Imposition of disciplinary punishments is set forth in details in the Labour Code and employers have had sufficiently long time to develop skills for its application. Nevertheless, there are numerous judgments whereby employers have been convicted to pay their employees significant compensations due to cancellation of illegal dismissal, and in many cases to get them back to work.
This article aims at outlining the key points that employers must consider and pay attention to when imposing a disciplinary punishment, i.e.: reasons, punishment procedure and disciplinary punishment order.
Violations for which disciplinary punishments may be imposed are provided for in the Labour Code. It must be emphasized that despite of the employer’s power to punish an employee by dismissal, they cannot do it arbitrarily and at any kind of misconduct. Lawmakers have limited the possibility for imposing of a punishment of that sort to the following violations:
- three delays or earlier work leavings within a calendar month, each of them not less than an hour;
- failure to come to work for two consecutive working days;
- systematic violations of the labour rules;
- abuse of employer’s trust or disclosure of employer’s confidential information;
- damages to citizens caused by workers or employees in the trade and services by fraud in price, weight, quality of goods or service;
- going for gambling through telecommunication devices of the enterprise and recovery of costs incurred in full;
- other serious violations of labour rules.
Commitment of any of the above violations is a good reason for imposition of a summary dismissal. If the violations are more than one, they shall be separate reasons for imposing a punishment.
In the practice, employees often make violations, which are not included in the above reasons, but are serious enough in order to be a prerequisite for imposition of a summary dismissal. In these cases, employer may refer to item 7 of the above reasons – other serious violations of labour rules, specifying in details the serious violation committed.
When imposing a punishment, there must be considered the legal prerequisites for establishment of such violations. In case that an employee has violated the labour rules, but it is not so serious or even if it is serious, it is not a good reason for imposition of the most severe punishment – dismissal, employer may not dismiss the employee summarily and has to think of another solution.
Let’s discuss the following case: Ivan Ivanov is an employee at enterprise X. He is a good employee, but likes being late, which causes damages to his employer in terms of time dedicated to work. In February Ivan was late for work in total of 3 times, as each delay was within the range of 10 minutes and half an hour. In addition, Ivan was absent from work a whole day of the same month when he felt sick, but did not go to see a doctor in order to get a document for temporary disability (known as a sick-leave certificate).
Considering the short term delays (less than an hour) and the absence of a requirement for two consecutive working days of absence from work (absence without notice) Ivan’s employer may not punish him with dismissal for commitment of the violations as referred to in items 1 and 2. If they do, the employer takes a risk that Ivan would file an appeal to his dismissal to the court and then it might be cancelled as illegal.
What could the employer do?
To impose Ivan another type of punishment – reprimand or warning for dismissal, impose penalties on Ivan for his violations of labour discipline.
When imposing a dismissal as punishment it is important for the employer to follow the mandatory legal procedure.
What is the procedure?
It starts with hearing of the employee or acceptance of their written explanations. In fact it happens by submission of a written request to the employee for giving explanations. Written form is not obligatory, but it is useful to prove that the employer has fulfilled their duties if it comes to litigation at the court. After getting employee’s explanations or lack of such explanations, the employer shall collect and assess the evidence and decide whether and what disciplinary punishment to impose on the employee.
It must be emphasized that in case of failure by the employer to hear the employee or accept their explanations, the dismissal shall be illegal and if there is an appeal filed, the court will revoke it without investigating the reasons for that.
Summary dismissal procedure ends with issuance of a justified order by the employer. Summary Dismissal Order is an obligatory element of disciplinary procedure and may not be omitted. Considering its importance, lawmakers have provided mandatory requirements for its legitimacy that must be considered by the employer at its issuance.
What are the mandatory requirements that the order must comply with?
It must state the perpetrator, violation and when committed, punishment and the legal text on the basis of which it has been imposed, as well as the reasons for imposition of such a punishment – in other words, you need a lawyer. The lack of any of the above serves as a reason for cancellation of dismissal as illegal. Order shall be serviced on the employee against a signature or sent by registered mail with a return slip and enters into force on the date of service or receipt by mail. Failure to service the order means that dismissal has not been imposed and employment legal relationship has not been terminated. Omissions or errors in servicing the order compromise dismissal legitimacy.
Let’s assume that Ivan’s employer in the above example has issued a Summary Dismissal Order. They have tried to serve it on Ivan personally, but Ivan refused to get it. What should the employer do?
Besides sending the order by mail, which is a statutory regulated option, Ivan’s employer may certify the employee’s refusal through witnesses attending the service. In this way the employer will be sure to have complied with the legal procedure, and Ivan will not gain any rights of his misconduct, in order words – Ivan will be dismissed.
Summarizing the above, employers have to pay more attention to the details when imposing this kind of a disciplinary punishment in order to avoid and save any further adverse effects.
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