An employer’s order imposing a disciplinary penalty

The law sets procedural requirements for imposing a disciplinary penalty, including hearing the employee and giving reasons for the order. In court, the employer bears the burden of proving compliance.

Under Article 193(1) of the Labour Code, before imposing a penalty the employer must hear the employee or receive their written explanations, and collect and assess the evidence identified. The employer must ask the employee to explain the very breaches for which a penalty may subsequently be imposed. The employee must be heard or their written explanations accepted. When the employer learns of facts suggesting a breach of workplace discipline, it must request an explanation about those facts before serving a disciplinary order. It must make clear to the employee what needs explaining, but need not set out the objective and subjective elements of the breach or give its legal classification. The Code does not require formal commencement of disciplinary proceedings or prescribe the form of the invitation to explain. The letter requesting explanations therefore need not describe the breach in exactly the same terms as the disciplinary order (Supreme Court of Cassation Judgment No. 544 of 06.01.2012 in civil case No. 1811/2010). Under Article 193(2), if the employer did not first hear the employee or receive their written explanations, the court sets the penalty aside without examining the merits. Under Article 193(3), that rule does not apply if it was the employee’s own fault that explanations were not heard or given. In its binding case law (Judgment No. 257 of 22.05.2012 in civil case No. 985/2011), the Supreme Court of Cassation identified a clear example: the employee knows of the employer’s written or oral request for an explanation within a reasonable time but, without good reason, neither appears to be heard nor submits a written explanation in time. The employee may also be at fault under Article 193(3) if, without good reason, they do not accept the written request or put themselves in a position where they cannot receive it. Examples include refusing personal delivery; refusing or failing to collect a postal item containing the request despite the postal service recording delivery to the address supplied by the employee; and changing or being absent from that address without informing the employer.

According to the settled case law of the Supreme Court and the Supreme Court of Cassation, a disciplinary order must identify the employee, describe the particular breach and its objective and subjective elements, state when it occurred, identify the penalty and specify its legal basis (the provision under which it is imposed). The court of cassation regards Article 195(1) of the Labour Code as mandatory both as to form and content. Where the legal basis cited by the employer conflicts with the facts stated, the facts prevail. Omission of any element required by Article 195(1) renders the penalty unlawful (Supreme Court of Cassation Judgment No. 260 of 22.07.2011 in civil case No. 793/2010).

This article is not a legal opinion or advice on any particular situation or person. For help with an individual case, consult a lawyer practising employment law.