How to properly conduct an official investigation: stages, deadlines and forms of documents. Internal investigation labor code

Conducting an internal investigation in case of unforeseen situations is necessary for many reasons, the first is to ensure the legality of imposing a disciplinary punishment on the guilty person.

Such an investigation is carried out only after major incidents; in order to reason with a petty hooligan, a preventive conversation is enough.

The purpose of the investigation is twofold:

Establishing the truth to impose a fair punishment on the guilty;
Collection of documentary evidence to protect the company from lawsuits.

You can learn how to correctly prepare documents for an internal audit here:

The legislative framework

The rules of the investigation process are regulated by Art. 189 Labor Code of the Russian Federation. Art. 193 of the Labor Code of the Russian Federation indicates the period necessary to conduct an investigation.

Labor Code of the Russian Federation Article 193. Procedure for applying disciplinary sanctions
Before applying disciplinary action, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.
Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.
Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees.
A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.
For each disciplinary offense, only one disciplinary sanction can be applied.
The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up.
A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

Based on Part 3 of Art. 247 of the Labor Code of the Russian Federation, the employee has the right to familiarize himself with all the data of the investigation.

Art. 195 of the Labor Code of the Russian Federation indicates options for holding an official accountable, up to and including dismissal.

Labor Code of the Russian Federation Article 195. Bringing to disciplinary liability the head of the organization, the head of the structural unit of the organization, their deputies at the request of the representative body of workers
The employer is obliged to consider the application of the representative body of employees about the violation by the head of the organization, the head of the structural unit of the organization, their deputies of labor legislation and other acts containing labor law, the terms of the collective agreement, agreement and report the results of its consideration to the representative body of employees.
If the fact of violation is confirmed, the employer is obliged to apply disciplinary action to the head of the organization, the head of the structural unit of the organization, and their deputies, up to and including dismissal.

Art. 248 of the Labor Code of the Russian Federation indicates the period for issuing an order for material recovery from the responsible person.

When and on what grounds is an investigation conducted?

It is carried out if it becomes necessary to recover material damage from the offending employee.

The purpose of such an event is to establish the cause of the damage, this will make it possible to prevent similar situations in the future by performing preventive measures in a timely manner.

Important: this process is carried out to take strict measures in case of selfish abuse of official duties and opportunities.

In addition to identifying abuse of official position, the special commission determines:

Failure to undergo a medical examination;
Lack of knowledge regarding safety precautions;
Lack of a signed liability agreement;
Lack of qualification courses and other shortcomings.

In this case, it is necessary to comply with all norms of preserving human freedoms:

Perpetrators and witnesses can be summoned for questioning, but only of their own free will - coercion is unacceptable;
It is also prohibited to conduct searches of employees and workplaces;
Demand a refund of damage without a thorough check;
Forced polygraph test.

Notice to provide a written explanation for the investigation.

Who should participate in the investigation?

A specially created commission is involved in carrying out this event based on the order of the chief.

Typically, authorized persons include employees:

Security services;
Legal Department;
Audit Department;
Human Resources Department;
Accounting.

Important: the head of the enterprise or the immediate supervisor of the accused are also required to take an active part in the investigation, but do not have the right to be members of the commission.

In total, the commission must consist of 3 persons, the head of the security service.

Rules for conducting an official investigation

Important: according to legislative documents, an investigation must be carried out within 30 days from the issuance of a decree or decision.

In this case, it is necessary to take into account the following points:

Submission of a memo by an employee counts one month from the moment it is submitted to management;
In total, the investigation must be carried out no later than 6 months, since after this period the disciplinary sanction loses its legal force;
The investigation may drag on for such long periods due to the illness of the accused, his vacation, or his training, as a result of which the investigation is postponed.

Important: before starting an investigation or during it, it is necessary to request a written explanation from the employee, which he must provide within 2 days of receiving the notification.

If there is no document during this period, an act of refusal to provide an explanation is drawn up.

Act on official investigation.

What documents are generated

The entire investigation mechanism starts with a report or a drawn up statement of shortages, etc. It is such documents that are the basis for an investigation, and deadlines must be observed, otherwise the culprit will have the opportunity to appeal against the actions of management in court.

Important: it is on the note that the manager must put his resolution, after which the case is launched, and the document is registered; it is from the day it is entered in the registration journal that the countdown for the inspection begins.

Consumer complaint;
Information from citizens;
Auditor's report. You will learn how a personnel audit of an organization is carried out.

The commission also has the right to use various working documentation to aggravate the employee’s guilt or to justify him - various invoices, checks, and other primary documents.

Results of the investigation

The report on the results of the investigation must necessarily consist of several sections:

Introduction - indicates the fact of the offense, its grounds and date of commission, the deadline for completing the inspection, the composition of the commission;
Descriptive part – evidence is given in detail;
Conclusion - the perpetrators are indicated, whether they have previous outstanding penalties, and whether they committed an offense.

In addition, the act must contain a list of materials used, copies of which must be attached.

The document is signed by all members of the commission. Next, it is assigned a registration number. The document must be certified by the manager with his signature, and the company’s seal must also be affixed.

Important: for documentation, create a separate folder in which they are filed; an inventory of papers is attached on top.

Conclusion

After all activities are completed, the employer is obliged to make a decision regarding punishment; according to legal requirements, this can be a reprimand, reprimand or dismissal, as a last resort.

An appropriate order is issued regarding disciplinary punishment, indicating the guilty person and the measures taken.

If a misdemeanor has caused great losses to the enterprise, then all materials are transferred to the authorized bodies for compensation for damages.

The rules for conducting an internal investigation at an enterprise are discussed in this video:

On what basis does an employer have the right to conduct an internal investigation against its employee? What evidence of the employee’s guilt is subsequently recognized by the court as significant?

The labor legislation of the Russian Federation does not contain the concept of an official investigation as such. However, the Labor Code of the Russian Federation contains a strictly formalized procedure for bringing an employee to disciplinary liability. It is this procedure that can be called an official investigation conducted to clarify the circumstances of the employee’s misconduct. In accordance with Art. 189 of the Labor Code of the Russian Federation, an official investigation can be regulated both by internal labor regulations and by a separate local regulatory act (for example, a special regulation or instruction).

Urgent message for a lawyer! The police came to the office

The procedure for bringing an employee to disciplinary liability, duly approved by the employer, becomes mandatory for him, and any deviation from it will be regarded as a violation of labor law.

The court's position. 1 The employee filed a demand with the court to recognize the order to bring him to disciplinary liability as illegal and, in support of this, indicated that before the penalty in the form of a remark was applied to him, no official investigation was carried out. During the consideration of the case, the court found that, based on Art. 5 of the Labor Code of the Russian Federation, the provision on the procedure for conducting an internal investigation, approved by the employer, is a local regulatory act. In accordance with it, within three working days from the receipt of the application, a reasoned decision must be made either to initiate an internal investigation or to refuse to conduct it. However, despite the memo sent by the plaintiff on October 14, 2009 to the employer with a request for a comprehensive and objective study of the circumstances of the incident, none of these decisions was made by management. This is a violation of the procedure for bringing the plaintiff to disciplinary liability. This conclusion of the court of first instance was supported by the judicial panel for civil cases of the regional court. As a result, the employer's actions were declared illegal, and the employee's claim was satisfied.

The main task of conducting an official investigation is to collect and document evidence to bring the perpetrators to justice. Therefore, special attention must be paid to the legal literacy of drawing up documents and their compliance with the requirements of labor legislation.

During the internal investigation the following must be established:

the fact that the employee committed a disciplinary offense; the employee’s guilt and its degree; the nature and extent of damage caused to the employer.

Additionally define:

reasons and motives for committing a disciplinary offense; circumstances mitigating and (or) aggravating the employee’s liability; the employer's ability to eliminate and prevent such violations of labor discipline; measures to bring perpetrators to justice.

The usefulness of conducting a thorough internal organizational audit after an employee has committed a disciplinary offense is confirmed by judicial practice, since its materials become the main evidence of his dishonest behavior 2 .

Stage one: detection and recording of the offense

Grounds for conducting an internal investigation. In accordance with Art. 192 of the Labor Code of the Russian Federation, a disciplinary offense is the failure or improper performance by an employee, through his fault, of the labor duties assigned to him. According to paragraph 35 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, this includes violations of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc. Therefore, a necessary condition to establish the fact of misconduct, the presence of internal regulations, instructions and other acts regulating the employee’s labor activity, duly drawn up by the employer, should be considered. Otherwise, the process of proving the employee’s guilt can cause significant difficulties.

The reasons for starting an inspection may be:

memo from the head of a unit, department and (or) immediate superior; statement from the employee himself; counterparty claim or consumer complaint; act of discovery of a shortage of goods; auditor's conclusion, inventory report; written and oral appeals from citizens, representatives of organizations containing information about an employee committing an offense, etc.

If at least one of these grounds exists, the manager or other person authorized to make personnel decisions has the right to issue an order to conduct an internal investigation.

Kurochkin Denis Borisovich,
Prosecutor of the Karymsky district of the Trans-Baikal Territory
Aprelkova Victoria Sergeevna,
Assistant Prosecutor of the Karymsky District of the Trans-Baikal Territory

Internal investigation provides a wide choice of personnel decisions

In most cases, the prosecutor's office is faced with questions regarding the procedure for conducting an official investigation, either in the course of resolving citizens' appeals, or when presenting an opinion to the court in cases of reinstatement. Based on practice, we can conclude that an internal investigation should facilitate the timely and complete collection of materials on the fact of a disciplinary offense committed by an employee. Typically, the person subject to such an investigation will be notified and asked to provide a written explanation of what happened. However, according to labor legislation, such information is not mandatory. Presumably because the employer must request an explanation from the employee in accordance with Art. 193 Labor Code of the Russian Federation.

There are cases when the mechanism for conducting an internal investigation is clearly established and secured by a local legal act of the organization, which defines the list of documents prepared by the employer. Thus, in July 2010, citizen S. contacted the prosecutor’s office of the Karymsky district of the Trans-Baikal Territory regarding a violation of labor legislation against him. During the inspection, it was found that he was fired under clause. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for appearing at work while intoxicated. In accordance with the regulations in force at the enterprise, its director has formed an evidence base for the employee’s guilt. In particular, reports were collected from S.’s immediate supervisor, reports on appearing at work while intoxicated, reports from the site foreman on S.’s removal from work dated 06/10/2010, 06/11/2010, orders from the employer that 06/10/2010 and 06/11/2010 were counted by S. as days of absenteeism that were not subject to pay, and he was dismissed on 06/15/2010. In this regard, on the basis of orders from the director of the enterprise, June 10 and 11, 2010 were considered days of absenteeism that were not subject to payment. In addition, the next day, on his shift, S. did not come to work at all, which was confirmed by a report from the site foreman and S.’s absence from the workplace. Thus, the employer proved the validity and legality of applying a disciplinary sanction to the employee (refusal of the complaint by the prosecutor dated July 21, 2010).

At the same time, cases are more common when the process of internal investigation in an organization is not regulated. Thus, V., a former cook at the State Educational Institution, filed a lawsuit in the Karymsky District Court for reinstatement at work and payment for the time of forced absence. During the investigation of the case, it turned out that on January 17, 2010, a report was sent to the director of the private security company providing security services to the defendant that V. was taking food out of the canteen at the end of the working day. This document was handed over to its management and formed the basis of the procedure for bringing to disciplinary liability. She was fired under clause 7, part 1, art. 81 of the Labor Code of the Russian Federation due to loss of trust. One of the plaintiff’s arguments was the employer’s violation of the procedure for conducting an internal investigation. Namely: during the inspection, the authorized commission drew up only one document - a report on its results, which, moreover, did not contain conclusions about the presence or absence of the employee’s guilt. The plaintiff was not familiar with the order to conduct an internal investigation and the said act. However, the court found all these arguments unfounded and found the employer to be right.
In order to avoid unwanted reinstatement of an employee, it is recommended to take measures to establish whether the reasons for his behavior are valid or not. But here everything depends on the nature of the offense. Thus, if an employee causes material damage, an audit or inspection of financial and economic activities is necessary.

I would like to note that if the employer does not have the opportunity to request an explanation from the employee for the misconduct (does not communicate for a long time), then it is quite acceptable to terminate the employment contract with him under clause. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for absenteeism. It is quite enough to record the fact of his absence from the workplace through an act and memos from his colleagues.

If there is a crime in the actions of the person in respect of whom an official investigation is being conducted, all materials are transferred to law enforcement agencies according to the jurisdiction determined by Art. 151 Code of Criminal Procedure of the Russian Federation. The Criminal Code of the Russian Federation does not provide for liability for failure to report a crime (at any stage of its commission). The actions of an employer who fails to report the unlawful behavior of an employee cannot be regarded as concealment. But in the legal assessment of such a decision, the employer’s lack of personal gain and selfish goals will play a big role.

Of course, it should be recalled: he may not take such an extreme measure as terminating the employment contract or even bringing the employee to disciplinary action, since this is his right, not his obligation.

The court's position. 3 The security guard filed a lawsuit for reinstatement at work, recovery of payment for forced absence, compensation for moral damage, and legal expenses, arguing that the results of the internal audit were erroneous and did not contain a certificate of his medical examination. In its decision, the court referred to paragraph 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” according to which the state of intoxication of an employee can be confirmed both by a medical report and other types of evidence, which the court gives the appropriate legal assessment. At the same time, the use of dismissal as a penalty on the grounds provided for by the Labor Code of the Russian Federation must correspond to the severity of the disciplinary offense. That is, the employer is obliged to take into account the extent to which the state of intoxication affected the employee’s performance of his work function. In particular, the seriousness of the violation of labor discipline by the plaintiff (appearing in a drunken state) is expressed in the possible occurrence of adverse consequences, since by virtue of his official duties he ensures the established order in the organization, the safety of workers, the security of buildings during working hours and his work involves wearing weapons.

Persons responsible for conducting an internal investigation. A commission is formed to conduct an official investigation. Usually it consists of an odd number of people (at least three). The chairman of the commission most often becomes the head of the security service, the personnel department, or the head of the organization himself. The composition and number of members of the commission responsible for the timely and correct conduct of the investigation is determined by the order to conduct it.

Time frame for conducting an internal investigation. Any verification of the fact of violation of labor discipline must be completed no later than a month from the date of the decision to conduct it. If the investigation is carried out on the basis of a memo from one of the employees - no later than a month from the date of its submission. This condition is related to the requirement of Art. 193 of the Labor Code of the Russian Federation on the application of disciplinary sanctions no later than a month from the date of discovery of the offense. In this case, during the specified period, the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees is not counted.

According to paragraph 35 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, the day when the violation was discovered, from which the period begins, is considered the day when the manager of the offending employee became aware of his committing illegal actions (inaction). It does not matter whether he has the authority to bring his subordinates to disciplinary liability or not.

It should also be taken into account that a disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

Stage two: clarification of legally significant circumstances

Limits of conducting an official investigation. Article 193 of the Labor Code of the Russian Federation establishes the obligation of the employer to request a written explanation from the employee before applying a disciplinary sanction. If an employee evades receiving the corresponding request of the employer, it is necessary to draw up a report about this. It would be quite logical to send the demand by registered mail with a list of the attachments or by telegram to the employee’s place of residence. If after two working days they have not provided an explanation, this is regarded as a refusal to assist in clarifying the circumstances of the incident and is recorded in another act. The forms of these documents are not established. However, it is recommended that they be signed by all committee members.

During the investigation, the employer has the right to take explanations from the organization’s employees, interview eyewitnesses of what happened (with their consent), check internal documentation, and engage experts (auditors, appraisers and other specialists from third-party organizations) on a contractual basis to give professional opinions; carry out an inventory of property, take samples, take measurements using technical means; send requests to government bodies, institutions and other organizations.

It should be especially emphasized that the employer can receive information and documentation from third parties only on a voluntary basis. He does not have the right to conduct searches, body searches, interrogations or require employees to undergo a polygraph test.

Evidence of truancy. Practice shows that the fact of absenteeism should be recorded in an act of absence of a person from the workplace, which is drawn up every day in a separate document from the first day of his absence from work. Additional evidence of this violation of labor discipline may include: the fact that the employee’s signature is missing in the logbook at the checkpoint; information in the electronic personnel access control system; reports from colleagues and the person’s immediate superior, etc.

If the employee does not appear for the second day in a row, it is necessary to send him a request to appear for work and provide an explanation of his behavior by registered mail with a list of attachments or by telegram at the employee’s place of residence.

It is recommended to count the period for giving explanations from the date of receipt of the letter (telegram) by the addressee. It should also be taken into account that for good reasons he may not get to work and send his explanations by letter, which will take a few more days.

When there is confirmation that the correspondence was not received, the employer has the right to take additional measures to search for the employee and find out the reasons for his absence: for example, file a search report with the police and (or) send inquiries to hospitals. And although the current legislation does not oblige the employer to perform such actions, we must not forget that if the reasons for absence are subsequently recognized by the court as valid, the employee will be reinstated and the employer will suffer losses in the form of monetary compensation to the employee for the entire period of his absence from work.

Evidence of property damage. To determine the size and nature of the damage caused, based on the order of the head of the organization, a special commission conducts an inventory of property. According to Art. 12 of the Federal Law of November 21, 1996 No. 129-FZ “On Accounting”, an inventory is mandatory when facts of theft, abuse or damage to property are detected. Before making a decision on compensation for damage by specific employees, establishing the reasons for its occurrence and its amount is mandatory.

In accordance with Art. 246 of the Labor Code of the Russian Federation, in the event of loss or damage to property, the amount of damage is determined by actual losses based on market prices prevailing in the area on the day it was caused. At the same time, it cannot be lower than the value of the property according to accounting data minus depreciation charges. Therefore, employers often engage an independent appraiser or, to save their costs, determine the amount of damage based on the book value of the property.

Evidence of abuse of power. Abuse may be recognized as issuing discriminatory orders, concluding obviously unprofitable transactions, irrational disposal of property, unlawful expenditure of organization funds, hiring persons who do not perform their job duties, obtaining loans on unfavorable terms and other actions committed for reasons of personal interest. At the same time, unfavorable transactions are transactions on conditions that are significantly worse than similar ones concluded under comparable circumstances (with similar goods, works or services). In order to identify facts of such behavior, it is possible to conduct an audit or engage an independent appraiser on a contractual basis (to establish, for example, the validity of the release of goods, the lease of property at reduced prices, etc.). The decision on an audit is made by the general meeting of participants (shareholders) of a legal entity (for LLC, JSC) in order to confirm the correctness of accounting documentation, financial statements, as well as the state of current affairs of the organization.

The court's position. 4 Guilty actions of an employee can be either systematic or a one-time, but gross violation. In particular, the report on the results of the internal investigation indicated the reasons contributing to the shortage: the employee took goods for personal needs without registering the purchase through the accounting department; lent goods to clients without completing paperwork; admitted misappropriation of funds from the sale of goods without registration through a cash register; in violation of cash discipline, he appropriated excess funds from the hall's cash register, while distributing some of them among his subordinates; did not provide control over their operating mode; signed reports on the receipt and consumption (movement) of goods without the necessary verification. The document concluded that the plaintiff’s negligent attitude to the performance of official duties contributed to the increase in the shortage of inventory items. Additional evidence included witness statements. If the employee’s actions contain the signs provided for in Art. 201 of the Criminal Code, - the use by a person performing managerial functions of his powers contrary to the legitimate interests of his employer and in order to obtain benefits and advantages for himself or other persons - means there is a basis for bringing him to criminal liability. Therefore, the materials of the official investigation, together with the application to initiate a criminal case, can be transferred to the investigative authorities. In case of harm to the interests of a commercial organization that is not a state or municipal enterprise, criminal prosecution is carried out, including with its consent, i.e. without a special statement from it.

Stage three: registration of the results of the internal investigation

The results of the internal investigation are formalized in the form of a written conclusion or act, which is drawn up on the basis of the materials collected during the inspection. The final document indicates the fact of violation of labor discipline, the date of the violation, the period of the investigation and the composition of the commission. It also provides the evidence base of the investigation, indicates the persons who committed the offense, the circumstances of the offense, conclusions about their guilt and the need to bring them to disciplinary responsibility or its absence, and provides a list of appendices.

The court's position. 5 The cassation court overturned the city court's decision to refuse to reinstate the plaintiff at work, since the evidence presented, including the official investigation report, did not contain conclusions about the guilt of her actions. While in order to properly resolve a labor dispute, it is necessary to find out what culpable actions of the employee served as the basis for causing material damage to the employer.

The following is attached to the conclusion (report) on the results of the internal investigation:

memos on the discovery of a disciplinary offense, acts of absence of an employee, other documents that are the basis for an investigation; targeted demand to provide explanations, documents confirming the direction (delivery) of this request, an explanatory note from the employee (or an act of refusal to submit it); reports, official and explanatory notes of officials and eyewitnesses of the incident; inventory act, auditor's report; opinions of independent experts, as well as testimony of special technical means, etc.

The final document is signed by all members of the commission, after which - with all the materials attached to it - it is handed over to the person authorized to make decisions on the application of disciplinary sanctions. It is recommended to familiarize the employee against whom the investigation was conducted with the entire package of documents against signature. Although this is not necessary, it can prevent the employee from subsequently filing a claim, since he will know in advance about the employer’s reasoned position.

According to Article 193 of the Labor Code of the Russian Federation, the employee must be familiarized with the order to apply a disciplinary sanction within three working days from the date of its publication, not counting the time of his absence from work. If he refuses to familiarize himself, then a corresponding act is drawn up. In accordance with Art. 248 of the Labor Code of the Russian Federation, an order to recover from the financially responsible person the amount of damage caused is issued no later than one month from the moment the employer finally establishes its amount. The employee must also be familiar with the order against signature. It should be remembered that financial liability is imposed regardless of whether a disciplinary sanction was applied to the guilty person or not.

To attract or not to attract - that is the question

The decision to bring an employee to disciplinary liability is made by the employer at his discretion in each case and depending on the severity of the offense and the circumstances under which it was committed. If the management of the organization considers it possible to limit itself to measures of psychological influence without resorting to penalties (for example, to hold a conversation, express reproach, etc.) - this is its right. An exception is the case when the head of an organization or its structural unit or their deputies is held accountable for violating labor legislation and other acts containing labor law norms, the terms of a collective agreement, or agreement. In this case, on the basis of Art. 195 of the Labor Code of the Russian Federation, the employer is obliged to consider the application of the representative body of employees and - if the violation is confirmed - to bring the said official to disciplinary liability, up to and including dismissal.

To the director of branch No. 5 of YugWestStroy CJSC
Pyatnitsky Sergei Yurievich
from the foreman of workshop No. 2 Nikolai Viktorovich Perepelkin

Memorandum

I would like to bring to your attention that on August 12, 2010, the skating rink driver Oleg Vitalievich Saprykin came to work at 10:25 (i.e., an hour and 25 minutes late) and in a drunken state. This is evidenced by the strong smell of alcohol, poor coordination of movements, drowsiness and lethargy. He answers my questions about his consumption of any alcoholic beverages before his work shift with aggression.

In connection with the above, I ask you to take measures to remove O.V. Saprykin from work.

Perepelkin N.V. 08/12/2010

Conclusion
about the internal investigation
(extraction)

Commission conclusions:

Based on the facts identified, it was established that the skating rink driver Oleg Vitalievich Saprykin committed a one-time gross violation of his labor duties, namely, he appeared at his workplace in a state of alcoholic intoxication.

In connection with the above, it is necessary to consider the issue of bringing O.V. Saprykin to disciplinary liability.

Applications:

a copy of the skating rink driver's job description; copy of the employment contract with Saprykin O.V. from 04.10.2008; memorandum from the foreman of workshop No. 2 Perepelkin N.V. dated 08/12/2010; act on appearing at the workplace while intoxicated and being suspended from work in connection with this dated 08/12/2010; a copy of the work time sheet dated 08/12/2010; memo from the head of the internal security service S.A. Klitschko dated 08/12/2010; requirement to provide written explanations for the offense dated 08/13/2010; act on the employee’s refusal to give an explanation for the misconduct dated 08/13/2010; act on the employee’s refusal to give written explanations dated 08/18/2010.

Signatures:

Deputy Director Olpikhina N.N. Head of the HR Department Boyko N.S. Legal Adviser Praidin A.A.

ACT
about appearing at work while intoxicated
and removal from work due to this

We, the undersigned,

Director of Branch No. 5 of YugWestStroy CJSC Sergey Yurievich Pyatnitsky; foreman of workshop No. 2 Perepelkin Nikolay Viktorovich; Head of the HR Department Boyko Nadezhda Stepanovna; Head of the Internal Security Service Klitschko Sergei Afanasyevich

in the presence of the skating rink driver Oleg Vitalievich Saprykin
drew up a document stating the following:
skating rink driver Oleg Vitalievich Saprykin showed up at his workplace on 08/12/2010 at 10:25 am in a drunken state.
In particular, he showed external signs of alcohol intoxication:

the smell of alcohol; incoherent speech; red eyes; impaired coordination of movements; aggressive behavior (trying to start a fight).

The fact that O.V. Saprykin was drunk cannot be confirmed by a medical report, since he was against a medical examination. He also refused to give any explanations about his condition.
Since the performance of O. V. Saprykin’s job duties involves driving a vehicle (a source of increased danger), a decision was made to remove him from work. He was asked to leave the workplace and move outside the enterprise.
The head of the security service, Klitschko S.A., was appointed to accompany him home.

We confirm the above facts:

Saprykin O.V. refused to sign this document.
We confirm the refusal to sign:

director of branch No. 5 of YugWestStroy CJSC Pyatnitsky S. Yu. foreman of workshop No. 2 Perepelkin N. V. head of the personnel department Boyko N. S. head of the internal security service Klitschko S. A.

1 Cassation ruling of the Smolensk Regional Court dated 03/02/2010.
2 See, for example: cassation rulings of the Kaliningrad Regional Court dated March 31, 2010 in case No. 33-1502/2010; Moscow City Court dated July 1, 2010 in case No. 33-19482 and others.
3 Decision of the Yakut City Court of the Republic of Sakha (Yakutia) from 2009 (date and case number not specified).
4 Review of judicial practice in cases arising from labor relations considered by the courts of the Republic of Khakassia in 2009 (definition No. 33-363/2009).
5 Ibid (definition No. 33-1553/2009).

At any enterprise, sooner or later something happens that requires an internal investigation to establish the causes and culprits. Therefore, it is very important to know how and in what cases it is carried out, as well as how its results are presented.

If there was a serious incident at the enterprise or material assets were lost, it will be necessary to conduct an internal investigation.

During this process, a commission gathers, identifies all the circumstances, and then adopts an act of official investigation. At the same time, the very concept of “internal investigation” does not exist in 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 investigation itself will be an internal event, that is, the punishment will be of a working nature. If we are talking about more serious violations, then government agencies will take care of the matter. An official investigation involves the exclusively voluntary participation of an employee, which means that it is prohibited to force him, for example, to undergo a lie detector test or a forced search.

When is it carried out?

For minor violations it is usually not carried out - a conversation with the offender is enough. It is initiated if the violation is serious, and the employee either refuses to acknowledge it at all, or does not recognize all the important circumstances, which makes it necessary to clarify them.

The types of violations that require an investigation are determined by the employers themselves. Usually the list contains violations of labor regulations, job descriptions, safety regulations, failure to perform a job function, and damage to the company.

All these violations can also be divided into two main categories: disciplinary offenses and causing damage. Let's take a closer look at them.

Disciplinary offense

Usually no investigation is carried out into them, but if the misconduct should entail punishment - for example, dismissal, while the employee himself does not admit that he committed it, then an investigation will be necessary. This type of misconduct primarily includes truancy. Avoidance of medical examination, training, etc. may 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 extent of the 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 either direct or, for example, caused as a result of a leak of a trade secret, which is why it is necessary to involve a commission in order to accurately establish all the accompanying circumstances.

Sometimes the actions of the offender may be more serious, even falling under articles of the Criminal Code, for example, theft. In this case, the employer should not continue the investigation on its own, but is instructed to contact law enforcement instead. 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 this that one must rely when it is necessary to organize an investigation.

Let's first look at the general structure of decision making. It will differ for disciplinary offenses and damages. 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 complete the explanation. If he refuses, it will be necessary to issue a certificate of refusal.

Then the employer decides what sanctions to apply based on the employee’s explanations, reports from his manager, and other documents. Based on them, he issues an order to impose a certain penalty.

A direct internal investigation here will mean the collection of documents indicating:

the fact of committing an offense;
the degree of guilt of the employee in it;
circumstances of the commission that influence the determination of the penalty.

If an employee causes damage, the action algorithm will be as follows:

by order of the employer, a commission is created that includes at least three employees of the enterprise;
it reveals the details of the violation;
it is determined 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 extent, and it is determined what the degree of guilt of the employee against whom the proceedings are being carried out is determined. Next, we will consider exactly this option, that is, a full-fledged investigation with a commission.

In both cases discussed above, the employer is responsible for clarifying 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 he will have to confirm his position. And if the punishment is not clearly justified, and the employee’s guilt is proven, then the court will make a decision in his favor.

Order of conduct

Let's consider the stages preceding the start of the investigation, as well as the stages of its implementation:

The fact that a violation has been committed is revealed - any employee of the company can do this, and the day of detection will be taken as the day on which the employee reported the violation to the manager to whom the guilty employee reports.
The violation is recorded in a report addressed to the boss.
After reviewing the note, the boss decides to begin an investigation (or transfers the document to a higher-ranking official if he does not have the appropriate authority).

At this point, the stages preceding the investigation end, and the process itself begins:

The commission is formed by order - we note that the immediate supervisor of the person being inspected is not included in its composition. Just like the manager who will make the final decision.
The commission is conducting an investigation - during its course it is necessary to find out what the violation was, who committed it, what were the reasons and circumstances, and the amount of damage caused. To do this, an explanatory note is taken from the guilty person, and if it is not identified, then from all possible culprits, then documents are collected to clarify the circumstances.
A final report is drawn up, detailing the progress of the inspection and its conclusion. The commission's goals often include developing measures to prevent similar damage in the future. The members of the commission certify the act with their signatures, and the head puts a stamp on it.

Let's consider some important nuances - the form of the memo, the execution of the act of giving evidence, the composition of the commission.

Service memo

It is this that becomes the basis for conducting an investigation, and from the moment it is accepted and recorded in the document flow log, the time of its beginning will be counted.

The note is drawn up by a company employee; it is submitted to either the immediate supervisor or the head of the entire company. It indicates what kind of violation was noted, as well as all its important circumstances. If the damage was identified by the inventory, then its report is attached to the note.

In addition to the memo, other documents can serve as the basis for an inspection: requests from consumers with information about misconduct, claims from the counterparty, a statement from the employee himself.

Composition and powers of the commission

The security service, if the company has one, conducts an investigation against the employee; in its absence - the personnel department. The commission includes employees from different departments - usually security and personnel, as well as a union representative. Most often, the composition is limited to just three members, but sometimes the commission may include a larger number of people.

The commission has the right to demand an explanation from each employee who may have been involved in 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 necessary to determine whether an employee was drunk during a shift. It is also acceptable to seek legal, auditing, and engineering assistance.

The creation of a commission is possible even if the company did not suffer damage, but the employee’s actions 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 notification of the need to provide a written explanation, he is given two days to complete and submit. If the time has expired and the document has not been completed, this is considered a refusal to cooperate with the verification, which must be documented in writing.

The legislation does not establish a form for this document, as well as for the employee’s explanation, therefore the registration is free. First of all, it is important to have the signatures of the commission members. An explanatory note or an act of renunciation must be filed in the file.

Deadlines

The legislation sets a clear limit on the period during which a case can be investigated - a month, and before its expiration the results must be presented. The countdown begins from the day the order to begin the investigation is issued, or from the date of filing the memo, if the inspection begins on its basis.

But it should be noted that this period should not include the time when the employee is absent, on vacation or on sick leave, as well as the time required to take into account the opinion of the employees’ representative body. This unaccounted time must not exceed 6 months in total. 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 this, this period is up to 2 years.

Legal consequences

An internal investigation is exclusively an internal matter of the company and cannot have any legal consequences. Its result is a decision regarding the employee, exclusively as an employee, but not as a citizen. And in order to transfer the case to the legal level, which may entail corresponding consequences, it must be transferred to government agencies.

Appeal procedure

The enterprise may have various procedures for appealing the results of the investigation; what these procedures will be is established by local regulations. This issue is not regulated by law; as we have already mentioned, there is no such thing as an official investigation, much less the nuances of appealing it.

But what can be appealed is the decision made by the employer - in the labor inspectorate or directly in court. In this case, he will have to provide the documents collected during the investigation to prove that the violation was in fact committed, and by the same person who was punished, and the severity level corresponds to the violation.

Registration of results

The document that should summarize the results is an official investigation report - we attach a sample of it to the article, and here we will briefly consider the content.

This document consists of three parts:

introductory;
descriptive;
resolutive.

The introductory note states what kind of violation we are talking about, indicates the date of commission, the composition of the commission, and the period during which the investigation was conducted. The narrative goes deeper into the evidence on which the commission came to its conclusions. Finally, the resolution sums up the conclusion - the commission draws conclusions regarding the employee’s guilt.

Then follow the appendices, 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 affixes a seal. Then the case is assigned a number and the date when it was compiled is indicated - this is also the date the investigation was completed.

If one of the commission members has an opinion different from that stated in the document, he must still sign, but can state his position separately and attach this statement to other materials.

After this, the manager is given three days to make a decision, which must be issued in the form of an order. The manager is obliged to focus on the instructions of the commission, however, he can usually choose the desired collection option from those allowed by law.

The employee must be familiarized with the order - 3 working days are allotted for this after its publication. If the employee refuses to familiarize himself with the document, a statement of refusal is drawn up.

When is it held?

An official investigation must be carried out when charging a punished employee for material damage. The main task of its implementation becomes determining the causes of this damage. Understanding the cause will enable the employer to organize preventive measures in certain areas and stop the recurrence of similar situations in the future.

An investigation is a serious procedure that is not carried out to prove minor violations.

Often a preventative conversation with the offender is sufficient. If there are suspicions that an employee has caused major material damage or selfish use of official powers, strict measures must be taken.

Also, a special commission checks disciplinary violations related to evasion of medical examination (by specialists of some professions), passing occupational health and safety exams, undergoing special training during working hours, refusal to sign (if this is the main job responsibility of a specialist).

The perpetrators and eyewitnesses of the incident may be called in for questioning. The procedure is voluntary, so employees do not have to participate in it. They cannot be forced to undergo a polygraph test or to conduct an inspection or search without consent.

Regulations under the Labor Code of the Russian Federation

Compared to the investigation of a traffic accident, which is clearly defined in the relevant provision, the Labor Code does not provide for an official investigation. But imposing disciplinary liability on an employee can be compared with the procedure for carrying out an investigation in an organization. Based on Art. 189 of the Labor Code of Russia, this procedure is regulated by the labor regulations of the company, as well as specialized instructions or regulations.

The time for performing the check is regulated by Art. 193 TK. Based on Part 3 of Art. 247 of the Labor Code, a specialist or his representative has the right to study all investigation materials and appeal them if he disagrees with the final conclusion.

Who is taking part?

As a rule, an official check is carried out security Service, and internal audit department. In companies with a small number of employees, these issues can be dealt with personnel service. Other specialists (including accountants, lawyers).

The supervisor of the employee being inspected must take part in the work. But in order to obtain objective results, he cannot be a member of the special commission. As a result, the commission may include specialists from the personnel and security services, including the trade union committee. It should contain at least 3 people. The head of the security service should be at the head.

Procedure and timing

Legislatively, the investigation of violations of labor regulations is allocated 30 days. This period is counted from the time of decision or release.

If the investigation is carried out according to the employee, then it must be completed within a month from the day the document was submitted. This time does not include the duration of the employee’s vacation or illness, the period for recording information from the representative structure of employees (this time in total should not exceed 6 months). After 6 months from the date of commission of the offense, the disciplinary sanction loses its force.

The specialist is requested to provide an explanation in writing, which he must draw up within 2 days of receiving the notification. If there is no response, an act of refusal to assist in the verification is drawn up.

After a misconduct has been identified, an internal investigation order signed by the manager is issued within 24 hours. At the same time, a commission is appointed, which must include at least 3 disinterested professional employees of the company. They will draw up an inspection report.

At the final stage of the verification work, the manager is provided with a report indicating the results obtained:

the people at fault and the nature of the damage caused;
conditions and factors that led to the violation;
recommended types of punishments and advice to prevent similar cases in the future.

You can learn more about this procedure from the following video:

Compiled documents

An internal investigation begins with the boss or any employee of the company identifying the fact of misconduct, which is recorded in documents (memo, report on the head of the company). In accordance with this document, this procedure is prescribed. The fact that such information was carried out and the period for receiving such information is important, otherwise the inspection may be appealed in court.

The note must be accepted for execution and registered. From the time when the date and number recorded in the document flow journal are stamped on it, the period of verification is counted.

Also, the basis for an investigation may be an explanatory note, a statement from a specialist, a complaint or claim from a consumer, an inventory act, an audit report, a citizen’s request for information about an offense, etc.

The commission may require originals or photocopies of other documentation, which will confirm the employee’s innocence or guilt.

Test results

In, compiled in accordance with the collected materials, there should be several parts:

the introductory part contains the fact of the offense, the time it was committed, the deadline for completing the inspection and the list of commission members;
description - includes evidence;
summary - reflects the perpetrators, the fact that they committed the incident, the presence of previously outstanding penalties.

Also attached to the report are all the necessary documents that were used in the investigation. It is signed by the entire commission; in the office work, the act is given a serial number with the date of completion of the inspection. The conclusion is signed by the head and stamped.

All materials from the inspection are filed in the “Case” folder, and an inventory of the documentation is made.

After this, the employer must decide to impose a disciplinary sanction on the employee. In accordance with the Labor Code, it is provided reprimand, reprimand or dismissal with appropriate reasons. It is also allowed warning or reprimand.

The decision to impose a penalty is reflected, indicating the perpetrators, grounds and type of punishment. One penalty is imposed for each disciplinary violation.