Lawyer of the Department of Taxes and Law of ACG "Interexpertiza" Sitnikova Elena.
In the first days after the holidays, employers are faced with an eternal problem - absenteeism. Some of the employees simply do not have time for the beginning of the working day, someone appears only for lunch, and some are absent altogether for several days. To what responsibility can subordinates be held responsible for such misconduct? Let's see what the Labor Code thinks about this.
As we know, truancy is serious violation labor discipline. The law allows an employer to fire an employee even for a single instance of absenteeism. But here it is important not to make a mistake and not confuse absenteeism with being late or simply the absence of an employee at work.
What is a stroll
The Labor Code (subclause “a”, clause 6, article 81) gives a clear definition of absenteeism. This absence from the workplace without good reasons more than four consecutive hours during the working day. Let's see what difficulties you may have in applying this provision of the law.Firstly, so that the employee does not have the opportunity to challenge the imposed penalty, it is necessary to determine the time of absence from work very accurately. In many organizations, the lunch break is set from 12.30 to 13.30. At the beginning of the working day at 9.00, it turns out that employees work three and a half hours from morning to lunch. Break for rest and meals is not included in the working time(Article 108 of the Labor Code of the Russian Federation). This means that if an employee appeared at work only after lunch (in our example at 13.30), he cannot be fired for absenteeism, because he was absent for only three and a half hours. True, in this case, the employee can be reprimanded or reprimanded.
Secondly, there are many questions about the concept of " workplace". What is it - the chair on which the employee sits, the department where he works, or the territory of the organization as a whole? As the Plenum explains Supreme Court RF (Decree of March 17, 2004 No. 2), if in an employment contract with an employee or local normative act(order, schedule, etc.) does not specify the specific workplace of the employee, then the workplace is where the employee should be or where he needs to arrive in connection with his work (Article 209 of the Labor Code of the Russian Federation). It must be directly or indirectly under the control of the employer.
And finally, we draw your attention to the fact that the organization needs to keep a time sheet for employees. Otherwise, if a labor dispute arises, you will not be able to provide strong evidence that the employee was absent from the workplace for four hours.
Making a disciplinary action
If you decide to hold an employee liable for absenteeism, you must proceed from the following.First, a disciplinary sanction can only be imposed for absence from the workplace without good reason. So, first you need to try to find out where and why your subordinate disappeared. Call all the phone numbers of the employee that he left for you. If an employee does not appear for several days, some personnel officers advise starting an active search for him in hospitals and police stations. However, in our opinion, the search for missing employees is not one of the duties of the personnel department, so you can simply send a letter (with acknowledgment of receipt) or a telegram to the employee's home address with a request to come to work and provide an explanation for your absence. On this, the search for an employee can be completed, since in any case, the employee is not paid for absenteeism.
Second: the fact of absenteeism must be recorded. For this, an act is usually drawn up signed by two or three witnesses, which indicates how long the employee was absent from the workplace. The immediate supervisor of an employee can submit a memorandum (memorandum) addressed to a higher manager and report the absence of a subordinate at work.
Third: as soon as the absent person appears in the organization, he must be required to explain the reasons for his absence. Moreover, if you decide to part with the employee, then explanations must be demanded in writing. From the explanatory note, it will become clear to you why the employee did not appear at work. You can regard the reason indicated by him as valid or disrespectful. There is no list of valid reasons in the legislation, but in practice, such are the illness of an employee or his close relatives, the birth of a child, natural disasters, robbery etc. .
If the employee refuses to write an explanatory note, then according to Article 193 Labor Code it is necessary to draw up an act about this. A disciplinary sanction (remark, reprimand or dismissal) is applied no later than one month from the date of detection of absenteeism. The order to impose a penalty must be signed by the employee. If he does not want to get acquainted with the order against signature, draw up an act about this.
In conclusion, we recall that you may not fire a subordinate who has been absent, because dismissal for absenteeism is your right, not an obligation. If the offender has not been seen in such violations before, or he is a valuable employee with excellent personal and business qualities, then it is quite possible to confine oneself to a reprimand, remark, or verbal warning.
Workplace of an employee indicating structural unit must be specified in the employment contract (Article 57 of the Labor Code of the Russian Federation).
You can not dismiss an employee for absenteeism during a period of illness or vacation.
New Year's explanatory notes
“On December 25, I went to have my teeth treated. The doctor gave me a certificate, not a sick leave. I was offended, tore it up, and then went for a walk and did a total absenteeism for 12 working days.“I was made Santa Claus for 10 apartments. Each one was filled with a glass of vodka, and I survived only 8 apartments. I didn't go to work the next day."
“From December 28 to January 14, I was absent from work because I was lost and walked around anywhere.”
“I, Vlasova T.K., explain to you that from December 30 to January 4 I did not go to work because I got married. I promise this won't happen to me again."
“Please bear in mind that I did no harm by my absence from work on January 8. And those who left, with a hangover, drove the marriage.
Lawyer of the Department of Taxes and Law of ACG "Interexpertiza" Sitnikova Elena
the date: December 2004
ACG "Interexpertiza" asks you when using publications to keep in mind that:
The employee stopped going to work. No resignation letters were received from him, he does not respond to letters with a request to inform about himself or appear at work. What to do with such an employee? It seems obvious that for the resolution of 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 you can be fired under subpara. "a" paragraph 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 fire an employee only for absenteeism, committed without a good reason.
The reason for the absence from work can only be found out 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 order on illegal dismissal and pay earnings for the time of illegal dismissal.
What 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 absenteeism 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 from the employee, to provide leave without pay in cases provided for by federal laws. Article 20 of the Fundamentals of Legislation Russian Federation on the protection of the health of citizens dated 22.07.93 N 5487-1, it was established that working citizens in case of illness have the right to three days of unpaid leave during the year, which is granted at the personal request 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 the absence from work, and not before it, the law will be observed. Maybe a person feels so bad that he cannot write a statement.
If the absence from work lasted more than three days, then you cannot do without a supporting document. The most common document that is presented is a sick leave certificate (disability certificate). 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 Health and Medical Industry of the Russian Federation of October 19, 1994 N 206 and the Decree of the FSS of the Russian Federation of October 19, 1994, N 21, it is established that if it is not possible to restore the employee’s ability to work in full, then on time, not exceeding four months, the patient will be referred to a clinical expert commission to establish a disability group for him. If the clinical and labor prognosis is favorable, then, by decision of the clinical expert commission, the disability certificate can be extended up to full recovery working capacity, but for a period not exceeding 10 months, and in some cases (injuries, conditions after reconstructive operations, tuberculosis) - no more than 12 months, with a frequency of renewal by the commission at least 30 days later. If we take into account that the Labor Code of the Russian Federation now lacks the right of an employer to dismiss employees if they are absent from work due to illness for more than 4 months, then such a sick employee becomes practically unsackable. So what should an employer do with an absent employee and what to do in such situations? First, the absent workers themselves should know that they have no benefit from the fact that they are registered at work. The previous practice, when the work book held by the employer increased seniority, sunk into oblivion. Since January 1, 2002, the Federal Law of December 17, 2001 N 173-FZ "On labor pensions in the Russian Federation" established new order pension calculation. In accordance with Art. 10 of the above-mentioned Law, periods of work and (or) other activities are included in the insurance period, provided that insurance premiums were paid to the Pension Fund of the Russian Federation for these periods. The Pension Fund no longer believes entries in work books. He only trusts the real money that comes to him. In the absence of earnings, no transfers to the Pension Fund of the Russian Federation, of course, are made, 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 parts of the pension do not increase, since their size depends solely on the amount of the estimated pension capital of the insured person, taken into account as of the day, from which the specified person is assigned the insurance and funded parts of the old-age labor pension. Secondly, the organization for the position of an employee who is absent for unknown reasons has the right to accept another person. Admission, however, will be made in accordance with Art. 59 of the Labor Code of the Russian Federation under a fixed-term employment contract with the wording: "to replace a temporarily absent employee, who, in accordance with the law, retains his job." With this formulation, you can work for a long time. If the absent employee does not appear at all, then such an agreement will not terminate until the temporarily hired employee wants to quit 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 under subp. "a" paragraph 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 file an application with the court to declare an employee missing. This, however, is a very long process and not always effective. In accordance with Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested persons, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. In addition, Art. 277 of the Code of Civil Procedure of the Russian Federation requires that in an application for recognizing a citizen as missing or for declaring a citizen dead, it should be indicated for what purpose the applicant needs to recognize a citizen as missing or declare him dead, and the circumstances confirming the citizen’s unknown absence must also be stated, or circumstances threatening the missing person with death or giving grounds to assume his death from a certain accident. An organization that decides to go this route and manages to obtain a court decision declaring a person missing will have an opportunity to completely legal basis dismiss your 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. Those who are not satisfied with this path may not do anything. Not taking any action to dismiss an absent employee is the most painless option for the organization. The employer continues to keep his work book. You don't have to do anything with her. 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 to the employee work book upon termination of the employment contract on the day of dismissal (the last day of work). Since there was no dismissal, there is no need to issue it to anyone. In accordance with clause 342 of the List of typical management documents generated in the activities of organizations, indicating the storage periods approved by the Federal Archive on October 6, 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. With such deadlines, there is nowhere to rush.
Very often, for some unknown reason, employees do not come to work. At the same time, without notifying the superiors of the reason for his absence. What to do if an employee does not show up for work? Let's talk about this in a little more detail.
It is necessary to immediately understand what is “lateness”, “absenteeism”, “absence of an employee at the workplace”. All of these terms are covered in labor law. Let's start with the most common.
being late - common cause nervousness and discontent of the authorities. There are a lot of reasons for employees to be late - a traffic jam, an accident, a natural disaster, a banal broken alarm clock or a train that did not arrive on time. In large companies, they jealously monitor the working regime - there are often peculiar validators at checkpoints that collect information about the arrivals and departures of employees in an electronic database. However, being late is not a punishable act of an employee. Of course, the boss can force the employee to write an explanatory note, deprive him of the bonus. But for a one-time, or non-systematic delay, the employee is not threatened with anything, except for financial measures, and here's why: according to current legislation, absenteeism is the absence of an employee at the workplace for four or more hours in a row without prior warning from management. That is, an employee who burst into the office 3 hours 59 minutes after the start of the working day is not a truant, but a latecomer. However, it should be noted that not always the absence of an employee in the workplace is absenteeism. The legislation highlights a number of cases when an employee may not officially appear in the organization. it
- time spent on sick leave;
- passing exams, defending a diploma, master's and so on;
- summoning an employee to court or law enforcement agencies (because these services have a motivated requirement);
- force majeure circumstances (natural disasters, weather conditions, etc.).
It is worth focusing on the last point - force majeure. An employee who likes to sleep in the morning may think that if the Ministry of Emergency Situations sent him an SMS in the evening that a storm warning is expected in the morning, then in the morning you can not go to work - after all, force majeure. However arbitrage practice shows that force majeure is usually recognized as cases when an employee tried to get to work, but due to force majeure circumstances (a flooded crossing, a snowstorm, several trees falling on the road that blocked the exit public transport) could not. Also, if for the life and health of an employee there is real threat(flooding locality, fires near the place of work, and so on). Absenteeism is not considered absenteeism of an employee due to the employer's failure to fulfill his duties, in particular, non-payment of wages for 15 days or more (but only subject to prior notice to the employer).
However, if the employee does not have a good reason for being absent from work, he did not take exams / was not called by law enforcement agencies / was not on sick leave, it is necessary to draw up the relevant documents, namely, an act on the absence of the employee from the workplace. Most often, this document is drawn up by lawyers, personnel officers, secretaries or the head of the unit in which the truant was identified. But, as mentioned above, often this fate goes to a labor protection specialist.
It should be remembered that in order to legitimize this act, a specially created commission of third-party members of the labor collective is needed - these can be absolutely any specialists and workers. It is important that in addition to the originator of the document, there should be at least two of them (in total, the document must have three signatures, or four if the director endorses it).
The act must be drawn up no later than one month after the recorded case of absence from work. Otherwise, the document will be lost. legal effect behind the statute of limitations.
The act of absence of an employee at work is not a standard document. Therefore, it is recommended that in the order on the creation of the commission to approve their own forms of acts (on absenteeism, on absence from the workplace). If the documents have not been approved within the organization - it does not matter, the act can be drawn up in any form and even by hand. It is only important that the following information is reflected in the act - the name of the enterprise where absenteeism is recorded, the composition of the commission and the number of the order by which it was created, explanatory (if any) from the employee who committed the misconduct.
The act is drawn up in two copies, one copy is transferred to the truant employee by any accessible method by hand, mail or telegraph. The main thing is that there is evidence of notification of the employee (otherwise, the employee can appeal the decision on disciplinary action in court by preparing some papers of his “forced” lateness).
However, if the employee subsequently provides documents confirming a good reason for his absence from the workplace, the act will not be considered evidence of the employee’s guilt.
But if the employee is not late for 4+ hours, but does not go to work at all during the day, two, weeks? ..
In this case, an act of absence from work is drawn up. It is compiled for each day the employee is absent. After all, it may well turn out that the employee is in some serious trouble and cannot report his condition (had an accident, was kidnapped, is in intensive care, and so on). From the act of absence from the workplace, the act of absenteeism differs in that it records the absence of an employee at a time when the reason for the absence of the employee is not yet known. If the reason for the absence was some personal incident of the employee (a common example is binge drinking), then these documents will be required during the paper procedure for imposing disciplinary punishment / withholding wages / dismissal.
For personnel records management, as well as maintaining a time sheet, these acts will serve as the basis for setting the code "30" or HH in the employee's working day column. It is also worth noting that it is recommended to send an act of absenteeism of an employee to work at the place of residence of the employee on a daily basis. This event will help to sort out if the case comes to trial.
In form and drafting, the act of absenteeism is identical to the act of absence from the workplace. A special commission is required, consisting of at least three people, signatures of witnesses, a line about the notification of the employee. The document is also drawn up in two copies of an arbitrary form (if the form has not been established earlier).
In the future, if an employee comes to work without explaining his absence with a good reason, absenteeism acts are facts on the basis of which it is necessary to start the procedure for disciplinary punishment of the employee, up to and including dismissal.
If the employee, upon arrival at work, provides the employer with written evidence of the valid circumstances of his absence, then he is released from any responsibility and continues to work in the same schedule.
It should be noted that for violations of labor discipline that are not subject to punishment in the form of disciplinary liability, there is also a punishment consisting in the imposition of a monetary restriction. However, in this matter, it must be remembered that the salary is an inviolable part of the salary, on which the employer is not able to impose a punishment (except in cases of absenteeism or non-fulfillment of his labor duties). What is left for the employer? The only legal measure of influence is by deprivation of bonuses. The bonus is not an employer's obligation, but an employee's privilege that must be earned. Often, people come to complain to the State Labor Inspectorate, whom the employer for some reason deprived of the bonus. However, in this case, both labor inspectors and the legislation are on the side of the employer - he is free to give a bonus in the amount he sees fit. It must also be remembered that payments for overtime, travel and other types of work are not a bonus part of the salary, and the employer cannot encroach on them either. Therefore, it is necessary to be extremely careful about the “hit on the ruble”, because in case of illegality of the punishment, the court will prescribe the payment of the withheld part, and the State Labor Inspectorate will impose a fine under article 5.27 of the Code on administrative offenses, with a maximum fine of up to 50,000 rubles per legal entity.
Absenteeism is one of the violations for which the company has the right to dismiss. Some truants do not come for a long time. Personnel officers have to decide how to dismiss for absenteeism if the employee does not show up for work. What the employer needs to consider and what risks arise due to the specifics of the work.
From the article you will learn:
How can a company fire an employee for absenteeism if he does not show up for work
The legislator defines absenteeism as absence from the workplace without good reason. You can think about dismissal if the duration of the pass is:
- work shift or day, regardless of its duration;
- more than four hours in a row (p. and h. 6).
Consider how to fire an employee for absenteeism if he does not appear at work. We are talking about situations where the employee did not coordinate his actions, did not notify the employer of the reasons for the absence. The Labor Code considers such an offense a reason to terminate the contract with the employee at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation).
In some cases, truants are absent for a long time. The procedure for dismissal for absenteeism of an employee who does not go to work for a long time is similar to that which the law established for violators who began to perform their duties after the absence. Necessary:
- fix the violation
- ask for clarification
- assess the reasons for the absence,
- draw up an order and other documents,
- make a calculation.
Do not rush to fire an employee if he has not committed violations before
As a rule, dismissal for absenteeism is preceded by repeated violations on the part of the employee - for example, if he did not appear at work for a long time, and before that he committed other misconduct. If he performed his duties properly, a single misconduct does not lead to disciplinary action and dismissal.
If the employee did not appear at work and does not get in touch, it is necessary to establish the reason. Otherwise, the employee may challenge the dismissal, or the litigation will drag on.
The company did not understand the reasons for absenteeism, and the consideration was delayed
The employer dismissed the employee for a single gross violation of labor duties. The reason was absenteeism, which the employee committed on a holiday (February 23). The employee did not agree with the wording and went to court. He demanded that the dismissal order be declared illegal, that he be reinstated at work, that wages for the period of forced absenteeism and compensation for non-pecuniary damage. The plaintiff believed that he did not commit a misconduct, was absent from the workplace for a good reason with the permission of his immediate supervisors, about which he wrote a corresponding statement.
The case was considered in several instances. The Supreme Court returned the dispute for a new trial. The courts did not examine all the circumstances. They did not evaluate the testimonies of witnesses, who confirmed that the plaintiff, before the start of the work shift, turned to the foreman of the corps link on the issue of premature departure from work for family reasons. The courts also did not evaluate the testimony that the plant has a procedure for registering early departure from work. The employee notifies the foreman, through him passes the application and, with oral permission, leaves the workplace. In the case file, the employer provided the internal labor regulations. They pointed to the need to agree on the employee's departure in writing. The Supreme Court pointed out that it is necessary to investigate all the actual circumstances, and not be limited to formal conditions (determination of the Supreme Court of the Russian Federation of June 18, 2018 No. 66-KG18-8).
Fix the violation
To resolve the issue of how to dismiss an employee for absenteeism if he does not appear at work, collect evidence of his absence from the workplace. Can:
- draw up an act to be signed by other employees;
- fix the data at the checkpoint, if the enterprise has a pass system;
- indicate in the time sheet for a pass.
It is advisable to use all possible ways of fixing violations and timely draw up documents.
However, it will be more difficult to issue such a dismissal if the work is traveling in nature. The fact of absence is more difficult to prove. If in the employment contract the parties agreed on the traveling nature of the work, it will not work to refer to the data of the access system.
For example, the court declared the dismissal illegal. The employer presented the data of the checkpoint system, which recorded the absence of the plaintiff at work during the disputed period of time. He also provided an inspection certificate, a timekeeper's certificate and a petition from the head of the shop. The court rejected the arguments. The employee was registered in the automotive industry and held the position of a driver of the motor transport workshop. The employee reported using waybills, which recorded the time of arrival and departure. The parties did not specify the plaintiff's workplace in the employment contract; on the contrary, they pointed to the traveling nature. In such a situation, considering the absence of an employee in the office does not prove absenteeism (appeal ruling of the Sverdlovsk Regional Court dated December 22, 2017 in case No. 33-21598 / 2017).
How to properly dismiss for absenteeism if the employee is on a traveling job
In order not to enter into a dispute and not to reinstate a truant at work, consider the specifics of the schedule and conditions of the dismissed person. Gather evidence to help justify absenteeism. It is possible to defend the position if absenteeism is indicated by witness testimony and the lengthy nature of the violation (appeal ruling of the Moscow City Court dated December 4, 2017 in case No. 33-49714 / 2017).
Request an explanation
In order to apply a disciplinary sanction, including dismissal for absenteeism, the employer must request a written explanation (Article 193 of the Labor Code of the Russian Federation). Hand over the request to the employee against signature. The question arises: how to dismiss for absenteeism if the employee does not appear at work and refuses to receive a document or sign. In this case, send a request to the employee. He must respond within two days. If he does not do this, draw up an act with the signatures of other employees. Save proof of sending the request. They will come in handy in case of a dispute.
If absenteeism continues for several days or the employee is absent for the first time, record every fact. Such evidence will help defend your position in court.
For example, a company won a dispute. The court upheld the dismissal. The employer submitted to the case file requests for a written explanation dated 03/29/2017 and 03/31/2017 with a mark of delivery. Since the employee did not send documents, the company drew up acts of refusal to provide written explanations on the fact of absenteeism (appeal ruling of the Voronezh Regional Court dated 10/24/2017 in case N 33-7543 / 2017).
Do not fire the violator on the day when he did not come to work
The law indicates the period during which the employee must give explanations (Article 193 of the Labor Code of the Russian Federation). Gather information about reasons for absence general requirement which the employer must comply with in order to impose a disciplinary sanction. You need to give time for a response. AT emergency situations sending documents or getting in touch is not always possible. If it turns out that the employee was on sick leave or was absent for other valid reasons, the court recognizes the dismissal as illegal and reinstates him at his previous place of work (appeal ruling of the Orenburg Regional Court dated August 23, 2017 in case No. 33-5748 / 2017).
Don't forget to calculate
Calculate the salary and other payments that are due to the employee. In case of a dispute, confirm the payment using an account statement, pay slips and payment orders (appeal ruling of the Moscow City Court dated 04/04/2018 in case No. 33-14467/2018). If the employing company fails to do so, former employee may recover funds through the court (appellate ruling of the Sverdlovsk Regional Court dated February 27, 2018 in case No. 33-2495/2018).
The employee stopped appearing at work, does not answer phone calls. Answered the call only 1 time, promising to come to work, but did not come out.
What is the procedure for dismissing an employee for absenteeism?
After considering the issue, we came to the following conclusion:
In case of disrespectful reasons for the absence of an employee at work, the employer has the right to dismiss the employee on the basis of paragraphs. "a" paragraph 6 of the first part of Art. 81 of the Labor Code of the Russian Federation for absenteeism. To do this, you must follow the overlay procedure disciplinary action, as well as the procedure for dismissal, provided for by the Labor Code of the Russian Federation. You can dismiss an employee for absenteeism no later than 1 month from last day absenteeism. This period is extended for the duration of the employee's illness and other periods provided for in Art. 193 of the Labor Code of the Russian Federation.
Until the reasons for the absence of the employee are clarified, it is not recommended to dismiss him for absenteeism, because if the reasons for his absence from work are valid, the dismissal will be considered illegal.
Rationale for the conclusion:
In accordance with paragraphs. "a" paragraph 6 of the first part of Art. 81 of the Labor Code of the Russian Federation, an employment contract with an employee can be terminated at the initiative of the employer in the event of such a single gross violation of his labor duties as absenteeism.
Absence from the workplace without good reason throughout the working day (shift), regardless of its (its) duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift) .
From the above definition it follows that the main criterion for absenteeism is the absence of valid reasons for the employee's absence from work. At the same time, the Labor Code of the Russian Federation does not contain a list of reasons that are valid. Accordingly, in each case, it is necessary to assess the "relevance" of a particular reason (see also the definition of the UK by civil affairs Omsk Regional Court dated October 20, 2004 N 33-3509).
In other words, since there is always a possibility that an employee is absent for a good reason, it is not recommended to dismiss him for absenteeism until the circumstances of his absence from work are clarified. In addition, it is possible that after finding out the reasons for the absence of the employee at the workplace, the employment contract with him will need to be terminated due to other circumstances (for example, due to circumstances beyond the control of the parties: in connection with his conviction to a punishment that precludes continuation previous work, in accordance with a court verdict that has entered into force, and more (Article 83 of the Labor Code of the Russian Federation)).
In this situation, the employer must definitely record the fact of the absence of the employee at the workplace. For this, an act is drawn up in any form, which is signed by several witnesses. You can draw up such an act both on the first day of the employee’s absence from work, and on any of the following days. In addition, the fact of the absence of an employee should be recorded in the time sheet, for which the mark “absence for unknown reasons” (NN) is put in it, which then, when it becomes known for sure that there were no valid reasons for the absence, changes to the mark “truancy " (ETC).
Since fixation in personnel documents absence of an employee at the workplace, there is every reason not to accrue wages to the absent employee.
In a situation where the employer has every reason to believe that the reasons for the absence of an employee from work are not valid, he has the right to dismiss him on the basis of paragraphs. "a" paragraph 6 of the first part of Art. 81 of the Labor Code of the Russian Federation for absenteeism.
If there is no reliable information about this, then, if necessary, another person can be accepted for the position of the absent employee under a fixed-term employment contract with the wording: "for the period of temporary absence of the employee, for whom, in accordance with the law, the place of work is retained" (part one of article 59 of the Labor Code RF). You can also entrust his work to another employee without releasing the latter from the work determined by the employment contract (Article 60.2 of the Labor Code of the Russian Federation). An option is also possible temporary transfer any of the employees to the position of a temporarily absent employee (Article 72.2 of the Labor Code of the Russian Federation).
Before taking any further action, the employer should find out the reasons for the absence of the employee from the workplace. Of course, the employer is not obliged to take measures to search for missing employees. However, in order to avoid unlawful dismissal, the simplest measures should be taken to find out the location of the employee (for example, send a registered letter with acknowledgment of receipt to the last known address of the employee with a request to explain the reasons for the absence from work, go to the employee’s place of residence, if possible, communicate with the spouse, relatives and neighbors to find out the reasons for the absence of the employee, inform the internal affairs body).
Recall that when an employee is dismissed for absenteeism, the burden of proving the fact of its commission lies precisely with the employer, who must have evidence of its commission by the employee (paragraph 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code Russian Federation" (hereinafter referred to as the Decree of the Plenum of the Armed Forces of the Russian Federation)). If the employer finds out that the reasons for the absence of an employee at work are not valid, he has the right to dismiss him for absenteeism.
In accordance with Art. 192 of the Labor Code of the Russian Federation absenteeism is gross violation employee of labor duties, that is, a disciplinary offense, and dismissal - a disciplinary sanction for committing it. This means that upon dismissal for absenteeism, the employer must comply with the procedure for applying disciplinary sanctions established by Art. 193 of the Labor Code of the Russian Federation. If this order is violated, then in the event of judicial trial the court is likely to recognize the dismissal as illegal, even if the fact of the employee's absenteeism is proved.
First of all, the employer must meet the deadlines for applying the disciplinary sanction established by Art. 193 of the Labor Code of the Russian Federation.
You can be dismissed for absenteeism no later than 1 month from the day it was discovered, not counting the time the employee was ill, being on vacation, as well as the time required to take into account the opinion of the representative body of employees, and no later than 6 months from the date of its commission.
If an employee takes a long absence month to detect a misconduct, it should be calculated from the last day of absenteeism, and not from the first (see, for example, the ruling of the Ryazan Regional Court of April 25, 2007 N 33-580; Generalization of the practice of considering cases in the 1st half of 2008 by the courts of the Saratov region termination of the employment contract at the initiative of the employer and on other grounds not related to the will of the employee).
Second essential condition proper registration of dismissal for absenteeism is the correct documentation (the general procedure for dismissal of an employee for absenteeism is given, for example, in a letter from Rostrud dated October 31, 2007 N 4415-6).
Article 193 of the Labor Code of the Russian Federation requires that, even before applying a disciplinary sanction, the employer requires an explanation from the employee in writing. It is extremely difficult to demand written explanations from an employee who does not appear at the workplace, and to do this in such a way that later it would be possible to prove the fact of such a request for explanations. Therefore, it is almost impossible to dismiss an absent employee for absenteeism. For this reason, many experts recommend waiting until the employee appears at work and does not submit supporting documents.
If the employer nevertheless decides to dismiss the employee for absenteeism in his absence, then he must, in the event of a trial, collect evidence that he fulfilled all his duties in the process of applying a disciplinary sanction.
In Art. 193 of the Labor Code of the Russian Federation does not say how exactly the employer should request a written explanation (in a personal meeting or by sending a letter with a notification). Therefore, the following course of action can be suggested. An absent employee is sent a request by registered mail with notification to give a written explanation of the reason for his absence from work. If two working days have passed since the employee received the letter, and the employee has not provided an explanation, then an appropriate act is drawn up. The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction, that is, to dismissal (part two of article 193 of the Labor Code of the Russian Federation). At the same time, the signature of the employee himself must be on the mail notification, this proves that the employee has received the employer's request.
If the mail notification is returned with a note that the recipient is absent, sending such a notification cannot be considered a proper request for a written explanation. Therefore, in such a situation, we also do not recommend issuing a dismissal for absenteeism. The employer, during the period of a long absence of the employee, may periodically send him letters demanding explanations, waiting for the employee to personally sign the notice.
Based on the act of absence from the workplace, as well as a written explanation or an act on the employee’s failure to provide an explanation, the employer issues an order (instruction) on dismissal.
The order is announced to the employee against signature within three working days from the date of its publication, not counting the time of his absence from work (part six of article 193 of the Labor Code of the Russian Federation). An absent employee should be sent a telegram or registered letter with a notification in which they invite the employee to familiarize themselves with the dismissal order and to receive the calculation and work book. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then an appropriate act is drawn up.
Please note that the date of the dismissal order must be the date of its actual issuance within the time limits for the application of a disciplinary sanction established by Art. 193 of the Labor Code of the Russian Federation. But the date of dismissal should be the last day of the employee’s work, with the exception of cases when the employee did not actually work, but after him in accordance with the Labor Code of the Russian Federation or another federal law the place of work (position) was retained (part three of article 84.1 of the Labor Code of the Russian Federation).
According to Art. 84.1 of the Labor Code of the Russian Federation on the day of termination of the employment contract, the employer is obliged to issue a work book to the employee. If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send a notification to the employee about the need to appear for a work book or agree to send it by mail. From the date of sending the said notification, the employer is released from liability for the delay in issuing a work book.
In addition, the employer is not responsible for the delay in issuing a work book if the last day of work does not coincide with the day the termination was issued. labor relations upon dismissal of an employee for absenteeism.
At the written request of an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee's request.
Upon dismissal, the employer is obliged to make a settlement with the employee. In Art. 140 of the Labor Code of the Russian Federation it is noted that the payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than next day after the laid-off employee presents a demand for payment.
Since the reasons for absence from work in the situation under consideration are unknown, it cannot be completely ruled out, for example, that the employee is on sick leave.
However, it should be borne in mind that when implementing the guarantees provided by the Labor Code of the Russian Federation to employees in the event of termination of an employment contract with them, the general legal principle of the inadmissibility of abuse of the right, including by the employees themselves, must be observed. In particular, it is unacceptable for an employee to conceal temporary incapacity for work at the time of his dismissal from work. If the court establishes that the employee has abused the right, the court may refuse to satisfy his claim for reinstatement (changing the date of dismissal at the request of the employee dismissed during the period of temporary incapacity for work), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of dishonest actions on the part of the employee (clause 27 of the Decree of the Plenum of the Armed Forces of the Russian Federation). If an employee dismissed for absenteeism goes to court with a request for reinstatement and submits a certificate of incapacity for work, the presence of which he hid from the employer at the time of requesting an explanation from him, then a notice of receipt of a letter signed by him, in which the employer was interested in the reasons for absence from the workplace, will help the employer to prove in court the fact of abuse of the right by the employee.
As explained in paragraph 41 of the resolution of the Plenum of the RF Armed Forces, if, when resolving a dispute on the reinstatement of a person dismissed for absenteeism, and collecting the average earnings for the period of forced absenteeism, it turns out that the absence from the workplace was caused disrespectful reason, but the employer violated the dismissal procedure, the court, when satisfying legal requirements, must take into account that the average earnings of a reinstated employee in such cases may be recovered not from the first day of absence from work, but from the date of issuance of the dismissal order, since only from that time absenteeism is considered forced .
Shtukaturova Tatyana - expert of the legal consulting service "GARANT"
- HR policy, Corporate culture
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