A valid reason for absence from work according to the Labor Code of the Russian Federation. Valid reasons for absenteeism: why you won’t be fired

The employer’s desire to create a team in which each employee clearly fulfills his or her duties and does not “stuff” is aimed at the development of the organization. To achieve this, the “carrot and stick” method is often used. Thus, labor legislation reserves the employer’s right to set employees bonuses, etc., as well as to enforce or fail to fulfill obligations.

Each organization chooses independently: some believe that it is better to encourage and not pay attention to minor offenses, while others consider punishment to be the most in an effective way. But regardless of the chosen path, there are violations that few employers can forgive. These include, for example, absenteeism, for which one of the most severe severe punishments- dismissal.

What is truancy?

This action means absence from the workplace without good reason during a working day or shift, regardless of duration, as well as absence from the workplace without good reason for more than four hours in a row.

However, before asserting that an employee committed absenteeism, it is necessary to pay attention to both the reason for the absence and the definition of his workplace.

All reasons for absence from work must be justified and, if possible, documented. The employee must also notify (call, write a letter, etc.) the employer about his absence.

Labor legislation establishes that a workplace is a place where an employee must be (where he must arrive) in connection with his work and which is directly or indirectly under the control of the employer. Each employee workplace specified in the employment contract and is most often indicated by the address of the organization without further detail. This will likely impact the ability to identify an employee's behavior as absenteeism. An employee may be on the employer’s territory, but at the same time be absent directly from the place where he performs his duties, and this will not be considered absenteeism, since his workplace is defined as the entire territory of the organization. Therefore, it is best to specify in detail in the employment contract (name of the workshop, office number, etc.) where the employee’s workplace is located.

It is also necessary to find out the reason for the absence, which must be unexcused for the employee’s actions to be considered absenteeism. However, labor legislation does not contain a list of both disrespectful and valid reasons for absence from work. Thus, all responsibility for determining the category of the reason for absenteeism falls on the shoulders of the employer. The employee’s explanations or documents may come to the rescue. In this situation, the main thing is not to make a mistake and look at the situation objectively in order to avoid disputes.

Good reason

Finding out the reasons for an employee’s absence from work must be approached with all seriousness and responsibility. After all, it often happens that in the employer’s opinion the reason for non-appearance is insignificant, but upon further investigation it turns out that he was wrong. Thus, the servants of Themis in once again reminded employers that for illegal dismissal for “absenteeism” they will be held accountable and punished. The ruling of the St. Petersburg City Court dated August 13, 2013 No. 33-11362/2013 states that the employee should be reinstated at work and paid for the time of forced absence, since dismissal for absenteeism is illegal. The judges concluded that the employee was absent from work for a valid reason because he was undergoing outpatient treatment. As evidence, a medical report is presented, which indicates: the period of outpatient treatment, the diagnosis and what course of treatment was prescribed. The judges also found that the employee took measures to inform the employer about his absence.

In addition to an outpatient card and a certificate of incapacity for work, an employee can confirm his illness with a doctor’s certificate.

However, health problems are not the only valid reason for absenteeism. These reasons may include:

accident;
unfavorable weather conditions(traffic jams, fog, ice, etc.);
impossibility of returning from vacation or business trip on time due to weather conditions or health conditions;
waiting for an ambulance to arrive to a sick person;
administrative arrest;
caring for a sick child or other family member;
breakdown of public transport;
emergency repair work at the employee’s home, in connection with which he provided access to the apartment for repairmen. However, this does not apply to work carried out at the request of the employee, or routine repairs;
natural disasters etc.

Among other things, as directed by the Plenum Supreme Court of the Russian Federation in the resolution of March 17, 2004 “On the application by courts Russian Federation Labor Code of the Russian Federation”, valid reasons for absence from work include involvement in public or government duties as a juror, member of an election commission, etc.

Attention

Labor legislation does not contain a list of both disrespectful and valid reasons for absence from work. Thus, all responsibility for determining the category of the reason for absenteeism falls on the shoulders of the employer

Also, the Supreme Court of the Russian Federation, in its ruling dated March 30, 2012 No. 69-B12-1, indicated that the absence of railway tickets at the ticket office is also a valid reason.

All reasons must be justified and, if possible, documented. The employee must also notify (call, write a letter, etc.) the employer about his absence. But if the employee did not show up at his workplace and did not warn anyone, then it is best for the employer to contact him himself. Because the employee may not be able to do this on his own.

If it was not possible to contact the employee, then the fact of his absence must be recorded. For this purpose to the name general director a memo is written, on the basis of which an order is given to document the fact of absence from work. It is formalized by an act, the form of which is developed by the organization itself. But it must indicate: full name and position of the employee, time and date of absence. This document signs official, which compiled it. At the same time, the act must also contain the signatures of at least three employees, who confirm that at the time of drawing up the act, the employee indicated in it was absent from the workplace.

“NN” or code 30, if the employee is not at the workplace during the entire working day;
“I” or code 01 indicating the number of hours worked if the employee was absent for four consecutive hours.

As soon as the employee arrives at work, he must be given an absence from work certificate and required to provide written explanations for his absence. If the reason is considered valid, then the documents regarding absence from work are filed in the personal file of the employee who continues to work. In this case, days or hours of absence are not paid if documents (certificate of incapacity for work, summons, etc.) are not submitted, on the basis of which the time of absence is subject to payment.

Practical accounting

Are there valid reasons for absence from work? Some employers joke that only death is considered a valid reason for absenteeism. But often absenteeism is due to illness, a wedding or an exam at the university. Let's figure out what truancy is and what reasons can be considered valid.

What is considered truancy?

Absenteeism is considered to be the absence of an employee from work for more than 4 hours in a row, but provided that lunch time, which is due to the person by law, has been deducted. Absence period less than specified period need to acknowledge .

Truancy is divided into two categories:

For no good reason. Such absenteeism may become a reason if the employer does not impose another punishment on the employee.
For a valid reason, when a person was forced to be absent.

In practice, situations often arise when the employer does not recognize the employee’s arguments as valid and fires him. Then the employee can go to court and appeal the decision.

Analyzing the circumstances modern life, you can identify some valid reasons for an employee’s absence.

Personal reasons

1. Illness or injury.

Absenteeism is due to the health of an employee when a person goes to the hospital, but does not take out a sick leave sheet. Many people give up sick leave in order to save wages. In this case, the employee must provide a doctor's certificate indicating the date of the appointment.

2. Medical examination.

If a person works in grocery store, childcare facility, public catering, military, fire or rescue service, then a medical examination is a mandatory procedure, and the absence of an employee cannot be considered absenteeism. But if the employee prescribed a medical examination for himself and did not bring a certificate from a doctor, then this can no longer be considered a valid reason.

If an employee refused to issue a sick leave or was undergoing a medical examination, he must provide a doctor’s certificate.

3. Illness of a child or other family member.

This fact must be confirmed by a doctor’s certificate or taken sick leave to care for the child.

4. Unexpected breakdown in utilities.

These reasons include a gas leak, a broken heating or water supply pipe, an electrical short circuit, or a fire.

5. Participation in government processes.

The reason for absenteeism is considered valid if the employee is in court on a subpoena, for example, as a plaintiff, witness, juror or representative of the election commission. According to Art. 46 of the Constitution of the Russian Federation, such a reason is considered valid, because a person has the right to personal participation in court.

6. Delay of salary.

Delay in salary payments for more than 15 days can also be a valid reason. An employee has the right not to go to work, but must notify the employer in writing. According to Part 2 of Art. 142 of the Labor Code of the Russian Federation, absence may continue until at least part of the salary is paid.

Reasons for absenteeism caused by external factors

The circumstances for absenteeism may not be related to personal reasons. Anything that can be classified as a force majeure situation justifies a person’s absence from work for 4 hours or more.

Force majeure situations:

Elevator breakdown in a building - an employee got stuck in the elevator and was unable to come to work.
Road traffic accident.
Transport malfunction if it is not possible to transfer to another bus, trolleybus, etc.
Obstacles natural character(flood, ice, strong gusts of wind).
Epidemiological situation in locality and mandatory vaccination.
Flight delay, which creates obstacles to returning home on time from vacation, business trip or other trip.
Lack of tickets at the ticket offices of any road, water or air services.

If the employee has confirmation that the absence was due to serious circumstances, then you cannot fire him.

Reasons for absenteeism that are known in advance

Sometimes the reason for absenteeism may be other circumstances that arose the day before or were known in advance. Such reasons may include a wedding, the birth of a child, or death. close relative.

The employee also has the right to receive additional days off, which are not paid by the employer and cannot be considered absenteeism. But the employee is obliged to warn the manager about these circumstances in writing; if this is not possible, then you can simply call. According to Art. 128 of the Labor Code of the Russian Federation, the period of absence from work cannot exceed 5 days.

An employee has the right to receive additional days off, which are not paid by the employer and cannot be considered absenteeism.

Absenteeism does not always happen at the will of the employee. Sometimes a person is forced to stay late or not come to work at all due to unforeseen circumstances. But if there is a justification for absenteeism and it is valid, then you do not have the right to exceed your authority and deprive the employee of work. Before you publish, give your subordinate the opportunity to justify himself.

It is the circumstances due to which the employee was not at work that are decisive in the issue of his dismissal for absenteeism. Absence for what period of time is not absenteeism and what reasons are considered valid?

As labor legislation tells us, absenteeism is absence from the workplace without good reason for more than four hours in a row during a working day (shift) or throughout the entire working day (shift), regardless of its duration. Cases when the absence of an employee can be recognized as absenteeism are given in paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

Appeals from employees to labor inspection regarding their illegal dismissal happen often,” says state labor inspector Yulia Gavrilenko. - Employers violate the dismissal procedure in case of absenteeism. They do not take an explanatory note to find out how valid the reasons for absence from work are. They do not notify you that you need to pick up your work book. Of course, in this case the employee is reinstated at work. Courts make decisions depending on proof of violation of labor law, and are also guided by their own convictions.

To determine the exact duration of an employee’s absence from the workplace, several points must be taken into account:

whether the period of absence of the employee occurred during working hours or for a period of rest;

what is the duration of the specified period;

Is the time of the employee’s absence from the workplace correctly determined if the employee was not found at the workplace several times during the day.

Good reasons?

It happens that an employee has circumstances that prevent him from coming to work. In such cases, if, after all, the employee was fired for absenteeism, the court will assess how valid the reasons are for which such a situation has arisen.

The employee fell ill, and there is an entry in his outpatient card or a certificate from a doctor, but there is no sick leave. In this case, the dismissal will most often be considered illegal. Even in the absence of a certificate of incapacity for work, medical documents from the employee’s initial examination or a medical certificate are adequate evidence of a valid reason.

The employee could work during working hours, but underwent a medical examination on his own initiative. In this case, if the employee does not have a sick leave certificate, undergoing various medical examinations is not a valid reason for absence from work, except in cases where the employee is required to undergo a periodic medical examination (Article 213 of the Labor Code of the Russian Federation).

An employee's child fell ill and he was unable to work because he called for an emergency medical care for a minor. In this case, judicial practice suggests that this is still a valid reason.

The employee was on sick leave, but during the period of incapacity he worked and was absent only periodically, but the time of absence was not agreed upon with the manager. In this situation, the dismissal will be illegal, because the employee has sick leave, and the fact that he worked does not mean that his ability to work has been restored. But if the employer did not know that the employee was on sick leave, due to the fault of the employee himself, the dismissal may be considered legal.

The employee's home was undergoing emergency repair work, and he had to provide access to the apartment for repairmen. In this case, judicial practice speaks of the illegality of dismissal. Absence from work for these reasons is considered valid. This does not apply, for example, to the installation of various types of equipment or routine repairs at the request of the employee.

The employee was absent from the workplace due to participation in the court hearing as a plaintiff. The courts consider this reason for absence to be valid. According to Art. 46 of the Constitution of the Russian Federation, the right to judicial protection includes the right to personal participation in a court hearing. In addition, calls and appeals from courts are mandatory for everyone without exception and are subject to strict execution. But if the employee does not perform government duties and is simply a representative, then the reason for his absence is considered disrespectful. By the way, visiting others government agencies During working hours, personal matters are also not considered a valid reason for absenteeism.

There are cases when the employer did not notify the employee that it was necessary to go to work at a certain time. In this case, the dismissal will be considered unlawful, since by law the employer is obliged to familiarize employees with local knowledge under their signature. regulations, directly related to their labor activity. In such a situation, the employee’s absence from work is not absenteeism. The same applies to the situation when the employee was not notified of a change in his workplace.

In the event that an employee does not show up for work due to non-payment of accrued wages, the dismissal will be considered illegal. In case of delay in payment of wages for a period of more than 15 days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period until the delayed amount is paid(Part 2 of Article 142 of the Labor Code of the Russian Federation). Rabotnik, who notified the employer in writing of the suspension of work, is absent from the workplace for a valid reason.

Read about what is considered a disciplinary sanction and what responsibility awaits for failure to comply with the procedure for imposing a disciplinary sanction in the next issue.

Timing is everything

The issue of correct calculation of absenteeism time plays a decisive role. Many different situations have already been considered by the courts, and by analyzing judicial practice, we can come to the following conclusions.

Dismissal of an employee is unlawful if:

1. the employee was not present at work for four hours or less;

2. the employee was absent from the workplace for more than four hours in a row, but minus the time of absence during the lunch break, the working time accounted for less than four hours of absence. According to Art. 108 of the Labor Code of the Russian Federation, during the working day the employee must be given a break for rest and food of no more than two hours and no less than 30 minutes. This break is not included or paid during working hours. That is why, when calculating the time an employee is absent, lunch time must be subtracted from the time absent from the workplace.

It is legal if:the employee was absent from the workplace for more than four hours of working time, but neither before nor after the lunch break the time of absence exceeded four hours. The lunch break does not count as working time, so the employee’s absence time before and after the lunch break must be summed up.

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 is necessary to establish 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 the workplace before 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 employment contract with an employee, and 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 not 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 incidents;
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 into 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:

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.
. Explanatory note shall be made only in writing. Verbal explanations are not suitable. Duration – 2 days.
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).
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.
A dismissal order is being prepared.
Familiarize the employee with the order.
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:

Record absence: compile, enter data in.
Draw up the need to appear and provide explanations.
Send notice to the employee at a known postal address.
After receiving notification of delivery, wait 2 days + the period required for delivery of correspondence.
If explanations are not provided and confirmation of receipt of the notification, draw up a report.
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.
Write down the activities carried out, recording the information received. Optional.
Design .
Draw up a report on the impossibility of familiarizing the employee with the order.
Enter information into the work book.
Make payment calculations.
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. Immediately on the day of absenteeism, it is impossible to issue a dismissal order for absenteeism sample 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. Next, the employment record of dismissal for absenteeism is indicated in words (). 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.