Suspension from work: at the request of authorities and officials. Suspension from work in the event of a criminal case Suspension from office

Suspension from work is an atypical action that employers do not often encounter. So, unfortunately, there are a lot of mistakes in this area. Therefore, in order not to get into trouble, let's analyze the main ones. Moreover, in a number of cases established by law, the employer is obliged to remove the employee from work.

The Labor Code of the Russian Federation does not establish a special concept of "suspension from work". Suspension from work is understood as a forced prohibition of an employee to perform his duties, initiated by the employer or other authorized person.

Suspensions

The employer is obliged to remove the employee from work in cases(Article 76 of the Labor Code of the Russian Federation):

• his appearance at work in a state of alcoholic, narcotic or other toxic intoxication;
• if the employee has not undergone training and testing of knowledge and skills in the field of labor protection in accordance with the established procedure;
• if the employee has not passed, in the prescribed manner, a mandatory medical examination (examination), as well as a mandatory psychiatric examination in cases provided for by federal laws and other regulatory legal acts of the Russian Federation;
• identifying, in accordance with the medical report, contraindications for the employee to perform work stipulated by the employment contract;
• suspension of the special right of an employee (license, right to manage vehicle, the right to bear arms, other special rights), if this entails the impossibility of the employee to fulfill the obligations under the employment contract and if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower paid work) that the employee can perform taking into account the state of his health;
• requirements of authorities or officials authorized by federal laws and other regulatory legal acts of the Russian Federation;
• in other cases provided for by federal laws and other regulatory legal acts of the Russian Federation;
• as well as for a period of up to four months - if it is established on the basis of a medical report that the employee needs to be transferred if such a transfer is impossible. This obligation arises for the employer, regardless of the reason for such impossibility of transfer (the employee’s own refusal to transfer or the employer’s lack of a corresponding job). Suspension is carried out for the entire period specified in the medical report with the preservation of the place of work (position) (Article 73 of the Labor Code of the Russian Federation).

Question on topic

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There was a theft in our store (or rather, the appropriation of entrusted property). The employee who is accused of this is a financially responsible person. There is a preliminary investigation. The leader, fearing further criminal actions on the part of this employee, instructed the personnel service to remove him from work. As far as I understand, we do not have the right to do so? How can we protect ourselves from the possibility of repeating the crime? The employee does not insist on dismissal, and the employer does not want to dismiss him until the preliminary investigation is completed and all the circumstances of the case are clarified.

Yes, you do not have the right to suspend an employee from work. The employer has only the obligation to remove him in cases provided for by the Labor Code of the Russian Federation. Theft or misappropriation of entrusted property is not included in the list of grounds for removal (Article 76 of the Labor Code of the Russian Federation). The only reason that suits your situation is the removal of an employee at the request of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation. Such body in the production of preliminary investigation is the court. According to Art. 114 of the Code of Criminal Procedure of the Russian Federation, the investigator, with the consent of the head of the investigative body, as well as the interrogating officer, with the consent of the prosecutor, initiates a corresponding petition before the court at the place where the preliminary investigation is conducted. However, such actions are entirely the initiative of the preliminary investigation authorities, and not the employer. Of course, no one forbids the employer to intercede with the investigator about this. But whether your request will be granted is a big question. In any case, you can restrict the access of the delinquent employee to material values, not trusting him with them, and direct his actions to perform other functions in accordance with his official duties. For example, for the formation of statements, archival cash documents, etc. And the removal does not occur, and at the same time, the values ​​are not temporarily entrusted. The goal has been achieved by the employer, and the law has not been violated.

Terms of suspension

Suspension period lasts from the moment the above circumstances are revealed and until they are eliminated (Article 76 of the Labor Code of the Russian Federation). If the circumstances in connection with which the legislator connects the employer's obligation to remove the employee from work are not identified by the employer immediately, but after a lapse of time, the employer is obliged to remove the employee immediately upon revealing these circumstances.

Question on topic

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An employee who has received a medical opinion about the need to transfer to light work hides this due to the fact that he knows that the employer has no opportunity to transfer him to another job. In addition, there is a possibility that he will receive a more stringent medical opinion in the future - about the need for a permanent transfer to another position. The employer accidentally found out about this, but he does not have supporting documents about the state of health of the employee. What should an employer do? Is he obliged or has the right to remove such an employee from work?

The law secured the employer only the obligation to remove from office, without giving him the right to do so. Since you do not have any documents certifying the need to transfer the employee to another position, you, as an employer, should not remove the employee. Removing him from office, you may encounter his resistance, and in the future, perhaps, with a dispute about the recognition of the suspension as illegal and the collection of average earnings for the entire period of suspension. However, due to the presence in the legislation of the requirements for regular medical examination of most categories of employees, the employee can already be compulsorily sent by you for a medical examination, the results of which he will not be able to hide. Upon receipt of a medical opinion based on the results of a scheduled examination, feel free to remove the employee if you do not have the opportunity to transfer him to light work.

Extended suspension option. According to Art. 73 of the Labor Code of the Russian Federation, an employment contract with the heads of organizations (branches, representative offices or other separate structural divisions), their deputies and chief accountants who, in accordance with a medical report, need temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the appropriate job, it is terminated in accordance with paragraph 8 of part one of Art. 77 of the Labor Code of the Russian Federation. However, the employer has the right, with the written consent of these employees, not to terminate the employment contract with them, but to remove them from work. for a period determined by agreement of the parties . Thus, the law contains the only case of an extended (more than four months) suspension period.

Note

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The period of suspension of an employee who has not undergone a mandatory medical examination (examination) through no fault of his own from work is included in the length of service, giving the right to annual paid holidays (Article 121 of the Labor Code of the Russian Federation). The specified length of service also includes the time of forced absenteeism in case of illegal dismissal or removal from work and subsequent reinstatement in the previous job.

However, the length of service, which gives the right to the annual basic paid leave, does not include the time the employee was suspended from work in the cases provided for in Art. 76 of the Labor Code of the Russian Federation (that is, due to all reasons beyond the control of the employer).

Salary during suspension

The most significant issue for the employee is the issue of payment for the time of suspension. As a general rule, embodied in Art. 76 of the Labor Code of the Russian Federation, during the period of suspension from work (non-admission to work), wages are not accrued to the employee , except as provided by law.

Such exceptions installed for the following cases:

1. In accordance with Art. 114 of the Code of Criminal Procedure of the Russian Federation, if it is necessary to temporarily remove the suspect or accused from office, the investigator, with the consent of the head of the investigative body, as well as the interrogating officer, with the consent of the prosecutor, initiates a corresponding petition before the court at the place of the preliminary investigation. A suspect or accused temporarily removed from office is entitled to a monthly state allowance, which is paid to him in accordance with paragraph 8 of part 2 of Art. 131 of the Code of Criminal Procedure of the Russian Federation in the amount of five minimum wages. In their meaning, these payments are procedural costs that are reimbursed from the funds federal budget or funds of participants in criminal proceedings.

   Note

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   According to the Federal Law of June 1, 2011 No. 106-FZ “On Amendments to Article 1 of the Federal Law “On the Minimum Wage”, from June 1, 2011, the minimum wage is set at 4,611 rubles per month.

   Analyzing this norm, personnel officers tend to make the same mistake: when solving the issue under consideration, they apply the minimum wage in the amount of 100 rubles. However, in accordance with Art. 3 of the Federal Law of June 19, 2000 No. 82-FZ “On the Minimum Wage”, the minimum wage established by Art. 1 of this law (that is, in the amount of 4611 rubles), is used exclusively to regulate wages and determine the amount of benefits for temporary disability, pregnancy and childbirth, as well as for other purposes of compulsory social insurance. Based on the content of Art. 4 and 5 of the said law, the base amount of 100 rubles is used when calculating the amount of scholarships, allowances and other mandatory social payments, as well as taxes, fees, fines and other payments, while the monthly state allowance paid to a suspect or accused temporarily removed from office by a court decision, such payments and payments do not apply. This conclusion is confirmed by the Legislative Review and judicial practice of the Supreme Court of the Russian Federation for the 2nd quarter of 2009, approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation of September 16, 2009 (determination No. 84-O09-11).
   It is noteworthy how the point of view on this issue has changed. Thus, back in 2007, the Federal Customs Service indicated in its letter dated May 22, 2007 No. 01-06 / 18997 (now inactive) that the payment of a monthly allowance in case of temporary suspension from office to an official suspected or accused by court decision in the amount of five minimum wages should be made on the basis of a base amount equal to 100 rubles. However, in 2010, her opinion changed dramatically. According to the letter of the Federal Customs Service of the Russian Federation dated October 11, 2010 No. 01-11 / 49495 “On the amount of benefits in case of temporary removal from office by a court decision”, the state body indicates that the monthly state allowance is intended to compensate for losses in the monetary content (monetary allowance) of the relevant officials, in In connection with this, the calculation of the monthly state allowance should be made based on the established minimum wage used to regulate wages, which from 01/01/2009 amounted to 4330 rubles per month (and from 06/01/2011, respectively - 4611 rubles). However, this calculation is not always applied.

   Arbitrage practice

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   The cassation ruling of the Judicial Collegium for Civil Cases of the Saratov Regional Court dated 11/15/2007 concluded that during the temporary removal of an internal affairs officer from office if he is involved as an accused of committing a crime that makes it impossible for him to execute official duties, the monetary allowance is paid to him in full. The court motivated its conclusion by the provisions of Art. 16 "Regulations on service in the internal affairs bodies Russian Federation", approved. Decree of the Supreme Council of the Russian Federation of December 23, 1992 No. 4202-1.

2. According to paragraph 2 of Art. 33 of the Federal Law of March 30, 1999 No. 52-FZ "On the sanitary and epidemiological well-being of the population" persons who are carriers of pathogens of infectious diseases, if they can be sources of the spread of infectious diseases due to the peculiarities of the production in which they are engaged, or the work they perform , with their consent, are temporarily transferred to another job that is not associated with the risk of the spread of infectious diseases. If it is impossible to transfer on the basis of decisions of the chief state sanitary doctors and their deputies, they are temporarily suspended from work with the payment of social insurance benefits. The social insurance benefit is accrued according to the rules established by the Federal Law of December 29, 2006 No. 255-ФЗ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood”.
3. Part 2 Art. 32 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” gives the representative of the employer of a civil servant the right to remove from the civil service position to be replaced (not to allow for execution official duties) civil servant during the period of conflict of interest settlement. At the same time, the civil servant retains a monetary allowance for the entire period of removal from the civil service position to be replaced.

   Note

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   According to Art. 10 of the Federal Law of December 25, 2008 No. 273-FZ “On Combating Corruption”, a conflict of interest in the state or municipal service is understood as a situation in which the personal interest (direct or indirect) of a state or municipal employee affects or may affect the proper performance of his official ( official) duties and in which a conflict arises or may arise between the personal interest of a state or municipal employee and the rights and legitimate interests of citizens, organizations, society or the state, which can lead to harm to the rights and legitimate interests citizens, organizations, society or state. And under the personal interest of a state or municipal employee, which affects or may affect the proper performance of his official (official) duties, is understood as the possibility for a state or municipal employee to receive income in the form of money, valuables, other property or property services in the performance of official (official) duties. nature, other property rights for themselves or for third parties.

4. In accordance with Part 6 of Art. 6 of the Federal Law of December 29, 2006 No. 255-ФЗ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood” in the event of quarantine of an employee who has been in contact with an infectious patient or who has a bacteriocarrier, for the entire time of his suspension from work in due to quarantine, temporary disability benefits are paid. If children under the age of 7 attending preschools are subject to quarantine educational institutions, or other family members recognized as legally incompetent, temporary disability benefits are paid to the insured person (one of the parents, other legal representative or other family member) for the entire quarantine period.
5. In accordance with paragraph 9 of Art. 41.7 of the Federal Law of January 17, 1992 No. 2202-1 “On the Prosecutor’s Office of the Russian Federation”, an employee who has committed a misconduct may be temporarily (but not more than one month) until the issue of imposing a disciplinary sanction is removed from office with the preservation of monetary maintenance. Suspension from office is carried out by order of the head of the body or institution of the prosecutor's office, which has the right to appoint an employee to the appropriate position. During the period of removal from office, the employee is paid a monetary allowance in the amount of official salary, additional payments for class rank and length of service. The same amount shall be paid for the time of dismissal of the prosecutor for the entire period of investigation of the criminal case initiated against him.
   The time of suspension of an employee of the investigative committee who has committed a misdemeanor, until the issue of applying a disciplinary sanction is resolved (but not more than one month), is paid in almost the same amount - in the amount of the monetary allowance (monetary allowance), in the amount of the official salary (salary according to the position), additional payments for a special rank (salary according to military rank) and additional payments (allowances) for length of service (parts 9 and 10 of article 28 of the Federal Law of December 28, 2010 No. 403-FZ "On the Investigative Committee of the Russian Federation").
6. In accordance with Art. 76 of the Labor Code of the Russian Federation in cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for simple . Downtime payment is regulated by Art. 157 of the Labor Code of the Russian Federation.

Suspension procedure

The procedure for suspension can be described as a sequence of actions by the employer:

1. Identification of the circumstances referred to in Art. 76 of the Labor Code of the Russian Federation, in connection with the occurrence of which the employer has an obligation to remove the employee. For example, the presentation of a medical report by an employee.
2. Search in staffing other vacancies (for cases when the employer is obliged to offer the employee a temporary transfer). If there is no such obligation in the law, this stage is skipped.
3. Written notification of the employee about the proposed vacancies with the employer (other work). Since the obligation to offer other work from the employer arises only in two cases: if there is a medical certificate of temporary transfer to “light” work and when the employee’s special right is suspended, then the passage of the considered stage of the employer’s offer of another job to the employee is provided only in these cases. If the employer agrees to the transfer, the standard procedure for transferring the employee to another position is performed.
4. In the absence of vacancies and other work that the employee can perform (in cases of passing stages 2 and 3) and in all other cases - issuance of an order to remove the employee from office with a mandatory indication of the period of suspension and reasons. The form of the order is arbitrary, since the unified form of this document is not legally approved.
5. Familiarization of the employee with the order under a personal signature. If he refuses to familiarize or certify the fact of familiarization with a signature - drawing up an act on this.
6. Actual suspension from work (non-admission to work).
7. After the elimination of the circumstances that caused the removal of the employee from work, the issuance of an order for admission to work and the actual admission of the employee to work. The legislator has not approved a unified form of an order for admission to work. In an arbitrary form of an order for admission to work, it is necessary to indicate the date the employee was admitted to work, the reasons that served as the basis for admission. It is also possible, as one of the points, to fix the order of the accounting department of the enterprise to start accruing wages to the employee in full from the date of his admission to work. The employee must be familiarized with the order under a personal signature. If the employer refuses to sign, the commission draws up an appropriate act.

Dismissal is not a pattern of removal of an employee from work. Dismissal is possible only in the following cases:

• the employee's refusal to transfer if, in accordance with a medical report, he needs a temporary transfer to another job for a period of more than four months or a permanent transfer (Article 73 of the Labor Code of the Russian Federation). In this case, the dismissal is carried out according to paragraph 8 of the first part of Art. 77 of the Labor Code of the Russian Federation;
• failure to eliminate the circumstances that caused the employee to be suspended from work at the end of the suspension period;
• application to the employee of the most severe disciplinary measure - dismissal. At the same time, the dismissal is not a consequence of suspension from work, but a consequence of the ongoing violation of labor discipline by the employee.

Major Suspension Mistakes

Since such a procedural measure as a suspension is still rare for most employers, errors in its application are quite common. Moreover, errors are typical in almost all cases. Consider the most popular of them.

1. The application of grounds for removal not provided for in Art. 76 of the Labor Code of the Russian Federation. Meanwhile, the absence of a statutory basis for removal entails the recognition of the removal order as illegal and the recovery of lost earnings from the employer in favor of the employee. All grounds for removal are listed in Art. 76 of the Labor Code of the Russian Federation and are not subject to broad interpretation!

   Arbitrage practice

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   An employee may be removed from office only on the grounds provided for by law.

   M. applied to the Tukaevsky District Court against the LLC with a claim for recognition of the order to remove him from work as illegal, work book records of dismissal, issuance of a work book, recovery of earnings during forced absenteeism and illegal suspension from work and compensation for unused vacation. In support of her claims, M. indicated that she had worked at the defendant's branch as a director.<Дата>according to the employees of the employer, she was suspended from work (not allowed) on the basis of revealing a shortage in her.<Дата>she gave her employer a letter of resignation<дата>, however, on the last day, she was not acquainted with the dismissal order, the work book was not issued, the calculation was not made.

   Despite the presence in the case of evidence of the notification of the defendant about the date and time of the consideration of the case, the defendant did not appear at the hearing, did not present evidence, did not send the requested original documents to the court. On the basis of the documents available in the case, the court found that there had been an unlawful removal of the plaintiff from work. The corresponding order was issued, but the plaintiff was not familiarized with it. Having considered the case, the court found the removal of the plaintiff from work illegal due to the absence in Art. 76 of the Labor Code of the Russian Federation grounds for removal - identification of a shortage. In addition, the suspension procedure was violated. In accordance with Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee for earnings not received by him in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if earnings are not received as a result of, among other things, the illegal removal of the employee from work and the employer's delay in issuing a work book to the employee. The court established that there was an unlawful suspension of the plaintiff from work, forced absenteeism due to the non-dismissal of the plaintiff according to her application to date and a delay in issuing a work book to the plaintiff, in connection with which she was illegally deprived of the opportunity to work.

   In connection with the above, M.'s claims against LLC were satisfied by the decision of the Tukaevsky District Court of the Republic of Tatarstan dated 05.05.2011 in case No. 2-472. The court recognized the LLC's order to remove the director of M.'s branch from his post as illegal; ordered the employer to make an entry in M.'s work book about dismissal due to own will; collected from the defendant in favor of M. earnings for the entire time of illegal suspension from work, for the time of forced absenteeism and the delay in issuing a work book.

2. Failure to comply with the order of suspension. This violation tends to be expressed in the employer's failure to comply with the requirements of the law to offer the employee to temporarily transfer to another position, to perform other work. Such a requirement is established only for cases where it is necessary to remove an employee for medical reasons based on a medical report, as well as on the basis of the suspension of an employee’s certain right/permit to perform work.
   Especially popular is the absence of the employee's signature in familiarization with the dismissal order, as well as the absence of a familiarization signature in the order for subsequent admission to work. Meanwhile, the lack of acquaintance of the employee with these documents deprives the employer of further evidence in court. An employee who is not familiar with the suspension order, which indicates the period of suspension, the payment procedure, and the employer’s requirements, for example, to undergo a medical examination, legally does not comply with the requirements of the order. Failure to familiarize the employee with the order on admission to work does not give the employer confirmation that the employee is familiar with the day of going to work. In this regard, his further absence from work cannot be regarded by the employer as absenteeism. If the employee refuses to sign the above documents, it is necessary to draw up a commission act on the employee's refusal to familiarize / sign the relevant order.

   Arbitrage practice

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   Violation of the order of suspension from work and incorrect application of the provisions served as a reason for declaring the order of suspension illegal.

   M.A.A. applied to the court with a statement of claim against GTSK-Stroy LLC, in which, taking into account the clarifications, he asked that the order to remove him from work be declared illegal, reinstate him as a crane operator, and collect wage arrears. Management's suspicions that the plaintiff had stolen diesel fuel, as well as the employee's lack of a tractor driver's license allowing him to work on a GROVE crane, served as grounds for issuing an order to remove the plaintiff from work. The plaintiff considered the suspension from work illegal, since he was not warned about the suspension from work or about dismissal, the grounds for suspension from work do not meet the requirements of Art. 76 of the Labor Code of the Russian Federation.

   Considering the case, the court pointed out that Art. 76 of the Labor Code of the Russian Federation does not provide for such a basis for removing an employee from work as suspicion of embezzlement, in connection with which the court assessed M.A.A. from work on the specified basis.

   As for the removal of M.A.A. on the second ground (failure to present a tractor driver's driver's certificate), the court also found it illegal for the following reasons. According to the explanations of the representative of the employer, the plaintiff was hired with probationary period three months, during which he had to undergo the appropriate training and receive the appropriate certificate. The trial period has expired, the dismissal did not occur, in connection with which the plaintiff is considered to have passed the test. The court concluded that the plaintiff was initially allowed by the employer to work for which he did not have the right. With the removal of M.A.A. the employer violated the procedure for removal from work, provided for in Art. 76 of the Labor Code of the Russian Federation. M.A.A. was suspended from work for an indefinite period, and he was not offered another job available to the employer - a vacant position or a job corresponding to the qualifications of the employee, as well as a vacant lower position or a lower-paid job. Evidence of the absence of such work at the enterprise was not presented by the employer.

   The Oktyabrsky District Court of Kaliningrad (decision dated March 19, 2009 in case No. 2-139/2009) claims M.A.A. partially satisfied: the order to remove the plaintiff from work was declared illegal, the employer was charged in favor of the employee for lost earnings as a result of illegal removal from work, as well as compensation for non-pecuniary damage. By the cassation ruling of the Kaliningrad Regional Court dated May 27, 2009, the decision of the Oktyabrsky District Court was upheld.

3. Incorrect suspension payment. As a general rule, no wages are accrued for the period of suspension of an employee from work, except in cases established by law. Usually it is about these exceptions that the employer “forgets”.

   Arbitrage practice

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   The suspension period for a medical examination not completed due to the fault of the employer must be paid in accordance with Art. 76 of the Labor Code of the Russian Federation.

   M. filed a lawsuit against the Regional Hospital No. 3, demanding that the order be canceled in terms of non-reservation of his salary during the medical examination, the recovery of wages for the time of suspension from work, as well as for downtime. In justification, M. indicated that he worked at the MUSE “RB No. 3”. by order<>he was suspended from his post for a period of 2 months and ordered to undergo an extraordinary medical examination for the right to drive a vehicle due to a deterioration in his health.<Дата>he submitted a medical certificate on passing a medical examination with admission to work in his previous position. Asking to cancel the order<>in terms of non-payment of wages for the duration of the medical examination.

   Having listened to the explanations of the plaintiff and his representative, having studied the materials of the case, the court considers the claims to be subject to partial satisfaction.

   Taking into account the requirements of the legislation (Articles 328, 212 of the Labor Code of the Russian Federation), when receiving information about the deterioration of the plaintiff's health, the employer, by order of the Ministry of Healthcare of the Republic of Belarus No. 3, removed M. from work and ordered him to undergo an extraordinary medical examination for the right to drive a vehicle. The order also indicated that M. was offered a vacant position<данные изъяты>, in case of refusal to transfer M., suspend him from work until the necessary documents are provided, with maximum term suspension up to two months. Paragraph 5 of the order stipulates that in case of refusal from office<данные изъяты>M. wages do not count. However, evidence showing that the defendant organized a medical examination of M. after the deterioration of his health was not presented to the court in accordance with the established procedure. In the case file there is a referral of the plaintiff for a medical examination, issued after the contested order was issued.

   The Khabarovsk District Court of the Khabarovsk Territory, by decision dated May 27, 2011 in case No. 2-669 / 2011, satisfied M.'s claims: clause 5 of the order regarding non-calculation of wages during the suspension from work for medical examination was canceled.

4. The use of suspension as a disciplinary sanction, which is not provided for by any norm of the Labor Code of the Russian Federation.

   Arbitrage practice

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   It is illegal to use a suspension from work as a disciplinary sanction.

   K. filed a lawsuit against the defendant for reinstatement, recovery of wages, recovery of average earnings for the period of forced absenteeism, compensation for unused vacation and compensation for non-pecuniary damage. In support of the claim, K. indicated that she worked for Royalty-Mebel LLC. According to the results of the next meeting of the founders of this society, she was removed from office for lack of confidence. The plaintiff asked that her removal from work be recognized as unlawful and that the defendant be ordered to allow her to work; collect from the defendant the average earnings for the entire period of illegal suspension from work. From the explanations of the defendant's representatives, it follows that the reason for the dismissal of the plaintiff from work was distrust of her, caused by the violations she committed in her work. Thus, the defendant used this measure as a disciplinary sanction, intending to carry out the dismissal of the plaintiff, but did not fulfill all the provisions of Art. 193 of the Labor Code of the Russian Federation of mandatory actions to terminate the employment contract. However, as the court pointed out, such a measure is not provided for by Art. 192 of the Labor Code of the Russian Federation, which establishes a list of disciplinary sanctions. Its application is not provided for by Art. 76 of the Labor Code of the Russian Federation, listing cases of possible suspension from work.

   Under such circumstances, the dismissal of the plaintiff from work is illegal. In connection with the above, the Sverdlovsky District Court of the city of Kostroma, by decision dated 06/25/2010 in case No. 2-1931 / 10, satisfied K.'s claim: recognized K.'s removal from work as illegal, ordered Royalty-Mebel LLC to allow K. to work.

Major controversy surrounding the suspension

The subjects of claims of employees against the employer related to suspension are not diverse. There are several typical requirements of employees, which, depending on the specific situation and circumstances of dismissal, may be single or act in conjunction with other requirements from the list below:

• on the recognition of the order as illegal;
• on the recovery of lost wages for the period of illegal suspension from work;
• about reinstatement at work (if after the dismissal the employee was dismissed);
• recovery of average earnings for the period of forced absenteeism;
• recovery of sums of money for the period of downtime due to the fault of the employer;
• changing the entry in the work book on the grounds for dismissal;
• on the obligation of the employer to dismiss the employee and issue a work book (typically for situations when the employee expresses a desire to quit of his own free will during the period of suspension and the absence of appropriate responses from the employer);
• on the recovery of compensation for non-pecuniary damage and the costs of paying for the services of a representative.

The study of the statistics of disputes related to suspension leads to the conclusion that the intentional unlawful suspension of an employee from work is much less common than the employer's mistakes caused by legal illiteracy and lack of knowledge of the issue of suspension by personnel workers. Unfortunately, the only option to correct the mistakes made may be the cancellation of the order (recognizing it as invalid) with the issuance of an appropriate order by the accounting department of the enterprise to recalculate the employee's wages, including with compensation under Art. 236 of the Labor Code of the Russian Federation. Otherwise, a labor dispute may arise.

An analysis of judicial practice shows that if there are mistakes made by the employer when removing an employee from work, the probability of recognizing the removal order as illegal and satisfying other requirements of the employee is quite high. Disputes related to suspension are almost always confusing and require both an in-depth study of the situation by the court and careful preparation of the evidence base by the employer on its part. It should be noted that the parties labor relations do not always go "to the end" in these types of disputes. For such disputes, more often than for other labor disputes, it is typical for the parties to reach agreement and conclude a settlement agreement. Thus, the likelihood of resolving a dispute that arose due to a violation by the employer of the requirements of labor legislation in terms of compliance with the grounds and procedure for dismissal exists in the interests of both parties.

Arbitrage practice

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The wrongness of both sides of the labor relations required them to conclude a settlement agreement.

The plaintiff N. filed a lawsuit against the defendant Malahit LLC with a demand to recognize as illegal the order to remove him from work as a driver and to recover compensation for non-pecuniary damage. N. motivated his arguments by the fact that when he came to work on 03.03.2010, an explanatory note was requested from him regarding the failure to fulfill yesterday's application. After his refusal to give explanations, he was asked to resign, to which he also refused. After that, N. was suspended from work. The plaintiff considers the removal unlawful, in connection with which he applied to the court with the above requirements.

From the testimony of the representatives of the employer, the court found that the plaintiff had been improperly fulfilling his duties for a long time. Regarding the last failure to fulfill his duties, an explanatory note was demanded from him, to which the plaintiff refused. Then the employer did not allow N. to work. There was no suspension order, so there was no suspension from work. But on March 4 and the following days, N. did not appear at work.

During the trial, the parties reached an amicable agreement. Defendant LLC "Malachite" dismisses N. from 01.04.2010 at his own request with payment from March 3 to March 31 of wages at the rate. Claimant N. asks to terminate the proceedings in connection with the conclusion of a settlement agreement. By the decision of the Chernushinsky District Court of the Perm Territory dated 04/06/2010 in case No. 2-268/2010, these conditions of the settlement agreement were approved.

Footnotes

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Article 76 of the Labor Code of the Russian Federation does not list all the grounds for the temporary suspension of an employee from work. Other grounds are contained in other articles of the Labor Code of the Russian Federation, federal laws and other regulatory legal acts (paragraph 8, part 1, article 76 of the Labor Code of the Russian Federation).

Grounds for removing an employee from office

These grounds include, in particular:

1. non-compliance by workers engaged in underground work with safety requirements or their non-use of means personal protection(Article 330.4 of the Labor Code of the Russian Federation);
2. the grounds specified in Decree of the Government of the Russian Federation of March 10, 1999 No. 263 “On the organization and implementation of production control over compliance with industrial safety requirements at a hazardous production facility”;
3. conflict resolution, verification of the reliability and completeness of information on the income of civil servants (clause 2, article 32 of the Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation”);
4. improper execution by managers government organizations their duties during the state of emergency (Article 13 of the Federal Constitutional Law of May 30, 2001 N 3-FKZ "On the State of Emergency").

The grounds for removal from office must be specified in federal laws and other regulatory legal acts, other grounds are not allowed. In the event that an employee dismissed on grounds not enshrined in legislation applies to the court or the state labor inspectorate, the decision of the employer is recognized as illegal. In this case, the employer is obliged to pay the employee the average wage for the entire period of suspension.

The procedure for issuing a temporary suspension from office

The order to remove from office is drawn up by the employer in any form, since there is no unified form established by law. In the "Reason" line, you should indicate a link to the normative act that caused the employee to be removed. If the expiration date of the suspension is known when the order is issued, then it must be indicated in the order.

Removal from office means that the payment of wages to the employee is suspended. At the end of the period specified in the document, or after the elimination of the reasons that are grounds for suspension, the employee must be allowed to work. The employer draws up an order for admission to work in any form and acquaints the employee with it against signature.

The time of suspension in the time sheet (unified form T-12 or T-13) is noted by affixing an alphabetic (NB) or digital (35) code (non-admission to work for reasons provided for by law). There is no entry in the workbook.

Suspension from office

Suspension of an employee in other cases provided for by federal laws and other regulatory legal acts of the Russian Federation

Procedure

Obtain an official document containing the decision to suspend the employee

Suspension of an employee may be applied at the request of the competent authority (official) to suspend the employee. The right to decide on suspension is vested in bodies such as, in particular, state inspection labor, the court, as well as bodies exercising state sanitary and epidemiological supervision. Such a requirement is formalized in the form of a decision, protocol, resolution, etc. After receiving such a document, the employer has an obligation to immediately remove the employee from work.

Familiarize the employee with the dismissal order

The order should be printed and familiarized with the employee against signature - at the bottom of the order, the employee must sign and put the date of familiarization.

Pay for suspension time as simple

The period of suspension from work is paid as simple if the employee has not passed the mandatory medical examination or labor protection measures through no fault of his own. Downtime is included in the length of service, giving the right to the annual basic paid leave

In the time sheet, the period of suspension is marked by putting down an alphabetic (NB) or digital (35) code.

In addition to issuing an order, it is necessary to give an order to the accounting department to resume the payment of wages to the employee

In some cases, the employer may have the ability to remove an employee from work. This procedure is within the framework of the current Russian labor legislation, which carefully regulates the possibility of its application in relation to employees and the legal consequences. The grounds and procedure for suspension from work under the Labor Code of the Russian Federation may include various reasons - from medical indications to alcohol intoxication.

What is suspension - legal regulations and article of the Labor Code of the Russian Federation

current labor law implies the possibility of situations in the course of labor relations in which the employee cannot be allowed to perform his work duties for various reasons. And this question is legal regulation ensured primarily by the provisions of Article 76 Labor Code RF. However, some issues related to suspension from work activities are also regulated by other regulations, which in particular include:

• Art. 73 of the Labor Code of the Russian Federation. Despite the fact that this article regulates the grounds and procedure for the transfer of employees on medical grounds to other positions, it also considers cases in which suspension from work can be applied.
• Art. 121 of the Labor Code of the Russian Federation considers the application of suspension in the context of the period of time in office and its impact on the amount of paid leave. So, according to its standards, the time spent in suspension does not give the right to be included in the period of work, on the basis of which the number of vacation days is determined, with the exception of cases of illegal suspension or suspension through no fault of the employee.
• Art. 234 of the Labor Code of the Russian Federation establishes by its standards the obligation of the employer to compensate for the damage caused to the employee, caused by the deprivation of the latter of the opportunity to work at work, including in cases of unlawful removal from work.
• Art. 327.5 of the Labor Code of the Russian Federation provides additional reasons for the removal of foreign employees or persons without any citizenship from the employer.
• Art. 330.4 of the Labor Code of the Russian Federation regulates the application of suspension to workers engaged in underground work, significantly expanding the list of grounds for such a measure of influence.
• Art. 331.1 of the Labor Code of the Russian Federation considers additional situations in which workers employed in the pedagogical field may be suspended from work.
• Art. 348.5 of the Labor Code of the Russian Federation concerns the principles of exclusion of athletes from participation in sports events and competitions.
• Art. 357 of the Labor Code of the Russian Federation regulates the rights of labor inspectors and empowers them to order employers to remove certain employees from work.

The reasons for suspension may vary in general, but the main one is to ensure the safety of both the workers themselves and those around them. At the same time, it is necessary to distinguish suspension from downtime or absenteeism - these are completely different legal concepts, bearing various consequences for the parties to labor relations. Also, the suspension does not apply to disciplinary actions, and unlike them, the appointment of a suspension is not a right, but an obligation of the employer.

Suspension itself provides that the employee is not allowed to perform his job duties. An appropriate entry is made about this in the time sheet, and other internal documents are compiled and registered at the enterprise. For the period of suspension, the employee retains his position, however, for the entire period of suspension of the employee, he is not paid wages.

If subsequently the suspension from work under the Labor Code of the Russian Federation is found to be illegal, the employer will be obliged to compensate for all days of the employee’s suspension as simple, and other legal consequences of the suspension should also be eliminated in this case.

Types and reasons for dismissal of an employee from work

Before proceeding to a detailed consideration of the suspension procedure, it is necessary to understand when it is permissible to initiate it. In particular, the employer does not have the right to use this mechanism to suspend the activities of employees simply on their own initiative - its use is permissible only in cases specified by the Labor Code. The current legislation provides for the following grounds for the removal of an employee from work:

• Medical opinion. If, for any reason, it is contraindicated for an employee to work in his position, the employer may temporarily suspend the employee from performing work duties.
• Deprivation of special rights necessary for the performance of work duties. These may include a court decision on disqualification, deprivation or temporary withdrawal of a driver's license, revocation of a license and other grounds, if the duration of such a period is not more than one month.
• Failure to pass the mandatory medical examination when required by applicable law.
• Being at the workplace in a state of intoxication - alcohol, toxic and narcotic.
• Requirements of state bodies and officials, for example, labor inspectors.
• The absence of the fact that the employee has undergone safety or labor protection training, when such is mandatory.

This list is general and mandatory. For some professions and positions, there may be broader scope of situations in which suspension from work can be applied. In particular, such extended grounds for preventing employees from performing work duties include:

• Expiration of a health insurance policy, residence permit, patent, work permit or temporary residence permit if the employee is a foreigner or stateless person.
• Refusal to use personal protective equipment, non-compliance with other safety requirements established by federal law, possession of flammable objects, alcohol, drugs or personal property that can pose a safety hazard are reasons for removal from underground work.
• Conducting criminal proceedings against teachers, as well as other persons whose work is to provide services aimed at children under certain articles of the Criminal Code of the Russian Federation - until the court makes a final decision.

Terms of suspension from work are set for each situation separately. In general, the generally accepted norms of labor legislation suggest that such exclusion from work can last until the reasons for suspension are eliminated.

Grounds and procedure for dismissal from work on them

The current suspension procedure has a rather weak legal regulation, so the employer should adhere to simple, but effective methods, allowing to implement these norms of the Labor Code. In most situations, the suspension mechanism is as follows:

1. The employer receives a document on the basis of which the suspension of the employee can be applied. Such a document may be a medical report, reports of other employees, resolutions of the labor inspectorate, decisions of the court or other bodies on the suspension of the special rights of employees and other documents.
2. The employer issues an order to remove the employee from the performance of work duties until the causes that caused him are eliminated.
3. A copy of the order is handed to the employee against an act signed by two other employees. In case of refusal to receive, an act is also drawn up. If it is not possible to hand over the document to the employee, a copy of it is sent by mail description and notice.
4. The employee is removed from his post, and for the period of suspension, a corresponding note is entered in the time sheet.

In some situations, suspension from work is not possible due to the actions of the employee. For example - in a state of intoxication. In this case, the employer has the right to use the help of law enforcement agencies. If the employee refuses to leave workplace and performs his job duties despite the suspension, from a documentary point of view, he is still considered suspended with the corresponding legal consequences.

Illegal suspension from work and other nuances of the procedure

The suspension procedure has many additional nuances that both the employee and the employer should be aware of. First of all, if the suspension is found to be illegal, the employee may demand payment of all wages due to him for the period when he was removed from office. At the same time, earnings are paid in full, as if the employee was actually at the workplace and performed his duties.

The removal of an employee who is in a state of intoxication requires the mandatory recording of this fact and the collection of an evidence base in case the employee may challenge the procedure or, if necessary, dismiss the employee for this misconduct. It should be noted that in this case, the employer is obliged to remove the employee, and dismissal is his right, but may not apply to the employee.

If it is necessary to remove for medical reasons, the employer must first offer the employee all available and medically suitable positions in the enterprise where he can be transferred. Suspension in this case is allowed only if there are no relevant positions or if the employee refuses to be transferred to another job. At the time of suspension, the position of the employee remains in any case throughout the entire period of suspension.

The insurance period for the employee during the period of suspension is not accrued, since payments for it to the Pension Fund and the Social Insurance Fund are not made for the indicated period. Also, the employee is not charged with the length of service necessary to provide paid annual leave.

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The story of one dispute: Suspension from work due to a criminal case

• identification, in accordance with the medical report, of contraindications for performing work stipulated by the employment contract;
• suspension for up to two months of the employee’s special right (license, right to drive a vehicle, the right to carry weapons, other special rights), if this entails the impossibility of the employee to fulfill the obligations under the employment contract and if it is impossible to transfer the employee with his written consent to other work available to the employer that the employee can perform taking into account his state of health;
• requirements of bodies and officials authorized by federal laws and other regulatory legal acts;
• other cases stipulated by federal laws and other regulatory legal acts of the Russian Federation

However, attention should be paid to Part 7 of Art.

Articles on the subject of criminal procedure

Important

The materials submitted by the preliminary investigation bodies as a legal basis for satisfying the petition are subject to mandatory verification by the judge in accordance with the rules provided for in Art. 75 Code of Criminal Procedure of the Russian Federation. Having considered the specified petition, the judge issues a decision on temporary suspension from office or on refusal to do so (part 2 of article 114 of the Code of Criminal Procedure). The decision on the temporary removal of the suspect or the accused from office shall be sent to the place of his work.

Attention

Temporarily dismissed from office has the right to a monthly allowance paid in accordance with paragraph 8 of part 2 of Art. 131 Code of Criminal Procedure of the Russian Federation. Dismissed on his own initiative loses the right to compensation for damages. Although the law emphasizes the temporary nature of the removal from office, the time limit for the application of this enforcement measure is not specified.

Is it possible to be suspended from work in connection with the initiation of a criminal case?

• Themes:
• Teachers, doctors, transport workers, etc.
• Suspension from work

Question Our employee (a school teacher) was prosecuted for providing fake sick leave certificates. A criminal case has been opened, but there has not yet been a trial. Does he have such a right? Answer Answer to the question: No, it doesn't. If a criminal case was initiated, but no sentence was passed, then in this case the employee is not considered criminally liable.
The Labor Code of the Russian Federation establishes the possibility (or rather, the obligation of the employer) to remove employees from work. However, this measure should be applied only in cases strictly specified by law, a list of which is given in Art.

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The current labor legislation does not provide for the right of the administration, at its own discretion, to suspend from work persons against whom a criminal case has been initiated. The only exceptions are cases where the actions that served as the basis for initiating a criminal case simultaneously contain signs of a violation of those norms, the failure to comply with which provides an independent basis for the removal of the perpetrator from work. This is not applicable to the case you cited. As a general rule, the removal of an employee from work during the proceedings in a criminal case is allowed only at the request of the investigator or the body of inquiry - if leaving the person at work may interfere with an objective investigation of all the circumstances of the case (Article 114 of the Code of Criminal Procedure of the Russian Federation).

Article 114. Suspension from office

The Code of Criminal Procedure of the Russian Federation gives rise to the right to compensation for the harm caused to him, including to reinstatement in his previous position and to compensation for the difference between his salary and the government allowance it received while removed from office. When passing a guilty verdict, the court either cancels this measure of coercion, or, if it is provided for by the Criminal Code of the Russian Federation, appoints deprivation of the right to occupy certain positions or engage in certain activities as the main or additional punishment. In such cases, the question of the possibility of the accused to continue working in the previous position or in other positions is finally resolved in the court verdict.

In accordance with paragraph 4 of part 1 of Art.
The Code of Criminal Procedure provides for suspension from office. Temporary removal from office is a measure of procedural coercion aimed at temporarily preventing a person from performing his official duties within the period of a preliminary investigation, conducted in the form of a preliminary investigation or in the form of an inquiry. The reason for considering in court the issue of the possibility of temporary removal from office, which restricts constitutional rights, freedoms of a person and a citizen, is the corresponding petition of the investigator, filed with the court with the consent of the head of the investigative body, his deputy, or the interrogating officer, the head of the inquiry unit, his deputy, filed to the court with the consent of the prosecutor.

Suspension from work in the event of a criminal case

This measure can only be applied on the basis of an order from the court. If a decision is made to terminate the employment relationship, the grounds provided for in paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation, observing the procedure for bringing an employee to disciplinary responsibility. At the time of the inspection, the employer can be advised to entrust the employee with the performance of that work within the limits of his official duties, fixed in employment contract or local regulations of an organization that is not directly related to material values. Of course, in the case of a cashier, this is not easy, but, for example, you can instruct him to keep accounting documentation cash transactions: journal of registration of incoming and outgoing cash documents, cash book, incoming and outgoing cash orders, etc.
So, the employer is obliged to remove from work employees engaged in underground work in the following cases:

• non-compliance by the employee with the safety requirements established by federal laws and other regulatory legal acts of Russia when carrying out underground work, including in the event that the employee commits actions that endanger the life and health of people;
• non-use by the employee of personal protective equipment issued to him in accordance with the established procedure;
• the presence of an employee, when he is in underground areas located at facilities classified in accordance with federal laws and other regulatory legal acts of Russia as explosive production facilities (including underground mine workings located at mining sites), smoking accessories, sources of fire ( matches, lighters, etc.