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Can they be fired for absenteeism under the article. Long absenteeism: the difficulties of dismissal

Each case of dismissal of an employee for absenteeism without a good reason is individual. There cannot be a universal sample document and a single template, acting on which, you are guaranteed to fire any truant without any problems. Moreover, absence from the workplace is not always a disciplinary offense. There are times when an employee is forced to miss a working day and cannot immediately provide required documents in your own defense. And hasty action in such cases is dangerous - you may be called to court, which you are likely to lose.

That is why we offer not a template solution, but detailed analysis terms, documents and rules of conduct, taking into account judicial practice.

Absenteeism or not: we understand the terminology

According to the Labor Code of the Russian Federation, absenteeism is a single gross violation by an employee of his labor duties ( Article 81, Clause 6, Clause “a” of the Labor Code of the Russian Federation). IN Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004, 5 actions of an employee are described that can be qualified as absenteeism:

Absenteeism. This means the absence of an employee at work without good reasons throughout the working day, regardless of its duration. For example, if we are talking about a person who, according to an employment contract, works 3 hours a day, absence during these three hours already means absenteeism.
The presence of an employee without good reason outside the workplace for more than 4 hours in a row during the working day. What does it mean? Suppose a person came to work, took a pass, checked himself in, and then left somewhere and did not appear at the workplace for 4 hours. Of course, provided that he was obliged to be there - that is, he did not have a traveling nature of work and he did not have to meet with clients, negotiate with business partners, etc.
Leaving work without warning of termination of the contract and without a good reason, provided that the employment contract is concluded for an indefinite period. Or - a similar misconduct before the expiration of the two-week warning period. An example is a situation where an employee is in a confrontation with superiors, writes a letter of resignation on own will and no longer comes to work, although he has to work for another two weeks.
Leaving work without a good reason, provided that the employment contract is concluded for a certain period, and this period has not yet expired. Similarly - if the warning period for early termination of the contract has not expired.
Unauthorized use of days off or unauthorized leave. Even if an employee agreed on a vacation orally, but did not receive an order and did not sign it, his departure can be qualified as absenteeism.

Note that we say "may qualify as absenteeism". The fact is that between absence from the workplace and the moment when this act of an employee is recognized as absenteeism, a certain time passes. The task of the personnel officer during this time period is not only to issue an act of absence from the workplace (we will describe how to do this below), but also to ask the employee for an explanation of his absence from work. And if the employee was able to provide a convincing explanation, even an absence from work for 1-2 weeks cannot be qualified as absenteeism.

The word "persuasive" is the key here. Not every explanatory note meets this criterion.

Let's take an example. Let's say you received an explanation like this:

On the one hand, there is no convincing explanation here. If the sister called Ivanov, it means that he still had some kind of phone, as well as the opportunity to warn the authorities about being late - if not even by phone, then by phone. e-mail. In addition, the employee decided to go to lunch instead of workplace and that's important too. But on the other hand, if there is no evidence that Ivanov has repeatedly violated discipline before, when dismissed for absenteeism at the initiative of the employer, the court may well take the side of the employee - this is the practice.

What to do in such a situation? Ask for additional written clarifications on the following questions: why, after arriving at work, Ivanov immediately went to lunch and why he did not warn his superiors about his absence. It is desirable to do this in writing, moreover, communication regarding clarifications should also be formalized as an act. Having requested clarification, you can reprimand Ivanov and warn that the next time such an offense will already qualify as absenteeism.

Let's briefly analyze another case: a remote employee did not get in touch at the appointed time and explained this by the fact that his Internet was turned off. If the Internet is provided by a company, an explanation must be requested from the IT department. If for technical questions the employee himself answers - evidence is needed that the Internet was turned off through no fault of his (for example, not because he forgot to pay for the service).

Good reasons: when can you be absent from the workplace?

There is no list of valid reasons for absence from the workplace in the Labor Code of the Russian Federation. But there is arbitrage practice. Based on it, we can make the following list:

Illness of the employee himself or the child he cares for. Moreover, it is not necessary to provide a sick leave - a certificate from a doctor is enough, especially if the employee missed one day for health reasons.

Technological disaster.
Big traffic jams, road blocking. This fact must be registered - evidence can be obtained from the traffic police.
Shift in the schedule of movement of electric trains.
Road accident, confirmed by a certificate of accident.
Death of a relative or loved one.
Summons to law enforcement agencies and court.
A fire or other emergency that prevented you from coming to work.
Urgent hospitalization of a close relative.
Emergency work at an employee's home that prevented him from leaving.

If you qualified the absence of an employee at work as absenteeism, the algorithm of actions will be as follows:

If an employee has previously violated labor discipline and it was decided to terminate the employment contract with him, the algorithm for dismissal for absenteeism will be as follows:

How to draw up an absence from work

First, let's understand the terms. The workplace and the place of work are not the same thing. Place of work is the name of the employer on the business contract. For example, Alfa LLC, Moscow, 10th Stroiteley Street, 25. And the workplace is the place where the employee should be or where he should come to perform work duties. It is not necessary to name the workplace in the contract, but it can be indicated in another document - for example, in job description, lease agreement, floor plan, etc. If it is not indicated in any document, when drawing up the act, it is necessary to explain what you mean by the phrase "the employee was absent from the workplace."

It is very important to take into account the difference in terms and the need to explain where the employee's workplace is located. The court always carefully checks the acts, so you can be sure: it is enough to write “the employee was absent from the place of work” for the act to be recognized as incorrect and withdrawn from the case.

What else needs to be specified in the act:

Name and position of the employee. Please note: the position must be the same as in the job description.
The date and exact time the employee was absent from the workplace. If possible, indicate when he came and went. If the employee was absent all day, indicate his working hours indicated in the documents.
The exact time of drawing up the act.
Name and position of the employees who signed the act. In their presence, the employee will familiarize himself with the document. It is desirable that there be at least three signatures - then the document will have more weight in court.

We also recommend including additional marks in the act. The first is that the employee refuses to familiarize himself with the act. The second is that the document was read aloud in his presence. If you are asked in court what it means “the employee got acquainted with the act of misconduct”, you can answer: the document was read aloud in the presence of the employee himself and several witnesses. The third mark is about the need to provide an explanation. Of course, you can prepare separate documents - an act of refusal to familiarize, a notice of the need to provide explanations. But their employee may ignore, and you will lose convincing evidence for the court.

We have prepared a sample misdemeanor act for you, but it is not necessary to use it - you can create your own document template.

Important: if an employee missed several working days, draw up an act every time! In this case, upon dismissal for a long absence, you can prove that the employee has repeatedly violated labor discipline.

Familiarization of the employee with the document must take place in the presence of at least three witnesses. It is undesirable that only managers be witnesses - it is better to involve the employee's colleagues and one of the employees personnel service. Each action of the employee in the act - in particular, the signature or refusal to familiarize - the witnesses must certify with their signatures.

What to do if the employee has stopped going to work at all, and it is impossible to acquaint him with the act? In this case, you can send him registered letter and immediately after receiving a notification of non-delivery, proceed to the preparation of a report addressed to CEO and launching the procedure for dismissal for absenteeism. Other options are to call the employee and make an appointment phone conversation, warning about this, or ask the employee's colleagues to contact him and, based on the results, draw up a memo.

Getting explanations from an employee

After familiarization with the act of misconduct, the employee must write and provide within 2 working days explanatory note. It is written in free form in the name of the immediate supervisor and transferred either to this supervisor, or to the secretariat or personnel department. We have already analyzed an example of an explanatory note above.

If the employee has not prepared an explanatory note in two working days, you need to draw up an act of no explanation - its form will be the same as that of the act of misconduct. At the same time, it is important to understand: the absence of an explanatory note does not prevent the application of a disciplinary sanction.

Then, on the basis of the act and the explanatory note, the head of the department in which the employee works, or the head of the personnel department, writes a memo addressed to the general director. In it, the boss briefly describes the situation and suggests considering the application of a disciplinary sanction for absenteeism in the form of a remark, reprimand or dismissal. If you decide to issue a notice of the need to provide explanations separately, this document must also be submitted to the CEO.

After reviewing all the documents, the CEO puts a resolution in which he requires the preparation of an order for disciplinary action and indicates the punishment he has chosen for the employee - a remark, reprimand or dismissal.

It is necessary to apply a disciplinary sanction within a month from the date of discovery of the misconduct (i.e. from the date of drawing up the act) and within 6 months from the date of the misconduct, not counting the days when the employee was absent from work, was on sick leave or on vacation, and also the time it took to take into account the opinion of the representative body of workers. This means that what formerly an employee personnel department make an act, the better.

The procedure for dismissal for absenteeism: paperwork

Important point: if it is decided to dismiss an employee, only one order for disciplinary action needs to be drawn up. You can't both reprimand and fire - it's illegal.

The need to dismiss an employee must be explained in detail and justified in the order. To do this, indicating the grounds for termination employment contract, it is recommended to formulate from subparagraph “a” of paragraph 6 of article 81 of the Labor Code of the Russian Federation. You also need to indicate all the documents with numbers and dates that the CEO considered when making a decision to dismiss. If the employee did not appear at the workplace and did not receive a registered letter in his name, this letter with a return mark should also be included in the list of documents.

A sample order for dismissal for absenteeism is possible.

The employee must read the order and sign it. If the employee refuses to do this, you need to draw up an act of refusal to familiarize yourself with the order. If there is no communication with the employee at all (he stopped going to work, does not pick up the phone), he needs to send a registered letter with a request to appear and familiarize himself with the dismissal order. A simple rule applies here: in court, you must easily prove that the fact of dismissal was brought to the employee very clearly.

It is also necessary to make a record of dismissal for absenteeism in the work book. And then the question arises: what is the date of dismissal to put?

There are two options. The first is to indicate the last day of the employee's work, except for cases when he did not actually work, but the position was retained by him. This option is relevant if the absenteeism is long and it is not possible to contact the employee.

The second option is to indicate in the record of dismissal the date of issuance of the order to apply a disciplinary sanction.

If the absence is long and the employee does not come to work, you need to send him a notification where and when he should come to pick up work book. If the employee, even after this notification, did not request a work book, it should be stored in the archive of the organization.

Finally

Here are samples of documents that may be useful to you when processing the dismissal of an employee for absenteeism:

Remember that in the event of dismissal for absenteeism at the initiative of the employer, it is the employer, and not the employee, who has to prove the legality of his actions in court. Therefore, in the process of dismissal, you need to collect a good evidence base and, if possible, enlist the support of colleagues of the employee who can speak in your defense.

The procedure for dismissing an employee for absenteeism is a responsible and multi-step procedure. An error at any of the stages can result in the restoration of the offender in the same place. How to fire an employee for absenteeism correctly? The article contains step-by-step instructions for dismissing an employee.

Dismissal for absenteeism: step by step instructions 2020

A fairly common personnel service procedure is dismissal for absenteeism: step by step procedure(diagram) looks like this:

Fixation of the fact of absence.
Getting an explanation.
Misdemeanor qualification.
Preparation of documents for dismissal.
Familiarize the employee with the documents and hand them over upon dismissal.

Let's take a look at each step step by step instructions in details.

We draw your attention to the fact that each stage must be carefully documented, therefore, further we will answer the question in detail: dismissal of an employee for absenteeism - how to arrange it correctly?

Step 1. We fix absenteeism

If the employee did not come to work and did not warn about his absence, this does not mean that he went on absenteeism.

What is considered absenteeism is indicated in Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2. Common features for all cases of absenteeism is unauthorized and without good reason absence from work for more than four hours in a row during a working day or shift.

But since on initial stage it is not known why the employee did not arrive, just in case, you need to make sure and fix the fact of his absence - this is the essence of the first stage of the step-by-step instruction.

An event is recorded by an act or other document adopted in the workflow of a particular organization.

The act states:

time and place of compilation;
personal data and job titles of the compiler and persons present;
the very fact of the absence of a particular employee.

On the first day of an employee's absence from work, as a rule, three acts are drawn up:

the first - at the time of discovery;
the second - after four hours of absence;
the third - at the end of the working day or shift.

Subsequently, they draw up one act per day at the end of the working day.

On the day when the employee appears at work, an act is drawn up stating that the person went to work and received a request for written explanations.

Let's move on to the next step of the step-by-step instructions.

Step 2. Asking for an explanation

According to article 193 of the Labor Code of the Russian Federation before applying a disciplinary sanction, the employer must obtain a written explanation from the employee.

This is done so that the employee has the opportunity to explain why he was absent. If an explanation is not received, the procedure will be declared illegal. So we advise you not to skip this milestone suggested step by step instructions.

The law does not say how it is necessary to request explanations, but it is better to do this in writing, so that in the future, if there is a trial, the employer would have something to present to the court.

The employee has two working days to write his explanation, in which he can state the reasons for his absence.

If after two days the employee has not provided an explanation, an act is drawn up.

Until the reasons and conditions for which the person was absent are clarified, the HH code (absence for unexplained reasons) is put in the time sheet.

After that, the employer will deal with the reasons, changes are made to the time sheet and either the PR code is affixed (if the employer considered that the employee was absent) or another code, depending on the reasons for the absence.

Step 3. Find out the reasons

At step 3 of the step-by-step instruction, the employer assesses the validity of the reasons, specified by the employee, on one's own. There are no criteria for respectfulness in the law, therefore, when assessing the circumstances of absence, the employer should proceed from the principles of reasonableness, including those specified in Determination of the Constitutional Court of the Russian Federation of October 17, 2006 No. 381-O.

The legal assessment of the explanations is set out in a separate document, as a rule, in the form of a report or memo, which indicates that:

or a person, in violation of the requirements of the law, committed a disciplinary offense, which was expressed in the absence without good reason at his workplace for a certain period;
or the employee did not make absenteeism, that is, was absent for good reasons.

If the employee is guilty, the report indicates proposals for the application of disciplinary measures to the guilty person, which may vary from remarks to dismissal.

The completed memorandum is submitted for approval to the general director of the company or a person authorized to make a decision on this issue (application of disciplinary measures, conclusion and termination of employment contracts).

The management, at its discretion, independently makes a decision regarding the guilty employee:

may agree with the proposals set out in the memorandum (depending on what is written there);
can make its own decision, strengthen (up to dismissal) or mitigate the responsibility of the employee for absenteeism.

Step 4. Preparing the order

If the management has decided that dismissal for absenteeism is inevitable, the relevant department, usually personnel, prepares an order to terminate the employment contract. Form T-8 is used. Instructions for filling out the T-8 form and sample orders can be found on our website.

The employee must be familiar with this order against signature. If he refuses to get acquainted, an act is drawn up.

Step 5. We calculate and issue documents

The final stage of the step-by-step instructions is the final settlement with the employee.

It is made on the basis of a note-calculation, which is prepared jointly by personnel and accounting departments.

The calculation includes wages for the period worked, bonuses (if any), compensation for unused vacation.

Payments must be made on the last business day.

On the same day, all documents required for issuance are issued:

labor and medical (if any) books;
copies of orders (at the request of the employee);
and other documents.

conclusions

The procedure for dismissal for absenteeism according to the law is a rather complicated event, and compliance with the norms of each of the steps of the step-by-step instructions described above is mandatory. The result of neglecting the rules for terminating employment contracts in this case with one hundred percent probability will be the restoration of the dismissed violator in the same place.

Absenteeism is one of the grounds for terminating an employment contract at the initiative of the employer (). Recall that absenteeism is understood as the absence of an employee at the workplace without good reason for more than four hours in a row or during the entire working day (shift), regardless of its (her) duration. The employer has the right to regard as absenteeism, including the following circumstances (clause 39 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 ""; hereinafter - the Decree of the Plenum of the Armed Forces of the Russian Federation No. 2):

abandonment of work without a valid reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about the termination of the contract, as well as before the expiration of the two-week warning period ();
leaving work without a valid reason by a person who has concluded an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice period for its early termination (,);
unauthorized use of days off, as well as unauthorized leave on vacation.

Despite the apparent transparency of these provisions, employers, and sometimes the courts, are still at a standstill, deciding whether certain actions of an employee are absenteeism. And often the conclusions they come to are hasty.

Let's look at a few specific cases of dismissal of employees for absenteeism, as well as the reasons why employers should not have made such a decision.

How voluntary dismissal turned into absenteeism

On November 1, 2013, D. submitted to her employer, individual entrepreneur K., voluntary resignation letter. Focusing on the provisions, the employee believed that she was subject to dismissal after a 14-day period, that is, November 15, 2013. This day was the last working day for D., but no settlement was made with her and no work book was issued. Since November 18, she has already started working for another employer. However, the entrepreneur considered that the employee continued to work for him even after the expiration of the termination notice. Therefore, when on December 6, 2013, D. demanded to send her a work book and other work-related documents that were not issued on the last day of work, she received a response that the employment relationship with her was not terminated, and, therefore, the requested documents cannot be issued to her. And in February 2014, the employer nevertheless fired her, but for absenteeism, having issued the appropriate order.

Learn about the features of the procedure for dismissing an employee who is not at the workplace from the material
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D. considered these actions illegal and filed a lawsuit in which she asked to recognize the dismissal for absenteeism as illegal, to oblige K. to issue an order to dismiss D. of her own free will on November 15, 2013 and to recover from former employer all payments due, as well as compensation for non-pecuniary damage.

The court of first instance dismissed the claims (decision of the Frunzensky District Court of the city of Saratov dated April 17, 2014 in case No. 2-1209/2014). At the same time, it was based on the time sheet submitted by the employer, according to which D. worked for K. until 19 November 2013 inclusive. The court emphasized: since after the warning period had expired, the employee continued to work for K. and did not insist on dismissal, this gave the employer the right to continue the employment contract (). And, consequently, D.'s further absence from work was rightly interpreted by K. as absenteeism.

The employee did not agree with this position and filed a complaint with a higher court, demanding that the decision be canceled. And the appeal sided with D. ().

The court pointed out that from the content of the time sheet for November 2013, it was impossible to reliably establish the fact that D. appeared or did not appear at work, since there are contradictions in this time sheet: after November 15, 2013, on the days from November 20 to November 23 and from November 25 to On November 29, 2013, along with an indication of the plaintiff's appearance at work, there is also information about absenteeism. In addition, the time sheet is not an indisputable confirmation of the work performed by the plaintiff after November 15, 2013, and the employer did not provide other evidence.

The Court of Appeal also recalled that an employee has the right to terminate an employment contract for own initiative, notifying the employer in writing no later than two weeks, unless another period is provided by law (). The specified period begins on the day after the employer receives the application from the employee. By agreement between the parties, the employment contract may be terminated earlier. Thus, the defendant, having received on November 1, 2013 from D. a statement of resignation of his own free will and without agreeing with the employee on a different period, had to issue an order to dismiss the plaintiff on November 15, 2013, that is, after the expiration of a two-week notice period for dismissal. In addition, since the employee did not show up for work and had already taken a job elsewhere, there was no reason to believe that she did not insist on dismissal. Therefore, the court indicated that D.'s absence from work after November 15, 2013 cannot be considered absenteeism.

In this regard, the court overturned the earlier decision and satisfied the plaintiff's claims to impose on K. the obligation to issue an order to dismiss D. at his own request on November 15, 2013, as well as to pay 10 thousand rubles. for non-pecuniary damages.

OUR REFERENCE

Conventionally, absenteeism can be divided into two groups: short-term (when an employee, for example, after missing one or several working days, appears at his workplace or does not appear, but he can be contacted by phone) and lasting (when you find an employee and ask him for an explanation does not seem possible).

In the first case, everything is simple. The main thing is to comply with the requirements and, before applying a disciplinary sanction, request an explanation from the employee in writing. In case of refusal, an appropriate act must be drawn up. At the same time, the employee’s refusal to give an explanation is not an obstacle to dismissal, but in this case it will not be superfluous to take written testimony from colleagues and the immediate supervisor about the absence of the employee at the workplace. And after that, you can draw up a dismissal order.

In the second case, it is not worth dismissing an employee without finding out the reasons for his absence from the workplace. The fact is that if the reasons for the absence are subsequently recognized as valid, the court will reinstate the employee in the workplace and oblige the employer to pay all the amounts due to him, including average earnings during the forced walk. To resolve this situation, you can send a letter to the employee by mail (with a notification and a description of the attachment) with a request to explain the reasons for the absence from the workplace. If the employee cannot be found, an act should be drawn up about this. At the same time, an entry should be made in the time sheet about the absence of the employee due to unclear circumstances. Of great importance are reports from the immediate supervisor of the absent employee, confirming the fact of absence. If, nevertheless, the location of the employee is not established, it will be possible to dismiss him as missing (), if the appropriate decision is made by the court.

How the employer's lack of sick leave from a pregnant employee turned into a dismissal

On July 27, 2012, N. was registered at the antenatal clinic due to pregnancy, and three days later she informed the director of the enterprise by mail. Later it turned out that this letter did not reach the addressee and was returned to the sender. In addition, in the period from 2 to 10 August 2012, the employee was on sick leave, which she presented to the employer. Subsequently, N. repeatedly received certificates of incapacity for work, which she sent to the management by mail, but none of them reached the employer. Due to the fact that N. was absent from the workplace for a long time, the management of the enterprise sent her a notice about the need to come to work to provide explanations. Having received this notification, the employee did not appear at work and did not submit supporting documents for her absence from the workplace. The employer recorded in the act the fact that there was no written explanation from the employee and issued an order to dismiss N. for absenteeism. The employee became aware of this from a letter she received on April 12, 2013, signed by the director of the company.

N. considered that the employer violated the ban on dismissal of a pregnant woman at the initiative of the employer () and went to court demanding that she be reinstated at work.

The court of first instance refused to satisfy the stated requirements (decision of the Oktyabrsky District Court of Krasnodar dated October 8, 2013 in case No. 2-668/2013). The court confirmed that N. gave the employer a sick leave for the period from 2 to 10 August 2012, but emphasized that she had not received any explanation about the reasons for the absence before and after these dates. In addition, the employer did not have information about the plaintiff's pregnancy. In this regard, according to the court, N. abused his right (), and since the defendant fully complied with the procedure for dismissing an employee for absenteeism, this gave him the right to apply this disciplinary sanction to N..

The Court of Appeal upheld the rendered judicial act ().

N. decided to defend her position in the cassation instance and filed a complaint with the Supreme Court of the Russian Federation, which agreed with the demands of the plaintiff ().

The Supreme Court recalled the position of the Constitutional Court of the Russian Federation, which at one time noted that the rule on the prohibition of the dismissal of pregnant women at the initiative of the employer is designed to ensure the stability of the position of such employees and their protection from a sharp decrease in the level of material well-being due to the fact that the search for new job difficult for them during pregnancy (). The RF Armed Forces also added that in the event gross violation pregnant woman of her duties, she can be attracted to disciplinary responsibility using other disciplinary actions other than layoffs.

In addition, the law does not make the possibility of dismissing a pregnant woman dependent on whether the employer was informed of her pregnancy or not (paragraph 25 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated January 28, 2014 No. 1 "").

This became the basis for the annulment of the acts issued by the courts of the first and appellate instances, and the case was sent for a new trial.

How a part-time job with another employer was mistaken for absenteeism due to delayed wages

D. worked at P.’s plant from January 13 to April 18, 2014. In connection with the delay in the payment of wages, he decided to look for other sources of income. On April 10, 2014, D. wrote to the general director of the plant an application for granting him leave without pay, as he found a part-time job with another employer. However, he did not receive the consent of the head and the leave at his own expense was not issued in the prescribed manner. Despite this, the employee did not show up for work. D. also did not provide a statement on the suspension of work due to a delay in wages (). In this regard, the employer considered the employee’s absence from the workplace to be absenteeism and dismissed him in compliance with the procedure prescribed by law ().

Disagreeing with the management's decision, D. filed a lawsuit to reinstate him at work, recover wages for the time he was forced to take absenteeism, and compensate for non-pecuniary damage.

The court of first instance dismissed D.'s claim (decision of the Sovetsko-Gavansky City Court of the Khabarovsk Territory dated May 20, 2014 in case No. 2-604/2014). He motivated his position by the fact that D. was absent from the workplace without good reason, having arbitrarily left the workplace before the start of the work shift.

However, the prosecutor did not agree with this position - and prepared an appeal presentation in which he asked that the court's decision be canceled. But the court of appeal left the prosecutor's submission unsatisfied (appellate ruling of the Judicial Collegium for Civil Cases of the Khabarovsk Regional Court dated August 8, 2014 in case No. 33-4885/2014). But the cassation considered the position of the prosecutor justified, canceled the earlier judicial acts and sent the case for a new trial (decision of the Presidium of the Khabarovsk Regional Court of April 13, 2015 in case No. 44-g-26/2015). Re-examining this case, the Court of Appeal came to the following conclusions ().

When imposing a disciplinary sanction, the gravity of the offense committed and the circumstances under which it was committed () must be taken into account. The question of whether the violation committed was gross is decided by the court, taking into account the specific circumstances of each case (). And the obligation to prove that such a violation actually took place and was of a gross nature lies with the employer.

The employer did not dispute the fact of untimely payment of wages to employees. On the contrary, at the court session, he explained that the company was in a difficult financial situation, which led to a delay in paying wages. As the court emphasized, the obligation to pay wages is enshrined in current legislation. Moreover, the Labor Code of the Russian Federation, prohibiting forced labor, calls one of its signs a violation deadlines payment of wages or its payment in an incomplete amount (). And since the employer did not fulfill his obligations for the timely and full payment of wages to the employee, the disciplinary sanction in the form of dismissal, even despite the absence of an application for suspension of work due to delayed wages, was applied to D. without taking into account the severity of the misconduct committed by him and the circumstances of his commission.

As a result, D.'s demands to be reinstated at work were satisfied. In his favor, the average earnings for the entire period of forced absenteeism, as well as compensation for non-pecuniary damage, were recovered.

How the wedding led to dismissal

From February 21, 2008, S. worked in the company R. The collective agreement in force in the company provided for the provision of employees on the occasion of registration of a marriage with leave of up to five calendar days, one of which was provided with a payment of tariff rate(salary), and the rest - without pay. About his absence from work in connection with the registration of marriage, S. warned his immediate superior orally in advance. However, as soon as the employee went to work, he was required to provide a written explanation of the reasons for the absence, and then he was fired for absenteeism.

Believing that the dismissal was unlawful, S. filed a lawsuit to reinstate him at work and collect wages for the time of forced absenteeism, as well as compensation for non-pecuniary damage.

As the court found, the reason for S.'s dismissal was his absence from work without a good reason, since he did not submit a written notice of the need to take time off due to marriage registration. In this regard, the court of first instance sided with the employer and dismissed the claim (decision of the Zheleznodorozhny District Court of Khabarovsk dated April 1, 2015 in case No. 2-1303/2015).

S. appealed to the court of appeal, which took a diametrically opposite position ().

The court noted that, in accordance with the terms of the collective labor agreement, the plaintiff could not be denied leave on the occasion of marriage registration. The absence of a written notice from the employer about the absence from the workplace due to personal circumstances in itself is not a basis for bringing the employee to disciplinary liability, since violation of this procedure does not exclude the employee from having a good reason for absence. In addition, as a result of any misconduct committed by the plaintiff, any negative consequences did not occur for the employer. Considering that S. had not previously been brought to disciplinary responsibility, the court concluded: his dismissal was made without taking into account the circumstances that caused his absence from the workplace, and the severity of the offense committed.

As a result, the dismissal was declared illegal, S. was reinstated, and the employer was obliged to pay the employee the average wage for the time of forced absenteeism, as well as compensate for the moral damage caused.

Since the obligation of the employer to provide the employee with unpaid leave in connection with the registration of marriage is provided for by law (), the court's conclusions apply to all cases of absence from work due to their own wedding - regardless of whether the relevant provisions were enshrined in a collective agreement.

Thus, even if there are signs of absenteeism, the court may recognize the dismissal as illegal. When making a decision, non-formal circumstances will become significant (for example, the absence of sick leave or a written application for leave), but actual (expiration of the notice of dismissal of one's own free will, pregnancy, wage arrears, marriage and other good reasons for the employee's absence from work).

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.

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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 through telephone communication, 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, the sanction arises in the event of improper performance by the employee of his labor functions, enshrined 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 utility systems, delay of transport, flight), circumstances force majeure(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

Strictly following the procedure for registering an employee for absenteeism will reliably protect the legal foundations of the 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 a written notice of intention to dismiss him to the address of the subordinate who has committed absenteeism, 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 immediate supervisor the truant is obliged to provide a senior manager with a memorandum.
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 the case in court, since the court will definitely turn to such information.
Dismissal order: created by prescribed 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 in a personal card and in the work book of a 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 of detection of absenteeism);
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 date 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.

The documents

Employee Absence Act

The document is drawn up by the head or personnel 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 his 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 to go 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 the local logs of registration of internal documentation.

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;
application 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 labor agreement;
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 was 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 personal signature official(the chief gave staff) and the seal of the organization.

Union Notice

Inquiry motivated opinion the trade union becomes mandatory upon termination of the labor agreement for absenteeism, if 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 the repeated failure to perform the labor functions assigned to him without valid circumstances or in the presence of several disciplinary penalties.

All other cases, even if the employee is a member of a trade union, do not need to request a reasoned opinion from the primary organization of 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 of refusal to provide them with such information 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 the cases prolonged absence employee under unexplained 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 influence the establishment of any restrictions, therefore payments are made according to the 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;
travel allowance, including household expenses, which 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.

In relation to military personnel and employees of the state civil service fully applicable labor law.

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

Controversial situations

When the rule does not apply

Each employee who has strong evidence of his innocence can challenge the employer's decision to dismiss in court.

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;

Most effective method- litigation in court.

The judiciary will require 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.

An 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 mail to the address of his official registration - a valuable letter with an inventory of the attached 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.

Output

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 high degree his guilt.

According to labor law, the termination of an employment contract with an employee may follow due to the actual absence of the employee from the workplace without good reason, equal in duration to both the entire working day (shift), and more than four hours in a row during this day (shift). In other words, a four-hour absence of an employee from work is equivalent to absenteeism.

Consider how such absenteeism is punished, and what is the procedure for dismissal.

The duration of an employee's absence and its impact on the choice of disciplinary sanction

It is important for the employer to fix the duration of the absence of the worker from the workplace.

Since the legislation provides for the possibility of dismissal due to absenteeism only in the absence of an employee equal to more than 4 hours in a row, dismissal for absence within 3.5 hours is no longer allowed (subparagraph "a" of the 6th paragraph of the 1st part of the 81st article TC RF).

In this case, disciplinary sanctions may be applied to the employee for misconduct. This is a remark, reprimand and termination of employment, that is, dismissal.

In addition, it is not allowed to sum up the time of the general absence of the worker, for example, for several days, for individual hours of delay (morning, afternoon) or those associated with leaving early.

Dismissal due to absenteeism is attributed to the rights of the employer, and not his duties. Therefore, if there is a fact of absenteeism, he can apply one of the types of disciplinary sanctions against the employee or apply nothing at all.

Dismissal procedure

Since absenteeism is classified as a type of disciplinary offense, i.e., non-fulfillment of the labor duties entrusted to him or improper performance of such duties, termination of the employment contract may become a disciplinary measure.
The dismissal of a worker, taking into account the provisions of Article 81 of the Labor Code of the Russian Federation, can be carried out only if the rules stipulated by Article 193 of the Labor Code of the Russian Federation are observed.

First, you should prepare and certify it with the signatures of at least two witnesses. The drawing up of the act should follow on the same day, but the acquaintance of the absent employee with this document should take place on the day he appeared at work.

In case of a long absence of the latter, the daily drawing up of such an act is allowed. If a document confirming the validity of the reasons for the absence is presented, some days of those that were missed may be outside the scope of documentary evidence.

In the time sheet, the corresponding marks are made for the time of absence of the employee.

This can be the letter code "HH" or the numeric "30", which means no-show for unknown reasons.

In addition to the act, you can prepare a memorandum addressed to the head of the enterprise. The direct supervisor of the absent employee can take care of its registration.

The note should indicate the absence of the worker at the workplace and the measures taken related to his search (call to a mobile, home phone, etc.). As soon as an unscrupulous employee appears at work, you should immediately demand from him an explanation for the absence, drawn up in writing.

The employee is given two working days to prepare such an explanation (Article 193 of the Labor Code of the Russian Federation). If the employee did not submit an explanatory note, an act is drawn up indicating the employee's refusal to provide explanations for his behavior. The act is certified by the signatures of at least two witnesses.

After the employer receives an explanatory note from the employee, the validity of the reasons for the absence of the employee is assessed. This is a rather difficult task, since labor legislation does not provide indicative list reasons considered.

If the employer considers the stated reasons as disrespectful, the employee is issued an order on his subsequent dismissal() and submit it to him for review and signing. If the employee has refused to sign the document, they again draw up the corresponding act, after which an entry is made in the work book confirming the dismissal under the article.

The dismissed employee is given a full payment for wages. If the employee disagrees with the actions of the employer, he can go to court.