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Didn't show up for work without a good reason. Valid reasons for absenteeism

The decision to dismiss for absenteeism must be fair and proportionate. This was once again reminded by the servants of Themis (determination of the St. Petersburg City Court dated August 13, 2013 No. 33-11362 / 2013). After all, it would seem quite obvious that dismissal for absenteeism for a good reason is illegal.

The desire of the employer to create a team in which each employee clearly fulfills his duties and does not "filonite" is aimed at the development of the organization. For this, the “carrot and stick” method is often used. So, labor law secures for the employer the right to establish employees, allowances, etc., as well as to apply or fail to fulfill obligations.

Each organization chooses independently: some believe that it is better to encourage and ignore minor misconduct, while others consider punishment the most effective way. But regardless of the path chosen, there are such violations that few employers can forgive. These include, for example, absenteeism, for which one of the most severe punishments is assigned - dismissal.

What is a walk?

This action means absence from the workplace without good reason during the working day or shift, regardless of the duration, as well as absence from the workplace without good reason for more than four hours in a row.

However, before claiming that the employee has made absenteeism, it is necessary to pay attention both to the reason for the absence and to the definition of his workplace.

All reasons for absence from work must be justified and, if possible, documented. Also, the employee must warn (call, write a letter, etc.) the employer about his absence.

The labor law establishes that the workplace is the place where the employee must be (where it is necessary to arrive) in connection with his work and which is directly or indirectly under the control of the employer. Each employee workplace specified in the employment contract and is most often indicated by the address of the organization without further detail. This is likely to affect the ability to define an employee's behavior as absenteeism. An employee may be on the territory of the employer, but at the same time be absent directly from the place where he performs his duties, and this will not be absenteeism, since his workplace is defined as the entire territory of the organization. Therefore, in the employment contract, it is best to prescribe in detail (name of the workshop, office number, etc.) where the employee's workplace is located.

It is also necessary to find out the reason for the absence, which must be disrespectful in order to recognize the employee's actions as absenteeism. However, the labor legislation does not contain a list of both disrespectful and valid reasons for absenteeism. Thus, the entire responsibility for determining the category of the reason for absenteeism falls on the shoulders of the employer. Employee explanations or documents may come to the rescue. In this situation, the main thing is not to make a mistake and take an objective look at the situation in order to avoid disputes.

A respectful reason

Finding out the reasons for the absence of an employee at work must be approached with all seriousness and responsibility. After all, it often happens that, in the opinion of the employer, the reason for the absence is insignificant, and in the most detailed investigation it turns out that he was wrong. Thus, the ministers of Themis once again reminded employers that illegal dismissal for "truancy" they will be held accountable and punished. The ruling of the St. Petersburg City Court dated August 13, 2013 No. 33-11362 / 2013 states that the employee should be reinstated and paid for his forced absenteeism, since dismissal for absenteeism is illegal. The judges concluded that the employee was absent from work for a good reason, as he was undergoing outpatient treatment. As evidence, a medical report is presented, which indicates: the period of outpatient treatment, the diagnosis and which course of treatment is prescribed. The judges also found that the employee had taken steps to inform the employer of the absence.

In addition to an outpatient card and a certificate of incapacity for work, an employee can confirm his illness with a certificate from a doctor.

However, health problems are not the only valid reason for absenteeism. These reasons may include:

accident;
adverse weather conditions (traffic jams, fog, ice, etc.);
the impossibility of timely return from vacation, from a business trip due to weather conditions or health conditions;
waiting for the arrival of the ambulance to the sick;
administrative arrest;
caring for a sick child or other family member;
breakdown of public transport;
emergency repair work at the worker's house, in connection with which he provided access to the apartment for repairmen. However, this does not apply to work carried out at the request of the employee, or the production of current repairs;
natural disasters, etc.

Among other things, at the direction of the Plenum Supreme Court of the Russian Federation in the resolution of March 17, 2004 "On the application by the courts Russian Federation of the Labor Code of the Russian Federation” valid reasons for non-attendance at work include involvement in public or public duties as a juror, member of the election commission, etc.

Attention

The labor legislation does not contain a list of both disrespectful and valid reasons for absenteeism. Thus, the entire responsibility for determining the category of the reason for absenteeism falls on the shoulders of the employer.

Also, the Supreme Court of the Russian Federation, in its ruling of March 30, 2012 No. 69-B12-1, indicated that the absence of railway tickets at the box office is also a good reason.

All reasons must be justified and, if possible, documented. Also, the employee must warn (call, write a letter, etc.) the employer about his absence. But if the employee did not appear at his workplace and did not warn anyone, then it is best for the employer to contact him himself. Since the employee may not be able to do it on his own.

If it was not possible to contact the employee, then you need to record the fact of his absence. For this in the name CEO a memorandum is written, on the basis of which an order is given to formalize the fact of non-attendance at work. It is formalized by an act, the form of which is developed by the organization itself. But it must be indicated in it: full name and position of the employee, time and date of absence. This document is signed by the official who compiled it. At the same time, the act must also contain the signatures of at least three employees, which confirm that at the time of drawing up the act, the employee indicated in it was absent from the workplace.

"НН" or code 30 if the employee is not at the workplace during the whole working day;
"I" or code 01 indicating the number of hours worked if the employee was absent for four consecutive hours.

As soon as the employee comes to work, he must be handed an act of absence from the workplace and required to provide written explanations for the absence. If the reason is recognized as valid, then the documents on the fact of absence from work are filed with the personal file of the employee who continues to work. At the same time, the days or hours of non-appearance are not paid if documents (disability certificate, summons, etc.) are not submitted, on the basis of which the time of absence is payable.

Practical Accounting

Each side labor relations must know how to dismiss an employee for absenteeism. The reason for this is the ever-emerging difficulties of law enforcement practice.

What is meant by walking?

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Absenteeism is the continuous absence of a subordinate from the workplace for more than 4 hours and without good reason.

When analyzing the Labor Code of the Russian Federation, it becomes clear that absenteeism must meet the following requirements:

non-attendance of the employee at the workplace for more than 4 hours in a row or non-attendance at all;
official employment of an employee in the state, indicating in the employment contract the period of working time and the place of work where he directly performs labor functions;
the presence of guilt of the employee who committed absenteeism;
the employer has carried out a comprehensive check of the circumstances of the incident and can confirm it with relevant documents.

The legislator does not provide a specific distinction between absenteeism by type. However, this fact can be decisive and affect the degree of responsibility of the employee.

All walks can be divided into:

short-term: such absenteeism allows the employer to have some information about the location of the employee or organize communication with him via telephone, the Internet;
repeated: absence from work without a valid reason two or more times a year;
long: non-attendance at work for several days, weeks, months and the absence of any information about the location, reasons for the absence of the employee and communication with him.

What does the Labor Code of the Russian Federation say?

What are the risks for an employee being absent from work?

If the employer becomes aware of the absence of his ward for more than 4 hours in a row, he has the right to resort to disciplinary action.

According to Art. 192 of the Labor Code of the Russian Federation, a sanction arises in the event of improper implementation by an employee of his labor functions fixed in the contract with the employer.

Good and bad reasons

It is important to understand that not every absence of an employee can be classified as absenteeism. There are a number of life circumstances that can be recognized as a valid reason for not attending work and cannot be considered absenteeism.

This list is extensive and summarized as follows:

Seeking help from health care institutions in connection with a deterioration in well-being, as well as accompanying the victim, providing him with first aid medical care, stay on sick leave, both in connection with their illness and the illness of the child.
Passage of medical examination, examination, vaccination.
Participation in investigative activities, court hearings, government assignments.
Refusal to go to work due to non-payment of wages due, participation in a strike and a rally.
Emergencies (traffic accidents, accidents in utility systems, delays in transport, flights), force majeure circumstances (floods, landslides, cataclysms, etc.).

For each of these cases, it is necessary to inform the employer about what happened by giving advance notice:

If the case concerns strikes or rallies - a certificate from law enforcement agencies or a medical institution.
If there were global compelling circumstances, the employer will become aware of this through the media.

Only if there is a document confirming the validity of the absence, absenteeism will not entail consequences. All other circumstances will be classified as disrespectful and may lead to irreversible consequences.

Types of penalties

Labor legislation provides for the application of sanctions to employees who violate the work process and discipline in the form of penalties.

The charge may take the following form:

rebuke;
comment;
termination of the employment contract at the initiative of the employer.

The first two options do not have any clarifications in the Labor Code of the Russian Federation due to their legal nature, so it is difficult to distinguish between them. They have the same terms of application, can be both oral and written.

If the employee repeatedly receives a reprimand or remark, the employer may reasonably apply the third variant of the penalty.

Dismissal for absenteeism in 2020

Dismissal is considered the most significant and serious sanction in disciplinary action and has consequences for both the employee and the employer. These circumstances are not rare in practice and require a clear algorithm for dismissal for absenteeism in accordance with the norms of the Labor Code of the Russian Federation.

Step-by-step instructions and procedure diagram

Strict adherence to the procedure for registering an employee for absenteeism will reliably protect legal framework employer.

Each of the stages has some features:

Certificate of Absence: first of all, after discovering the absence of his subordinate, the employer must document this fact and on the very day when the incident took place. The act is presented to the truant as soon as he appears at the workplace. Long absenteeism is fixed for each day by a separate act.
Explanatory: the employer is obliged to send to the subordinate who committed absenteeism a written notice of intent to dismiss him, in which the latter leaves a personal signature, which confirms the fact of familiarization. Within 2 working days after notification, the employee is obliged to provide an explanatory note to the employer.
If the employee did not appear at the workplace, the notice of dismissal is sent to the official place of his registration. For an employee who refused to write an explanatory note within the stipulated time, an act of refusal to provide an explanation of the reason for absenteeism is drawn up with the signature of at least two witnesses.
Reporting: this stage is not mandatory for companies with a small number of employees. However, if the hierarchy is large, then the immediate supervisor of the truant is obliged to provide a memorandum to the higher manager.
Recording in the table: the presence of a time sheet implies tracking working hours. If there was a deviation (absenteeism), it is necessary to reflect this on the appropriate day (HN - absenteeism due to unexplained circumstances). This note will be of particular importance when resolving a case in judicial order, as the court will necessarily turn to such information.
Dismissal order: created according to the established form - T8. Absenteeism, falling under the wording of the legislator, does not require the presentation of an order to impose a penalty. The basis for the order is Art. 81 of the Labor Code of the Russian Federation. All of the above evidence of the absence of the employee is attached to the document: an act, an explanatory note, a report.
Entering the data of the dismissal order into the journal of orders.
Making a payslip for the employee and familiarizing him with the order of dismissal.
Data entry on a personal card and work book subordinate.
Return of work book employee and the production of all payments due to him.

How to arrange?

Dismissal for absenteeism is permissible to issue only if there is a certain package of documents:

an act of absence of an employee (issued on the day the absenteeism is discovered);
entry in the log of working hours;
notification of the application of a disciplinary sanction (carried out no later than 3 working days and must be confirmed by the signature of the subordinate);
an explanatory letter from an employee or an act of refusal to give explanations for absenteeism that occurred (the document must be received within 2 calendar days from the moment of receipt of the notification of the application of a disciplinary sanction);
dismissal order from the governing bodies;
entering information in the work book of a dismissed employee.

Documentation

Employee Absence Act

The document is drawn up by the head, or HR specialist. There is no specific form established by the legislator. At least two witnesses must be present when drawing up the act.

The document must reflect the following information:

name of company;
document's name;
day of compilation;
information about the subject filling out the document and about the subjects acting as witnesses, about the absent employee (name, position);
date of absenteeism or the period of time of its absence (days, hours);
grounds for absence (if known);
signatures of all subjects involved in the compilation.

The template can be downloaded here:

An example of filling out a document:

Employee notice

The notice will allow the employer to avoid problems and acts as evidence of compliance with the formalities of the dismissal procedure.

In the absence of such a document, the employee has legal grounds for going to court to challenge the decision of the employer.

Notification structure:

name of the employing organization;
information about the employee;
grounds for drawing up the notification (reason);
date, signature of the head of the organization.

The document must be drawn up in writing and reflected in local internal documentation logs.

The notice must be in 2 copies - for the employer and the employee, respectively.

The employee to whom the notification is sent puts on it a note of familiarization, signature and date.

Filling example:

Explanatory note from an employee

The note is drawn up by the violator in free written form.

It must indicate the reason for the absence of the employee.

Approximate data that should be reflected in the explanatory note:

name of the organization and full name of the head;
Full name, position of the guilty subordinate;
name of the document - explanatory;
text-content indicating the reason for absenteeism;
date, signature.

When compiling an explanatory note, it is more appropriate to resort to business style presentation.

Example:

Employee Refusal Act

Mandatory drawing up of a document is implied in the case when the employee did not provide, refused a written explanation of the reason for his absenteeism.

Title of the document;
information about the employee who refused to provide an explanation;
place of compilation, date;
information about the compiler and witnesses;
descriptive part (what date, why and in what way the written explanation was refused);
signatures of all parties, including the employee who made the refusal.

If the employee for whom the act is drawn up refuses to leave his signature on it, the drafters of the act make a corresponding note and sign it again.

Document example:

Dismissal letter for absenteeism

In order to avoid liability for illegal actions, the employer is obliged to comply with the deadlines and dates when drawing up an order regarding the dismissal of a absent employee.

It can be drawn up only after the collection of all application documents.

The employer needs to take into account a number of points:

an order can be drawn up for only one employee;
the use of a unified sample in the T-8 form (additional wording is allowed in the explanatory part of the document);
Mandatory presence on the document of the signature of the head of the organization and its entry in the registration log.

The document must have the following structure:

the name of the employer;
serial number assigned according to the registration log;
Date of preparation;
document's name;
date and place of the decision to terminate the employment contract;
reason for dismissal;
information about the dismissed employee;
reference to the norm of the Labor Code of the Russian Federation;
information about the head and his signature;
a note about familiarization with the document of the dismissed employee, his signature.

Record of dismissal for absenteeism in the work book

This action is considered the final stage of dismissal. All information in the work book is entered on the basis of data from the dismissal order.

The entry looks like this:

1 column: serial number;
2 columns: either the day of the last day of the employee’s work, or the day the order for dismissal is issued is indicated;
3 columns: an indication of the reason for dismissal under Art. 81 of the Labor Code of the Russian Federation;
4 columns: information about the order (its number and date of compilation).

All of the above data is confirmed by a personal signature official(the chief gave staff) and the seal of the organization.

Union Notice

The request for a reasoned opinion of the trade union becomes mandatory upon termination of the labor agreement for absenteeism, in the event that the subordinate was a member of the trade union organization (part 2 of article 82 of the Labor Code of the Russian Federation) and was noticed in repeated failure to perform the labor functions assigned to him without valid circumstances or under multiple disciplinary actions.

All other cases, even if the employee is a member of a trade union, do not need to request a reasoned opinion primary organization workers.

Terms and dates

The date of issuance of the dismissal order must coincide with the date of the relevant decision by management.

The order cannot be issued earlier than the date on which an explanatory note is provided from the absentee employee or an act refusing to provide such information to them and no later than one month from the date of actual absenteeism.

It is forbidden to draw up a document retroactively, since the administrative document must reflect the date of the actual publication.

An exception may be cases of prolonged absence of an employee under unclear circumstances.

The date of dismissal of a subordinate for absenteeism is considered to be his last day of work.

If he was absent for the entire work shift, then the date of dismissal is the day preceding this event (Article 84.1 of the Labor Code of the Russian Federation).

Employee benefits and compensation

After termination of the employment agreement with the employee, they are required to make settlement payments.

Absenteeism cannot affect the establishment of any restrictions, therefore payments are made according to general rule.

An employee can receive:

calculation for actually worked working hours;
compensation for unused vacation days;
payment after sick leave, in which the employee stayed before dismissal;
compensation for travel expenses, including business expenses, that were made before the dismissal.

Nuances for different categories of workers

With regard to the dismissal of some employees for absenteeism, in practice there are nuances or a legislative ban on such actions has been established.

According to the provisions of the Labor Code of the Russian Federation, the employer is prohibited from dismissing for absenteeism:

a pregnant woman;
a single mother raising a child (children) under the age of 14;
a father with many children or a mother with children under 3 years old;
parent or sole breadwinner of a disabled child under the age of 18.

Dismissal for absenteeism of workers, part-time workers, or young professionals is carried out on a general basis.

If a part-time employee notifies his employer in writing three working days in advance of the refusal to comply additional work, it cannot qualify as absenteeism.

The norms of labor law are fully applied to military personnel and employees of the state civil service.

At the same time, the most unfavorable consequences of dismissal for absenteeism are provided for the former, since they will no longer be able to get on military service a priori.

Controversial situations

When the rule does not apply

Each employee who has strong evidence of his innocence may challenge in court accepted by the employer dismissal decision.

Among the controversial situations, when the norm becomes inapplicable, we can distinguish:

the employer has not determined the period of absence of the employee;
the reason for the absence and the degree of fault of the employee were not identified;
unauthorized departure of an employee on legal leave;
violation detected more than six months later;
the dismissal was due to vacation, temporary disability, pregnancy.

Are there any statute of limitations?

The employer does not have the right to dismiss an employee for absenteeism if more than a month has passed since the discovery of this circumstance.

In what cases can a dismissal be considered illegal?

There are situations that at first glance may resemble absenteeism.

However, termination of employment due to absenteeism will become illegal if:

the subordinate was absent for exactly 4 hours or less;
the four-hour absence was not continuous (the employee periodically returned and left the workspace again);
if the employee is not assigned a specific place of work and during the period of fixed absenteeism he was on the territory of the employer's organization;
going on vacation without notifying the employer, but in accordance with the vacation schedule;
the actual absence of the employee is not documented or the dismissal procedure was carried out with violations;
the employee did not warn the employer in advance about the absence, but managed to provide evidence of a good reason;
the employee used rest days that are provided to him without the discretion of the employer (day off for the donor, etc.).

How can I challenge an employer's decision?

The employee can challenge the decision of the employer if he proves the fact of illegal actions.

It is of paramount importance to appeal against the decision of the employer within a month from the date of familiarization with the dismissal order.

This can be done by completing an application and submitting it to:

labor inspection;
prosecutor's office;

The most effective way is to challenge in court.

The judiciary will require to provide strong arguments in support of their position, both from the employer and the employee.

The most reliable way to challenge the employer's decision will be to provide: audio, video recordings, testimonies, documentary evidence of a valid reason for absence from work, as well as an indication of non-compliance with the dismissal procedure.

How does recovery work?

If the court or other competent authority considers the position of the employee to be lawful, the employer must strictly:

reinstate him at work under the same conditions as before his dismissal;
pay the downtime;
cancel the entry in the personal card, work book of the employee.

FAQ

How can you avoid terminating a contract?

An employee can avoid dismissal for absenteeism if this day falls on a sick leave period or the employer did not follow the paperwork procedure.

In particular cases, it is possible to avoid termination of the employment agreement with the employer if the employee's fault for absenteeism is considered insignificant.

Is sick leave paid after dismissal?

Dismissal for absenteeism cannot be grounds for refusing to pay disability benefits.

The employee is required to pay benefits if the period of incapacity for work occurred at a time when he was actually still on the staff of the employer.

There are exceptions when the employee is paid disability compensation even after the termination of the contract with the employer.

This basis is enshrined in the law "On compulsory social insurance in case of temporary disability and in connection with motherhood."

In accordance with Part 2 of Art. 5 of this normative act the insured employee has the right to claim sick leave pay from the previous employer within 30 days following the day of termination of employment obligations.

Is it possible to make registration without the presence of an employee?

The algorithm for dismissal under the article for absenteeism implies the presence of many documents accompanying each stage, most of which must have the signature of the truant.

There is an acute question about the possibility of processing materials if the employee did not appear and absenteeism took on a long character.

The practice of such cases indicates that it becomes more difficult to dismiss an employee, since the employer is not aware of the reasons for his absenteeism due to the lack of an explanatory note.

The employer can choose one of the following:

Wait for the employee to return, record every day of absenteeism through an act and a time sheet. It is possible to solve the issue of performing the work function of an absent person by temporarily hiring a new employee or transferring another employee already in the state to his position;
Request an explanation of the reason from the subordinate, by sending it to the address of its official registration mail correspondence- a valuable letter with an inventory of enclosed documents and a return notification of its delivery to the addressee.

If the employer resorts to the second case, then the days of the mail run must be added to the main response times for such notifications.

Conclusion

The legislator brought the design of absenteeism to general view, since it is impossible to cover all life situations that fall under this definition.

Absence of an employee at work for at least 4 hours and without a valid reason may be recognized as absenteeism. Such an action can lead to both a minor punishment for the employee - a reprimand or remark, and dismissal.

It is possible to resort to the dismissal of an employee only if there are sufficient grounds and a high degree of his guilt.

Almost every employer sooner or later faces a situation where one of the employees suddenly, without any warning, does not go to work. This is a real headache for the personnel department: persistently wait for a missing employee to return to work or look for a new one to replace him, fire an absent employee for absenteeism, or wait more than a year and recognize him as missing? And this is not a complete list of questions that arise before the personnel officer in a similar situation. Only strict observance of all requirements of labor legislation allows you to solve the problem competently and at the lowest material costs.

In conditions of great dynamics in the labor market, it is not so rare that workers in search of a better life leave for other employers, “forgetting” to inform about their decision, not formalizing the termination of employment, abandoning their work book. The non-appearance of an employee at the workplace can be caused by other, very diverse reasons.
In such situations, when the reasons for a long absence of an employee from work are unknown, the employer must strictly comply with the requirements of the law when terminating an employment relationship with such an employee so as not to fail in the event of litigation.

Basic concepts
Definition of absenteeism

The concept of long absenteeism is not legally fixed. The Labor Code defines absenteeism, but it is not tied to its duration by day, week or month.

Labor Code RF pp. "a" paragraph 6 of the first article. 81 of the Labor Code of the Russian Federation

Absenteeism is the absence of an employee from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as the absence from the workplace without good reason for more than four hours in a row during the working day (shift).

Since absenteeism refers to gross violations by the employee job duties, for which the most severe disciplinary action- dismissal (Article 192 of the Labor Code of the Russian Federation), the author believes that there is no need for legislative consolidation of the concept of long absenteeism. Since in the absence of an employee at the workplace for one working day, and if he is absent from work for a week, several weeks, a month, an equally strict penalty can be applied - termination of the employment contract at the initiative of the employer on the basis of subparagraph "a" of paragraph 6 of the first part of Article 81 of the Labor Code of the Russian Federation.

Types of absenteeism
For ease of orientation in the issue of interest to us, we divide absenteeism into two conditional categories.

First category- classic absenteeism, indicated in Art. 81 of the Labor Code of the Russian Federation, i.e. short-term. In case of short-term absenteeism, as a rule, the employer knows the location of the employee or it can be established (for example, when, after missing one working day, the employee went to work or when he does not appear at the workplace, but he can be contacted by phone, e-mail, through other employees, etc.).

The procedure for the employer in such situations is clearly described in Art. 193 of the Labor Code of the Russian Federation.

Before applying a disciplinary sanction, which in this case may be dismissal for absenteeism, the employer must request a written explanation from the employee. If, after two working days, the specified explanation is not provided by the employee, then an appropriate act is drawn up. At the same time, the employee’s failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. An act of refusal to provide explanations is drawn up with the signatures of the employees present at the same time. It is also necessary to document the fact of the absence of an employee on a certain day at the workplace by drawing up an act or collecting other evidence (testimonies of witnesses, reports from the immediate supervisor of the truant, extracts from the register at the checkpoint, etc.).

If the reasons given by the employee in the explanatory note on the fact of absenteeism are not recognized by the employer as valid or the employee refused to give explanations, the employer has the right to apply a disciplinary sanction in the form of dismissal. The employer's order to apply a disciplinary sanction is announced to the employee against a personal signature within three working days from the date of its issuance, not counting the time the employee is absent from work. If an employee refuses to see specified order under the signature, then a corresponding act is also drawn up.

With long absenteeism, as a rule, it is not possible to find an employee and ask him for an explanation regarding the reasons for his absence from work (for example, when an employee does not appear at work, does not answer calls, there is also no information about him at the place of permanent residence).

Long absenteeism: an algorithm of actions

The problem of being fired during a long absenteeism is somewhat more complicated than with classic blitz absenteeism for a number of reasons.

With a long absenteeism, objective difficulties arise in strict compliance with the requirements of Art. 193 of the Labor Code of the Russian Federation. If the employee does not appear at the workplace, then, accordingly, it becomes difficult to obtain explanations from him on the fact of absence from work. However, the legislation does not prohibit in such cases to request explanations from the employee by sending him mail or a telegram to the address indicated in the employment contract and the employee's personal file.

In judicial practice, there have been cases when the court reinstated an employee at work on the grounds that they considered the receipt for sending a letter to the employee as inadequate evidence that the letter contained precisely the requirements for giving explanations on the fact of absence from the workplace. Therefore, it is better to send to the address of the employee valuable letter with a description of the attachment and a notification of receipt or a telegram. The telegram should be sent with a notification of receipt, as well as with the obligatory receipt of a certified copy by telegraph (see Example 1).

The text of the notification letter can be more detailed (see Example 2).

The period for giving explanations should be counted from the date the letter or telegram was received by the employee, and also add 3-4 days for the mail run, if the employee for good reason cannot get to work and sends an explanation by letter.

If after two working days (plus a few days for the run of mail) the specified explanation is not provided by the employee, an appropriate act is drawn up. The act reflects the fact of non-receipt of explanations from the employee signed by the employee of the personnel service, the immediate supervisor of the absentee employee, and other employees.

At the same time, both in the case of receipt of correspondence by the employee, and in the event of its return to the sender after the expiration of the storage period, the fact of the employee’s absence from the workplace should be confirmed from the first day of absence from work (see Example 3) or confirmed by other evidence (the absence of the employee’s signature in the journal accounting at the checkpoint, testimonies, reports from direct superiors, etc.).

It is better to draw up absence certificates for each day the employee is absent from the workplace. At the same time, we strongly recommend that you do this on the same day, and not “backdating”, since in the event of a trial, this fact may be revealed, which may lead to a decision not in favor of the employer.

If the employee received a letter, a telegram, about which there is a note on the notification, but did not appear at work, did not provide an explanation for absenteeism within 2 working days, the employer can safely dismiss the truant.

Sick - warn

It should be noted that in practice there are cases when employees, trying for various reasons to cause inconvenience to employers, specifically hide the fact of being on sick leave, and then appeal against illegal dismissal (according to Article 81 of the Labor Code of the Russian Federation, dismissal of an employee at the initiative of the employer, with the exception of the case of liquidation organization or termination of activities individual entrepreneur, during the period of his temporary incapacity for work and during his stay on vacation is not allowed), while demanding payment for forced absenteeism.

But in such situations, the courts take the side of employers, referring to paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, which reads: “When considering reinstatement cases, it should be borne in mind that when implementing guarantees, provided by the Code to employees in the event of termination of an employment contract with them, the general legal principle of the inadmissibility of abuse of the right, including by the employees themselves, must be observed. In particular, it is unacceptable for an employee to conceal temporary incapacity for work at the time of his dismissal from work.

If the court establishes that the employee has abused the right, the court may refuse to satisfy his claim for reinstatement (changing the date of dismissal at the request of the employee dismissed during the period of temporary incapacity for work), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of unfair actions on the part of the employee.

If the sent correspondence with a request to provide an explanation for the fact of absence from work was not received by the employee (the letter was returned after the expiration of the storage period, no one opened the door to the postman to deliver the telegram), it is better for the employer to play it safe and take a number of additional measures to find an employee: apply for wanted by the police, try to find out from the relatives of the employee (if the employer has information about them) what happened to him, send requests to hospitals. In practice, few employers take such measures, since they require time and effort. Therefore, they dismiss employees who are absent from work for a long time for unknown reasons, for absenteeism without establishing the reasons for their absence.

However, if the reasons for the absence are subsequently recognized by the court as valid, the court will reinstate the employee in the workplace and oblige the employer to pay all amounts due to him, including forced absenteeism.

In addition, the place of an improperly dismissed employee may already be accepted by the time of the trial. new employee who will have to be transferred to other positions or to solve this problem by increasing the number of staff members.

In order to avoid such negative consequences, it is better for the employer to take all available measures to find the employee, despite the fact that the legislation does not oblige the employer to search for the missing employee.

Registration of dismissal for long absenteeism: the main difficulties

So, having collected full set documents confirming compliance with the requirements of Art. 193 of the Labor Code of the Russian Federation (requesting an explanation from an employee, drawing up acts on non-receipt of explanations, acts on the absence of an employee at the workplace, collecting written testimonies, collecting other evidence of the absence of an employee), as well as having made efforts to find an employee, as a result of which the employer came to the conclusion that the prolonged absence of the employee from the workplace is most likely not due to valid reasons, you can proceed to the procedure for terminating the employment contract.

According to the Labor Code of the Russian Federation, the termination of an employment contract for any of the grounds is formalized by an order (instruction) of the employer.

The general procedure for formalizing the termination of an employment contract is enshrined in Art. 84.1 of the Labor Code of the Russian Federation, according to which the employee must be familiarized with the order (instruction) of the employer to terminate the employment contract under a personal signature. In the event that the order (instruction) to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under his signature, an appropriate entry is made on the order (instruction).

Upon dismissal for absenteeism, in which the employee did not appear at the workplace after a long absence, it becomes impossible to bring the order to his attention. Therefore, Art. 84.1 of the Labor Code of the Russian Federation on the need to indicate on the order the fact that it is impossible to bring the contents of the order to the attention of the employee due to his absence from the workplace.

Date of termination of employment

The main question that arises when issuing an order to dismiss for a long absenteeism is the date of termination of employment. The problem is that according to Art. 84.1 of the Labor Code of the Russian Federation, the day of termination of the employment contract in all cases is the last day of work of the employee, except for cases when the employee did not actually work, but in accordance with the Labor Code or other federal law, the place of work (position) was retained.

Based on this rule, the day of dismissal should indicate the last day of work, that is, the day preceding the first day of absenteeism. So, if the employee did not go to work on April 1 and did not appear at the workplace over the next few days, then March 31 should be indicated as the day the dismissal ended.

But then it turns out that the employment relationship between the employee and the employer ceased on March 31, respectively, after March 31, the employee could no longer commit any labor offenses under the terminated employment contract. Therefore, there can be no dismissal for absenteeism. In this regard, some experts propose to indicate in the dismissal order the date of termination of employment, coinciding with the date of issue of the order.

However, it is more correct, in our opinion, to indicate in the order the date of termination of employment relations the last day of the employee’s work, which at least will be in accordance with the provisions of parts three and parts six of Art. 84.1 of the Labor Code of the Russian Federation.

This point of view is supported Federal Service on labor and employment. According to her letter dated June 11, 2006 No. 1074-6-1: “One of the grounds for dismissal for absenteeism (subparagraph “a”, paragraph 6 of the first article 81 of the Labor Code) may be the abandonment of work without a good reason by a person concluded employment contract for both indefinite and fixed periods. As a general rule, in all cases, the day of dismissal of an employee is the last day of his work. When an employee is dismissed for absenteeism, the day of his dismissal will be the last day of his work, that is, the day preceding the first day of absenteeism.

Confirmation of the correctness of this position is also contained in the sixth part of Art. 84.1 of the Labor Code of the Russian Federation, according to which the employer is not responsible for the delay in issuing a work book in cases where the last day of work does not coincide with the day the termination of employment is formalized upon dismissal of an employee on the grounds provided for in subpara. "a" paragraph 6 of the first article. 81 or paragraph 4 of the first article. 83 of the Labor Code of the Russian Federation. Thus, the legislator points out that upon dismissal for absenteeism, the last day of work does not coincide with the date of registration of the termination of employment.

Of course, this point of view is more reasonable and is supported by Rostrud and the State Labor Inspectorate during inspections. However, the position regarding the coincidence in the dismissal order of the date of issue of the order with the date of termination of labor relations has the right to exist, since in cases where the last working day is indicated in the dismissal order as the date of termination of labor relations, disputes may arise in court on this issue, which may or may not be resolved in favor of the employer. And in cases where the dates coincide, the courts, as a rule, do not express claims, since employees do not require them to change the date of dismissal from a later to an earlier one.

Thus, while this issue is not clearly defined by law and is not resolved with indisputable certainty. Therefore, employers can only hope that in the event of a dispute over the date of termination of employment, the court will take their side.

Grounds for dismissal for absenteeism

When applying for a dismissal for a long absenteeism, questions also arise as to what to lay as the basis for dismissal. In practice, there are cases when, upon dismissal for absenteeism, which dragged on for a month, in the order, on the basis of dismissal, only an act for one of the days of absenteeism was indicated, and the employee at the court presented evidence of the validity of absence from the workplace on that very day (certificate from emergency room, etc.), and he was reinstated at work by the court.

In order to avoid such situations, some experts recommend in the dismissal order to indicate, for example, that “for absenteeism on April 01, 2010, for absenteeism on April 02, 2010, for absenteeism on April 09, 2010, apply a disciplinary measure - dismissal”. Since labor legislation does not contain restrictions on the possibility of applying one penalty for several offenses, if a truant submits supporting documents for one or two days of absenteeism, then he will no longer be able to justify himself for the rest. However, there are also opponents of such a position, who refer to the fact that the Labor Code does not directly provide for the application of one disciplinary sanction for several labor violations by an employee. In addition, since absenteeism is referred by law to those serious violations of labor duties by an employee, for which the most severe penalty is provided - dismissal, then the meaning of indicating several days of absenteeism (in fact, several absenteeism) as the basis for dismissal is lost. Nevertheless, orders that contain an indication of several absenteeism (several days of absenteeism), as a rule, are not recognized by the courts as illegal, but are accepted as evidence of the employee’s absence from work for more than one day and are the basis for establishing the reasons for the employee’s absence from the workplace on each of the days specified in the order.

Terms of application of disciplinary action

What should not be forgotten when dismissing for absenteeism is the timing of the application of this disciplinary sanction.

According to Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, and the time required to take into account the opinion of the representative body of employees.

A disciplinary sanction may not be applied later than six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the day it was committed. The above time limits do not include the time of criminal proceedings.

It should be taken into account that arbitrage practice developed such a concept as "lasting absenteeism", which suggests that the moment of detection of absenteeism is not the day on which the absence of the employee was discovered, but the moment of finding out the reasons for his absence: it is at this moment that the offense is considered completed and discovered. However, the court, when considering each specific dispute, may resolve this issue in a different way, therefore, it is better for the employer to insure and dismiss for absenteeism within a month, that is, choose those dates of absence of the employee from the workplace that are included in the month before the date of issuance of the order (see. Example 4).

On the day the order is issued, a record of dismissal is made in the work book.

An entry in the work book on the basis and reason for the termination of the employment contract must be made in strict accordance with the wording of the Labor Code or other federal law and with reference to the relevant article, part of the article, paragraph of the article of the Labor Code or other federal law.

In practice, entries about the dismissal article are usually made starting with the corresponding paragraph of the relevant part of the relevant article of the Labor Code (see Example 5).

According to part six of Art. 84.1 of the Labor Code of the Russian Federation “in the event that on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send a notification to the employee about the need to appear for a work book or agree to send it by mail. From the date of sending the said notification, the employer is released from liability for the delay in issuing a work book.

Thus, on the day the order is issued for dismissal for absenteeism and making an entry in the work book, the employer must send a letter or telegram to the employee about the need to appear for the work book or agree to send it by mail.

Missing person…

Now consider the option when the employer did everything possible to find the employee: he filed a corresponding statement with the police, interviewed relatives, acquaintances of the missing employee, phoned hospitals, etc. However, the comprehensive measures taken to search for the result did not bring: the worker disappeared and no one knows what happened to him. For such cases, the legislation provides for the option of terminating the employment contract on the basis of paragraph 6 of the first article. 83 of the Labor Code of the Russian Federation: “The death of an employee or employer - individual, and recognition by the court employee or employer - an individual who is deceased or missing.

If there is no news from the missing employee for more than a year, the employer may recognize the missing employee as missing in court, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and Chapter 31 of the Code of Civil Procedure of the Russian Federation. So, according to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested persons, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. If it is impossible to establish the day of receipt of the latest information about the missing person, the beginning of the calculation of the period for recognizing the missing person is the first day of the month following the one in which the last information about the missing person was received, and if it is impossible to establish this month, the first day of January of the next year.

And if the court satisfies the stated requirements to recognize the missing employee as missing, the employer will be able to terminate the employment contract with this employee in accordance with paragraph 6 of the first part of Article 83 of the Labor Code of the Russian Federation.

In this case, the following entry is made in the work book (see Example 6):

Missing or truant: how to make the right choice

So, the legislation offers two options for terminating an employment relationship with a long-term absent employee.

In this regard, the question arises, in what cases should an employee be fired if he does not come to work for a week, a month or more, for absenteeism under Art. 81 of the Labor Code of the Russian Federation, and when you should expect news of him for a year or more, and then, using the procedure for recognizing the missing citizen as missing in court, terminate the employment contract under clause 6, part 1, art. 83 of the Labor Code of the Russian Federation?

In each case, the employer needs to resolve the issue of the applicable article for terminating an employment relationship with a long-term absent employee, based on many factors: moral characteristics employee, his status, business qualities, the permanent place of residence of the employee, the territorial jurisdiction of cases on reinstatement at work and on the recognition of a citizen (missing employee) as missing, etc.

Dismissal for absenteeism is always a measure of disciplinary action. Therefore, in each specific case, it is necessary to decide whether it is possible to apply a disciplinary measure to the employee if the reasons for his absence from the workplace are not reliably known.

The board was approached by the management of B-s LLC with the following problem. Employees E. and L., who have been working as drivers in this organization for about six months, do not appear at the workplace for almost three weeks. Attempts to reach them by phone were unsuccessful. Taking into account the fact that E. and L. have a permanent place of residence in another locality It was also impossible to visit their homes. At the place of temporary residence in a hostel in Moscow, they also did not appear during these three weeks. Personnel service in the time sheet indicated to these employees "HN" (non-attendance due to unexplained circumstances) during all the days of their absence from the workplace. Also, the absence of E. and L. was activated from the first day of absence from work.

* check with colleagues in the transport department if there were any expressions of dissatisfaction with work, bosses, etc. from the side of the missing workers, whether they mentioned in conversations about the possibility of ending work in the organization.

As a result of an interview with colleagues E. and L., it turned out that they talked about returning to their native village in order to visit their families, and then try their hand at another place of work;

* send to addresses permanent registration telegrams to employees E. and L. with a request to provide explanations for the reasons for their absence from work.

Employee E. received the telegram in person; a telegram addressed to employee L. was received by his wife;

Explanations were not provided by the specified employees, about which the relevant acts were drawn up;

* On the day the orders were issued (the orders recorded the fact that it was impossible to bring the contents of the orders to the attention of employees), it was recommended to send telegrams to both E. and L. with a request to come to receive a work book or agree to send it by mail.

As a result, the issue was resolved, the dismissed employees did not apply to the court with claims to recognize the dismissal as illegal.

In this case, the employer reliably established that employees E. and L. had not disappeared under unclear circumstances, that they had gone home and decided not to return to work. The truants did not present any valid reasons for their absence from the workplace, they did not show their intention to continue working at B-s LLC in any way. Therefore, taking into account all these circumstances, the employer made the right decision - to dismiss these employees for absenteeism.

In situations where an employee who has been working in an organization for several years, has established himself as a wonderful specialist and responsible employee, suddenly does not go to work, the employer should not make hasty decisions and dismiss him for absenteeism. Measures taken by the employer to establish the reasons for the employee's absence from work may show that he disappeared under strange circumstances - neither relatives, friends, nor acquaintances know about his whereabouts. At the same time, one should not be afraid that the employer will have to put the employee on the wanted list, and then recognize him as missing in court. If the missing person has relatives, then all these actions will be carried out by them. The employer will need to issue an order on the basis of a court decision and make an appropriate entry in the work book of the employee.

Televnaya A. | Lawyer of the INFOLEX Bar Association / Human Resources and Enterprise Personnel Management

Keywords:

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Labor activity in Russia has a huge number of features and nuances. All citizens are not only workers, but also simple people. Therefore, employers have a variety of questions in the course of their activities. For example, today we have to find out if they can be fired for absenteeism. What is needed for this? In fact, the topic under study is extremely serious. It occurs quite frequently in practice. However, employers and subordinates have different views on this kind of situation. What does Russian labor law say? How to terminate an employment relationship with a truant? The answers to all these questions will be found below. If you understand it well, then no problems and disputes will arise.

Controversy

Can they get fired for absenteeism? As already mentioned, the answer to the question posed cannot be called unambiguous. Some say that they can get fired for being absent from work. Some people say otherwise. But who is right?

It all depends on the circumstances and the specific situation. The Labor Code of the Russian Federation is a set of laws governing the relationship between a superior and subordinates. It was created in order to resolve controversial issues. The rights of workers are protected by the Labor Code.

In general, a citizen can really be fired for being absent from work. But under certain circumstances. The topic will be discussed in more detail below.

The legislative framework

Can they get fired for absenteeism? It all depends on why the citizen did not show up for work. As already mentioned, termination of labor relations at the initiative of the employer due to the absence of a subordinate at work is possible. But not in all cases.

The Labor Code of the Russian Federation indicates that the boss can dismiss a person who, without a good reason, was absent from work for a long time. This right is established by Article 81. Accordingly, in order not to be afraid of dismissal, it is necessary to fulfill the signed employment contract all the time.

However, sometimes circumstances are stronger than will person. Therefore, it is not always possible to fire for absenteeism. Article 81 of the Labor Code allows you to terminate the relationship between the employee and the boss only in the absence of good reasons. In addition, it is important to establish that it was absenteeism, and not being late. This is extremely important.

Definition of absenteeism

But how exactly? What is a walk? Without a valid reason, a citizen is absent from work for more than 4 hours in a row. It is this behavior in modern Russian legislation interpreted as walking. How does the Labor Code qualify absenteeism?

It follows that if the employee had good reasons, then skipping a working day or a long absence from work is not grounds for dismissal.

The main problem is to establish respect. The Labor Code of the Russian Federation does not have any clear instructions as to which cases are considered a valid absence from work. Therefore, each absenteeism is considered separately. This is normal.

good reasons

Can they get fired for absenteeism? Yes, if it has been proven. In other situations, missing work will not be grounds for termination of employment. So you don't have to worry.

As already mentioned, the legislation of the Russian Federation does not indicate cases in which absence from work is considered valid. However, in practice, you can more or less decide when absenteeism is such.

The most common reasons for being absent from work include:

disability of a citizen, documented;
stay in state or public works;
passage medical examination;
donation of blood and its components;
detention;
participation in rallies and strikes;
emergency situations that interfere with normal work (for example, the cancellation of a flight or a bus breakdown);
delayed salary for more than 15 days.

The main thing is that a citizen can somehow confirm the existence of certain situations. Absenteeism without a good reason, according to the law, can indeed be punishable by dismissal. But isolated cases, as a rule, are not so dangerous for a subordinate.

Bad reasons

Life is unpredictable. Therefore, it is not always easy to decide whether they can be fired for absenteeism. Often the correct answer will be given by the judiciary. After all, employers and subordinates are not always able to resolve such a controversial issue themselves.

good reasons for absence from work for a long time have already been listed. Now we should pay attention to disrespectful cases. What do they include?

To date, the following circumstances are disrespectful reasons for absenteeism:

passing a medical examination without a sick leave;
time off for days worked in the absence of their official registration;
applying for parental leave if the issue of such a situation has not been resolved in advance;
finding a husband / wife in a hospital.

It follows that even if the spouse needs help during their stay in the hospital, they will have to work and fulfill the terms of the employment contract. After all, absence from work in this situation will be a reason for termination of employment.

Disciplinary sanctions

Accordingly, the most difficult decision is to determine the validity of the reason for the absence from work. Every citizen must report to the chief about his behavior. This is a legal practice.

If an employee missed a working day, an explanatory note for absenteeism is written. The employer has the right to demand such a document in writing. You have 2 days to report. If the subordinate did not write an explanatory note, the employer draws up an appropriate act.

In addition, the boss has the right to terminate relations with a negligent subordinate when the latter refuses to explain himself and does not provide evidence of a good reason for absence from work. In this case, a disciplinary sanction is applied no later than one month from the moment the absenteeism was discovered.

Can they get fired for absenteeism? As soon as the citizen has reported on his behavior, the employer must study all the documents offered to attention, after which a decision is made on how respectful this or that situation is. A subordinate who disagrees with the outcome may apply to the court for an appeal. If the employer decides to dismiss the employee, but the judicial authorities establish a good reason for the absence labor day, you will have to reinstate the subordinate in office. Such situations are not uncommon. Therefore, each employer will have to think in advance how to dismiss for absenteeism. It is important to carry out such an operation in compliance with all its features.

But disciplinary sanctions, as a rule, are calculated by the employer on their own. It is important to take into account the previous behavior of each subordinate. So, for example, a conscientious cadre can get off with a small fine or a warning, and a negligent subordinate - with high penalties.

Legal dismissal

Now a little about when exactly absenteeism will be considered as such. Good and bad reasons for being absent from work have already been presented. To make it easier for employers to navigate, it is necessary to pay attention to some specific cases.

How to get fired for absenteeism? It is necessary that the absence from the workplace is characterized by one of the following layouts:

a citizen is not working all day (regardless of the duration of the shift);
a person is absent from the place of work for more than 4 hours in a row without good reason;
the employee has entered into an employment contract, but at the same time he has not been there for a long time (lack of notification of the intention to dismiss);
the subordinate does not work after filing an application for termination of labor relations with the employer (according to the law, working off is 14 days);
unauthorized leave or use of time off.

All this is the basis for dismissal "under the article." Such circumstances are not subject to appeal in court.

Procedure

Can they get fired for one absence? In practice, such a solution is extremely rare. After all, the boss will still have to follow the standard procedure for terminating an employment relationship with a subordinate.

How do you get fired for absenteeism? Need to:

Establish the fact of the absence of a citizen at the workplace.
Demand an explanation from a negligent subordinate. 2 days are allotted for clarification of the situation.
If the citizen refused explanations, a special act is drawn up. It is signed by the authorities. Once the person has described the situation, it needs to be established how respectful the absence from work is.
As a result of the decision, either the employer issues a dismissal, or applies a disciplinary sanction and continues the employment relationship.

It should be noted that upon dismissal, the boss is obliged to make a full settlement with the citizen. More precisely, you will have to pay for the time worked by subordinates. In addition, the employee is entitled to compensation for unused vacation.

Going to court

As already mentioned, every person who does not agree with the dismissal for absenteeism can appeal this or that decision in court. Only the judiciary will 100% say which situations are considered valid for absence from work.

Judicial practice demonstrates that in Russia employers try to fire anyone for any absence from work. However, this step is not always legal. And "savvy" subordinates will always be able to be reinstated at their former place of work.

Litigation is not to be feared. The main thing is to provide evidence that the absence of a working day had a good reason. The court always examines all the documents attached to the claim, on the basis of which it makes a decision.

Single Violation

Can they get fired for one absence? The answer is not as easy as it seems. It all depends on the integrity of the employee.

From the point of view of legislation, dismissal for a single absenteeism takes place. In practice, it occurs only when either the boss does not treat the subordinate too well, or the staff does not work well. Most often, a single absenteeism entails a disciplinary sanction, a warning and is limited to an explanatory note. This is the most common occurrence.

Results

Now the good reasons for absenteeism are clear. In addition, it is now clear whether they can be fired for being absent from work for a certain period of time.

Despite all of the above, the situation with absenteeism and termination of employment still remains rather ambiguous. Each case must be considered on an individual basis. If it turns out that there is a good reason for absenteeism, there is nothing to be afraid of.