Lack of documents at the workplace. Unexcused reasons for absenteeism

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

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

But if an employee systematically violates internal labor regulations, he skips work. That's all possible options decisions, such as dismissal or, no longer help.

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

What is truancy?

Sometimes an employer or employee interprets the concept of “absenteeism” in their own way. For some, it is failure to show up for work without warning, for others, being late, and some believe that absenteeism is a refusal to do extracurricular work. To resolve disputes, you need to study what the law says. Legal definition absenteeism is given in Art. 81 Labor Code of the Russian Federation.

Absenteeism is considered to be absence from the workplace without good reason during the entire working day (shift), regardless of 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).

To qualify absenteeism, the following conditions must be met:

• absence for 4 or more hours;
• unjust cause;
• the offense is one month old.

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

What constitutes absence from work?

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

IN this issue should first study job description and an employment contract with the employee, as well as collective agreement, if available. Additionally, other local acts (orders, instructions, regulations) can be used that define the “workplace” for a specific employee.

For example, an instruction or order for a worker may indicate that his workplace is a specific machine or workshop number. In this case, absenteeism will be considered the time that the employee spent outside the workshop or at the machine.

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

Time away from work

The law gives an employer the right to dismiss an employee for absenteeism if the employee has been absent for 4 hours or more. This means that, If an absence of exactly 4 hours or less is recorded, then you cannot be fired for absenteeism. Yes, other disciplinary measures can be taken, such as a reprimand, but not dismissal. Having information on how to fire a person for absenteeism, employees sometimes take advantage of this four-hour period, which does not allow absence to be considered absenteeism.

How is time away from work calculated correctly?

Further, the period of absence does not include the lunch break. Reason – Art. 108 of the Labor Code of the Russian Federation, excluding the duration of the break from working time. Therefore, if, for example, an employee came to work at 14:20, but was supposed to at 10:00, while the break was set from 13:00 to 14:00, then this act will not be considered absenteeism, since the employee was absent only 3 hours 20 minutes.

The Labor Code of the Russian Federation allows you to take into account and summarize all periods when the employee was not on site, but only within one shift or day, depending on the established schedule. That is, periods of absence cannot be summed up 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 missed for the whole day. This can be qualified as truancy, subject to other procedural requirements.

Valid reasons for absenteeism

The legislator for the current 2019 does not define in any article of the Labor Code what are 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 reason is one that arose not at the will of the employee.

That is, they recognize as respectful:

• employee illness;
• illness (death) of a close relative;
• emergency situations;
• road accidents or accidents;
• housing and communal accidents;
• other.

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

The law also does not consider absence of an employee with the consent of the manager as absenteeism. That is, if an employee “asked for time off,” then this is not absenteeism. But, as with other reasons, the fact of management’s permission must be proven.

Oral 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 constitutes 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 instructions for dismissal for absenteeism provide the following procedure for going through all stages: from committing an offense - absenteeism - to the final entry in the work book.

It is important to comply with all procedural formalities to avoid litigation. After all, if the procedure for actions and paperwork is violated, the dismissal may be declared illegal in court, the employee may be reinstated in his position, and the employer may be required to pay compensation.

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

1. Document the fact of absenteeism. This can be done by logging the employee's absence. The act is drawn up in the presence of witnesses (2-3 people). It is also permissible if the immediate supervisor submits a report on the commission of an offense to his subordinates to higher authorities.
2. . An explanatory note must be drawn up only in writing. Verbal explanations are not suitable. Duration – 2 days.
3. Based on the results, either the official investigation is closed or a report is drawn up. Also, if there is no explanation from the employee within 2 days, a corresponding one is drawn up (Article 193 of the Labor Code of the Russian Federation).
4. A decision is made to impose penalties. The right to fire for absenteeism is not an obligation, that is, the employer may not fire the employee, but apply another type of penalty.
5. A dismissal order is being prepared.
6. Familiarize the employee with the order.
7. Record your dismissal by making an entry in your work book.

Nuances of action during long absences

The situation when there is a long walk deserves special attention. Upon dismissal for long absence step by step instructions almost the same as with the usual one, that is, the discrepancies:

1. Record absence: compile, enter data in.
2. Draw up the need to appear and provide explanations.
3. Send notice to the employee at a known postal address.
4. After receiving notification of delivery, wait 2 days + the period required for delivery of correspondence.
5. If explanations are not provided and confirmation of receipt of the notification, draw up a report.
6. Take measures to determine the reasons for absence if notification has not been received. This step is not mandatory, but recommended to avoid problems in possible trial after. You can make calls to the employee’s relatives and get their testimony.
7. Write down the activities carried out, recording the information received. Optional.
8. Design .
9. Draw up a report on the impossibility of familiarizing the employee with the order.
10. Enter information into work book.
11. Make payment calculations.
12. 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 clarification.

It would also be reasonable to draw up daily reports of the employee’s absence during the entire period of absenteeism, or to record this in some other way. in an 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.

Preparation of procedural papers

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

As part of the investigation, a decision may be made to dismiss for absenteeism without a valid reason if the employee refuses to provide an explanation for why he was absent. 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 the dismissal take place? Not an easy question. To make a decision, you must be guided by Art. 84.1 Labor Code of the Russian Federation. According to its contents, the employee’s last working day is the date of his dismissal, if for other reasons there is no place assigned to him. In the case of absenteeism, the last day that the employee worked was the day before the day of absenteeism, unless a valid reason was confirmed.

Therefore, if the absenteeism was a one-time occurrence and the employee subsequently appeared and gave explanations that were regarded as an unjustifiable reason, the date of dismissal and the order to dismiss for absenteeism will correspond to the day the explanatory note was received. if the absenteeism is of a long nature, the employee’s daily absences are confirmed by reports and time sheets, and explanations were never received, then dismissal is allowed on the last working day. However, dismissal dated on the day of drawing up the final act on the lack of explanation will not be a violation.

Registration of a work book

Entering data into the work book is the final stage of dismissal. If you don’t know or are not sure under what article one is fired for absenteeism, then dismissal for absenteeism is regulated by Article 81 of the Labor Code of the Russian Federation. Information is entered into the employee’s work book based on the order. The registration data of the order itself is written in the column “Name and date of the document.” Sample entry in the employment record about dismissal for absenteeism:

First, the number of the serial entry is indicated; the deadline is not missed. Next, the date for entering the information is specified, which must coincide with the date of dismissal and issuance of the order. Further it is indicated in words in labor record about dismissal for absenteeism (). Afterwards the signature and title of the position of the responsible person are affixed. The record is certified by the company seal.

Sometimes an employer can terminate a contract and fire not for absenteeism, but if the employee is recognized as dead or missing. To do this, it is necessary to have a court decision (here in detail about) confirming this fact. The employer can initiate the process himself, or another interested party, 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 regarded as 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. However, there are exceptions to this rule, the same as when recalled from vacation. It is acceptable to have employees work on days off if this is required to recover from accidents or emergencies.

Dismissal and sick leave

It is unacceptable to fire someone if an employee is sick. If an employee was hastily fired for absenteeism, and he brought sick leave in the form of an explanation of the reason, then such an employee must be reinstated in his position, since the dismissal is unlawful. However, if the fact of concealment of illness and the presence of sick leave has been established, then during the trial the court may side with the employer, considering that the employee is abusing his rights and infringing on the rights of the employer (Resolution of the Supreme Court of the Russian Federation).

In their lawsuits, citizens explain the situation this way: “I was fired for absenteeism while I was on sick leave.” A certificate of incapacity for work is provided as proof. This is not enough; it is necessary to prove that the employer was notified that the employee was ill. Moreover, a citizen may be denied a claim if he refuses to give an explanation. Of course, if he could do it for objective reasons.

Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and others regulatory documents to regulatory authorities.

You will learn:

• What does the concept of “truancy” include and what are the measures to prevent losses from absenteeism
• How to correctly record an employee’s absence from work
• What measures can an employer take in relation to a truant worker?

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

But there are situations in which it is difficult to understand immediately: for a good reason, the employee stopped going to work or not, in which situations he can be fired, and in which - absolutely not. Often, a situation that is clear at first glance turns out to be far from being so simple upon further examination.

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

MEASURES TO PREVENT LOSSES FROM ABSENTANCE

The absence of an employee from work, even for a short time, disrupts the work process. To minimize damage, the organization must take a number of measures:

• The internal labor regulations must contain a clause obliging the employee to warn his immediate supervisor in advance about the impossibility of going to work, 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 the responsibilities of the absent employee among his colleagues;
• supervisor structural unit must have a list of employees whom he can entrust to perform the functions of the absent employee. The employees themselves, in turn, must be aware of the colleague’s affairs, which they will need to carry out in the event of his absence (not only unexpected, but also planned (for example, during a vacation or business trip));
• the manager must have specific instructions regulating his actions in the event of an employee’s absence without warning (example 1).

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

Example 1

Memo to the head of the department on actions in case of employee absence

1. Call the employee at all telephone numbers known to you (home, mobile, etc.) and find out the reason and possible duration of his absence.
2. Ask your subordinates whether the employee has spoken about possible absence from work. If one of the employees is aware of the reasons for a colleague’s absence, ask them to state them in a memo addressed to the head of the organization.
3. Draw up a report on the absence of the employee, the measures taken to find him and their results.
4. Take all documents to the HR department and receive instructions there on further actions regarding the absent employee.

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

A workplace is a place where an employee must be or 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 Labor Code of the Russian Federation condition employment contract about the workplace is an optional (that is, optional) clarification of the conditions about the place of work. We recommend (if necessary) that an employee be assigned to a workplace not by an employment contract (in order to avoid subsequent problems with changing this condition of the employment contract), but by a unilateral document (an order for the organization, an order for the division, a notification, etc.).

When registering an employee - part-time worker focus his attention on the fact that part-time work (as opposed to freelancing) is being done regularly, he is entitled to leave, as at his main place of work, but it is prohibited to go on it without permission. As practice shows, many workers perceive part-time work as additional income if they have free time, not realizing that a second job is same obligations, as when performing the main one.

THE EMPLOYEE DIDN'T GO TO WORK: FIXING AN ABSENCE

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

A clear record of absence will help if the fact of absenteeism is confirmed over time, and will not hurt if the employee brings a certificate of incapacity for work. The failure to appear report must be drawn up in the presence of two witnesses. It is better if employees from related departments act in their capacity - if an employee challenges his dismissal in court, he will not be able to refer to the alleged pressure exerted on witnesses by the manager.

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

For example, dentist N. did not come to work on time. None of the colleagues heard the doctor planning to leave urgently or complaining about feeling unwell. The head of the department called him throughout the day, but the phone was silent. Concerned about N.'s absence, she went to his home. Nobody opened the door. When the local police officer was called and opened the apartment, it turned out that the 45-year-old man was dead (as it turned out, due to a stroke).

If an employee does not show up for work, the letter code “NN” or the number 30 (failure to appear for unknown reasons (until the circumstances are clarified)) is entered in the time sheet. If the timesheet is maintained:

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

If you are not sure that the employee is sick, it makes sense to draw up reports of his absence every day for the first week; in the future, you can limit yourself to a report of the employee’s absence during the week, drawn up on Fridays. This issue is not regulated by law, so you need to be guided by common sense and judicial practice.

The legislation also does not establish a fixed list of documents that must be completed when absenteeism. In the courts as evidence more often admit:

• time sheet with appropriate marks;
• acts or memos about the employee’s absence from the workplace;

SCIENTIFIC EDITOR'S NOTE

As well as certified printouts from electronic system accounting for the entry and exit of workers (paragraph 5 of clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 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 absence from work (Appeal ruling of the Moscow City Court dated August 2, 2013 No. 11-15221).

SCIENTIFIC EDITOR'S NOTE

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. In their practice, courts in most cases are of the opinion that the employer lawfully applied a disciplinary sanction, including dismissal for absenteeism, if the employee did not receive a notice to provide written explanations requested by telegram (or letter), for reasons beyond the control of the employer (Appeal ruling of the Moscow City Court dated July 28 .2014 No. 33-29793/14).

WE FIND OUT THE REASON FOR NO APPEARANCE

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

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 powerful argument than words. Therefore, it is better to make a request in two copies, give one to the employee, and ask him to sign on the second.

Example 2

Notice of the need to explain the reasons for non-appearance

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

Failure by an employee to provide explanations is not an obstacle to applying a disciplinary sanction (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, the search should be intensified. You can call him at home after work - there is a high probability that his relatives (and perhaps the employee himself) will be able to clarify the situation. Since bringing witnesses to a telephone conversation in evening time difficult, try to record the conversation on a voice recorder, 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 will be additional evidence that the employer is right.

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

SCIENTIFIC EDITOR'S NOTE

It's better if there are letters valuable With inventory of the attachment(to exclude speculation on the part of the employee) and, of course, with notification of delivery.

WHAT IS CONSIDERED A SHALKING?

Dictionary

Absenteeism- absence from the workplace without good reason during the entire working day (shift), regardless of 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) (sub. “a” » clause 6, part 1, article 81 of the Labor Code of the Russian Federation).

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

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

• visiting a lawyer to get advice on violation of labor rights (Determination of the Moscow Regional Court dated November 24, 2011 in case No. 33-26558);
• being on leave without pay wages 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 (Appeal ruling of the Kemerovo Regional Court dated August 17, 2012 in case No. 33-7790);
• illness of an employee, including in the absence of a certificate of incapacity for work (Appeal determination Supreme Court Republic of Mordovia dated February 21, 2013 in case No. 33-426/2013);

SCIENTIFIC EDITOR'S NOTE

Let us note that there is also opposite judicial practice, for example, Ruling of the Chelyabinsk Regional Court dated July 10, 2014 No. 11-7179/2014 recognizing the abuse of the right by an employee to not notify the employer of his temporary disability and the absence in this case of obstacles to dismissing an employee at the employer’s initiative.

• fire, short circuit, emergency, natural disasters(Appeal ruling of the Khabarovsk Regional Court dated March 1, 2013 in case No. 33-1372/2013).

2. For unjust reasons clearly admit:

• unauthorized termination of work before the expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation) or notice 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 going on vacation (subparagraph “d”, paragraph 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 courts Russian Federation 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 by focusing on them, you will be able to more objectively assess the degree of guilt of the employee.

HOW TO DEAL WITH A SHUTTER

According to the Labor Code of the Russian Federation, the employer has the right to dismiss an employee for absenteeism (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation), but is not necessarily obliged 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 committed and the circumstances under which it was committed must be taken into account.

Extraction

from the Labor Code of the Russian Federation

Article 193. Procedure for applying disciplinary sanctions

Before applying disciplinary action, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, 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 commission of the offense, 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. IN specified deadlines The time of criminal proceedings is not included.

For each disciplinary offense, only one disciplinary sanction can be applied.

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, 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 a corresponding act is drawn up.

A disciplinary sanction can be appealed by an employee in state inspection labor and (or) bodies for consideration of individual labor disputes.

ADVICE

If you are not sure that the employee is absent without good reason, we recommend periodically calling him in the presence of witnesses, drawing up reports on the results of negotiations, and also periodically (for example, once a month) sending registered letters demanding an explanation for absences.

If the employee is actually absenteeism, you should write a memo addressed to the head of the organization detailing all the circumstances that make it possible to qualify the employee’s absence as absenteeism, and attach to it all available documents (absence certificates, notifications of delivery registered letters or returned letters, memos from employees clarifying the circumstances of non-appearance, etc.). These documents are the grounds for dismissing an employee for absenteeism, and all of them must be listed in the dismissal order. The date of dismissal of the employee will be the date the head of the organization signs the order to dismiss the absentee (Parts 3 and 6 of Article 84.1 of the Labor Code of the Russian Federation). In the order (as in the work book and personal card), the entry about the reason and basis for dismissal must exactly repeat the wording set out in the Labor Code of the Russian Federation (“dismissed/dismissed for absenteeism”).

The situation with missing workers is ambiguous:

PLEASE NOTE

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

THE EMPLOYEE IS FIRED. WHAT'S NEXT?

Part 2 Art. 84.1 of the Labor Code of the Russian Federation obliges the employer to familiarize the employee with the dismissal order 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 storing 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 dismissal order, a note should be made about the impossibility of bringing its contents 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 grounds for dismissal, on the day of dismissal you must make a full settlement with the employee: pay all due wages, as well as compensation for unused vacation. If the employee does not have 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:

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

Accordingly: temporary disability with benefits, temporary disability without pay or absenteeism.

Accordingly, there is no need to send an employee fired for absenteeism a notice of the need to pick up his work book - Note scientific editor.

According to the Resolution of the Plenum of the Supreme Court dated February 17, 2004 No. 2, truancy is recognized as:

• absence from work (outside the workplace) without good reason for more than 4 hours in a row during the working day;
• unauthorized use of rest days;
• unauthorized leave.

A normal and responsible employee will always warn the employer if something happens to him and he does not come to work. But if he disappears and doesn’t answer phone calls, he’s probably playing truant. Let's look at the procedure for registering dismissal for absenteeism.

Step 1. Record the fact of absence

An act is drawn up in free form in the presence of two witnesses.

Sample act of absence of an employee from the workplace

Sample form for an employee's absence from work place

On the first day of such acts, at least two must be done. The first one is before lunch, the second one is before the end of the working day. In subsequent days (no more than three), one report is drawn up for each day of absence. If the employee never shows up, the employer continues to draw up one report per week until the person actually appears at work or decides to send him questions about the reasons for absence by mail. Upon dismissal, this act will serve as one of the supporting documents.

Step 2. Note the absence on the time sheet

Before the employee goes to work and explains the reasons for his absence, it is necessary to enter codes in: code NN (absence for an unknown reason). It is impossible to set the PR (absenteeism) code until written explanations (or an act of refusal to provide explanations) are provided; the court may subsequently recognize such a position as biased, and the dismissal as illegal.

Sample of recording absenteeism in a time sheet

Until a written explanation is received

After receiving a written explanation

Step 3. Notify the company management

On the first day of absence of an employee, his manager must inform the general director about this. This message is issued in the form of an official note in which:

• the situation is briefly described (the employee did not show up at work and is not in touch);
• contains a proposal to obtain written explanations from the employee with the subsequent adoption of a decision to bring him to disciplinary liability, including in the form of dismissal.

Sample memo about employee absenteeism

Step 4. Ask questions

If the employee does not show up long time, does not answer phone calls, the employer has the opportunity to send him questions about the reasons for his absence by mail. In this case, an official letter is drawn up on the organization’s letterhead demanding an explanation of the reasons for the absence. Such a letter must be signed general manager. The letter is sent with an inventory of the contents (for subsequent presentation to the court with a receipt for payment of the postage).

The letter must indicate the deadline by which the employee must provide his explanations. This period should be reasonable, for example 15 calendar days, and include time:

• postal forwarding to the addressee;
• actually writing the explanation;
• return postage.

As noted Managing partner of the law firm “Varshavsky and Partners” Vladislav Varshavsky, the employee must be asked to explain the reasons for absence from work, since the employee’s right to provide explanations is provided for by law. Otherwise, the employer’s decision to dismiss a subordinate for absenteeism may be recognized by the court as unfounded. As an example, the lawyer cited Resolution of the Moscow City Court dated July 30, 2018 No. 4g/7-8964/18, from which the following conclusion can be drawn: the employer did not provide the employee with the opportunity to explain the reasons for absence from the workplace, and therefore significantly violated the procedure for dismissal on his own initiative. On this basis, the dismissal was declared illegal, and the employer had to reinstate the employee in his position, pay him the average salary for the period of forced absence and compensate for moral damages.

If after a reasonable period of time there is no response or the letter is returned due to the expiration of its storage period, it is necessary to draw up an act of refusal to provide explanations. It may be necessary to justify subsequent dismissal in court.

Sample act of refusal to provide written explanations

Sample letter with questions about the reasons for absenteeism

If an employee appears at work and does not provide supporting documents, on the same day he must be given questions about the reasons for his absence. He has two working days to write his explanation. If after this time no explanations are provided, on the third day an act of refusal to provide written explanations is drawn up. If substantive explanations are provided, move on to the next step.

Step 5. Assess the validity of the reason for absence

(if there is a certificate of refusal, this step can be skipped)

If management decides to dismiss the culprit, the order is issued using the unified T-8 form. Dismissal for absenteeism is processed according to Article 81 of the Labor Code of the Russian Federation.

Sample letter of dismissal for absenteeism

Step 8. Introduce the employee to the order

The employee must be informed of or the application of a disciplinary sanction (no matter what it will be - reprimand or dismissal) within three working days from the date of its publication (not counting the time the employee is absent from work). If he refuses to familiarize himself with the order, an act is drawn up in any form in the presence of two witnesses.

Step 9. Fill out the work book

Sample entry in the work book upon dismissal for absenteeism

Step 10. Issue a work book

On the last working day, the employee must be paid all amounts due to him cash payments, as well as . For its receipt, the recipient signs.

If he refuses, we draw up an act in any form in the presence of two witnesses.

If a person is actually absent on the day of his dismissal (the last day of his work), the HR department employee on this day is obliged to send a notice of the need to appear for his work book or agree to be sent by mail.

If a person does not come and does not provide consent, the employer is obliged to keep such a work book for 75 years.

Express your opinion about the article or ask the experts a question to get an answer

According to the Labor Code of the Russian Federation, the employer is obliged to remove from work (not allow to work) an employee:

1. appeared at work in a state of alcohol, drug or other toxic intoxication;
2. who has not undergone training and testing of knowledge and skills in accordance with the established procedure area of ​​labor protection;
3. who has not undergone mandatory, as well as mandatory psychiatric examination in cases provided for by the Labor Code of the Russian Federation and others federal laws;
4. when identified in accordance with a medical report contraindications for the employee to perform work stipulated by the employment contract;
5. in case of suspension for a period of up to two months of an employee’s special right (license, right to drive a vehicle, right to carry a weapon, other special right) in accordance with federal laws, if this entails the impossibility of the employee fulfilling his duties under the employment contract;
6. at the request of the authorities or officials authorized by federal laws.

Employer suspends from work(does not allow the employee to work) for the entire period of time until the circumstances that served as the basis for removal are eliminated.

During the period of suspension from work (preclusion from work), the employee’s wages are not accrued.

In cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory medical examination through no fault of his own, he is paid for the entire period of suspension from work as idle time.

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REASONS FOR ABSENCE OF EMPLOYEES AT THE WORKPLACE

The Labor Code does not say what reasons for an employee’s absence from the workplace should be considered valid. Still, what criteria should be used when deciding to punish an absent employee?

Indeed, there is no list of valid reasons, and in each specific case the employer, or rather the manager, needs to deal with this issue. To be fair, it must be said that the legislation still provides for something. For example, it obliges the employer to release the employee from work while he performs state or public duties. This means that if the employee was busy performing these duties, his absence can no longer be considered absenteeism. Or, for example, an employee was absent due to illness and brought sick leave - there is a good reason ().

Everything is clear with sick leave, but in what cases is the employer obliged to release a person from work?

For example, when the employee is a member of an election commission or a juror.

Do you need to pay such an employee for the days he did not work?

No, you do not need to pay for these days. Government body or public association who engaged the employee to perform these duties pay the employee compensation for this time (). As they say, whoever attracts pays. An exception is made only for donors. Here, among the measures of social support, the legislation obliges the employer not only to release the donor from work on the day of blood donation and provide him with an additional day of rest, but also to pay him his average earnings for these days (Article 6 of the Law of the Russian Federation dated 06/09/93 No. 5142-1 "On the donation of blood and its components";

We were talking about sick leave, but what if the employee did not go to work and went to the doctor, but was not given sick leave?

Such a case was considered by the Moscow City Court (Determination of the Moscow City Court dated October 28, 2010 No. 33-34051). The employee, challenging his dismissal for absenteeism, referred to the fact that he felt ill and consulted a doctor. For this reason, he did not show up for work. The court found that the employee actually went to the clinic for medical care. He was examined, but he was not recognized as incapable of work and no sick leave was issued. And since after that he still did not come to work and was absent from the workplace all day, the court decided that in this case there was absenteeism and the employer had the right to fire the employee.

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That is, if an employee saw a doctor, but did not receive sick leave, the reason for absence is not valid?

Not really. It has already been noted that it does not establish a list of valid or not valid reasons. After all, the reasons for visiting a doctor are different. Let's say an employee decides that he is sick and goes to the doctor. The doctor found no cause for concern, did not issue a sick leave certificate, and the employee reported to work. Perhaps the reason for seeing a doctor was eliminated during the appointment. Each case is individual, and universal recipe No. In this regard, I would like to once again turn to the same decision of the Moscow City Court (Determination of the Moscow City Court dated October 28, 2010 No. 33-34051). In it, the court expressed a very correct idea. The exercise of employee rights, in this case the exercise of the right to seek medical help, should not be aimed at abuse or violation of the rights of others. Let's say an employee suspected he had an illness and went to the doctor, his assumptions were not justified, and he went to work. Of course, this is a valid reason, but if an employee goes to the clinic every other day to look for illnesses, and the doctors! they are not found, then it’s worth thinking about.

If an employee treats his teeth during working hours, is this a valid reason, is it impossible to check?

If your employee contacts working hours to the doctor with acute pain, then there should be no doubt - the reason is valid. And if this is a scheduled examination, then the employee must agree with the employer about his absence.

No need to investigate. You still won’t be able to get direct evidence, but you can understand whether a person is deceiving you or not, for example, by the number of such calls to the doctor during working hours. Of course, there is always the possibility that you will make a mistake and make an unfounded decision to take disciplinary action. The employee will challenge it, and the court will request information from the medical institution. And perhaps you will be wrong, and the court will side with the employee.

What other examples are there when an employee was absent from the workplace, and the court decided that this happened for a good reason?

In 2010, the Supreme Court (Decision of the Supreme Court of the Russian Federation dated April 30, 2010 No. 6-B10-1) recognized that the employee was absent for a good reason, since he was summoned by the internal affairs bodies as a witness in a criminal case. The court found that the employee spent almost the entire work shift there.

Giving evidence is a valid reason for absence from work. The witness is required to appear to testify, otherwise he may be subject to arrest. Even in cases where a witness has the right to refuse to testify, one cannot evade the call.

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Will it be a valid reason if the employee is not at the police station as a witness? For example, he was arrested for 15 days.

Oddly enough, yes. The Labor Code provides as a basis for termination of an employment contract the conviction of an employee to a punishment that precludes the continuation of his previous work, in accordance with a court verdict that has entered into legal force under Art. 83 Labor Code of the Russian Federation>. But for administrative arrest Art. 3.9 of the Code of Administrative Offenses of the Russian Federation> this norm does not apply, because it we're talking about about conviction by sentence. And this is only possible within the framework of criminal proceedings. Administrative arrest as a punishment is imposed by the court by resolution of Art. 3.2, clause 1 part 1 >. And the person is absent from work not of his own free will.

Examples when the employee was wrong, and it turns out that only the employer violates the rights of employees.

There are also quite a few examples where an employee actually violates labor discipline. For example, the Leningrad Regional Court considered such a dispute. When an employee was denied leave without pay, he simply did not come to work. And in court he referred to the fact that he left the workplace to protect his rights, since the workplace did not meet sanitary requirements. The employer had to prove the opposite with the results of workplace certification. And the court recognized the dismissal for absenteeism as lawful.

Here is another example where the court did not find a valid reason for the employee’s absence. This dispute has already been considered by the Moscow City Court. Challenging the dismissal for absenteeism, the employee referred to the fact that he returned from a business trip on Sunday and decided to take a day off on Monday, which he agreed with his immediate supervisor over the phone.

Provides that, at the request of an employee who worked on a day off or a non-working holiday, he may be given another day of rest. However, both the manager and the secretary did not confirm at the court hearing that the employee called the organization at all. And the court came to the conclusion that the employee did not go to work without permission and the employer had grounds to fire him.

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Act on the absence of an employee from the workplace

ACT No._________

About the absence of an employee from the workplace

Me________________________
position, surname and initials of the person who drew up the act

in the presence of _________________
positions, surnames and initials of persons,

Those present during the drawing up of the act

___________________________
This act has been drawn up on the following.
__________________________ during employee compliance checks internal regulations the absence of _________________________________ has been established
position (profession) of the employee
___________________________________
last name, first name, patronymic of the employee

at the workplace ___________________________
specific workplace

Control checks of the presence of workers at workplaces carried out by ____________________________ established
time

What __________________________
last name, first name and patronymic

did not show up at work until __________________.

The total time away from work was __________________.
___________________________
additional information
___________________________

position of the person who drew up the act signature transcript of the signature
date
_________________________ ___________________ _______________________
position of the person who drew up the act signature transcript of the signature
date
________________________ ___________________ _______________________
position of the person who drew up the act signature transcript of the signature
date