Disciplinary sanctions: procedure, time limits and challenges

The law sets requirements for hearing the employee and giving reasons in the order imposing a disciplinary sanction. In litigation it is for the employer to prove compliance.

Article 193(1) of the Labour Code requires the employer, before imposing a sanction, to hear the worker or employee or accept their written explanations, and to collect and assess the evidence they identify. The employer must request explanations about the very breaches for which a sanction may subsequently be imposed. The employee must either be heard or have their written explanations accepted. When circumstances suggesting a breach of workplace discipline come to light, the employer must ask the employee to explain them before serving the disciplinary order. The request must explain in terms the employee can understand what they are being asked about. It need not specify the objective and subjective elements of the conduct or its legal classification. The Code requires neither a formal act opening disciplinary proceedings nor a particular form for the request. The description of the breach in the letter requesting explanations need not therefore be worded identically to 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 accept their written explanations, the court sets aside the sanction without examining the merits. Article 193(3) excludes that consequence if the employee was at fault for the failure to hear or provide explanations. According to the binding case law in Supreme Court of Cassation judgment No. 257 of 22.05.2012 in civil case No. 985/2011, the employee is at fault where they receive an oral or written request allowing a reasonable period to respond but, without good reason, neither appear to be heard nor submit written explanations within that period. Article 193(3) also covers an employee who, without good reason, declines to accept the employer’s written request or makes it impossible to receive it. Examples include refusing personal service; refusing or failing to collect a postal item containing the request even though the post office has certified delivery at the address supplied by the employee; or changing or being absent from that address without notifying the employer.

A breach is discovered when the authority empowered to impose discipline learns its essential features: who committed it, where it occurred, and the objective and subjective elements by virtue of which the conduct constitutes a breach. See Supreme Court of Cassation judgment No. 256 in civil case No. 1036/2011, Fourth Civil Division, and its judgments of 26.07.2010 in civil case No. 470/2009, of 13.10.2010 in civil case No. 1130/2009 and of 20.12.2010 in civil case No. 644/2010.

Under Article 194(1) of the Labour Code a disciplinary sanction must be imposed within two months of discovery and no later than one year after the breach. Under Article 194(3) these periods do not run while the employee is on statutory leave or taking part in a strike. The particular kind of leave is immaterial so long as it is provided for by law. Its duration is likewise immaterial.

This article does not provide a legal opinion or advice about any particular person or situation. For assistance with an individual case, consult a lawyer practising in employment law.