Conducting official proceedings in the event of a gross disciplinary offense committed by a serviceman in the form of performing duties while intoxicated
A.S. Kovalev, Adjunct of the Department of Military Administration, Administrative and Financial Law of the Military University, Senior Lieutenant of Justice
As practice shows, one of the most common violations of military discipline is the performance of military service duties in a state of alcoholic, narcotic, toxic intoxication, which in themselves lead to the commission of other gross disciplinary offenses and crimes.
The performance of military service duties in a state of intoxication is one of the grossest disciplinary offenses of military personnel. However, par. 3 art. 7 of the Charter of the internal service of the Armed Forces of the Russian Federation determines that servicemen who voluntarily put themselves into a state of drug or toxic intoxication are not recognized as performing military service duties. But the grounds for bringing to disciplinary responsibility arises upon the very appearance in a state of intoxication in the service, regardless of whether the serviceman is performing the duties of military service or not.
The decision by the commander (chief) to impose a disciplinary sanction on a subordinate must be preceded by a trial. It is carried out in order to identify the perpetrators, identify the causes and conditions that contributed to the commission of the offense.
During the proceedings, the commander (chief) establishes:
Has there really been an offense?
Where, when, under what circumstances and for what purpose it was committed;
What did he say?
the presence of guilt in the action (inaction) of specific persons and the degree of guilt of each in the event of an offense committed by several persons;
What are the consequences of misbehavior?
Circumstances mitigating and aggravating the responsibility of the guilty person;
Causes and conditions that contributed to the misconduct.
It is important to note that the imposition of a disciplinary sanction on a serviceman who is in a state of intoxication, as well as the receipt of any explanation from him, is postponed until he has sobered up. In these cases, if necessary, a serviceman may be placed in a guardhouse or in a cell temporarily detained for up to one day (except for officers), after which a decision is made on his responsibility.
Official proceedings are conducted orally or in writing in any form personally by the commander or an official appointed by him.
However, this provision may provide a serviceman who has committed a gross disciplinary violation in the form of performing military service duties in a state of intoxication (hereinafter referred to as
a serviceman who has committed a gross disciplinary violation), the possibility of appealing against the penalty imposed by the commander, which was preceded by oral proceedings.
At any enterprise, sooner or later, something happens that requires an internal investigation and establish the causes and perpetrators. Therefore, it is very important to know how and in what cases it is carried out, as well as how its results are documented.
If there was a serious incident at the enterprise or material assets were lost, it will be necessary to conduct an internal investigation.
In its course, a commission gathers, reveals all the circumstances, after which it adopts an act of internal investigation. At the same time, the very concept of “official investigation” is not in the domestic legislation, and therefore it is usually conducted according to the rules of disciplinary proceedings, and the details in each organization are worked out at the level of internal rules.
Actually, the conduct of the investigation itself will be an internal event, that is, the punishment is provided for by a working nature. If we are talking about more serious violations, then the state authorities will take care of the case. An internal investigation involves the exclusively voluntary participation of an employee, which means that it is forbidden to force him, for example, to undergo a polygraph test or a forced search.
When is it held
For minor violations, it is usually not carried out - a conversation with the offender is enough. It is started if the violation is serious, and the employee either refuses to recognize it at all, or does not recognize all the important circumstances, which makes it necessary to clarify them.
The types of violations that should be investigated are determined by the employers themselves. Usually, the list contains violations of labor regulations, job descriptions, safety precautions, failure to perform a labor function, and damage to the company.
All these violations can also be divided into two main categories: disciplinary offenses and damage. Let's consider them in more detail.
Disciplinary offense
Usually they are not investigated, but if the misconduct should lead to punishment - for example, dismissal, while the employee himself does not admit that he committed it, then an investigation will be necessary. This kind of misconduct is primarily absenteeism. Avoidance of medical examinations, training, and the like can also be investigated.
Causing damage
If the actions of an employee caused serious damage to the company, it is also necessary to conduct an investigation into this case in order to establish the amount of damage and determine whether the employee is guilty, and if it was he who allowed or caused the damage, then what punishment should be incurred. The damage can be both direct and, for example, caused due to the leakage of trade secrets, and therefore it is necessary to involve the commission in order to accurately establish all the accompanying circumstances.
Sometimes the actions of the offender may turn out to be more serious, even falling under the articles of the Criminal Code, for example, theft. In such a case, the employer should not continue the investigation on its own, but instead contact law enforcement. The company does not have any authority to conduct an investigation on its own in such cases, even if it has its own security service.
Organization of the investigation
How disciplinary sanctions are applied is established by Article 193 of the Labor Code. It is on it that one must rely when it is necessary to organize an investigation.
Let's look at the general decision-making structure first. It will differ for disciplinary offense and damage. Let's start with a disciplinary offense: after it is discovered, the employer must provide the employee with the opportunity to explain himself in writing. The employee is given two days to issue an explanation. If he refuses, it will be necessary to issue an act of refusal.
Then the employer decides which sanctions to apply, based on the employee's explanations, reports from his supervisor, and other documents. Based on them, he issues an order to impose a certain penalty.
Directly an official investigation here will mean the collection of documents indicating:
- the fact of committing an offense;
- the degree of guilt of the employee in it;
- the circumstances of the commission that affect the determination of the measure of punishment.
In case of damage by an employee, the algorithm of actions will be as follows:
- by order of the employer, a commission is created, which includes at least three employees of the enterprise;
- it reveals the details of the violation;
- determines what punishment the offender should suffer.
This is what will be called an official investigation in this case. With its help, it is revealed for what reasons the damage was caused, as well as its size, it is determined what is the degree of guilt of the employee in relation to whom the proceedings are being conducted. Further, we will consider this particular option, that is, a full-fledged investigation with a commission.
In both cases discussed above, it is the responsibility of the employer to clarify all the circumstances before determining the punishment. It is necessary that they be supported by documents, because the punished employee can go to court, and it will be necessary to confirm his position. And if the punishment is not clearly justified, and the guilt of the employee is proven, then the court will decide in his favor.
Order of conduct
Consider the stages preceding the start of the investigation, as well as the stages of its conduct:
- The fact of a misconduct is revealed - any employee of the company can do this, while the day of detection will be taken as the day on which this employee told about the violation to the manager to whom the offending employee is subordinate.
- The violation is recorded in a memorandum addressed to the head.
- After reviewing the note, the head decides to start an investigation (or transfers the document to a higher-ranking official if he does not have the appropriate authority).
At this, the stages preceding the investigation end, and the process itself begins:
- A commission is formed by order - we note that the immediate supervisor of the person being checked is not included in its composition. As well as the leader who will make the final decision.
- The commission conducts an investigation - in its course it is necessary to find out what the violation was, who committed it, what were the reasons and circumstances, the amount of damage caused. To do this, an explanatory note is taken from the guilty person, and if it is not established, then from all possible perpetrators, then documents are collected to clarify the circumstances.
- A final act is drawn up, describing in detail the course of the check and its conclusion. The objectives of the commission often include the development of measures to prevent similar damage in the future. Members of the commission certify the act with their signatures, the head puts a seal on it.
Consider some important nuances - the form of a memo, the execution of an act from testifying, the composition of the commission.
memo
It is she who becomes the basis for the investigation, and from the moment it is accepted and recorded in the workflow log, the time of its start will be counted.
An employee of the company draws up a note, it is submitted to the name of either the immediate supervisor or the head of the entire company. It indicates which particular violation is noted, as well as all its important circumstances. If the damage was revealed by the inventory, then its act is attached to the note.
In addition to the memo, other documents can also serve as the basis for verification: appeals from consumers with information about the misconduct, claims from the counterparty, a statement from the employee himself.
Composition and powers of the commission
Carries out an investigation against the employee by the security service, if the company has one; in its absence, the personnel department. The commission includes employees from different departments - usually the security service and personnel, as well as a representative of the trade union. Most often, the composition is limited to just three members, but sometimes the commission may include more people.
The commission has the right to demand an explanation from each employee who could be involved in the misconduct. This, however, does not mean that employees are obliged to give them. She can also request any documents and involve third-party specialists in the case. For example, such a need arises if it is required to determine whether the employee was drunk during the shift. It is also acceptable to apply for legal, audit, engineering assistance.
The creation of a commission is possible even if the company did not suffer damage, but the actions of the employee could lead to it. Sometimes it can be permanent, but more often it is temporary.
Explanatory note and act of refusal
After the employee receives a notice of the need to provide a written explanation, he is given two days to complete and submit it. If the time is up and the document has not been drawn up, this is considered a refusal to assist in the verification, about which a written act must be drawn up.
The legislation does not establish a form for this document, as well as for an employee's explanation, therefore the design is free. First of all, it is important to have the signatures of the members of the commission. An explanatory note or an act of renunciation of it must be filed in the case.
Timing
The legislation establishes a clear time limit during which a case can be investigated - a month, and the results must be submitted before its expiration. The countdown begins from the day the order to start the investigation is issued, or from the date the memo is submitted, if the check begins on its basis.
But it should be noted that this period should not include the time when the employee is absent, being on vacation or being on sick leave, as well as required to take into account the opinion of the representative body of employees. This unaccounted time in total should not exceed 6 months. After the expiration of six months, the opportunity to apply a disciplinary sanction disappears, except for punishment for violations identified by an audit or audit - in relation to him, this period is up to 2 years.
Legal Consequences
An internal investigation is an exclusively internal matter of the company, and cannot have any legal consequences. Its result is a decision regarding the worker, exclusively as a worker, but not as a citizen. And in order to transfer the case to a legal plane, which may entail appropriate consequences, it must be transferred to state bodies.
Appeal procedure
The enterprise may provide for various procedures for appealing the results of the investigation, which procedures will be established by local acts. This issue is not regulated by law, as we have already mentioned, it generally does not contain such a thing as an internal investigation, and even more so, the nuances of its appeal are not established.
But what can be appealed is the decision made by the employer - in the labor inspectorate or immediately in court. In this case, he will have to provide the documents collected during the investigation to prove that the violation was actually committed, and thus the person on whom the punishment was imposed, and the severity corresponds to the violation.
Registration of results
The document that should summarize the results is an official investigation act - we attach a sample of it to the article, but here we will briefly consider the content.
This document consists of three parts:
- introductory;
- descriptive;
- resolutive.
The introductory statement states what violation is in question, indicates the date of the commission, the composition of the commission, and the period during which the investigation was conducted. The narrative delves into the evidence on the basis of which the commission came to certain conclusions. Finally, the resolution sums up - the commission draws conclusions regarding the guilt of the employee.
This is followed by applications, that is, documents, such as memos, explanatory notes, inventory acts, if we are talking about shortages, expert opinions, and the like. It is necessary that each member of the commission signs the act, and the head puts a seal. Then the case is assigned a number, the date when it was drawn up is indicated - it is also the date the investigation was completed.
If one of the members of the commission has an opinion different from that stated in the document, he must still sign, but he can state his position separately and attach this statement to other materials.
After that, the manager is given three days to make a decision, which must be issued in the form of an order. The head is obliged to focus on the instructions of the commission, however, usually he himself can choose the desired recovery option from those allowed by law.
The employee must be familiarized with the order - 3 working days are allotted for this after its issuance. If the employee refuses to get acquainted with the document, an act of refusal is drawn up.
You will be interested
(introduced by Federal Law No. 203-FZ of December 4, 2006)
1. For each fact of committing a disciplinary offense by a serviceman or a citizen called up for military training, except for the cases established by paragraph 2 of this article, a trial is conducted. At the same time, in order to establish the circumstances of the commission of a disciplinary offense by a group of military personnel or citizens called up for military training, one trial may be held in relation to all military personnel or citizens called up for military training who participated in the commission of this disciplinary offense.
2. Proceedings do not begin, and the initiated proceedings are terminated if at least one of the circumstances excluding disciplinary liability of a serviceman or citizen called up for military training is established.
3. The term of the proceedings should not exceed 30 days from the moment when the commander became aware of the commission of a disciplinary offense by a serviceman or a citizen called up for military training, not counting the period of temporary disability of a serviceman, his stay on vacation, other cases of his absence from service due to valid reasons.
(Clause 3 as amended by Federal Law No. 259-FZ of July 3, 2016)
4. The procedure for conducting the trial, the powers of the commander or other person conducting the trial are determined by general military regulations in accordance with this Federal Law.
5. In the course of the proceedings, evidence must be collected, on the basis of which the circumstances to be clarified when bringing a military man or a citizen called up for military training to disciplinary responsibility can be established.
6. If in the course of the proceedings it is established that in the action (inaction) of a serviceman or a citizen called up for military training, signs of a crime are seen, the person conducting the proceedings is obliged to immediately report this in the prescribed manner to the commander of the military unit (official of the garrison ) and act in accordance with his instructions. The commander of a military unit (an official of the garrison) immediately notifies the military prosecutor, the head of the military investigative body of the Investigative Committee of the Russian Federation and the military police authorities about this and takes measures provided for by the legislation of the Russian Federation. The military police bodies are notified only by the commanders of military units (officials of the garrison) of the Armed Forces of the Russian Federation.
(As amended by Federal Law No. 259-FZ of July 3, 2016)
7. At the end of the proceedings on the fact that a serviceman or a citizen called up for military training has committed a gross disciplinary offense, the person conducting the proceedings shall draw up a protocol on a gross disciplinary offense (if a gross disciplinary offense has been committed by a group of military personnel or citizens called up for military training, a protocol on gross disciplinary offense is drawn up in relation to each soldier or citizen called up for military training, who participated in the commission of this disciplinary offense).
8. The protocol on gross disciplinary misconduct, the form of which is established by general military regulations, shall indicate:
date and place of drawing up the protocol;
position, military rank, surname and initials of the person who drew up the protocol;
position, place of military service (passage of military training), military rank, surname, name, patronymic of a serviceman or citizen called up for military training, in respect of which a protocol has been drawn up;
positions, places of military service (passing through military training), military ranks, surnames, names, patronymics of persons who are aware of the circumstances that are important for the correct solution of the issue of bringing a serviceman or citizen called up for military training to disciplinary liability (for persons who circumstances are known that are important for the correct solution of the issue of bringing a serviceman or a citizen called up for military training to disciplinary responsibility, who are not military personnel or citizens called up for military training - last names, first names, patronymics and addresses of residence);
the time, place, method and other circumstances of the commission of a gross disciplinary offense by a serviceman or a citizen called up for military training;
evidence confirming the existence of an event of gross disciplinary misconduct and the guilt of a serviceman or citizen called up for military training;
provisions of federal laws and (or) other regulatory legal acts of the Russian Federation that have been violated;
information on the measures taken to ensure proceedings based on materials on a disciplinary offense, and in the case of participation of attesting witnesses - positions, places of military service (passing through military training), military ranks, surnames, names, patronymics of attesting witnesses who are military personnel or citizens called up for military training , or last names, first names, patronymics and addresses of the place of residence of witnesses who are not military personnel or citizens called up for military training;
circumstances mitigating disciplinary liability and circumstances aggravating disciplinary liability;
other factual data necessary to establish the circumstances of the commission of a gross disciplinary offense by a serviceman or a citizen called up for military training.
9. A serviceman or a citizen called up for military training, in respect of whom a protocol on a gross disciplinary offense has been drawn up, must be given the opportunity to familiarize himself with the protocol. The specified serviceman or citizen called up for military training has the right to submit comments on the content of the protocol in writing, which are attached to the protocol. An entry in the protocol shall be made on the presence of these remarks by the person who drew up the protocol.
10. The record of a gross disciplinary offense is signed by the person who drew it up and by the serviceman or citizen called up for military training, in respect of whom it was drawn up. In the event that a serviceman or a citizen called up for military training refuses to sign the protocol, a corresponding entry is made in it by the person who drew up the protocol. A copy of the protocol against receipt is handed over to the serviceman or citizen called up for military training, in respect of whom it was drawn up.
11. In the event that later changes are made to the materials on a disciplinary offense, the serviceman or citizen called up for military training in respect of whom the proceedings were conducted must be familiarized with these changes against receipt.
N 76-FZ - establishes the foundations of Russian policy in the field of legal and social protection of military personnel, citizens of our country who have been discharged from military service, and members of their families. Defines and regulates the freedoms and rights, duties and responsibilities of military personnel. Considers in detail such issues as the status, protection of honor, freedom, dignity of military personnel, the rights of military personnel, citizens discharged from military service, and members of their families to participate in the management of state affairs and public associations, official time for rest, trade and consumer services, food and clothing support for military personnel, etc.
Federal Law “On the Status of Military Personnel” of 2015 No. 76-FZ was adopted on March 6, 1998.
This Federal Law, in accordance with the Constitution of the Russian Federation, determines the rights, freedoms, duties and responsibilities of military personnel, as well as the foundations of state policy in the field of legal and social protection of military personnel, citizens of the Russian Federation discharged from military service, and members of their families.
1. Internal investigation - the activity of collecting and verifying materials and information about the misconduct of an employee in order to fully, comprehensively and objectively clarify the circumstances of its commission.
2. An internal investigation is carried out in order to identify the causes and conditions that contributed to its commission, identify the perpetrators and ensure the principle of the inevitability of punishment or the exclusion of unreasonable prosecution of an employee.
3. The grounds for conducting an internal investigation may be:
1) reports, statements, complaints and letters;
2) facts of offenses and incidents;
3) results of audits;
4) the results of the audit of the educational, operational and service activities of units;
5) reports of bodies of inquiry, investigation and court;
6) messages of officials, organizations and mass media;
7) materials of cases received from the relevant state bodies to resolve the issue of bringing an employee to disciplinary liability for committing offenses provided for by the anti-corruption legislation Republic of Kazakhstan, as well as legislation Republic of Kazakhstan on administrative offenses.
4. An internal investigation is appointed by order of an authorized head and is conducted by an authorized official within a period of not more than fifteen calendar days. In exceptional cases, the period of an internal investigation may be extended by the person who ordered the internal investigation for a period not exceeding ten calendar days.
Conducting official investigations without an order is not allowed.
5. When an employee commits a misconduct, a written explanation is required from him without fail. If in the explanation the employee agrees with the fact that he committed a misconduct, the consideration of which does not require obtaining information from other subjects, officials, or carrying out additional verification measures, or checking on site, then the authorized manager has the right to impose a disciplinary sanction, with the exception of penalties in in the form of a warning about incomplete official compliance, reduction in a special rank by one step and dismissal for negative reasons, without an official investigation.
Disciplinary sanctions in the form of a reduction in a special rank one step lower and dismissal for negative reasons are imposed based on the results of an internal investigation, taking into account the proposals of the disciplinary commission.
In cases where the employee, in his written explanation, does not agree with the fact that he committed a misconduct, the authorized head, no later than three days from the date of discovery of the misconduct, should appoint an internal investigation in the manner prescribed by this Law.
6. To conduct an internal investigation, the head shall appoint an authorized official whose position is equal to or higher than the position of the employee who committed the misconduct.
If necessary, in order to obtain conclusions, explanations and consultations on issues requiring special knowledge, employees of the relevant line of operational activities may be involved as specialists in the internal investigation, as indicated in the order.
If necessary, for the duration of the internal investigation, the head may release the authorized official from the performance of his functional duties, as indicated in the order.
7. An employee who is directly or indirectly interested in its results cannot participate in an internal investigation. In this case, he is obliged to apply to the person who made the decision to conduct an internal investigation with a written report on his release from participation in the conduct of this investigation. If this requirement is not met, the results of the internal investigation are considered invalid.
8. An employee is subject to disciplinary liability only for the offense for which his guilt has been established.
9. Guilty of committing a misdemeanor is an employee who has committed unlawful actions (inaction) intentionally or through negligence.
10. A misdemeanor is recognized as committed intentionally if the employee who committed it was aware of the illegal nature of his action (inaction), foresaw its harmful consequences and wished or consciously allowed these consequences to occur or treated them indifferently.
11. A misdemeanor is recognized as committed through negligence if the employee who committed it foresaw the possibility of harmful consequences of his action (inaction), but without sufficient grounds thoughtlessly counted on their prevention or did not foresee the possibility of such consequences, although with due care and forethought should have and could have foreseen them.
12. An internal investigation may be suspended by order of the head in the following cases:
1) unauthorized leaving by an employee of the place of service;
2) the employee's stay on vacation, business trip;
3) illness of an employee, confirmed in the manner prescribed by law;
4) conducting a medical examination that requires a long time;
5) in other cases that impede an official investigation.
13. An internal investigation is resumed by order of the head, if the grounds for its suspension have disappeared.
14. In the course of an internal investigation, the following are established:
2) the presence and nature of the consequences of the misconduct;
3) the amount of damage caused;
4) the person who committed the offense;
5) circumstances excluding, mitigating or aggravating the liability of the employee;
6) the reasons and conditions that contributed to the commission of the offense;
7) data characterizing the identity of the employee who committed the offense;
8) the employee's guilt in committing a misdemeanor, the presence of intent or negligence and the motives for committing a misconduct;
9) other circumstances relevant to the decision to hold the employee liable.
15. Circumstances mitigating disciplinary responsibility are:
1) repentance of the employee who committed the misconduct;
2) voluntary report of the employee about the misconduct committed by him to his superiors;
3) prevention by the employee who committed the misconduct of the harmful consequences of the misconduct, voluntary compensation for the damage caused or elimination of the damage caused;
4) committing a misdemeanor under difficult personal or family circumstances;
5) committing a misdemeanor as a result of coercion;
6) commission of a misdemeanor in violation of the conditions of legality of necessary defense, extreme necessity, detention of a person who committed an unlawful encroachment, execution of an order or command.
A manager who applies a penalty to an employee may recognize other circumstances as mitigating.
16. Circumstances aggravating disciplinary liability are recognized:
1) continuation of the illegal action (inaction) despite the requirement of the head to stop it;
2) repeated commission of the same misconduct, if the employee has already been sanctioned for the first misconduct and it has not been removed in accordance with the established procedure;
3) committing a misdemeanor by a group;
4) involvement of a subordinate in the commission of a misdemeanour;
5) committing a misdemeanor motivated by national, racial and religious hatred or enmity;
6) committing a misdemeanor out of revenge for the lawful actions of other persons, as well as with the aim of hiding another misconduct or facilitating its commission;
7) committing a misdemeanor by influencing an official or his relatives in connection with the performance of his duties;
8) commission of a misdemeanor on duty, service in daily duty, when performing a special task, as well as in emergency situations of a natural or man-made nature;
9) committing a misdemeanor in a state of alcoholic, narcotic, psychotropic, substance abuse intoxication (their analogues).
Other circumstances not mentioned in this Law cannot be recognized as aggravating disciplinary responsibility.
17. In the course of an official investigation, an authorized official who is entrusted with its conduct has the right to:
1) receive a written explanation of the employee subject to disciplinary liability, as well as from other persons;
2) collect materials confirming the employee's guilt in committing a misdemeanor;
3) get acquainted with the relevant documents, if necessary, attach copies of them to the materials of the official investigation;
4) receive opinions, explanations and consultations from specialists on issues requiring special knowledge;
5) go to the place where the offense was committed.
18. Employees are obliged to assist an authorized official appointed to conduct an internal investigation, and are personally responsible for the accuracy of the information provided.
19. Information about the commission of a misconduct by an employee, confirming or refuting the fact of its commission, can be in any form.
20. If in the course of an internal investigation it turns out that the misconduct of an employee contains elements of a crime, the manager immediately reports to a higher manager.
21. The authorized official reports the results of the internal investigation in writing to the head who ordered the investigation.
After the report, the authorized official is obliged to bring the materials of the internal investigation to the employee in respect of whom it was carried out, against signature with the obligatory reflection of his agreement or disagreement with the conclusions and proposals of the internal investigation.
22. An employee in respect of whom an internal investigation is being carried out has the right to:
1) give a written explanation on the merits of the ongoing official investigation;
2) file petitions, present evidence and other documents;
3) appeal against the decisions and actions (inaction) of employees conducting an internal investigation to the head of a special state body or an authorized head who made a decision to conduct an internal investigation;
4) to get acquainted with the conclusion and other materials at the end of the internal investigation, if this does not contradict the requirements of non-disclosure of information constituting state secrets and other secrets protected by law.
23. The materials of the internal investigation in relation to employees subject to dismissal on the grounds of this Law for negative reasons, the imposition of a disciplinary sanction in the form of a reduction in a special rank by one level, as well as persons who do not agree with the conclusions and proposals of the internal investigation, are subject to consideration by the disciplinary commission .
24. If the employee, in respect of whom the internal investigation is being conducted, refuses to give a written explanation, an appropriate act is drawn up. His refusal does not suspend the internal investigation. In this case, the employee is heard by the disciplinary commission.
An internal document that fixes the circumstances of a disciplinary offense and the presence of its composition is an act of an internal investigation, or an act of an internal audit.
The presence of such a document in the event of litigation with an employee or an audit will prove compliance with the requirements of Art. 192-193 of the Labor Code of the Russian Federation. And this means that there are certain nuances that the drafter of the act and the head of the organization must take into account when conducting an official investigation and preparing the corresponding act. We will talk about them in this article. If you have any difficulties, you can use the help of an on-duty lawyer.
By the way, pay attention to the local acts of the organization. Perhaps the form of the official investigation report at the enterprise is approved. And if not, based on our example, it can be developed.
An example of an official investigation report
APPROVE:
Kuvshinka LLC
CEO
Bratchikov Rodion Konstantinovich
Compiled by the committee:
Chairman: Head of Personnel Department P.R. Malakhov
Commission members:
Fact of violation: failure by the administrator Sinitsina Anastasia Vladimirovna to fulfill the assigned duties to notify the migration unit of the Main Directorate of the Ministry of Internal Affairs of Russia for the Krasnodar Territory in the city of Gelendzhik about the arrival of foreign citizens at a place of temporary stay within 24 hours (violation of Article 20 of the Federal Law "On Migration Registration of Foreign Citizens and Persons stateless” dated July 18, 2006 No. 109-FZ).
As a result of the internal investigation, it was revealed:
- April 18, 2017 to the hotel "Kuvshinka" at the address: Gelendzhik, st. Marine, 48, at 12 o'clock. 48 min. a citizen of the Republic of Uzbekistan Mahmud Farkhudov, born on 04/08/1972, arrived for a temporary stay.
- According to the time sheet, the register, on April 18, 2017, the administrator Sinitsina A.V. She has been performing her duties since 06:00. 00 min. till 06 o'clock. 00 min. April 19, 2017, incl. on settling guests and providing them with hotel rooms. Sinitsina A.V. provided Uzbek citizen Farkhudov M. with room 309 on the third floor of the hotel, and also took payment and issued a receipt.
- In violation of clause 2.4 of the job description of the hotel administrator and Art. 20 of the Federal Law “On Migration Registration of Foreign Citizens and Stateless Persons” dated July 18, 2006 No. 109-FZ notification of the arrival of a foreign citizen at the place of stay of Sinitsina A.V. was not filled in, it was not submitted to the migration unit in the Main Directorate of the Ministry of Internal Affairs of Russia for the Krasnodar Territory in the city of Gelendzhik.
- On 05/05/2017, as a result of an inspection by the Main Directorate of the Ministry of Internal Affairs of Russia for the Krasnodar Territory in the city of Gelendzhik, an administrative protocol was drawn up in relation to Kuvshinka LLC and a decision was issued on an administrative offense under Part 4 of Art. 18.9 of the Code of Administrative Offenses of the Russian Federation. An administrative fine in the amount of 400,000 rubles was imposed.
- According to written explanations Sinitsina A.The. dated May 5, 2017, she did not send a notification to the Main Directorate of the Ministry of Internal Affairs for the Krasnodar Territory in the city of Gelendzhik due to forgetfulness.
- Previously, the employee showed diligence in work, performed duties on time. There are no outstanding charges. He was not held accountable for violations of labor discipline. Works at Kuvshinka LLC under an employment contract as an administrator since 08/05/2015.
Having studied the materials, namely: the internal labor regulations, the job description of the hotel administrator, the materials of the case on an administrative offense, the explanations of Sinitsina A.V., the commission comes to the following conclusions:
- In the actions of Sinitsina A.The. contains the composition of a disciplinary violation, expressed in the improper performance by the employee through his fault of the labor duties assigned to him, as a result of which the employer suffered damage in the amount of 400,000 rubles.
- Engage Sinitsina A.V. to disciplinary responsibility and apply a disciplinary sanction in the form of a reprimand.
Commission Chairman:
ETC. Malakhov
Commission members:
Labor protection specialist S.S. Vykhina
Leading Legal Counsel D.V. Fedoseeva
I am familiar with the act of internal investigation:
Sinitsina A.V.
What to do before drawing up an act of an internal investigation
The act of an internal investigation is drawn up in cases of causing damage to the employer by the actions of the employee or revealing violations of labor discipline. Such a document must also be drawn up after the intention to dismiss the employee for absenteeism.
Conducting an internal investigation or verification is initiated by the resolution of the head - the first person of the organization. The composition of the commission is approved by order, and the period of the audit is limited to 30 calendar days. Members and the chairman of the commission must familiarize themselves with the order. By the way, these should be persons not related to the incident.
The commission collects and examines the documents related to the incident, requests explanations from the employee (mandatory). In case of refusal, an appropriate Act is drawn up (by analogy with). Based on the results of the check, an Internal Investigation Act is drawn up, which is signed by all members of the commission and the employee in respect of whom it was carried out ().
What is included in the act of official investigation
The commission for conducting an internal investigation must establish the following facts:
- whether the company was damaged, whether there was an incident or the fact of violation of labor discipline by the employee
- the circumstances under which it happened
- the consequences of what happened and the causal relationship between the actions of the employee (s) and the damage caused
- whose fault, what did she express
- circumstances mitigating or aggravating liability (the fact of violation of labor discipline earlier, etc.)
- conclusion of the commission: whether the fact of violation by the employee of his duties was established. The type of disciplinary sanction may be established separately by order of the head at his discretion, or may be expressed in an official investigation report.
