Disciplinary proceedings and disciplinary sanctions in an employment relationship
I. Definition of disciplinary proceedings
Regarding German legislation, disciplinary proceedings include only proceedings that serve the examination and sanctioning of possible malfeasances of officials, judges or soldiers. For employees, the so called general rules of labour law apply. Bulgarian labour law however foresees no such conceptual distinction – thus even for employees there are disciplinary proceedings.
Beside the employer, also persons authorised by the latter or authorities entitled by law may impose disciplinary sanctions (Article 192 of the Labour Code). Only the employer is entitled to declare an employee’s dismissal.
II. Procedure and types of disciplinary sanctions
- Identification of a violation of work discipline:
According to Article 193 of the Labour Code, prior to imposing a disciplinary sanction the employer shall hear the employee or accept a written statement and shall gather and assess the indicated evidence. Besides, the employer is obliged to allow the employee to make a statement on the accusation within a hearing procedure.
- Determination of the type of the disciplinary sanctions:
The employer may decide about whether and how to impose the sanctions. He shall follow the following criteria:
- The gravity/seriousness of the infringement
- The circumstances surrounding its occurrence (time, place, specifics of the task)
- The previous behaviour of the employee.
These criteria must be applied cumulatively and the employer shall take them into account given that the employee is entitled to launch proceedings in the court within the time limit period of Article 358 of the Labour Code. In these proceedings the court examines the presence of the criteria listed above.
The principle that forbids multiple sanctioning of the employees for the same infringement is applicable.
- Types of sanctions
Disciplinary sanctions are imposed on the employee if he violated the operational regulations or the work discipline.
The reasons for imposing measures are listed in the Articles 186, 187 and 190 the Labour Code.
Further, Article 188 of the Labour Code enlists the three allowed types of disciplinary sanctions:
- Dismissal warning;
- Dismissal (normally extraordinary and without notice) – the employer’s harshest possibility;
4. Disciplinary Sanction Order
The employer must impose the sanctions in writing. The Labour Code contains compulsory provisions regarding the content and form of the order. It must contain the reasons for the decision and be signed by the employer. Furthermore, it must indicate the legal provision that the sanction is based on.
5. Delivery of the order
To be able to take notice of the order’s content it must be personally handed to the employee. If this is not possible, the order must be set by registered letter with return receipt requested. The day that the recipient signs the return receipt is said to be the date of delivery. Starting from this day, the order is effective and the time limit for launching proceedings begins according to Article 358 of the Labour Code. Furthermore, this day is significant for the start of the time limit regarding the deletion of the sanctions.
6. Time limits regarding the imposition of disciplinary sanctions
The time limits regarding the imposition of disciplinary sanctions are regulated in Article 194 of the Labour Code. According to this Article, the disciplinary sanction must be imposed within 2 months after the discovery of the violation and within one year of its perpetration. These time periods are suspended as long as the respective employee is on vacation or if the strike that the employee participates in has been deemed legal.
7. Deletion of disciplinary measures
Only the reprimand and the warning may be cancelled. The cancellation may only be made for the future within the following time limits:
- Ex lege (Article 197 of the Labour Code) – with the expiry of one year starting from the imposition;
- By the employer (Article 198 of the Labour Code) – with the expiry of one year at the discretion of the employer and if the employee did not commit other violations meanwhile. In this case, the cancellation may also be made by a written, justified order of the employer.
Dismissal may not be cancelled by this procedure.