of Internal Affairs of Russia in the Penza region to declare the conclusion of an internal audit illegal, to cancel the order on dismissal and reinstatement. When studying the case materials, it was established that Konovalov A.V. was dismissed from the post of head of the inter-municipal department of the Ministry of Internal Affairs of Russia "Kolyshleisky" for committing an offense discrediting the honor of an employee of the internal affairs bodies and expressed in driving a vehicle under the influence of alcohol. According to the plaintiff, there were no grounds for bringing him to disciplinary responsibility, since he had not committed the offense imputed to him, which was confirmed by the decision of the Kolyshleisky District Court, which overturned the decision of the justice of the peace to find him guilty of an administrative offense.

However, the decision of the Zheleznodorozhny District Court of the Penza region denied the claims. This decision was then changed by the appellate ruling of the Judicial Board for Civil Cases of the Penza Regional Court, according to which Konovalov's claims were fully satisfied. Having studied the case materials, the Court of Cassation overturned the appeal ruling on the appeal of the Head of the Ministry of Internal Affairs of Russia for the Penza Region, citing violations of the interpretation of substantive law by the Court of Appeal.

Thus, the results of the analysis of the materials of the practice of applying the norms of disciplinary responsibility confirm that the institution of disciplinary responsibility that has developed to date, due to its complexity and imperfection of the norms of legislation, has a contradictory character, expressed in the existence of directly opposite positions of the courts in resolving disputes regarding the legality of the application of disciplinary punishment to employees for committing disciplinary misconduct. In particular, the study of judicial practice materials has shown that the application of disciplinary punishment to employees within the framework of general disciplinary responsibility, in the form of a remark or reprimand, is currently characterized by insufficient educational impact. In this regard, dismissal continues to be a common measure of disciplinary responsibility, the main consequence of which for the employee is the termination of the employment contract, which contributes to the occurrence of frequent cases of abuse of this measure by the employer.

In addition, the analysis also revealed that a significant number of cases are disputes related to the appeal of disciplinary action, mainly among categories of civil servants. At the same time, as it was established, dismissal in this case acts as an alternative measure of disciplinary responsibility, and the spread in the practice of courts of a formal approach to dispute resolution, excluding the establishment of guilt of civil servants in committing disciplinary offenses and their severity, often leads to the adoption of unreasonable decisions.

All this allows us to assess the effectiveness of the norms of disciplinary responsibility as insufficient, due to the existence of a number of their imperfections, expressed by:

- the closed and limited nature of the list of disciplinary measures stipulated in the provisions of Article 192 of the Labor Code of the Russian Federation and affecting employees without a special status, making it impossible to effectively regulate issues of labor discipline through the use of such types of disciplinary action as a remark or reprimand.;

- in a limited and exhaustive list of consequences of applying disciplinary punishment to an employee without a special legal status in the form of a remark or reprimand, contributing to the abuse of their use by the employer and potentially making it possible to terminate the employment contract on the grounds set out in paragraph 5, Part 1, Article 81 of the Labor Code of the Russian Federation;

- in the absence of legislative consolidation of the definition of the amount of non-presentation of information by civil servants, which makes it possible to assess it as essential. In practice, this leads to the unlawful recognition of dismissal as legitimate, due to the loss of trust for violations of anti-corruption legislation.;

- in the absence of a legally established obligation of the courts to comprehensively examine the issue of the severity of offenses committed by civil servants, classified as corruption. This leads to the disproportionality of the application of disciplinary measures.;

- in the absence of evaluative characteristics in the norms of legislation of the degree of violation of professional ethics by civil servants, which entails the application of disciplinary measures in the form of dismissal from service to an unlimited number of legal situations and causes the problem of its disproportionality to the severity of the offense committed.

3. Conclusions and suggestions

The need to ensure compliance with labor and service discipline determines the importance of developing the institution of disciplinary responsibility. At the same time, the current legislative framework governing the application of this type of responsibility is not without drawbacks, which creates many contradictions and problems in practice.

The insufficient effectiveness of the institution of disciplinary responsibility that has developed to date was confirmed during the analysis of law enforcement practice materials, which resulted in the identification of a number of significant imperfections in legislation in this area, leading to the lack of a unified approach in the practice of their application. In order to eliminate the identified shortcomings and bring to uniformity of law enforcement practice in the field of application of disciplinary liability standards, it is proposed:

- expand the list of types of disciplinary punishment for employees who do not have a special legal status with a disciplinary fine by adding a new paragraph to Part 1 of Article 192 of the Labor Code of the Russian Federation, stating it as follows: "For committing a disciplinary offense, that is, non-fulfillment or improper fulfillment by an employee of the work duties assigned to him, the employer has the right to apply the following disciplinary penalties: remark; reprimand; disciplinary fine in cases of repeated violation of labor discipline; dismissal on appropriate grounds." In our opinion, it is also necessary to add a comment to this article, stating it in the following wording: "A disciplinary fine may be imposed on an employee in the amount not exceeding twenty-five percent of the employee's monthly salary or tariff rate.";

- to fix in the content of Federal Law No. 273-FZ dated December 25, 2008 "On Combating Corruption" the provisions establishing the amount of non-disclosure by civil servants of information on income, property and property-related obligations, allowing them to assess it as essential in resolving issues of legality and proportionality of disciplinary action in the form of dismissal on the grounds established by art. 59.2 of the Federal Law "About the State civil service". Add a comment to paragraph 2 of Part 1 of Article 59.2 of the said law, stating as follows: "A civil servant is subject to dismissal due to loss of trust in the event of failure to provide information about his income, expenses, property and property-related obligations, as well as income, expenses, property and property-related obligations of his spouse (spouse) and minor children, or providing deliberately false or incomplete information. Incompleteness of information on income, expenses, property, and property-related obligations should be understood as the failure of government officials to provide substantial information regarding income, real estate, and bank accounts with cash balances of more than 100,000 rubles at the end of the reporting period.";

- amend the content of Part 2 of Article 59.3 of the Federal Law "On Combating Corruption" by adding an addendum that establishes the need to establish the proportionality of disciplinary action in the form of dismissal of the severity of corruption offenses committed by civil servants, stating it as follows: "When applying penalties provided for in Articles 59.1 and 59.2 of this Federal Law, the nature of the corruption committed by civil servants is taken into account. violations, their severity, the circumstances under which they were committed, compliance by a civil servant with other restrictions and prohibitions, requirements for the prevention or resolution of conflicts of interest and the performance of duties established for the purpose of combating corruption, as well as the previous results of the civil servant's performance of their official duties. The court shall establish the legality and proportionality of the application of disciplinary punishment in the form of dismissal to a civil servant."