Maria Soboleva

How to skip work without unpleasant consequences?

How to skip work - well, admit it, even the most disciplined employee has such a question at least sometimes. We understand that this is not good, but we are not robots and we can afford not to show up at the workplace just once. Here are just a reason to come up with a valid and convincing.

How to skip work and not get fired

If you are fortunate enough to have loyal leadership, almost any excuse will do as an explanation for the missed work day.

In general, for absenteeism under strict superiors, any employee may well face dismissal. At best, a reprimand or a fine. So you have to think in advance how to skip work without consequences.

Absence from the workplace — the most valid reasons

You can ask your superiors for an extra day of rest, or day off, in advance for working overtime or on weekends. He will not be paid, but it is quite possible to skip relatively legally. You need to warn of your intention to take time off in writing.

Another option not to show up for work for a good reason is to donate blood. Do a good deed in the morning and all day at your disposal. This, of course, is not suitable for everyone. Not everyone can become a donor for health reasons, and many of us are afraid of the procedure.

If you nevertheless decided on this option, fill out a certificate at the donor point and an official explanation of your unwillingness to work today will be provided.

Alibi will provide you with a certificate that you have visited a doctor, an entry in the outpatient card. You could feel bad and you decided to urgently visit a doctor. But you should notify your superiors about your intention to seek medical help on the day you are not at work.

A certificate about the illness of a child or a relative who needs your help - escort to the hospital, care, supervision will also save you from trouble.

How else to skip work and not be fired: in case of an urgent call to the repair team to eliminate an emergency - problems with gas supply, pipe break, sewer blockage.

But the installation of plastic windows or the installation of entrance doors, forcing you to skip work, will clearly anger a strict manager. If you can talk convincingly with your superiors - you're in luck.

If you have the ability to get fake certificates, don't expect to get away with it. One or two times the number may pass, but when you abuse it, the management can check the authenticity of the documents.

Reason for not showing up - what to say

Skipping, of course, is not good. But since this happens to almost everyone, let's look at the most popular reasons for not showing up for work.

Most often, workers refer to poor health, and then there is a chance for a day or two to take a break from work.

For example, you caught a cold, and in order not to infect the team, you decided to get medical treatment at home. Look for the cause of the cold, depending on the season - in winter, infection (caught from Yulia from the accounting department, picked up in a crowded trolleybus), in summer - an air conditioner or a draft.

Or a terrible migraine broke out, which will in no way give you the opportunity to fully work. Either you have a toothache - you will urgently have to visit a dentist.

The version of your food poisoning sounds convincing, because this can easily happen to anyone. They ate something like that at a party or in a cafe - and this is the result. Just sit at home for a day.

You need to call with a complaint about your poor health early in the morning - this is more convincing, the sleepy voice will look more like a sick person. In addition, you are very worried about your absence and warn about this in advance.

And you can imitate a cold by drawing in water with your nose, the illusion of a runny nose will be provided. When you return to work, continue to feign weakness, take some pills. Play a role, so it’s to the end.

Skipped work - what to do

What to do if you skipped work - write an explanatory note, and even before you are asked to present it. Describe more convincingly the reasons and circumstances of your absenteeism, it is better if the note is supported by some kind of papers (certificates, telegrams, letters).

For example, a telegram about the urgent arrival of relatives, you must meet and place them.

For those who work with clients, you can think of a meeting with one of the respectable people as an excuse for their truancy: they played bowling (billiards, squash) and discussed the details of the future contract.

Sometimes the banal fiction that the husband (child, mother) took both sets of keys and you could not close the apartment helps to excuse yourself.

Women have a very natural reason for skipping work - the critical days.

Lack of transport, an accident, a natural disaster - these are quite good reasons for not showing up to the place of their work. In order not to be late for work as a result of such a force majeure, you decided not to come at all and work this day fully at another time.

Each person may personally need to skip the work day, but it is always better to negotiate with the management and work out your hours later. Then there will be no need to puzzle over how to skip work. A little respite will help you to work with great enthusiasm later.

Take it for yourself, tell your friends!

What is considered a truancy according to the Labor Code of the Russian Federation

The employer has the right to dismiss an employee for absenteeism, that is, for absence from the workplace without good reason during the entire working day or shift, regardless of their duration. Also, the employer has the right to terminate the employment contract if he is absent from the workplace without good reason for more than four hours in a row during the working day (shift) (subparagraph "a" of paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation).

Good reasons: checklist

The Labor Code of the Russian Federation does not disclose a list of valid reasons for an employee's absence from the workplace. Therefore, it is up to the employer to decide which reason is valid and which is not. At the same time, it makes sense for personnel workers to know that the decision of the employer to recognize the specific reason for the absence of an employee at work as disrespectful and, as a result, his dismissal for absenteeism can be verified in court (Definition of the Constitutional Court of the Russian Federation of 23.06.2015 N 1243-О). Thus, if, for example, the death of a close relative is regarded as a disrespectful reason, then it is highly likely that the court will not agree with such a campaign. Also, if an employee's child fell ill and he did not manage to transfer the sick leave to the personnel department in time, then this should also not be regarded as a disrespectful reason for absence from work. Almost 100 percent of the court recognizes such dismissal as illegal.

On the other hand, if an employee “has gone into a binge” and does not appear at work, then the village can fire him for absenteeism. It is difficult to imagine a situation when the judiciary considers that booze is a good reason for leaving work duties.

At the same time, individual cases can be distinguished from the Labor Code and some court decisions that define certain situations as valid reasons for absence from the workplace. If there are such reasons, you should not be fired for absenteeism. It is too likely that the employee will have to be reinstated at work and paid compensation. So, based on the analysis of Art. Art. 142, 170, 186, 414 of the Labor Code of the Russian Federation, clause 6 of the Review of judicial practice of the Supreme Court of the Russian Federation for the III quarter of 2013, approved. By the Presidium of the Supreme Court of the Russian Federation on 02/05/2014 and the Definition of the Moscow City Court of 10/22/2010 in case N 33-33169, the following valid reasons for truancy as of 2017 can be distinguished:

Good reasons for absence from the workplace
temporary disability (at the same time, untimely submission to the employer of documents confirming the fact of temporary disability cannot serve as a basis for recognizing as disrespectful the reasons for the absence of an employee at work and his dismissal for absenteeism)
fulfillment of public or state duties
donation of blood and its components, as well as the conduct of a related medical examination
participation in a strike
detention
emergencies resulting in transport problems, such as cancellation or delay of a flight
suspension of work due to delay in payment of wages for more than 15 days (upon notification to the employer in writing).

It is clear that the absence from work for a good reason must be documented by the employee. For example - bring a sick leave or a certificate of detention in a pre-trial detention center.

Also, in practice, the following are recognized as valid reasons:
interruptions in the work of public transport, as well as traffic jams on the way to work;
summons to law enforcement agencies and courts;
urgent hospitalization of a relative to the hospital if he needs urgent help;
fires, emergencies, natural disasters, which did not allow to get to work on time.

Disrespectful reasons

There is also no list of disrespectful reasons for absenteeism in the Labor Code of the Russian Federation. However, you can refer to the already rendered court decisions. And come to the conclusion that disrespectful reasons for absence from the workplace may, for example, refer :

Disrespectful reasons for absence from work
passing a medical examination (obtaining medical advice) in the absence of a issued certificate of incapacity for work
time off for days worked during the vacation, if the recall from the vacation was not issued and there are no documents confirming the need to go to work during the vacation
filing an application for the provision of parental leave, if the issue of granting such leave is not resolved by the head
finding a spouse in hospital

The employer must assess the reasons for the absence of the employee and apply a disciplinary sanction commensurate with his misconduct, taking into account the employee's previous behavior (Determination of the Supreme Court of the Russian Federation dated 03.30.2012 No. 69-B12-1).

Labor legislation of the Russian Federation provides the employer with a number of tools for regulating relations with employees. One of them is the application of disciplinary action - dismissal - for violation of labor discipline, namely absenteeism. However, the application of this sanction to an employee requires compliance with the procedural order and the legality of the grounds.

We all understand that dismissal "under the article" is not the most humane method.

But if an employee systematically violates the internal labor regulations, he skips work. And all possible solutions, such as dismissal or, no longer help.

Then there is only 1 option - the dismissal of the employee for absenteeism. Today we will tell you how to do it correctly and legally.

What is truancy?

Sometimes the employer or employee interprets the concept of absenteeism in their own way. For some, it is a failure to show up for work without warning, for others, being late, and someone believes that absenteeism is a refusal to perform extra-curricular work. To resolve disputes, it is necessary to study what the legislation says. The legal definition of truancy is given in Art. 81 of the Labor Code of the Russian Federation.

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

To qualify for truancy, the following conditions must be met:

absence for 4 or more hours;
disrespectful reason;
month prescription of the offense.

Therefore, before dismissing an employee for absenteeism, it should be established that he was really absent from the workplace, correctly determine the period of his absence and the reason why the employee did not come to work, or left the workplace before the end of the shift.

What is the fact of absence from the workplace?

The procedure for dismissal for absenteeism clearly regulates the condition - absence from the workplace. But what counts as a workplace? An office, company territory or a chair on which an employee sits during work?

In this matter, you should first study the job description and employment contract with the employee, as well as the collective agreement, if any. Additionally, other local acts (orders, instructions, regulations) that determine the "workplace" for a particular employee can be used.

For example, in an instruction or order for a worker, it may be noted that his workplace is a specific number of a machine or workshop. In this case, absenteeism will be considered the time that the employee spent outside the workshop or not at the machine.

If, however, there is no clear concept of what is considered a workplace in local acts or labor agreement, then you need to be guided by Art. 209 of the Labor Code of the Russian Federation, which determines that the workplace is the territory where the employee needs to arrive to perform the assigned functions. That is, the entire territory of the company.

Absence from work

The law gives the employer the right to dismiss an employee for absenteeism if the employee has been absent for 4 or more hours. It means that, if the absence is recorded for exactly 4 hours or less, then you cannot be fired for absenteeism. Yes, other disciplinary action can be taken, such as reprimand, but not dismissal. With the knowledge of how to fire a person for absenteeism, workers sometimes take advantage of this four-hour period to prevent absence from absenteeism.

How is the time of absence from the workplace calculated correctly?

Further, during the absence period, the lunch break time is not included. The reason is Art. 108 of the Labor Code of the Russian Federation, excluding the duration of the break from working hours. Therefore, if, for example, an employee came to work at 14:20, but should have been at 10:00, and the break is set from 13:00 to 14:00, then this act will not be considered absenteeism, since the employee was absent only 3 hours and 20 minutes.

The Labor Code of the Russian Federation allows you to take into account and summarize all periods when the employee was not there, but only within one shift or day, depending on the established schedule. That is, you cannot add up periods of absence over several days or shifts.

1 hour in the morning;
1 hour 10 minutes after lunch;
2 hours at the end of the shift.

In total, 4 hours and 10 minutes will be skipped for the whole day. This can be classified as absenteeism, subject to other procedural requirements.

Good reasons for truancy

The legislator for the current 2019 does not define in any article of the Labor Code what are the valid reasons for absenteeism. It is believed that this fact must be established within the framework of the proceedings, that is, separately in each individual case. In practice, a valid ground is a ground that has arisen against the will of the employee.

That is, they are recognized as respectful:

employee illness;
illness (death) of a close relative;
emergencies;
road accidents or incidents;
housing and communal accidents;
other.

Of course, valid reasons for absenteeism must be documented or otherwise confirmed, for example, by the testimony of witnesses. Documents must be certified in accordance with the general procedure. For example, get a medical certificate, a copy of the accident report.

The law does not consider absence of an employee with the knowledge of the manager to be absenteeism. That is, if the employee "asked for time off", then this is not absenteeism. But, as with other reasons, the fact of the permission of the management must be proved.

Verbal permission alone is not enough, because it will be impossible to prove it. In practice, the employer can take advantage of this loophole. Therefore, it is important to know what is absenteeism without a good reason, absence from the workplace even with the permission of the manager, if there is no written confirmation of permission.

Step-by-step procedure for dismissal for absenteeism

The step-by-step instruction for dismissal for absenteeism provides for the following procedure for going through all the stages: from committing an offense - truancy - to the final entry in the work book.

It is important to follow all procedural formalities in order to avoid litigation. After all, if the procedure for actions and paperwork is violated, then the dismissal may be recognized in court as illegal, the employee will be reinstated in his position, and the employer may be obliged to pay compensation.

So the procedure for how to properly fire an employee for absenteeism:

Document the fact of absenteeism. This can be done by making up an employee's absence. The act is drawn up in the presence of witnesses (2-3 people). It is also permissible if the direct supervisor submits a report on the commission of the misconduct to the subordinate to the superior superiors.
... The explanatory note is prepared only in writing. Verbal explanations are not appropriate. Term - 2 days.
Based on the results, either an official investigation is closed, or an act is drawn up. Also, in the absence of an employee's explanations within 2 days, a corresponding one is drawn up (Article 193 of the Labor Code of the Russian Federation).
A decision is made on the application of the penalty. The right to dismiss for absenteeism is not an obligation, that is, the employer may not dismiss the employee, but apply a different type of penalty.
A dismissal order is being prepared.
To acquaint the employee with the order.
To issue the dismissal by an entry in the work book.

The nuances of actions with a long absenteeism

Particularly noteworthy is the situation when a long absenteeism is committed. When dismissing for a long absenteeism, the step-by-step instructions are almost the same as with the usual, that is, discrepancies:

Record absence: compose, enter data into.
Make up about the need to appear and provide an explanation.
Send a notification to an employee at a known postal address.
After receiving the delivery receipt, wait 2 days + the time required for the delivery of correspondence.
In case of failure to provide explanations and confirmation of the fact of receipt of the notification, draw up an act.
Take steps to ascertain the reasons for the absence if the notification has not been received. This stage is not mandatory, but recommended in order to avoid problems in a possible litigation after. You can make calls to the employee's relatives, get their testimony.
Make up about the activities carried out, recording the information received. Optional.
Checkout.
Draw up an act on the impossibility of acquainting the employee with the order.
Enter information in the work book.
Make a payment calculation.
Send a notification to the employee about the need to obtain a work book.

Due to the fact that the law establishes a period for disciplinary punishment of 1 month, it is necessary to carry out all actions as quickly as possible. Considering that letters are returned to the sender after a month of storage, we recommend sending a telegram asking for clarifications.

It will also be reasonable to draw up daily reports on the absence of an employee during the entire period of absenteeism, or record this in another accessible way, for example, by making notes in the arrival and departure log, in order to comply with the procedure for dismissal for absenteeism without a good reason.

Registration of procedural papers

The first document that needs to be prepared is confirmation of the fact of absence. The most common option is drawing up an act, although a report can also be used, based on the results of the consideration of which an official investigation is opened. After requesting an explanatory note, you must wait two working days. Immediately on the day of absenteeism, it is impossible to issue a dismissal order for absenteeism and terminate the employment contract.

As part of the investigation, a decision may be made to dismiss for absenteeism without a good reason, if the employee refused to provide an explanation why he was not there. Or he did not confirm the documented reason, even if he considers it valid. An act should be drawn up about this.

date of dismissal

If there is a dismissal for absenteeism, then on what day should you dismiss? This is not an easy question. To make a decision, you need to be guided by Art. 84.1 of the Labor Code of the Russian Federation. According to its content, the last working day of an employee is the date of his dismissal, if for other reasons there was no place for him. In the case of absenteeism, the last day the employee worked is the previous day of absenteeism, provided that a valid reason has not been confirmed.

Therefore, if the absenteeism was one-time and the employee subsequently appeared and gave explanations that were regarded as an unjustified reason, the date of dismissal and the order of dismissal for absenteeism will correspond to the day of receipt of the explanatory note. if absenteeism is of a prolonged nature, the daily absence of the employee is confirmed by acts and the time sheet, and no explanations have been received, then dismissal is allowed on the last working day. However, the dismissal dated the day of the final act on the lack of explanation will not be a violation either.

Registration of a work book

Entering data into a work book is the final stage of dismissal. If you do not know or are not sure under which article they are fired for absenteeism, then Article 81 of the Labor Code of the Russian Federation regulates the dismissal for absenteeism. Information is entered into the employee's work book on the basis of an order. Registration data of the order itself is written in the column "Name and date of the document". Sample employment record of dismissal for absenteeism:

First, the number of the ordinal entry is indicated, the deadline is not skipped. Next, the date of entering the information is prescribed, which must coincide with the date of dismissal and the publication of the order. Further, it is indicated in words in the labor record of dismissal for absenteeism (). After that, the signature and the name of the position of the responsible person are affixed. The entry is certified by the seal of the company.

Sometimes the employer can terminate the contract and dismiss not for absenteeism, but if the employee is recognized as dead or missing. For this, it is necessary to have a court decision (here in detail about), securing this fact. The employer can initiate the process himself, or another interested person, for example, a relative, will file a claim.

The entry in the work book will look like this:

Special cases of dismissal for absenteeism

Not every absence from work is considered absenteeism, even if it has almost all the signs. For example, it will not be considered absenteeism if the employee does not want to go to work on a non-working day for himself. However, there are exceptions to this rule, the same as when recalling from vacation. It is permissible to involve employees in work on the day off if this is required for recovery from accidents or emergencies.

Dismissal and sick leave

It is unacceptable to carry out a dismissal if an employee is sick. If the employee was hastily dismissed for absenteeism, and he brought sick leave in the form of an explanation of the reason, then such an employee must be reinstated, since the dismissal is illegal. However, if the fact of concealment of the illness and the presence of sick leave was established, then during the trial the court may take the side of the employer, believing that the employee is abusing his rights and infringing on the rights of the employer (Resolution of the Armed Forces of the Russian Federation).

In the lawsuits, citizens explain the situation as follows: "I was fired for absenteeism while I was on sick leave." As proof, they provide a certificate of incapacity for work. This is not enough, it is necessary to prove that the employer has been notified that the employee is ill. Moreover, a citizen may be denied a claim if he refused to give an explanation. Of course, if he could do it for objective reasons.

Lawyer of the collegium of legal protection. He specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other normative documents to regulatory authorities.

You will learn:

What does absenteeism include and what are the measures to prevent losses from absenteeism
How to correctly record the absence of an employee at work
What measures can an employer take in relation to a truant

In any organization, it happens that employees do not go to work. Sometimes, even if there are valid reasons (for example, due to illness), the employee not only does not report his absence to the employer, but also does not confirm the absence from work with supporting documents. In this case, failure to appear is considered truancy.

But there are situations in which it is difficult to understand right away: for a good reason, the employee stopped going to work or not, in which situations he can be fired, and in which it is absolutely impossible. Often, a seemingly unambiguous situation on further examination turns out to be far from so simple.

How to assess the situation correctly? What documents and in what time frame? How to prevent violations of labor laws? We will consider these and other questions in this article.

MEASURES TO PREVENT TRANSPORTATION LOSS

The absence of an employee from work, even for a short time, disrupts the work process. A number of measures should be taken to minimize damage in an organization:

In the Internal Labor Regulations, there must be a clause obliging the employee to warn his immediate supervisor in advance about the impossibility of going to work, about the reasons for absence and the expected period of absence. Fulfillment by the employee of the relevant obligations will help the manager make timely decisions on the distribution of duties of the absent employee among his colleagues;
the head of the structural unit must have a list of employees to whom he can entrust the performance of the functions of the absent employee. The employees themselves, in turn, must be aware of the colleagues' affairs, which they will need to carry out in the event of his absence (not only unexpected, but also planned (for example, for a vacation or business trip));
the manager should have specific instructions regulating his actions in case of non-appearance of the employee without warning (example 1).

The instructions are of an auxiliary nature; they do not have to be published on the letterhead of the organization and certified by the signature of the head. The main condition is that they must contain a specific algorithm of actions.

Example 1

Memo to the head of the unit about actions in case of employee failure to appear

Call the employee at all phone numbers you know (home, mobile, etc.) and find out the reason and the possible period of his absence.
Interview subordinates if the employee has spoken about a possible absence from work. If one of the employees is aware of the reasons for the absence of a colleague, ask them to state them in a memo addressed to the head of the organization.
Draw up an act on the absence of the employee, the measures taken to find him and their results.
Take all documents to the HR department and get there instructions on how to proceed with the absent employee.

Specify as clearly as possible in the documents the employee's workplace (workshop, machine, office number. If you have a chain of stores and regularly rotate staff, such specifics, on the one hand, will complicate the work of HR services, increasing the workflow, and on the other, will protect the interests of the employer.

The workplace is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer. According to Part 4 of Art. 57 of the Labor Code of the Russian Federation, the condition of the employment contract on the workplace is an optional (that is, optional) clarification of the condition on the place of work. We recommend (if necessary) to assign the employee to the workplace not with an employment contract (in order to avoid subsequent problems with changing this term of the employment contract), but with a unilateral document (organization order, department order, notification, etc.).

When registering an employee- part-time focus his attention on the fact that part-time work (as opposed to freelancing) is being done regularly, he is entitled to leave, as well as to his main place of work, but he is arbitrarily prohibited from leaving for it. As practice shows, many employees perceive part-time jobs as additional earnings if they have free time, not realizing that the second job is the same obligations as when executing the main one.

THE EMPLOYEE DIDN'T COME TO WORK: WE FIX A NON-APPEARANCE

On the first day of an employee's absence from work, we cannot be sure that he is absent from work (or even disappeared), and not sick.

A clear record of the absence will help if, over time, the fact of absenteeism is confirmed, and it will not hurt if the employee brings a certificate of incapacity for work. The no-show report must be drawn up in the presence of two witnesses. It is better if workers from related divisions act in their capacity - if the employee begins to challenge his dismissal in court, he will not be able to refer to the alleged pressure exerted on witnesses by the head.

The Labor Code of the Russian Federation does not oblige the employer to immediately start an active search. But if the missing employee is a responsible person, lives alone, and his phone does not answer, we recommend that you go to his home - perhaps the employee needs urgent help.

For example, the dentist N. did not come to work on time. None of the colleagues heard that the doctor was planning to leave immediately or complained about poor health. The head of the department called him all day, but the phone was silent. Concerned about N.'s absence, she went to his house. No one opened the door. When the called local policeman opened the apartment, it turned out that the 45-year-old man was dead (as it turned out, due to a stroke).

If the employee does not go to work, the letter code "НН" or the number 30 is put in the time sheet (failure to appear for unexplained reasons (until the circumstances are clarified)). If the timesheet is maintained:

If the organization is large, with a complex structure, for uniformity of document flow, the procedure for recording working hours in the absence of an employee should be clearly spelled out in a local regulatory act.

If you are not sure that the employee is sick, for the first week it makes sense to draw up acts on his absence every day, in the future, you can limit yourself to an act on the absence of the employee during the week, drawn up on Fridays. This issue is not regulated by the legislation, therefore one should be guided by common sense and judicial practice.

The legislation also does not establish a fixed list of documents that must be drawn up when absenteeism. In courts as evidence often are recognized:

time sheet with appropriate marks;
acts or service notes on the employee's absence from the workplace;

NOTE FROM SCIENTIFIC EDITOR

As well as certified printouts from the electronic system for recording the entry-exit of employees (paragraph 5, clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 01.28.2014 No. 1 "On the application of legislation regulating the work of women, persons with family responsibilities and minors").

notifications to the employee with a request to inform about the reasons for absenteeism (Appeal determination of the Moscow City Court dated 02.08.2013 No. 11-15221).

NOTE FROM SCIENTIFIC EDITOR

In addition, if written explanations are not received from the employee, in accordance with Art. 193 of the Labor Code of the Russian Federation, an act of failure to provide explanations must be drawn up. The courts in their practice in most cases are of the opinion that the employer lawfully applied disciplinary action, including dismissal for absenteeism, if the employee does not receive notification of the provision of written explanations requested by telegram (or letter), for reasons beyond the employer's control (Appeal ruling of the Moscow City Court dated 28.07 .2014 No. 33-29793 / 14).

WE FIND OUT THE REASON OF NON-APPEARANCE

If an employee brings a certificate of incapacity for work or a certificate of visiting a doctor, all documents confirming his absence should be filed in the appropriate file. Destroy them absolutely not!

If the employee does not present supporting documents, according to Art. 193 of the Labor Code of the Russian Federation, the employer is obliged to request from him written explanation... The Labor Code of the Russian Federation does not oblige the employer to draw up a request (notification) in writing (example 2 ® ), but in court a document is always a more weighty argument than words. Therefore, it is better to draw up a request in duplicate, hand one to the employee, and ask him to sign on the second.

Example 2

Notice of the need to explain the reasons for failure to appear

If within two workers days the employee does not provide written explanations, an appropriate act should be drawn up.

The employee's failure to provide explanations is not an obstacle to the application of disciplinary sanctions (including dismissal) (part 2 of article 193 of the Labor Code of the Russian Federation).

If an employee does not go to work for a month or more and does not answer phone calls, searches should be intensified. You can call him at home after work - there is a high probability that his relatives (and possibly the employee himself) will be able to clarify the situation. Since it is difficult to attract witnesses to a telephone conversation in the evening, try to record the conversation on a dictaphone, and state the results of the call the next day in a memo addressed to the manager. Recording a telephone conversation by itself is not a sufficient reason for dismissal for absenteeism, but it will be additional proof of the rightness of the employer.

It is also necessary to send registered letters with a return receipt to all known addresses where the employee may be, with a requirement to explain the reasons for failure to appear in writing within 2 days, and if this is not possible, contact the HR department or direct supervisor by phone.

NOTE FROM SCIENTIFIC EDITOR

It is better if the letters are valuable with inventory of attachments(to exclude speculation on the part of the employee) and, of course, with a return receipt.

WHAT TO CONSIDER A WALK?

Dictionary

Absenteeism- absence from the workplace without good reason during the entire working day (shift), regardless of its (her) duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift) (sub. »Clause 6, Part 1, Article 81 of the Labor Code of the Russian Federation).

There is no exhaustive list of valid reasons for the absence of an employee from work. To assess the misconduct, one should be guided by judicial practice:

1. Good reasons absence from the workplace, the courts in some cases consider:

visiting a lawyer in order to get advice on violation of labor rights (Determination of the Moscow Regional Court of November 24, 2011 in case No. 33-26558);
being on leave without pay, when the employee is entitled to such leave by law in accordance with Part 2 of Art. 128 of the Labor Code of the Russian Federation (Appellate ruling of the Kemerovo Regional Court of 17.08.2012 in case No. 33-7790);
illness of an employee, including in the absence of a certificate of incapacity for work (Appeal ruling of the Supreme Court of the Republic of Mordovia dated February 21, 2013 in case No. 33-426 / 2013);

NOTE FROM SCIENTIFIC EDITOR

Note that there is also the opposite jurisprudence, for example, the Definition of the Chelyabinsk Regional Court dated July 10, 2014 No. 11-7179 / 2014 on the recognition of the abuse of the right of non-notification by the employee to the employer about his temporary incapacity for work and on the absence in this case of obstacles to dismissing the employee at the initiative of the employer.

fire, short circuit, emergencies, natural disasters (Appellate ruling of the Khabarovsk Regional Court dated 01.03.2013 in case No. 33-1372 / 2013).

2. For disrespectful reasons are unambiguously recognized:

unauthorized termination of work before the expiration of the employment contract (article 79 of the Labor Code of the Russian Federation) or a warning of dismissal (part 1 of article 80, article 280, part 1 of article 292 and part 1 of article 296 of the Labor Code of the Russian Federation);
unauthorized use of days off or unauthorized leave on vacation (sub. "d", clause 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" (as amended on September 28, 2010).

The above lists are not exhaustive - it is impossible to foresee all life situations, but focusing on them, you will be able to more objectively assess the degree of the employee's guilt.

HOW TO DO WITH A WALKER

According to the Labor Code of the Russian Federation, the employer has the right to fire an employee for absenteeism (sub. “A”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation), but it is not obligatory to do this. Moreover, in accordance with Part 5 of Art. 192 of the Labor Code of the Russian Federation, when imposing a disciplinary sanction, the severity of the offense and the circumstances in which it was committed must be taken into account.

Retrieving

from the Labor Code of the Russian Federation

Article 193. Procedure for the application of disciplinary sanctions

Before a disciplinary action is taken, the employer must request a written explanation from the employee. If after two working days the specified explanation is not provided by the employee, then an appropriate act is drawn up.

The employee's failure to provide an explanation is not an obstacle to disciplinary action.

A disciplinary penalty is applied no later than one month from the date of discovery of the misconduct, not counting the time of the employee's illness, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

A disciplinary sanction cannot be applied later than six months from the date of the misconduct, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The indicated time limits do not include the time of the criminal proceedings.

Only one disciplinary sanction may be applied for each disciplinary offense.

The employer's order (order) on the application of a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then an appropriate act is drawn up.

A disciplinary sanction may be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

ADVICE

If you are not sure that the employee is absent without good reason, we recommend that you periodically call him in the presence of witnesses, draw up acts on the results of negotiations, and also periodically (for example, once a month) send registered letters demanding an explanation of the failure to appear.

If an employee is really absent, you should write a memo addressed to the head of the organization detailing all the circumstances that make it possible to qualify the absence of an employee as absenteeism, and attach all available documents to it (certificates of absence, notifications of delivery of registered letters or returned letters, memos of employees , clarifying the circumstances of failure to appear, etc.). These documents are grounds for dismissing an employee for absenteeism, and All of them must be listed in the order of dismissal. The date of dismissal of the employee will be the date of the signing by the head of the organization of the order to dismiss the truant (parts 3 and 6 of Art. 84.1 of the Labor Code of the Russian Federation). In the order (as well as in the work book and personal card), the record of the reason and grounds for dismissal must exactly repeat the wording set out in the Labor Code of the Russian Federation (“dismissed / dismissed for absenteeism”).

The situation with the missing workers is ambiguous:

NOTE

It is forbidden to fire pregnant women, even if the fact of absenteeism is confirmed!

EMPLOYEE FIRED. WHAT'S NEXT?

Part 2 of Art. 84.1 of the Labor Code of the Russian Federation obliges the employer to familiarize the employee with the order of dismissal against signature, and part 4 of the same article - to issue a work book on the day of dismissal.

According to Part 6 of Art. 84.1 of the Labor Code of the Russian Federation, if an employee is fired for absenteeism, the employer is relieved of responsibility for keeping the work book, but there is an obligation to issue it no later than three days from the date of receipt of the employee's written request.

On the order of dismissal, a note should be made that it is impossible to bring its content to the attention of the employee due to his absence from work (part 2 of article 84.1 of the Labor Code of the Russian Federation). We recommend making a similar entry in your personal card.

Regardless of the reason for dismissal, on the day of dismissal, you must make a full settlement with the employee: pay all the due wages, as well as compensation for unused vacation. If the employee does not have a bank card, the accrued amounts are deposited.

Strict adherence to all the measures described in this article will help you avoid mistakes when parting with truants and prove your case in court.

Conclusions:

A clear record of the absence will help if, over time, the fact of absenteeism is confirmed, and it will not hurt if the employee brings a certificate of incapacity for work.
The employee's failure to provide explanations is not an obstacle to the application of disciplinary action. When imposing a disciplinary sanction, the gravity of the offense committed and the circumstances under which it was committed must be taken into account.
Regardless of the penalty applied, it is necessary to strictly observe the procedure prescribed in Art. 193 of the Labor Code of the Russian Federation.

Accordingly: temporary incapacity for work with benefits, temporary incapacity for work without pay or absenteeism.

Accordingly, there is no need to send a notice to an employee dismissed for absenteeism about the need to pick up a work book - Approx. scientific editor.

"Personnel department of a budgetary institution", 2010, N 7

Question: Subparagraph "a" of clause 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation established that absenteeism is the absence of an employee at the workplace without good reason during the entire working day (shift), regardless of his (her) duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day ( shifts). This raises a number of questions. What are the valid reasons? Is there a list of them normatively fixed? Are abuses on the part of employers possible in terms of recognizing certain reasons as disrespectful and, as a result, illegal dismissal of an employee?

Answer: Neither the Labor Code of the Russian Federation nor any other regulatory legal act contains a list of valid reasons for absence from work. In the Definition of the Constitutional Court of the Russian Federation of October 17, 2006 N 381-O, it is indicated that the absence of such a list, enshrined in legal acts, does not violate the constitutional rights of citizens, since Art. 193 of the Labor Code of the Russian Federation approved a number of provisions aimed at ensuring an objective assessment of the actual circumstances that served as the basis for dismissal, and at preventing the unjustified application of a disciplinary sanction (requesting an explanation from the employee in writing; application of a disciplinary sanction no later than one month from the date of detection of the offense, not counting the time illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the employee of the representative body of employees; the possibility of appealing a disciplinary sanction in the state labor inspectorate and (or) bodies for the consideration of individual labor disputes).

Despite the fact that the employer in each case independently decides whether to recognize a specific reason for the absence of an employee from work as valid or disrespectful, his decision can be verified in court. In these cases, the court evaluates the totality of the specific circumstances of the case, including checking and assessing the circumstances and motives of the employee's absence from work, the employee's previous behavior, his attitude to work, etc.

The concept of validity of reasons in the Labor Code of the Russian Federation is used more than once. For example, in Art. 392 states: the term for going to court for resolving an individual labor dispute is one and three months (depending on the subject of the dispute). This period can be restored if it was missed for valid reasons. Among the valid reasons for this, clause 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" named the plaintiff's illness, his being on a business trip, the impossibility of going to court due to force majeure, the need caring for seriously ill family members. The list can be used as a basis for determining the validity of the reasons for absence from work. Note that it is open, that is, the employer in each case will independently determine the validity of the reasons for the employee's absence from work. If the employee considers that his labor rights have been violated, he can file a claim in court. In this case, as mentioned above, the employer's decision to recognize the reason for the employee's absence from work as disrespectful will be checked in court.

K. V. Shestakova

Journal Expert

"Human Resources Department

Budgetary institution "

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