According to experts in the field of HR, a person's discipline directly depends on the position he occupies. Thus, lawyers, managers, economists and programmers rarely go missing. Most often, loaders, couriers, waiters and security guards go underground.
Basically, three categories of workers stop going to work. First, these are people employed in unskilled labor. They go into binges and may forget about work. The second category is skilled workers, but not very far removed from the lumpen. They are exclusively concerned with finding money. As soon as they find out that somewhere they are paying three kopecks more, they rush to a new place. Closing the top three are part-time workers who do not always understand that part-time, according to Article 282 of the Labor Code of the Russian Federation, refers to regular, not temporary work, ”notes Evgenia Rivkina, head of the personnel department of KORISassistance LLC.
Often those who decide to quit do not go to work. At the same time, they are little worried that their work book remained in the personnel department, and payments are due for unspent vacation days.
Deputy Head of Human Resources "KSK Group" Aida Ibragimova emphasizes that there are missing employees in almost every company. Their number depends on the activities of the organization. There are many fugitives in firms with a large production and sales staff, as well as in large call centers.
Regularly, the number of missing employees is listed, for whom the company is the first place of work. Such employees stop going to work, because they do not have time to combine it with their studies or get a new job.
It happens that employees ignore their official duties after a conflict with their superiors. Many deliberately do not come to the service.
What an employer should do if an employee does not go to work
The problem is that the employer has no legal right to fire a missing employee. A good reason may be, but it still needs to be installed and formalized. The employer can dismiss a person only after providing them with explanations about the reasons for failure to appear. If the company fires a truant without asking for an explanation, he can appeal the decision in court. As a result, the court reinstates the employee at work in connection with a violation of the dismissal procedure. The employer in such a situation must pay the average earnings during the forced absence and calculate the vacation days.
What to do? First of all, colleagues and the management of the missing employee try to get through to him, write letters to e-mail, ask friends and family (if their contacts are available). Director General of the Center for Business and Career Development "Perspective" Natalia Storozheva also advises to send a letter to the home address of the truant, drawn up on the letterhead of the organization. The letter must be certified, with a receipt acknowledgment.
The principle of protecting the employer from unscrupulous employees has been adapted to the realities of the market. If earlier an employee was afraid of being fired for absenteeism, now no. This means that you will often have to deal with the problem of absenteeism. I advise employers to be sure to prescribe all the nuances of working in the company. If you have employees working remotely, then do not be too lazy to indicate the time of mandatory stay in touch, no one bothers you to register that if an employee does not get in touch within four hours during working hours, this behavior can be regarded as absence from the workplace with the ensuing consequences, - comments Olga Shulgina, HR Director at exeStation, an expert in the selection of freelance professionals for project work to solve business problems.
If the employee does not show up for work, start acting on the same day. Don't forget about new technologies. Check out the employee's social media pages. Article 193 of the Labor Code of the Russian Federation will help you.
If attempts to find an employee did not lead to anything, the employer must record the fact of the employee's absence by a special act, in which the following data must be indicated: the full name of the employee, his position, date of absence. The act must be signed by the persons who drew it up, as well as by employees (at least three people necessarily) confirming the information set forth in the act. Such a document is drawn up every day throughout the entire period of absence of the employee, adds Natalia Storozheva.
You can pay a visit to the missing employee and demand an explanatory note from him. If it was not possible to find the truant at home, then this information must be entered into the act. The document must be certified by the signature of one of the neighbors, informs HR Director of SimbirSoft Ekaterina Artyushina.
As noted head of the Moscow Human Rights Center Mikhail Salkin, the employer will have to keep the work book of the missing employee and keep his personal file. However, such an employee will not affect the reporting for the pension fund and the tax office, since payments for absenteeism are not relying on.
The employer must record the employee's absence from work in the time sheet. In this case, the employee's salary is not charged. If necessary, the employer can accept a new employee under a fixed-term employment contract to replace the truant. Officially, the absence of an employee from the workplace for more than four hours in a row can be considered absenteeism.
When the fact of absenteeism is established, the employer has the right to unilaterally decide on the punishment of the employee. The employer can dismiss such an employee under article 81, paragraph 6, part 1 in connection with a one-time (or repeated) violation of labor discipline or, for the first time, limit himself to a reprimand, explains Natalya Storozheva.
By the way, according to the Labor Code of the Russian Federation, the employer is not obliged either to seek the exit of the truant to work, or to fire him (part 2 of article 22 of the Labor Code of the Russian Federation). Also, the law does not require the employer to search for the missing, and the Labor Code does not contain instructions for finding missing employees.
Whose side is the law on
If an employee does not appear at work for a long time, the employment contract with him can only be terminated in court. In court, evidence must be provided that the employer has made every effort to find the employee. This is where the no-show act comes in handy.
The employer applies to the court if there is no information about the whereabouts of the employee within a year. In this case, the employment contract can be terminated under clause 6 h. 1 of Art. 83 of the Labor Code of the Russian Federation (termination of an employment contract due to circumstances beyond the control of the parties).
If by his actions the truant has caused direct material damage to the employer, the latter has the right to go to court with a claim for compensation.
If you are faced with a situation where your employee does not appear at work and does not get in touch for several weeks in a row, act in accordance with the rules of the Labor Code. And do not make a decision about dismissal before you establish the reason for the employee's failure to appear on duty.
Anything can happen in life. Unfortunately, the loss of a person for unknown reasons is not such a rarity today. What should an employer do if an employee is missing? What to do in such a situation and in what order?
It is impossible to fire an employee who does not show up for work without warning until the reason for his absence is established. Maybe he was hospitalized, detained by law enforcement agencies, or there is another serious and valid reason.
Let us indicate which actions of the employer are appropriate in such a situation:
- You need to look into the employee's personal card, find out the phone number and try to get through to him, contact relatives.
- If the first step is unsuccessful, a letter (preferably a registered one with notification) is sent to the employee's address, in which the employer asks to explain the reason for the absence from the workplace. Then, if no response is received from the employee, on the basis of Article 193 of the Labor Code of the Russian Federation, an act is drawn up stating that it is impossible to obtain an explanation.
- Next, a request is made to the police about the missing employee. Not only the person's relatives, but also his colleagues have the right to write an application to the nearest police department. In response to it, a notification coupon is given. Information from one department is transferred to another at the place of the last actual stay of the missing person, and search work begins.
- If the search for an employee by the police does not yield results for more than a year, you can apply to the court as an interested person in order for the missing person to be recognized as missing. The base is. The application is drawn up in accordance with article 276 of the Code of Civil Procedure of the Russian Federation, sample form. It is accompanied by a certificate from the Department of Internal Affairs stating that the search activities were crowned with failure, as well as all the relevant internal documents of your company, confirming the fact that the employee was absent from the workplace.
- Only after that, on the basis of clause 6 of Article 83 of the Labor Code of the Russian Federation, it is possible to formalize the dismissal of an employee who has gone missing. The order to terminate labor relations is drawn up in the T-8 form, an entry corresponding to the circumstances is made in the work book. The book is given to relatives.
It is impossible to fire an employee who does not show up to work without warning until the reason for his absence is established.
Fixing the loss of an employee in the company
If your employee does not appear at the workplace during working hours without some kind of warning, you definitely need to record this fact. At the end of the working day, with several witnesses (preferably with the involvement of people from other departments or divisions for impartiality), a free-form act is drawn up, which indicates the data about the employee and the number of hours that he was absent.
In the time sheet, such days are marked with the letters "НН" or the numeric code "30". If the employee is later announced and the reason for his failure to appear is found out, a correction sheet with corrections is drawn up. In addition, the clarified circumstances of the employee's absence, if they were not, may be grounds for dismissal (Articles and Labor Code of the Russian Federation). In this case, the employer can dismiss his employee on his own initiative on the basis of Article 81 of the Labor Code of the Russian Federation.
If your employee does not show up at work without some kind of warning, you definitely need to record this fact.
For an employer, a missing employee is not only the resulting need to find him, but also an empty workplace and work left without "working hands". In this situation, the manager can consider several options for getting out of the situation:
- Temporarily take on responsibilities. This is appropriate for small businesses, where there are only a few or dozens of people under subordination.
- Impose duties on another employee by drawing up an additional agreement to the employment contract with him.
- Take a new person into the team by concluding a fixed-term employment contract with him (), which is terminated as soon as the missing employee appears. In this case, you can agree in writing that, in the event of the dismissal of the missing employee, the new one will be accepted on an ongoing basis.
The clarified circumstances of the employee's absence, if they were not valid, may be grounds for dismissal.
Special cases of missing employee
The employee who wrote the application for can be dismissed without working out the prescribed 2 weeks, in accordance with Article 80 of the Labor Code of the Russian Federation, by agreement of the parties. If there was no such agreement, and the employee disappeared after the application was filed, a letter can be sent to his address demanding an explanation of the reasons for the absence at the time necessary for working, indicating that failure to appear on the day specified by law (14th from the moment of filing the application) will be regarded as a withdrawal of the letter of resignation. Then the employee can be fired for absenteeism on the basis of Article 81 of the Labor Code of the Russian Federation.
If the employee did not come to work after the vacation, the fact of his failure to appear must be recorded in the same way as described above, with the drawing up of an act in front of witnesses. You must first call the employee himself or his relatives and ask if there is a valid reason for his absence.
A missing employee cannot be fired until you have strong documentary evidence of him or a court order that he is missing. It is necessary to carry out search work both on our own, through calls and letters, and by the forces of law enforcement agencies. Do not forget to record the absence of the employee in his place - without the appropriate acts, dismissal can be regarded as illegal.
The employee stopped going to work. He did not receive a letter of resignation, he does not respond to letters asking to inform about himself or to appear at work. What to do with such an employee? It seems obvious that to resolve this problem it is necessary to turn to the Labor Code of the Russian Federation. However, this document, oddly enough, does not consider such a situation at all. At first glance, the employee commits absenteeism, for which he can be fired under the signature. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation for absence from the workplace without good reason for more than four hours in a row during the working day. But the catch is that you can only fire an employee for absenteeism committed without a good reason.
The reason for the absence from work can be found out only from the employee himself, when he comes to work and writes an explanatory note. Without a written explanation, the dismissal procedure will be violated, therefore, when such an employee applies to the court, the latter may demand to cancel the illegal dismissal order and pay wages for the time of illegal dismissal.
What are the reasons for absence from work will be recognized as valid if the employee suddenly shows up?
If the absence from work does not exceed three days, then any reference to poor health makes the reason for the truancy valid. In accordance with Art. 128 of the Labor Code of the Russian Federation, the employer is obliged, on the basis of a written application of the employee, to provide unpaid leave in cases provided for by federal laws. Article 20 of the Fundamentals of the Legislation of the Russian Federation on the Protection of the Health of Citizens of July 22, 1993 N 5487-1 establishes that working citizens in case of illness have the right to three days of unpaid leave during the year, which is granted upon the personal application of a citizen without presenting a medical document certifying the fact of the disease. The legislator did not specify the deadline for submitting such an application, so even if it is written after absence from work, and not before it, the law will be respected. Maybe a person feels so bad that he will not be able to write a statement.
If the absence from work lasted more than three days, then one cannot do without a voucher. The most common document that is presented is a sick leave (certificate of incapacity for work). In the presence of a sick leave, absence from work is valid in some cases for up to a year in a row. In the Instruction on the procedure for issuing documents certifying the temporary disability of citizens, approved by the Order of the Ministry of Healthcare of the Russian Federation dated 10.19.94 N 206 and the Decree of the FSS RF dated 19.10.94 N 21, it is established that if it is not possible to restore the employee's working capacity in full, then on time, not exceeding four months, the patient will be sent to the clinical expert commission to establish his disability group. If the clinical and labor prognosis is favorable, then, by the decision of the clinical expert commission, the certificate of incapacity for work can be extended until full recovery of the ability to work, but for a period of no more than 10 months, and in some cases (injuries, conditions after reconstructive operations, tuberculosis) - no more than 12 months, with a commission renewal frequency of at least 30 days. If we consider that the Labor Code of the Russian Federation now does not have the right of the employer to fire employees if they are absent from work due to illness for more than 4 months, then such a sick employee becomes practically involuntary. So what about an employer with an absent employee and what to do in such situations? First, the absent workers themselves should know that they have no benefit from being on the job. The previously applied practice, when the work book of the employer increased the length of service, has sunk into oblivion. From January 1, 2002, the Federal Law of 17.12.01 N 173-FZ "On Labor Pensions in the Russian Federation" established a new procedure for calculating pensions. In accordance with Art. 10 of the aforementioned Law, periods of work and (or) other activities are included in the insurance experience, provided that insurance contributions were paid to the Pension Fund of the Russian Federation for these periods. The Pension Fund now does not believe the records in the work books. He believes only the real money that has come to him. In the absence of earnings, of course, no transfers are made to the Pension Fund of the Russian Federation, and the insurance period does not increase. In addition, it is clear that if the amount on the employee's personal account in the Pension Fund of the Russian Federation does not increase, then his insurance and funded part of the pension does not increase either, since their size depends solely on the amount of the estimated pension capital of the insured person accounted for as of the day. from which the said person is assigned the insurance and funded parts of the old-age labor pension. Secondly, the organization has the right to accept another person for the position of an employee who is absent for unknown reasons. Reception, however, will be made in accordance with Art. 59 of the Labor Code of the Russian Federation on a fixed-term employment contract with the wording: "to replace a temporarily absent employee, for whom, in accordance with the law, a place of work is retained." You can work with such a formulation for a long time. If the absent employee does not appear at all, then such an agreement will not end until the temporarily hired employee wants to resign himself or until the employer has a reason to dismiss him on his own initiative.
If the truant appears, then, having written an explanatory note, but without submitting supporting documents, he will be dismissed according to signature. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation for absenteeism. In this case, the temporary worker will automatically become a permanent worker. Thirdly, employees of personnel services can apply to the court to declare the employee missing. It is true that this is a very long and not always productive matter. In accordance with Art. 42 of the Civil Code of the Russian Federation, at the request of interested persons, a citizen can be recognized by the court as missing if, within a year, there is no information about his place of residence at his place of residence. In addition, Art. 277 of the Civil Procedure Code of the Russian Federation requires that in an application for recognizing a citizen as missing or declaring a citizen as deceased, it should be indicated for what purpose the applicant must recognize a citizen as missing or declare him deceased, and that circumstances confirming the unknown absence of a citizen should be stated, or circumstances that threatened the missing person with death or giving grounds to assume his death from a certain accident. An organization that decides to go this way and will be able to get a court decision on recognizing a person as missing is waiting for the opportunity, on a completely legal basis, to dismiss its missing employee under paragraph 6 of Art. 83 of the Labor Code of the Russian Federation in connection with the recognition by the court of the employee as missing. Anyone who is not satisfied with this path can do nothing. Failure to take any action to fire an absent employee is the most painless option for an organization. The employer continues to keep his work book. You don't have to do anything with it. The procedure for issuing a work book is regulated by Art. 62 of the Labor Code of the Russian Federation. In accordance with this article, the employer is obliged to issue the employee a work book when the employment contract is terminated on the day of dismissal (the last day of work). Since there was no dismissal, no one needs to give her away. In accordance with clause 342 of the List of typical management documents generated in the activities of organizations, indicating the storage periods approved by Rosarchiv on 06.10.2000, unclaimed work books are stored in the organization for at least 50 years.
Let the employee be absent, and we will wait for him. There is no hurry with such terms.
The main thing to remember is that you cannot fire an employee during his absence. Failure to appear may be due to a valid reason: emergency hospitalization, detention by law enforcement agencies, etc. All actions of the employer in this situation can be divided into two stages - before finding out the reason for the absence and after that.
Strictly documented
It is important to understand what is the reason for the employee's absence from work. If the reason is not valid, then this is absenteeism. It recognizes the absence of a specialist in the workplace:
- during the whole working day (shift), regardless of its (her) duration;
- more than four hours in a row during the working day.
For such a misconduct (even for a single incident), the employee can be fired. But only if the employee really does not have a reason that prevented him from performing his duties. As a rule, reasons for absence are recognized as valid, documented and testifying that the person at that moment simply did not have the opportunity to be present at work: he visited a doctor, a sick relative, he was urgently called to school or a preschool institution, there were emergency situations in the apartment or on transport on the way to work, etc. This fact can be confirmed by any available document.
Didn't reach the place
An incident of legislation is that when deciding on absenteeism, one must take into account the absence of an employee at his workplace. As practice shows, in most cases, only the employer's address is indicated in the employment contract without further detailing by the workshop, room number, etc. It follows from this that if a specialist appeared on the territory of the enterprise, but did not reach the place where he performs his labor function (table, machine, etc.), then such behavior cannot be recognized as absenteeism. Therefore, fixing a specialist's pass to the company's territory will be proof of his presence at work, and it is impossible to punish him for failure to appear in this case.
Fixing absence
The working day began long ago, but the employee did not show up. The first step in such a situation is to try to contact him. If it turns out that a person is sick or hospitalized, then the employer has the right not to register the fact of the absence of a specialist and limit himself only to the corresponding mark in the time sheet. If it is not possible to contact the missing person or the reason for the absence from work has not been clarified, you must immediately proceed with the preparation of the relevant documents. You should start with a simple memo prepared to the director of the organization by the immediate supervisor of the absent employee. If the employee reports directly to the manager of the company, then instead of the report, an order of the director is issued, in which an order is given to authorized persons (personnel department, accounting, administrative personnel) to register the employee's failure to appear.
It is almost impossible to fire an employee during his absence. But the firm can hire another specialist or transfer someone from the organization's employees to this position.
The absence of an employee is documented in a special act. It must indicate the last name, first name and patronymic of the person, his position, the date of absence, and if we are not talking about a full working day, then the time of absence. The act is signed by the persons who drew it up, as well as employees (at least three), designed to confirm the information provided. This document should be drawn up every day the employee is absent. If in the future, when the specialist brings a sick leave or other proof of justified absence, any of the days may be beyond the scope of documentary evidence. Then the employee can be fired during these days of absence.
It is almost impossible to part with an employee during his absence. But legislation allows you to create a situation where the company's losses will be minimized. Days of absence of an employee without a good reason are not paid, therefore, the company does not spend its money on the lost person. And for the period of a long absence, he can hire another specialist or transfer someone from the organization's employees to his position.
Cut off the paths of return
When the employee appears, he must be required to submit a written explanation (Art. 193 of the Labor Code of the Russian Federation). Without such a document, dismissal for absenteeism will be an extremely risky step - an employee may well appeal against it and recover at work, having received earnings for the entire time of the forced absence. If the situation is conflicting, the requirement to state the reasons for the absence is better in writing and hand it over to the employee against signature. The Labor Code sets aside two working days (Article 193 of the Labor Code of the Russian Federation) to prepare explanations.
If the reason for missing work is recognized by the manager as disrespectful, then he has a reason for parting with the guilty one. The decision to dismiss for absenteeism is formalized by an appropriate order in the unified form No. T-8. It must explicitly indicate that a specialist is dismissed for absenteeism, and provide a link to subparagraph "a" of paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation. Please note that with prolonged absenteeism, the order is issued not retroactively, but when the document is actually issued. In this case, the date of dismissal will be the last working day of the specialist. Sometimes the employee refuses to sign the order, thinking that this will help avoid dismissal. Then it is necessary to make a note on the document that the employee refused to get acquainted with it, and to certify the paper with the signature of a personnel service employee or another person who is instructed to familiarize himself with the order. On this, the dismissal procedure can be considered complete.
Drastic measures
The most difficult situation for the employer is if the employee never showed up at the workplace. In this case, the employment contract can only be terminated in court, however, in order to file a claim, you will have to wait at least a year. Moreover, very often employees answer calls, but there are no documents that allow them to part with him legally. In this case, it is necessary to convince the servants of Themis that the employer made every effort to find an employee and return him to work. You can call relatives, send correspondence to your home address. Remember that the letter must be certified with an acknowledgment of receipt. Make it out on the letterhead of the company. After the mail notification is returned to you, you need to draw up an act on the absence of explanations for failure to appear for work, signed by two or more witnesses. It is also possible to terminate the employment relationship in a judicial proceeding if the employee has died or is recognized as being prematurely absent.
Even if the decision is made in favor of the company, it will remain responsible for keeping some things of the disappeared employee, in particular, the work book. It will be stored as usual until the issue is finally resolved. If the employee himself or his relatives do not come for the book, it will need to be placed separately from others and kept for two years, after which it will be transferred to the archive of the company.
Dmitry Telegin, Managing Partner of the Law Office
An employee did not show up for work or disappeared without warning. How do I find it? What documents should be drawn up if the search did not return any results? Is it possible to fire an employee in his absence? These questions are answered by Natalia Vladyko, the leading editor of the magazine "I am an occupational safety specialist".
- If the employee did not come to work and did not warn the manager about this, the employer must first of all find out the reasons for the failure to appear on his own. If an employee has disappeared from his workplace for a long time during working hours for unknown reasons, then the immediate supervisor should inspect the most likely places of his location.
Natalia VladykoIssuing editor of the magazine "I am an occupational safety specialist"
The search, of course, is done within reasonable limits and within the company's workspace.
For example, there is no need to follow a truck driver from Belarus to the Amur Region just to make sure that his phone battery is dead. However, if the driver is involved in an accident, then the message about the incident will go to the organization and such an accident will be investigated according to the established requirements.
How to issue an absence according to documents
The absence of an employee must be recorded in writing.
1. At the end of the working day, in the presence of several witnesses and in free form, a Act, which indicates the data about the employee and the number of hours that he was absent.
For impartiality, it is better to involve people from other departments or divisions as witnesses. 2. In the timesheet only those hours that the employee actually worked should be recorded: for example, 4 hours in case of disappearance or HH in case of absence. If the employee later shows up and the reason for his non-appearance turns out to be valid (for example, a document from a medical institution), then a correction sheet with corrections is drawn up.
If the employee never showed up
Let's say the employee never got in touch, and the employer no longer wants to continue working with him.
In accordance with the requirements of the law, it is impossible to dismiss an employee until the reason for his absence is established. Therefore, if the employee does not appear after disappearance for a long time and the reason for his absence is unknown, the employer should take more serious steps to find him. Perhaps the person is hospitalized, detained by law enforcement agencies, or there is another valid reason. Algorithm of actions:
Step 1. Look at his personal card, find out contacts and try to get through to him or contact relatives.
Step 2. If it was not possible to contact, send a letter to the employee's address with a request to explain the reason for the absence. If there is no answer, about a week after the return of the notification, draw up an act stating that it is impossible to receive an explanation.
A statement to the police has the right to write not only a person's relatives, but also his colleagues. Step 4. If the search by the police does not yield results for more than a year, then the employer, as an interested person, has the right to apply to the court in order for the missing person to be recognized as missing. Only after that, you can issue the dismissal of an employee who has gone missing.
- Organization of workers' labor - Art. 55
- Organization of accounting of working hours - Art. 133.
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