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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of June 28, 2012 No. 4

About practice of application by courts of the legislation on labor discipline and disciplinary responsibility of workers

(as amended of the Resolution of the Plenum of the Supreme Court of the Republic of Belarus of 30.09.2021 No. 8)

Labor discipline is one of conditions of increase in production efficiency and quality of work.

In providing labor discipline its legal regulation, and also the correct and uniform application of regulatory legal acts about discipline has special value. Studying of practice of consideration of employment disputes about disciplinary responsibility of workers showed that courts exercised in permission of cases of this category generally judgment, provided their timely consideration, and in cases of violation of the rights and legitimate interests of workers passed decisions on their recovery.

Intensive updating of the legislation in the sphere of the economic relations, acceptance of new regulatory legal acts about labor discipline and disciplinary responsibility of separate employee categories require explanations of the Plenum of the Supreme Court of the Republic of Belarus which would promote as legality in practice of application of the legislation on disciplinary responsibility of workers, and to ensuring precautionary and educational impact of judicial activities in work on strengthening of labor discipline.

Having discussed results of generalization of court practice, for the purpose of the correct application of the legislation on labor discipline and disciplinary responsibility of workers the Plenum of the Supreme Court of the Republic of Belarus decides:

1. Draw the attention of courts that the correct consideration by courts of the disputes connected with labor discipline and disciplinary responsibility of workers promotes strengthening of legality in employment relationships, protection of the rights and the interests of workers and employers protected by the law, to education of discipline and respect for work.

2. Treat the regulatory legal acts regulating questions of labor discipline and disciplinary responsibility of workers: The labor code of the Republic of Belarus (further – shopping mall), the Law of the Republic of Belarus of June 14, 2003 No. 204-Z "About public service in the Republic of Belarus" (further – the Law), the Decree of the President of the Republic of Belarus of July 26, 1999 No. 29 "About additional measures for enhancement of employment relationships, strengthening of labor and performing discipline" (further – the Decree No. 29), the disciplinary charters and regulations on discipline, the Standard employment policies and procedures approved by the resolution of the Ministry of Labour of the Republic of Belarus of April 5, 2000 No. 46, other regulatory legal acts approved in the procedure established by the legislation for separate employee categories (including local – collective agreements, job descriptions, instructions for labor protection and safe engineering, etc.).

In case of the dispute resolution, connected using disciplinary responsibility for violations of technological, production, financial discipline, courts should be guided by the corresponding TU which is also operating in economy industries, state standard specifications, other rules and instructions establishing requirements in certain spheres of labor activity.

3. Explain to courts that the disciplinary responsibility of workers can come only for guilty, illegal non-execution or improper execution by the worker of the labor obligations (the Art. of 197 shopping malls).

The fault of the worker can be expressed in making of illegal act as in the form of intention, and imprudence.

Such behavior (action or failure to act) of the worker in case of which it does not perform is recognized illegal or not properly fulfills the labor duties assigned to it.

Non-execution or improper execution by the worker of the labor obligations can be expressed in violation of requirements of the legislation, employment policies and procedures, obligations according to the employment contract (contract), job descriptions, provisions, orders (orders) of the employer, technical rules, etc. Refusal of performance of work, the worker who is not entering circle of labor obligations, or accomplishment of which it is contraindicated for health reasons, and also from accomplishment of the public order is not violation of labor discipline and does not attract application of measures of authority punishment.

Non-execution by the worker of labor obligations for the reasons which are not depending on it cannot be considered as minor offense.

4. Courts should mean that for making of minor offense the employer can apply one of the measures of authority punishment listed in p.1 Art. of 198 shopping malls to the worker. In relation to the workers bearing the common disciplinary responsibility, this list of measures of authority punishment is exhaustive.

By disciplinary charters and regulations on discipline concerning separate employee categories also other measures of authority punishment can be provided (in particular, the Disciplinary charter of law-enforcement bodies of the Republic of Belarus as measures of authority punishment provides serious reprimand, deprivation of the breastplate, demotion, lowering in special rank).

The employer has no right independently or based on collective agreements (agreements) to enter additional measures of authority punishment.

5. In case of application to the worker of measure of authority punishment the employer should proceed from regulations of the p. 3 of the Art. of 198 shopping malls on strictly individual approach to each case of making of minor offense.

If when considering the case it is determined that the measure of authority punishment applied by the employer does not correspond to weight of minor offense, degrees of fault of the worker, it to prior work and behavior on production, the court can recognize application of such authority punishment illegal and cancel it (the p. 2 of the Art. of 202 shopping malls). At the same time the court has no right to specify what softer authority punishment can be applied to the worker as the option of measure of authority punishment belongs to the employer.

6. Draw the attention of courts that according to the p. 3 of the Art. of 199 shopping malls for each minor offense only one authority punishment can be applied. If after application of authority punishment the worker continues guilty delinquent behavior (for example, without valid excuse again refuses accomplishment of the charged work), the employer has the right to bring him to disciplinary responsibility again.

To the workers who made minor offense along with application of measures of authority punishment or irrespective of them, other measures of legal impact which are not contradicting the legislation on work (deprivation of award, change of priority of provision of labor leave, etc.) established in local regulatory legal acts of the organizations can be applied. Such corrective actions authority punishments are not.

The measure of legal impact applied by the employer can be challenged by the worker including in cases when authority punishment was not applied to the worker.

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