On the application of the provisions of the Decree of the President of the Republic of Belarus of 15.12.2014 No. 5 “On strengthening requirements for managers and employees of organizations” and the Labor Code
For committing a disciplinary offense, the employer may apply the following disciplinary measures to the employee:
1) reprimand;
2) censure;
3) dismissal (Items 4,5,7,8 and 9 of Article 42,Items 1 and 5-1 of Article 47).
In accordance with subparagraph 3.3 of paragraph 3 of Decree of the President of the Republic of Belarus of December 15, 2014 No. 5 "On Strengthening Requirements for Managers and Employees of Organizations" (hereinafter referred to as Decree No. 5), heads of organizations have the right to apply to employees who have violated production-technological, executive or labor discipline, as a measure of disciplinary action, the deprivation, in whole or in part, of additional incentive payments for a period of 12 months.
Since no amendments have been made to the Labor Code, the order to impose disciplinary action in the form of deprivation of additional payments should refer to Decree No. 5.
An employment contract may be terminated on grounds provided for by the Labor Code. For certain categories of employees, an employment contract (labor contract) may be terminated on grounds provided for by special legislative acts, in particular, Decree No. 29, the Law of the Republic of Belarus "On Public Service in the Republic of Belarus", and regulations on service, approved by Decrees of the President of the Republic of Belarus.
When dismissing on grounds established in clause 6 of Decree No. 5, which are already provided for in legislative acts, reference should be made to the relevant legislative act. For example, when dismissing for absenteeism, reference is made to clause 5 of Article 42 of the Labor Code; when dismissing for committing an offense incompatible with being in public service, reference is made to subparagraph 1.9 of clause 1 of Article 40 of the Law of the Republic of Belarus "On Public Service in the Republic of Belarus".
When dismissing on new grounds introduced directly by Decree No. 5, before amendments are made to the Labor Code, reference should be made to the relevant provision of Decree No. 5.
In accordance with clause 1 of Article 47 of the Labor Code, an employment contract (labor contract) with the head of an organization (separate subdivision) and their deputies, the chief accountant and their deputies, may be terminated in case of a single gross violation of labor duties. The list of violations that are considered gross is not defined in the legislation; however, subparagraph 4.2 of clause 4 of Decree No. 5 establishes cases of labor discipline violations that entail unconditional disciplinary action against the head of the organization, up to dismissal from the position held.
Clause 7 of Decree No. 5 defines the procedure for dismissing an employee under discrediting circumstances, which also corresponds to the provisions of Article 199 of the Labor Code. Thus, before dismissing an employee under discrediting circumstances, the employer is obliged to verify the violations committed by the employee, formalize the results in an act (memorandum), and also request a written explanation.
employee. It should be noted that for dismissal related to disciplinary action under Article 198 of the Labor Code, it is also necessary to observe the time limits for applying disciplinary action in the form of dismissal established by Article 200 of the Labor Code.At the same time, guided by paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Republic of Belarus of March 29, 2001 No. 2 "On some issues of the application of labor legislation by courts," failure to comply with the established procedure for bringing to disciplinary responsibility (failure by the employer to request a written explanation from the employee and failure to obtain such an explanation, as well as the absence of an act (service note)) is not an independent ground for canceling disciplinary action (including dismissal), if the fact of violation of labor discipline is confirmed by the employer with appropriate evidence.
According to Part 4 of Article 198 of the Labor Code, the employer has the right to choose the measure of disciplinary action. When choosing a measure of disciplinary action, the severity of the disciplinary offense, the circumstances under which it was committed, the employee's previous work and behavior at the workplace should be taken into account.
This rule does not apply to cases where the commission of a specific disciplinary offense entails the application of a specific measure of disciplinary action. For example, according to subparagraph 1.4 of paragraph 1 of Directive of the President of the Republic of Belarus of March 11, 2004 No. 1 "On measures to strengthen public safety and discipline," it is necessary to ensure the unconditional bringing of employees of organizations to disciplinary responsibility, up to dismissal, for appearing at work in a state of alcoholic, narcotic or toxic intoxication, as well as for drinking alcoholic beverages, using narcotic drugs, psychotropic substances, their analogues, toxic substances during working hours or at the workplace; violation of labor protection requirements that caused injury or death to other employees.
Head of the Department for Supervision of Compliance with the Law of Judicial Decisions in Civil Cases, Senior Justice Advisor I.N. Titkova