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Case law on internal investigations in Russia: what’s new?

Written by
ALRUD, a confident Russian leader in labour and employment law.
Authors
Irina Anyukhina
Partner - Russia
ALRUD
Margarita Egiazarova
Senior Associate - Russia
ALRUD
Magomed Gasanov
Partner - Russia
ALRUD
Russia
28.09.21
3
A round up of recent case law on internal investigations and disciplinary action by employers in Russia.
Internal investigation can prove employee at fault

An employee’s culpability in taking an unreasonable decision causing prejudice to the employer may be established by an internal investigation.

The facts

 Losses, caused by unreasonable decisions by a company’s chief accountant, were uncovered, during the company’s audit. An internal investigation commission determined the amount of losses and the employee’s liability. Consequently, he was dismissed. The employee deemed the dismissal illegal and filed a complaint in court. He challenged the commission’s determination of losses and required an independent review.

The decision

However, the lower courts stood by the employer. The Second Court of Cassation of General Jurisdiction also confirmed that the employee’s dismissal was legal. The court ruled that the employee’s unreasonable decisions resulted in negative consequences for the employer, which were determined by the internal investigation commission.

Source: Decision of the Second Court of Cassation of General Jurisdiction, dated 4 February 2021 No. 88-3313/2021-(88-30540/2020) in case No. 2-1090/2020

Final medical results needed to dismiss apparently drunk employee

The dismissal of an employee who appears drunk on the job is only legal if the employer has the final results of a medical examination.

The facts

An employee showed up drunk at his workplace. The employer immediately launched an internal investigation and sent the employee for a medical examination. After the preliminary findings confirmed his intoxication, the employee was dismissed.

The decision

The first level courts and appeal courts supported the employee and recognised the dismissal as illegal. They concluded that the employee’s misconduct could not be proven without the outcome of a completed medical examination and other evidence.

Source: Appeal ruling of the Moscow City Court, dated May 12th, 2020 in case No. 33-15601/2020

No suspension allowed during an internal investigation

Suspending an employee from work is not allowed when conducting an internal investigation.

The facts

Commercial secrecy disclosure was revealed during an internal investigation. Based on its results, an employee was suspended from work and then dismissed due to this disclosure.

The decision

The St. Petersburg City Court affirmed the established court practice: that conducting an internal investigation is not a ground for an employee’s suspension from work, even when an employee’s abuse of his or her rights is revealed. The court emphasised that during the period of unreasonable suspension from work the employee was deprived of the opportunity to perform job duties, meaning the right to work was violated.

Source: Appeal ruling of the St. Petersburg City Court, dated 3 September 2020 No. 33-16363/2020 in case No. 2-328/2020

Time limits for disciplinary sanctions

Conducting an internal investigation is not a legitimate ground for increasing the one-month time limit for disciplinary action.

The facts 

Disciplinary liability was imposed on an employee outside the legally established one-month time limit for imposing a disciplinary sanction, following an internal investigation by the employer.

The decision

The Amur Regional Court emphasised that conducting an internal investigation and issuing disciplinary orders beyond the one-month period from commission of the alleged offence is a violation of the legally established procedure. An internal investigation is not its obligatory stage and, therefore deciding to conduct one should not affect the legal time limit. This means that the employer must establish circumstances, causes and conditions of employee’s misconduct, and conduct an internal investigation, if necessary, all within the one month period.

Source: Appeal ruling of the Amur Regional Court, dated 9 December 2020 in case No. 33АP-3784/2020

Details of misconduct should be provided

If an internal investigation report does not indicate the exact nature of misconduct, disciplinary action against the employee can be complicated.

The background

A medical worker was given a disciplinary reprimand and dismissed for disclosing information on his employer’s activities. The employee challenged his dismissal and the associated disciplinary order. He noted that it was not clear from the order what misconduct took place and what evidence proved he had been at fault.

The decision

When considering the case, the Vologda Regional Court found the disciplinary order did not indicate the exact misconduct and circumstances in which it occurred. The internal investigation report referred only to an internal memo, indicating several violations committed by the employee. There was no evidence of the employee posting medical documentation via the VKontakte social network. Moreover, there was no detailed information about witnesses corroborating the employee’s misconduct. As a result, given that a letter contradicting the contents of the internal memo was provided, the court concluded that the employee was unlawfully disciplined.

Source: Appeal ruling of the Vologda Regional Court, dated 17 December 2020 in case No. 2-904/2020