Causes of did

Notifying an employee about giving an explanation

Often there is such a situation: the boss bursts into the office and tells the employee: “Write an explanation!” In this case, the procedure for notifying the employee was violated. Even if he writes an explanatory note and then he is reasonably punished, he will be able to challenge the penalty in court. And there is a high probability that the penalty will be canceled. The court may decide that the employer violated the procedure for bringing to disciplinary liability. nine0003

In fact, it is not so easy to punish an employee correctly, according to the law, and so that he cannot later challenge the penalty in court. Although the procedure for imposing a penalty is prescribed in the labor code, the employer must comply with all the formalities so that the penalty is not canceled later.

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But this is not always the case: managers often act on the basis of their own considerations of disciplinary sanctions. This works, but only until one of the punished goes to court or to the labor inspectorate. They begin to check everything, including whether the procedure complied with the formal requirements of the labor code. And if the employer missed at least something, there is a great chance that the penalty will be canceled, and the employee will then receive the right to compensation for damage. nine0003

Therefore, it is in the interests of any employee to be aware of all the formalities. If the boss does something illegally, the chance to challenge the penalty increases. From the point of view of the law, the employer must comply with the following algorithm:

1. Draw up an act of violation. In the act, fix the time of the violation and its essence - what exactly happened. And also list all the participants in the events.
2. Require the employee to write an explanatory note. You can do this in two ways. The first is to issue an order or order requiring the employee to explain the circumstances. But this is usually done if the situation can lead to court proceedings or a major conflict. The second way is to verbally invite the employee to write an explanatory note. This method is simpler, but it will be more difficult to prove a position in court in case of a conflict. nine0134
3. Give the employee at least two working days after that to write an explanatory note. During this time, he can familiarize himself with his job descriptions, orders, or even consult with lawyers. At the same time, it is impossible to rush the employee. It is also impossible to issue orders or orders for punishment during these two days - they can then be challenged precisely for the reason that the procedure was violated.
4. If the employee has prepared an explanatory note, it is considered by the manager. nine0134
5. After consideration of the explanatory note, an order for collection is issued or not issued. This is decided by the leader. If the employee refused to write an explanatory note, they draw up an act of refusal. But even in this case, you must wait two business days.
6. From the moment of drawing up the act of violation until the day the order is issued, no more than 30 days should pass. This period does not include vacation or illness of the culprit. If more than 30 days have passed, the recovery order can also be challenged. nine0134

If at least one item in this algorithm is omitted, the chances of challenging the recovery increase.

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Notifying an employee of the need to give explanations is not always easy. Usually, the procedure looks like this: a notification of giving an explanation is written in an order or order for an internal audit, and the employee signs it. From that moment on, he was acquainted and all the formalities were observed. nine0003

But there are situations when an employee knows that he will be punished or fired, and in every possible way avoids getting acquainted. And then, when he is nevertheless fired, he goes to court and declares that his rights have been violated.

This tactic does not always work. In this case, the employer has the right to notify the employee in any available way: by telegram, sms, messenger message or registered mail with acknowledgment of receipt.

Here is an example from the court. The man skipped work. He was fired, and he went to court. He believed that since the employer did not demand an explanation from him, he could claim reinstatement and pay for forced absenteeism. And he also asked for compensation for moral damages. nine0003

In court, it turned out that after absenteeism, the man stopped appearing at work, and they tried to notify him of the need to give explanations by telegram. True, he did not receive the telegram, but they tried to hand it to him.

The court decided that the employer did everything right. The Labor Code says that it is mandatory to notify the employee, but it does not say in what form to do this. And if a person is not at work, you can do this by telegram. And the fact that he did not want to receive it is not the problem of the employer. He fulfilled his duties. The dismissal of the man was recognized as legal, he did not receive any compensation. nine0003

Rules for compiling an explanatory note

Form. There is no single statutory form for an explanatory note. It may depend on the situation. But, as a rule, it is composed briefly and dryly, limiting itself to a statement of facts and circumstances.

Structure of the text. I recommend compiling the text of the explanatory note as follows:

1. Indicate the full title of the position of the head and the name of the organization, for example, "General Director of Horns and Hooves LLC Petrov V. V." nine0134
2. Specify the author of the explanatory note - write your full name, first name, patronymic and position in the organization.
3. The title of the document is "explanatory".
4. In some cases, you can specify the place where the document was drawn up. Sometimes this is important - for example, if an employee is on sick leave and writes an explanatory note not at the workplace, but at home.
5. State the circumstances of the violation and the reasons for which it occurred, place and time.
6. Describe your own role in the violation: what you did, why, and what you were guided by. nine0134
7. Specify the consequences of the violation. This is important: sometimes the lack of consequences mitigates the severity of the punishment. For example, if an important document is lost forever, this can lead to serious losses. And if this document was lost, but quickly found, there are no consequences, which means that the penalty can be softer.
8. What did it lead to.
9. At the end, be sure to sign and indicate the date of writing.

The result will be something like this:

Statement of reason. Explanatory notes are written not only because of violations. For example, in the text, an employee can indicate this:

I wrote an explanatory note on the oral instructions of the foreman of the production site.

If the penalty imposed after such an explanation is challenged in court, the employer may find himself in an unpleasant situation. Especially if he cannot confirm that he notified the employee in writing of the need to write an explanatory note.

And if it is written differently in the explanatory note, everything is in order. nine0003

The explanatory note was prepared on the basis of the order of the director of the enterprise to conduct an internal audit.

Mandatory details. The law does not list the mandatory details of the explanatory note. But this does not mean that you can write whatever you like. The document is drawn up according to the general rules of office work of your organization. The easiest way to find out these rules is in the personnel department, secretariat or office.

But in any case, you need to specify the following. nine0003

Addressee of explanatory note - as a rule, this is the head of an organization or a person who, according to his official duties, has the right to decide on punishment.

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Address is the full name of the organization.

Applications - any documents that support the employee's arguments. These can be certificates - for example, about illness, injury or about an accident. In some cases, they can confirm, for example, that being late or absenteeism was not the fault of the employee. nine0003

It can also be a decision to initiate a criminal case or a certificate from an emergency room - if the employee has become a victim of a crime. In this case, too, you can avoid punishment.

But the employee is not required to attach documents confirming his own guilt to the explanatory note.

Deadline for writing

An employee must be given at least two working days to write an explanatory note. This period does not include the period of vacation and illness.

How it works is easier to explain with an example. For example, an employee was asked to write an explanatory note today, and from tomorrow he has a scheduled vacation. In this case, it’s not worth rushing - you can safely go on vacation, take it off, and after leaving, there will be one more day left - it’s just enough to write an explanatory note.

Sometimes there is such a situation: the employee is on vacation, and the boss demands to come urgently to write an explanatory note. In order for everything to be in accordance with the law, the employee must be recalled from vacation by order - at least for one day. nine0003

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You can do this only with the written consent of the employee, and if he does not agree, you cannot force him. After that, he writes an explanatory note, and this day is either added to his vacation, or provided at another time convenient for the employee.

Art. 125 of the Labor Code of the Russian Federation

According to the law, it is impossible to recall a person from the sick leave so that he writes an explanatory note. This is not provided for by law - you will have to wait until the sick leave is closed. nine0003

Is it possible to refuse to write an explanatory note

The Constitution of the Russian Federation allows not to testify against oneself. Moreover, this applies not only to criminally punishable acts and administrative offenses. The same principle applies in labor law.

Art. 51 of the Constitution of the Russian Federation

If a person considers it necessary to justify himself, he can use any legal methods for this and give any arguments in an explanatory note.

But if he thinks that explanations can harm him, or simply does not want to give them, he can refuse. This is not a violation. nine0003

Consequences of refusal to prepare an explanatory note. You can refuse to draw up an explanatory note at any time. But this is not always a reasonable decision. Such a refusal does not solve the problem and does not release from responsibility for the misconduct committed.

Most often, the refusal to give explanations is regarded by the employer as an admission of guilt. The logic is this: we offered the person to explain everything, but he refused. So, guilty. In any case, the right to defense and fair trial is granted to the employee. nine0003

Silence can also be interpreted as if the employee committed an offense intentionally and intentionally. And the punishment in this case may be more severe than if the offense was committed by accident and without malicious intent.

Employees must understand that their management cannot know what is going on with them until they themselves tell about it. Explanatory is one of the forms of such a story. It is official, not always pleasant, and often ends with the application of disciplinary measures. But it is precisely on the content of the explanatory that the rigidity of these measures depends. And the difference here is from a verbal remark to dismissal. nine0003

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What your employer owes you upon dismissal

When you can be fired. It is impossible to dismiss an employee for refusing to write an explanatory note. They can be dismissed or punished only for the misconduct itself - that is, for non-performance or improper performance by the employee through his fault of the labor duties assigned to him.

Art. 192 of the Labor Code of the Russian Federation

And the employee has no obligation to write an explanatory note. Although refusal does not exempt from disciplinary action. nine0003

Rejection certificate. A situation may arise when an employee categorically refuses to write explanations. Then the denial must be recorded. For this, an act of refusal is drawn up.

Such an act subsequently allows the employer to confirm that the employee was actually offered to explain himself, but he refused this right. It can only be drawn up after two days, which, according to the law, are put on an explanatory note. It is impossible to draw up an act before - suddenly the employee changes his mind. nine0003

Such an act is drawn up by the commission. It usually includes at least three people: a management representative and two more employees. These must be disinterested persons, otherwise the legitimacy of such an act can be challenged.

The following is indicated in the act:

1. Name of the organization.
2. Title — act of refusal to give explanations.
3. Date and place of compilation.
4. Brief description of the violation that the worker refused to explain.
5. Reasons for refusal - they are recorded according to the employee. If a person does not want to talk about them, you can write that he did not want to explain the reason for the refusal.
6. Signatures of the head and two members of the commission that drew up the act.
7. Registration number of the document.

An employee who did not want to explain must familiarize himself with the signed act.

Terms of explanatory storage

The employer, having received an explanatory note, puts on it the incoming registration number of the document and, of course, the date of acceptance. nine0003

The storage period for an explanatory note depends on its content.

If such a note contains information about a violation of the internal labor regulations, it is kept for at least 1 year.

Clause 774 of the List of Standard Management Documents with an indication of the retention periods

If the note contains information about the prosecution of persons who have violated labor discipline, on issues of official conduct or on the settlement of a conflict of interest, such a note must be kept for at least 5 years. nine0003

p. 679, p. 680, p. 682, p. 694 of the List of standard management documents with an indication of the retention periods

The most difficult thing is with state civil or municipal employees. Explanatory notes on the facts of corruption violations, on compliance with the requirements for official behavior, regulation of conflicts of interest or official checks in relation to civil servants must be kept permanently.

It is important for a manager to meet these deadlines - so he can always confirm that he did everything right and did not violate anything. nine0003

Many managers believe that if you put explanatory notes in a folder, then you can fire an employee at any time. Just get all his explanatory notes from this folder, announce penalties for all the violations committed at once - and you can be fired.

But that won't work. If an employee was not punished within a month, then even if he admits that he committed a violation, this will not help him to be fired. It is believed that if the manager has not exercised his right to impose a penalty within a month, then this can no longer be done. nine0003

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Sample explanatory notes

Employees often make mistakes when writing explanatory notes. There are situations when correct and competent explanations help to either correct the situation or avoid punishment. But instead, the employee with his explanations only exacerbates the situation.

People begin to explain one fact, and after reading the explanatory note, it becomes clear that there is not one violation, but several, and they were committed systematically. In this case, the punishment is always more severe. nine0003

I advise you to follow the following rules when writing explanations:

1. Do not write too much. Long and beautiful narratives only confuse the leadership. It is difficult for him to figure out and understand who is really guilty. In my personal experience, the longer the explanatory note, the longer the recovery order.
2. Write only what is relevant. There is no need to start the description with how you got up and had breakfast. Start immediately from the moment of violation.
3. Explain the situation to the supervisor. Nobody forbids you to argue in your defense - use it.
4. Be objective. You should not shift the blame for a drunken spree at the workplace to the stars and the full moon or to the neighbor with empty buckets that you met at the entrance. If there are no objective arguments in your defense, it is easier to admit guilt.
5. Don't write beautifully - write simply. The more complex the sentences, the worse the text is perceived.
6. A good explanatory note is a short explanatory note. nine0098 Everything is simple, clear and there are no meaningless words in it.
7. Grammar errors, blots and strikethroughs, unreadable handwriting and dirty paper irritate management.

I will give some examples of real explanations and tell you how they could be written correctly.

About the incident. Unfortunately, the most common incidents are drinking in the workplace.

Here is an example: several employees drank alcohol at work. Gotcha. I had to explain myself to management. As a result, such an explanatory appeared. nine0003 The girls did not have enough money for a sauna, but they had enough for "2 cola beers" - that is, for two two-liter bottles And here is a story about a lack of money, an unemployed husband and immense respect for the leadership

The girls honestly tried to justify themselves, but from this text the leadership it is clear that they agreed to have fun in advance, they planned everything. And they did not accidentally appear at the workplace drunk after work, but purposefully consumed alcohol there.

In this case, one could keep silent about the intentions to go to the sauna, but simply admit the fact of appearing at the workplace in a state of intoxication. And write, for example, like this:

I acknowledge the fact of appearing at the workplace in a state of intoxication. I promise this won't happen again.

For absenteeism, being late and for violating labor discipline. This is a common violation.

Lateness and absenteeism often have good reasons. For example, a person can get sick himself, end up in a hospital, in an accident, or his child can get sick.

As a rule, if an employee can confirm this, there is nothing to punish him for. A disciplinary offense can be punished only if it occurred through the fault of the employee. If the employee is not guilty, there will be no punishment. nine0003 Explanatory note when being late for work: a sample of how not to write an explanatory note

This explanatory note shows that the person knew about the work schedule, but deliberately left the workplace to pay off the loan. At the same time, bank offices are open not only from 8:00 to 17:00, but also ATMs, personal electronic accounts and mobile applications work around the clock. But the man decided that personal problems could be solved during working hours.

In this case, too, it is better not to go into details, but to acknowledge the absence from work. And if there were other good reasons, refer to them. nine0003

For non-compliance with the job description, if a mistake was made, at the request of the client. It is always much more difficult to make excuses for a specific misconduct.

In this case, I recommend writing an explanatory note as follows:

1. State the essence of the error. nine0134
2. Explain the reasons. They are rarely objective, but still different things happen.
3. Describe the consequences of the error. If they are not, the punishment will be much milder.
4. If possible, suggest a solution to the problem.
5. Mark that this will not happen again.

For example, an explanatory note might look like this:

I made a mistake in payroll calculations because my computer broke down and I had to calculate manually.

I do not remove my guilt, I am ready to be punished. This will not happen again. If any malfunctions occur in the future, I will immediately contact the system administrator.

About failure to fulfill the plan, about failure to fulfill the order, about violations after the audit. It happens that they planned an event, but could not execute it. They gave the person a task, then they checked it - but he did nothing. It happens. But somehow you need to explain to the management why this happened. There may be different options. nine0003

If the reason is objective, indicate it. For example:

The purchase of computer equipment planned for the first quarter did not take place because there was no funding. Please reschedule the purchase to the second quarter of this year.

Everything is in order here: the reason is objective and they suggested how to fix the problem. So it is possible.

Worse if there is nothing to explain. Then it will not be possible to avoid punishment.

Work injury. With an industrial injury, everything is always difficult. A well-written explanatory note can increase payouts, while a misspelled one can reduce them. nine0003

When a person just fell ill, the amount of temporary disability benefits depends on the length of service. If the insurance period is 8 years or more, 100% of average earnings will be paid. With insurance experience from 5 to 8 years - 80% of average earnings. With insurance experience less than 5 years - only 60% of average earnings.

Art. 7 of the Federal Law on compulsory social insurance

At the same time, the amount of payments may be reduced if the disease or injury occurred due to alcohol, drug, toxic intoxication or actions related to such intoxication. nine0003

Art. 8 of the Federal Law on compulsory social insurance

It is still more difficult with an industrial injury. If an accident occurs at work, regardless of the length of service, 100% of average earnings will be credited.

Art. 9 of the Federal Law on compulsory insurance against accidents at work

Therefore, in order to correctly calculate the sick leave, personnel officers often ask the employee to give explanations not only for industrial, but also for domestic injuries. The logic here is simple: if something happened, the employee is asked to explain where and how it happened. And based on the explanations, charges will be made. nine0003

For example, an employee brought a sick leave - he has a fracture. Where he received it is clear to the manager in principle, but everything must be recorded and properly executed. Therefore, the employee is offered to write an explanatory note. And then the employee has three options.

The first is to refuse to write. It is legal. But if the employee is insured against industrial accidents and he is entitled to insurance payments, then he will not be able to claim them. He did not declare that the injury was received at work - the right to insurance payments does not arise. And sick leave will be paid not at the rate of 100% of earnings, but taking into account seniority. nine0003

The second option - the employee writes in the explanatory note as follows:

After work, he was at home, slipped on the wet floor, fell and broke his arm.

In this case, everything is in order: the time is not working, no one is to blame, except for the employee himself, there is no one to punish and there is nothing for. Since there is no talk of an accident at work, the benefit will depend on the length of service of the employee.

But there is a third option. It might look something like this:

I slipped on the wet floor at work, fell and broke my arm. nine0003

In this case, you need to conduct an internal check and find out if any rules have been violated. If it turns out that they have been violated, to establish who is to blame. The culprit will need to be punished. It is not a fact that it will be the worker himself - perhaps the one who spilled water on the floor will be punished.

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And there is another explanatory option:

Locksmith Ivanov A.A., while at his workplace, slipped and broke his arm. Witnesses Petrov and Sidorov explained that Ivanov used alcohol at work. nine0003

After that, Ivanov was sent for a medical examination to a medical facility. During a medical examination, he was found to be intoxicated. The conclusion on the establishment of the state of alcoholic intoxication is attached.

But in this case, they can reduce the amount of sick leave payments, and even dismiss them. The employer has the right to do so. Even if the employee is insured against an accident, you can not count on payments.

Therefore, I recommend limiting your explanations to facts that are relevant to the incident. Breaking a hand at home is one thing. To write in the explanatory note that he was on vacation, drank for a week, woke up and saw a cast - that's different. If it is possible not to inform the employer of facts that discredit, you can not do this. nine0003

How to write an explanatory note

1. An explanatory note is a voluntary matter. You can always refuse. But this does not release from responsibility.
2. You will not be punished for refusing to write an explanatory note, but it is better to explain to the employer what exactly happened. An explanation often helps to avoid or mitigate a penalty.
3. The employer is obliged to notify the employee in writing that he has the right to write an explanatory note. If a person has stopped going to work, they are notified by telegram or SMS. nine0134
4. If there are no objective reasons for a misconduct, it is better not to invent them. Admit your guilt and point out that it won't happen again.
5. Write concisely and clearly. So there is less chance that you will disclose unnecessary information.

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