The procedure for dismissal under the article for absenteeism. Conditions and legal grounds for dismissal for absenteeism

In the article:

The Labor Code of the Russian Federation in article number 81 defines absenteeism as a deliberate violation of labor discipline by an employee, let's figure out step by step how to dismiss for absenteeism. In this case, the violation is the absence from work for more than four hours in a row. In the event that an employee leaves the workplace without warning the manager and without notification of the termination of employment obligations, this is also classified as absenteeism.

The main problem that causes constant conflicts of interests between the employer and the employee is that Article 81 of the Labor Code of the Russian Federation does not list all the possible reasons why an employee may be legally absent from the workplace.

In what cases can an employee be fired for absenteeism

The fact that the reason for absenteeism is not valid, it is the leader who must prove. Moreover, the latter must carry out the dismissal procedure in strict accordance with the accepted procedure, otherwise the employee, having applied to the judicial authorities, will easily refute this order.

In order for dismissal for absenteeism to be legal, the following points must be observed:

• The employee must miss his entire work shift (even if it lasts two or three hours) or more than 4 hours of work time;
• The employee must be absent from his official workplace;
• Absenteeism must be done for an unexcused reason;
• Official evidence of absenteeism must be issued.

Truancy will not be officially recognized:

• When an employee is absent from the workplace for less than four hours;
• When the employee does not have a personal workplace, and he was in any other premises of the company;
• When the employee did not have the opportunity to inform the manager about his absence, and also when the employee has a good reason for absenteeism.

In which it is impossible

In the following situations, an employee cannot be caught absenteeism and dismissed:

• The employee was temporarily disabled;
• The employee performed public duties that were assigned to him by authorized state bodies;
• The employee donated blood and plasma;
• The worker was arrested by law enforcement;
• The employee allowed absenteeism due to a breakdown of transport or weather disasters;
• An employee was delayed in payment of wages for fifteen days or more. This situation is possible only if there is a written warning from the head;
• The worker went on strike.

In all of the above situations, the employee must provide relevant documents that confirm this fact. These documents include:

• Disability status document;
• A document from the medical center where the employee donated blood and plasma;
• Summons or certificate of arrest;
• A document drawn up by a transport company in case of absenteeism due to non-working transport.

The task of the manager in this case is to determine the authenticity of the certificate provided, as well as to establish the veracity of the reason for absenteeism. If it turns out that the certificate is forged or invalid, the employer has every right to dismiss the employee.

Step-by-step instructions for dismissal

The process of dismissal of an employee for absenteeism consists of three stages:

• First, the very fact of absenteeism of the employee is documented;
• Then the reasons for absenteeism are clarified;
• After that, a decision is made and an order is issued to dismiss the employee.

Errors and inaccuracies are possible at any of the above three stages, which can lead to legal action by the dismissed employee. The dismissal order can be canceled, the employee will need to pay compensation and be reinstated in the workplace. For these reasons, the manager should carefully consider the step-by-step instructions for dismissal for absenteeism.

Drawing up an act of absenteeism

First you need to issue an official act of absenteeism. This is the main documentary evidence of a violation of labor discipline by an employee. The act must be drawn up according to the following scheme:

• The title is an act of absenteeism, an act of absence from the place of work. Various title options are allowed;
• Date of compilation, address of compilation, as well as an indication of the exact time;
• Name of the employee who draws up the act. This can be either the head of the company or the head of this department;
• Name of the employee who is suspected of committing absenteeism;
• Circumstances of the walk. Here you should indicate the exact time that the employee was absent from work, the actions taken by the manager (for example, attempts to get through to a mobile phone). The time that the employee was absent must be recorded as accurately as possible, up to a minute;
• At the bottom of the act should be placed the date of the document, as well as the painting of the head and witnesses. Colleagues of the absent employee may act as witnesses;
• The act is drawn up on the day of absenteeism.

Download a sample and form of an act on the absence of an employee at the workplace:

Finding out the reason for absenteeism

Next, you need to find out why the employee was not present at the workplace. The employer must demand from the employee a written explanation of the reasons for absenteeism - an explanatory note. It is better to formally issue a request for an explanatory note so that evidence of this action is preserved in the future.

The drawn up requirement must be signed by the head, as well as the signature of the employee, who, by signing, confirms the fact of receipt. The law gives two calendar days for the provision of documents confirming a good reason for absenteeism. In the event that neither an explanatory note nor any certificates have been provided, the employer can proceed to the final stage - processing the dismissal.

If the employee provided, within two days, an explanatory note to the manager, then we have three types of situation:

• The reason for the absence of working hours by the employee is really valid, they are provided with all the relevant documents. In this state of affairs, it is not possible to dismiss an employee.
• The reason for the omission is clearly not valid, documentary evidence is not attached to the explanatory note. In this situation, the head has every right to draw up a dismissal order.
• The reason is valid, but the documents only partially confirm the version of the employee, or the manager sees that the certificates are provided with corrections, inaccuracies, and so on. In this case, the manager needs to weigh all the pros and cons and make the right decision about the future of the employee in this field of activity.

Dismissal order

The last item in the step-by-step instructions for dismissal for absenteeism is the execution of the corresponding order. This document is drawn up in the T-8 form and, according to the law, must be drawn up no earlier than two days from the moment the manager demanded in writing an explanatory note from the employee, and no later than thirty days have passed since the absence.

The notice of termination must contain the following items:

• title of the document;
• Date of registration and place;
• The basis for issuing the order (an act documenting the fact of absenteeism, etc.);
• Surname, name, patronymic, as well as the position of the dismissed employee;
• A brief description of the violation of labor discipline;
• Argumentation of the disrespect of the specified reason for absenteeism;
• Indication of the rights of the employee, in accordance with which he can appeal the fact of dismissal;
• At the bottom must be the date and signature of the head.

The dismissed employee must be familiar with the contents of this order and put his signature to confirm the fact of familiarization.

In case of refusal, an appropriate act must follow. After the above processes, an entry is made in the work book of the dismissed employee. The employee must come for her to the accounting department.

sample order

Video: How to dismiss for absenteeism

E.Yu. answered the questions. Zabramnaya, lawyer, Ph.D. n.

Dismissal for absenteeism: there is no person - but there is a problem

It is well known that the main value of any company is its employees. However, not all employees understand that their labor duties must be performed in good faith. And malicious violators of labor discipline, such as truants, become a headache for the employer.

Absenteeism is the absence of an employee from the workplace without good reason n:

• <или>during the whole working day, if the working day is 4 hours or less;
• <или>more than 4 hours in a row, if the working day is more than 4 hours.

Workplace- the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer I Art. 209 of the Labor Code of the Russian Federation.

Everyone knows: you can get fired for absenteeism b sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation. But in practice, difficulties arise: can the absence of an employee at work in a particular situation be regarded as absenteeism and punished for it?

What to do when an employee one day just stops going to work? How to correctly record absenteeism?

Before moving on to specific issues, consider the general procedure for holding accountable for absenteeism.

How to fix absenteeism and how you can punish for it

Let's start with the fact that absenteeism is a gross violation of work duties by an employee. Therefore, you can even fire someone who skipped work one day. h sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation. This is different from less “serious” violations, such as being late for work.

Although in the case of absenteeism, the employee may be subject to milder sanctions than dismissal, - a remark and a reprimand R Art. 192 Labor Code of the Russian Federation.

Regardless of which measure of punishment you choose, you must:

• record the fact of absence of the employee at work;
• find out the reason for this absence.

How to record an employee's absence from work

The absence of an employee from work is recorded:

• <или>data of the electronic system installed at the checkpoint (checkpoint);
• <или>a memorandum (official) note from the immediate supervisor of the truant;
• <или>an act of absence from the workplace, which is usually drawn up by an employee of the personnel department or the immediate supervisor of the absent employee in the presence of two witnesses - colleagues of the truant.

How to determine the reason for the absence of an employee at work

After fixing the fact of the absence of an employee in the workplace, you need to figure out what caused this absence. After all, an employee may not come to work for a good reason, for example, in case of illness or untimely return to work from vacation due to a flight delay.

If the absent employee returns to work the next day or a few days later, ask him for a written explanation of the absence. Moreover, it is better to do this in writing, so that in the event of a litigation you have evidence that you requested explanations. After receiving an explanation, you will understand whether the employee has been absent from work or had good reasons for being absent from work e Art. 193 of the Labor Code of the Russian Federation; Clause 2 of the motivational part of the Ruling of the Constitutional Court of the Russian Federation of October 17, 2006 No. 381-O.

We warn the head

Explanation of reasons for absence from work must be requested in writing and given to the employee 2 working days to provide them.

Please note: the employee is given 2 working days to provide explanations. This period is calculated from the next day after you requested an explanation from the employee. I Art. 193 Labor Code of the Russian Federation. For example, if you requested an explanation on April 26, then the above two-day period will begin to run from April 27. If the employee does not give an explanation within the specified period, draw up an act on their failure to provide And Art. 193 Labor Code of the Russian Federation.

An example of a notice of the need to provide written explanations and an act of failure to provide written explanations can be found in the publication “General Ledger. Conference hall”, 2011, No. 3, p. 25-26.

If the employee does not appear at work for a long time for an unknown reason, act To Art. 193 Labor Code of the Russian Federation:

1) send by mail a valuable letter with a list of attachments and a return receipt to the employee's address with a request for a written explanation of his absence. Then, in the event of a legal dispute with an employee, you will have proof that you tried to get an explanation;

2) daily draw up, in the presence of witnesses, acts on the absence of the employee at the workplace;

3) record in the timesheet in the form of No. T-12 or T-1 3 non-appearance of the employee for unexplained reasons (until the circumstances are clarified). To do this, put in the table:

• <или>letter code "NN";
• <или>digital code "30".

Do this until you find out the reason for the absence of the employee or until management decides to fire him.

Your next steps depend on how the situation develops.

SITUATION 1. The worker came to work after some time. Ask him for an explanation and, depending on whether he had a good reason for his absence or not, decide whether to hold him accountable.

SITUATION 2. You received explanations from the employee by mail, from which it follows that he has no valid reasons for his absence. But he doesn't go to work. You have the right to issue an order to hold him accountable for absenteeism up to and including dismissal I sub. "a", paragraph 6, part 1, art. 81, articles 192, 193 of the Labor Code of the Russian Federation.

SITUATION 3. You have not received an explanation from the employee, he still does not come to work. But you received a notification in the mail that he received your request for an explanation. Some employers in such a situation dismiss the employee. They are guided by the fact that an explanation from the employee is requested and the employee is to blame for not providing it. But such actions are associated with certain risks. After all, there is a possibility that the notice was not given to him, but to one of the family members. For example, the employee himself may be in the hospital, and the correspondence is received by his family, who are not obliged to give you explanations. Therefore, it is prudent in such a situation to continue to make attempts to contact the employee until any explanation is received from him.

SITUATION 4. The employee does not come to work, does not send explanations, you do not have confirmation that he received your letter. Or the letter was returned, never received by the addressee. This is the most difficult situation in which in practice they do this:

• <или>continue to draw up acts on the absence of an employee at work on a daily basis and record absences in the time sheet, and until the reasons for the absence of an employee are clarified, they do not issue an order to dismiss him. The majority does this, guided by the fact that the reason for the absence of the employee is not known, which means that the employer does not have one hundred percent certainty that the employee is just skipping (that is, absent without good reason);
• <или>they lose patience and are fired for absenteeism if the absence of the employee is excessively prolonged, repeated attempts by the employer to contact him are unsuccessful and another employee must be hired to replace him. Courts with such absentee dismissals often agree Determination of the Moscow City Court dated November 12, 2010 No. 33-32370.

But sometimes the courts note as a violation of the dismissal procedure that a notice of the need to give explanations about the absence from work was sent to the employee, but the postal item was not handed over to the employee, but was returned to the employer Yu. Although, as practice shows, if this is the only violation, then it is unlikely that an employee in such a situation will be reinstated.

We warn the head

It is forbidden dismiss an employee immediately after he did not show up. You need to ask him for an explanation. Otherwise, he may then be reinstated at work by the court, and then you will have to pay him the average salary for the entire period of forced absenteeism.

Remember, there is always a chance that your employee will return and provide you with a document confirming the validity of the reasons for his absence and the impossibility of notifying the employer in a timely manner. Then you will have to cancel the order to dismiss the employee.

If you do not do this yourself, then when reinstating the former employee in court, the court will oblige you to pay him the average earnings for the period of forced absenteeism A Art. 394 of the Labor Code of the Russian Federation; paragraph 41, paragraph 62 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. You will not have to pay for the period of absence of an employee from work before you issue a dismissal order, since he did not work. The exception is the case when he has a sick leave.

If you have already hired a new employee to replace the dismissed employee, and the court of the dismissed employee has restored T Art. 394 of the Labor Code of the Russian Federation, then a new employee accepted for his position will have to:

• <или>transfer to another job corresponding to his qualifications, or to a lower position (lower paid job), which he can perform taking into account the state of health;
• <или>in the absence of vacancies or if the employee does not agree to the transfer, terminate the employment relationship in connection with the reinstatement by the court of the employee who previously performed this work at p. 2 h. 1 art. 83 of the Labor Code of the Russian Federation. Upon dismissal, a new employee will need to pay a severance pay in the amount of two weeks of average earnings. A Art. 178 Labor Code of the Russian Federation.

If, in connection with the appearance of the absent employee, you yourself decided (without a trial) to cancel the order to dismiss him and provide him with his previous job, then you will have to agree with the new employee replacing him (unless you hired him under a fixed-term employment contract):

• <или>about his transfer to another job at Art. 72.1 of the Labor Code of the Russian Federation;
• <или>on termination of the employment contract by agreement of the parties n Art. 78 Labor Code of the Russian Federation.

How to record absenteeism in the time sheet

If you are convinced that the employee was truant, be sure to correct the timesheet data. Remember that the time sheet is one of the most important documents confirming the absence of an employee at work and the reason for this absence. I Determination of the Leningrad Regional Court dated September 15, 2010 No. 33-4513 / 2010.

You need to correct the letter code “НН” (or the numeric code “30”) originally entered in the timesheet for the absenteeism code. This can be done in two ways:

• <или>just cross out the code "НН" (or "30") in the report card and write "PR" (or the digital code "24") on top. These corrections must be certified by the persons responsible in the company for maintaining time sheets and personnel records, as well as by the head of the structural unit in which the truant works, indicating the date the correction was made. th paragraph 5 of Art. 9 of the Federal Law of November 21, 1996 No. 129-FZ "On Accounting";
• <или>in addition to the main time sheet drawn up for all employees, where “НН” (or “30”) stands for a truant during periods of his absence, draw up a corrective time sheet exclusively for this employee. And already in this report card for the days of absenteeism put down the code "PR" (or "24"). Attach the corrective timesheet to the main timesheet.

How long does it take to issue an order to prosecute for absenteeism

For absenteeism, as for any other disciplinary offense, you can be punished b Art. 193 Labor Code of the Russian Federation:

• within a month from the date of its discovery, not counting the time of illness of the employee and his stay on vacation;
• within 6 months from the date of its execution.

When an employee is absent from work for a very long time, management may have concerns that the deadlines for applying disciplinary sanctions for absenteeism will expire.

No worries. The period calculated from the date of detection of absenteeism will begin to run not from the 1st day of the employee’s absence from work, but from the day when you became aware that the employee was just absenteeism T.

How to apply for dismissal for absenteeism

In case of dismissal for absenteeism, an order is issued to terminate the employment contract in a unified form No. T-8 approved Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1. In the order, do not forget to state the circumstances of the absenteeism committed by the employee, indicating the dates of absenteeism A Determination of the Moscow City Court dated November 25, 2010 No. 33-35148, and in the column "Reason (document, number, date)" list all the documents drawn up as part of the procedure for bringing the employee to disciplinary liability:

• acts of absence from the workplace;
• report (official) notes;
• a written explanation of the employee or an act of refusal to give explanations.

With the order of dismissal, you need to familiarize the employee against signature. And if the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it against signature, an entry about this must be made on the order m Art. 84.1 of the Labor Code of the Russian Federation.

An entry in the work book upon dismissal for absenteeism is drawn up as follows.

If the employee is not at work on the day the employment contract is terminated, send a notice to his home address about the need to appear for a work book or agree to send it by mail e Art. 84.1 of the Labor Code of the Russian Federation. Until you receive a written order on what to do, keep the work book with you.

Now let's move on to the questions of our readers.

Unauthorized leave on vacation - absenteeism

T.A. Ivanova, Perm

The employee was on sick leave for several months, and then wrote an application for annual leave. We have no grounds for granting him leave at this particular time (that is, not according to the vacation schedule). Without waiting for a response from management, he stopped going to work. Do we have the right to issue his absence from work as absenteeism?

: Yes. As follows from your situation, the employee arbitrarily went on vacation, that is, absenteeism l Art. 192, sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation; ; Determination of the Ryazan Regional Court dated April 25, 2007 No. 33-580.

By the way, absenteeism is also the unauthorized use of time off by an employee. The exception is cases where the employer was required by law to provide the employee with time off, for example, a day off on a certain day, but did not provide it. For example, he refused to provide an employee with a donor day the next day after the employee donated blood, although according to the Labor Code of the Russian Federation he was obliged to do this b sub. "d" p. 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2; Determinations of the Moscow City Court of October 28, 2010 No. 33-30782, of October 14, 2010 No. 33-30069, or refused to grant leave, although according to the schedule, the employee was supposed to go on vacation at that time.

Unformed parental leave - also absenteeism

HEDGEHOG. Goncharova, Balabanovo

After the end of maternity leave (in 2008), the employee did not go to work, did not inform the employer about the birth of the child. After giving birth, she did not take parental leave. In 2011, she sent a letter asking for unpaid leave from March 7, 2011 to April 15, 2011 inclusive. Probably, on March 7, 2011, the child turned 3 years old.
Can this employee be fired?

: Can. If the employee did not exercise her right and did not take parental leave A Art. 256 of the Labor Code of the Russian Federation, then she, most likely, skips. As follows from the question, then she also arbitrarily went on vacation without saving her salary, that is, she again made absenteeism.

But before firing an employee, ask her for an explanation of the reasons for her absence from work for 3 years. And arrange for absenteeism, as expected.

It is impossible to dismiss an employee for refusing to interrupt the vacation

HELL. Starikov, Moscow

The employee, in agreement with the manager, went on vacation for a whole month. During his vacation in the organization, a situation arose when his participation was required. However, he refused to interrupt the vacation. Can he be fired for absenteeism?

: No, in such a situation, you cannot be fired for absenteeism. According to the law, recall from vacation is possible only with the consent of the employee. A Art. 125 of the Labor Code of the Russian Federation. Therefore, you have no grounds not only for his dismissal for absenteeism, but in general for bringing him to disciplinary responsibility (even in the form of a remark or reprimand )Art. 192 Labor Code of the Russian Federation.

An explanatory mother will not replace an explanatory worker

S.F. Zorkin, Stavropol

The employee did not go to work for several days, he did not provide explanations for the reasons for his absence. His mother came to the organization with a request to issue her son's work book at his oral request. The mother also said that her son was already working in another city and was not going to work in our organization.
Written explanations were taken from the worker's mother. Based on these explanations, we fired the employee for absenteeism, and gave the work book to his mother.
Now we think: did we do the right thing?

We warn the head

If the employee does not want to leave the vacation early, it's not a walk.

: You made the wrong decision. In such a situation, you should have requested explanations from the employee himself, and not from members of his seven And Art. 193 Labor Code of the Russian Federation.

Explanation of the mother in your situation is just an additional argument. But it cannot act as evidence of absenteeism by your employee.

It was wrong to give the mother of the worker and the work book, since she did not provide you with a power of attorney to receive it, written by her son. It was necessary to send a notification to the employee’s address about the need to appear for a work book or agree to send it by mail e Art. 84.1 of the Labor Code of the Russian Federation. Until you receive a response from him, the work book should be kept with you.

Written agreement on vacation time with the employer - in the interests of the employee

R.P. Kutsenko, Krasnodar

The manager verbally allowed me to go on vacation for 3 days outside the vacation schedule, and upon returning to work, he fired me for absenteeism. This is not the first time in our company. Is it legal?

A: Of course, it is illegal if you have agreed your vacation with him. But in your situation, you still need to be able to prove it to the court (including with the help of witnesses). And the best proof is your vacation application with the supervisor's resolution. Then the court will reinstate you at work. And if you can’t prove it, the court may decide that you went on vacation without permission O Determination of the Ryazan Regional Court dated April 25, 2007 No. 33-580.

If the manager constantly practices such dishonest actions towards his employees in order to deal with objectionable employees, then it is worth reporting these facts to the labor inspectorate.

If the employee refuses to provide explanations, an act must be drawn up

The employee did not come to work on February 15 and 16, 2011. He did not disclose the reason for his absence. Absences were recorded by acts and memos.
When he went to work, he refused to give an explanation, saying that "today he does not want to, he will write tomorrow." He did not provide documents justifying his absence from work. An act of refusal to give a written explanation was drawn up. His worker also refused to sign, arguing that he does not refuse in principle, but only does not want to give written explanations today and will write them tomorrow. It was decided to dismiss the employee for absenteeism.
Have we done the right thing?

: Probably, the employee was playing for time in the hope that the monthly period for applying a disciplinary sanction from the day the misconduct was discovered would expire and they could no longer be held liable And Art. 193 Labor Code of the Russian Federation.

In general, you did the right thing, except that it was necessary to draw up an act on the employee’s failure to provide explanations, and not on the refusal to give them. Remember that the employee always has 2 full working days when he can change his mind and provide you with an explanation for his absence. I Art. 192 Labor Code of the Russian Federation. Therefore, it is better not to take risks, wait and draw up an act of failure to provide explanations.

With regard to a truant who wants to quit of his own free will, you need to act quickly

I.T. Gavrilova, Kazan

An employee did not show up for work and sent us a letter sent on the day she was absent (March 21, 2011), in which she asked to be granted unpaid leave from the specified date to April 1, 2011, and upon completion of it, to dismiss her on her own desire. The employee has not yet returned to work. Is it possible to regard her absence as absenteeism and dismiss her not of her own free will, but precisely for absenteeism?

: As follows from your situation, the employee arbitrarily went on vacation without pay, that is, she made absenteeism, which means that she can be fired for this b sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation; sub. "e" p. 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2.

However, in your case, the employee in her statement expressed her intention to quit of her own free will. Of course, this does not deprive you of the right to fire her for prog. l paragraph 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. But this must be done within 2 weeks from the date of receipt of the said application from her. Otherwise, you will have to terminate the employment contract with her on her initiative. And it does not matter for what reason the employee is dismissed.

What day to fire for absenteeism

P.D. Tyuftyaeva, Togliatti

The employee works on a rotating schedule. March 25, 2011 he has a working day, then two days off. On March 28, he did not go to work without good reason. Do we understand correctly that since, according to the Labor Code, the day of termination of the employment contract is the last day of work, then it is necessary to dismiss the employee for absenteeism on March 25, 2011?

: No. Dismissing an employee the day before the first day of absenteeism, that is, in your situation on March 25, 2011, is incorrect. Indeed, according to the general rule, the day the employment contract is terminated is the last day of the employee's work. An exception is when he did not actually work, but his place of work was retained (position )Art. 84.1 of the Labor Code of the Russian Federation.

For the employee, while the employer finds out the reasons for his absence and establishes whether he had good reasons or not, the place of work must be preserved. Agree, it looks strange when the date of requesting an explanation and the date of their receipt from the employee are later than the date of termination of the employment contract. After all, after the dismissal, this person is no longer an employee and is not obliged to represent something to the employer. At the same time, the employer cannot dismiss the employee before asking him for explanations, etc. .Art. 193 Labor Code of the Russian Federation

In addition, a situation is possible when, after absenteeism, the employee goes to work and will work for some time while the employer determines whether he has committed absenteeism, etc. Therefore, he cannot be fired on the day of absenteeism.

It is correct to dismiss an employee on the very day when an order is issued to dismiss him for absenteeism. But, as practice shows, even if you fire an employee on the last working day preceding absenteeism, nothing terrible will happen. After all, this approach is based on the recommendation of Rostrud A Letter of Rostrud dated 11.07.2006 No. 1074-6-1.

Dismissal for absenteeism - the right, not the obligation of the employer

V.D. Rusanova, St. Petersburg

The employee did not return from vacation and did not make itself felt in any way. Telegrams to the place of registration and the place of her actual residence remained unanswered. A month later, she nevertheless appeared at work and wrote a letter of resignation of her own free will.
Should we fire her of our own free will, or should we fire her for absenteeism?

: You have the right to fire an employee for a program l sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation. To do this, you must follow the procedure for bringing to disciplinary responsibility. And Art. 193 Labor Code of the Russian Federation. But you can meet her halfway - fire her of your own free will. After all, bringing to disciplinary responsibility is a right, not an obligation of the employer.

It is impossible to dismiss an employee for absenteeism during illness

L.T. Skvortsova, Volgograd

We recently hired a new employee. Unfortunately, she turned out to be a lover of intoxicants (although she did not come to work drunk). On January 11, 2011, she stopped going to work. Doesn't answer calls. As expected, we activate all her absences from work, we put “NN” in the report card.
On February 14, we received a statement from her by mail that she was on sick leave. However, we doubt that she really has a sick leave, and even more so for the entire period. And management still intends to fire her for absenteeism.
And suddenly the sick leave will be confirmed? What to do in such a situation?

: In such a situation, an employee cannot be fired for absenteeism. After all, you have her written explanation that she is on sick leave.

So for now, keep documenting all of her absences from work. But proceed from the assumption that she is still sick. If later this is not confirmed, then you can fire her for absenteeism.

Dismissal for absenteeism: a step-by-step procedure, a diagram of what is considered absenteeism according to the labor code and whether it is possible to dismiss a pregnant woman for absenteeism. Sample documents for dismissal for absenteeism. Step-by-step instructions and challenging the dismissal in court

The article will talk about the concept of "truancy" under the Labor Code of the Russian Federation and how to operate with it. How to properly dismiss for absenteeism and how to register an employee’s absenteeism in 2018, as well as what nuances and features apply to forced absenteeism. What statute of limitations for providing an explanatory note and drawing up an act on absenteeism apply and whether they consider a period of sick leave or vacation.

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When faced with a violation of discipline in the form of absenteeism, both the employee and the employer can make typical mistakes. The employer - having roughly executed the procedure with violations and at the risk of entering into litigation, the employee - not knowing the nuances and rights, put up with the illegal termination of the contract. How to properly dismiss the boss for absenteeism and be able to defend their rights in court for an employee, we analyze in the article.

What is considered absenteeism under the Labor Code?

One of the disciplinary violations is absenteeism. The Labor Code of the Russian Federation states that absenteeism is the absence from the workplace during the entire shift, regardless of its duration, or the appearance after 4 hours.

• The fact of absence

The employee performs his duties in accordance with the job description. According to it, a specific place of activity is determined, at which the fact of absence is recorded. The Labor Code of the Russian Federation refers to where the workplace is the entire territory of the employer company.

• Time of absence and the beginning of its countdown

Absence from work entails dismissal for absenteeism. An article of labor law indicates 4 or more hours of non-attendance at the workplace. In this case, the lunch break is not taken into account. If the employee was absent continuously for 4.5 hours, during which there was a regulated lunch, then dismissal under the article for absenteeism is impossible. For violation, the head announces a reprimand. To record the time of arrival, enterprises introduce passes, fingerprint marks or written records of arrivals and departures.

Reasons for absence from work

An employee may not appear due to both compelling and insignificant circumstances.

Valid reasons for absence from work:

• Illness of an employee or a close relative, such as a child;
• Death of relatives;
• Utility accidents and traffic accidents;
• Force Majeure.

Important

What you need to prove to the employer is the fact of forced absenteeism. Certificates from the traffic police, utilities, medical institutions, testimonies are accepted. An explanatory note is also written.

Irrelevant reasons for absence from work are other events that are not compelling. The specific case of absenteeism is at the discretion of the manager, based on the value and personal characteristics of the employee.

Dismissal for absenteeism: step by step instructions

To avoid further trouble for management, including litigation, it is required to comply with formalities in office work and dismiss for absenteeism. It should also be remembered that the period for disciplinary action is limited to 1 month from the date of violation. The order of dismissal will be as follows:

Registration of a work book: payments and compensation

An entry in the labor force for absenteeism completes the dismissal procedure. It is affixed:

• Sequence number of the record;
• Date of dismissal, coinciding with the day of the order;
• Entry and reference to article 81 of the Labor Code of the Russian Federation;
• The signature of the personnel officer and the seal of the organization.

The book is issued on the last day of work. If the dismissed person does not appear, a notification is sent to receive a labor. If the book is not, then it continues to be stored at the last place of work. It is also possible to send a written permission to send labor to the place of registration, which will save the manager from a fine for withholding the document.

Payments include all debts for wages, sick leave, unspent vacation.

Sick leave and termination of the contract

Filing a claim for termination of a contract for absenteeism during illness requires not only the provision of a sick leave certificate, but also proof of notice to the manager. If the employee provided the sheet to the manager, then the court will take the side of the dismissed person. In this case, not only restoration can be assigned, but also compensation for each missed day of work. Intentional concealment of the sick leave will leave the dismissal for absenteeism unchanged.

Pregnancy

Absence from the workplace during pregnancy is not uncommon, but is it possible to fire a pregnant woman for absenteeism? The Labor Code is on the side of the woman here, it prohibits the application of Article 81 in relation to a pregnant worker. Exceptions will be violations in educational institutions, or the liquidation of the enterprise. However, the wording of the reason in the work book will be different.

If the court decides in favor of the employee and reinstates him in the company, then compensation for forced absenteeism will be assigned. It is calculated like this:

(About cm x 12 months / K rd) x K ch,

Where About see- average monthly salary

K rd- the number of working days in a year,

K vp,- the number of days of forced absence.

Compensation is denied if the employee received unemployment benefits during this period.

Typical HR mistakes

More and more employees are becoming "savvy" in matters of labor relations. This point is often underestimated by personnel officers who make mistakes in their work. It's connected:

• Lack of all necessary papers;
• date mismatch;
• The untimely drawing up of the first acts on the pass;
• Inclusion of vacation and illness during absenteeism.

It is useful to learn how to determine the categories of employees to which you can apply?

FAQ

The employee did not come to work after lunch. Is this considered truancy? If in total his absence is more than 4 hours, then yes.

Absence from work after a 15-day delay in payment of wages is considered absenteeism? No, the law establishes a half-month period after which an employee may not go to work without a good reason if the fee is delayed.

The employee was absent from the place of work for about 6 hours. He refused to give a written explanation. What are the manager's actions in this situation? An act of refusal of explanations and a report on the employee is drawn up. She initiates the preparation of the dismissal order.

Should a missing worker be found? Necessarily! Search by available means with the involvement of a police officer. It is impossible to dismiss an absent person until he is found or the court makes a decision about the missing person.

How many times can they get fired? Dismissal can be after the first offense, it all depends on the presence of good reasons and the corporate culture of the company.

Paid or not, if the pass was before the sick leave? A good reason, in this case, a sick leave, is not an obstacle to paying for a missed day.

The term for bringing to disciplinary responsibility has been violated. In this case, the employee needs to make sure that more than 1 month has passed since the misconduct and file a claim or the labor inspectorate.

For example, a manager, analyzing the discipline of employees, notices according to the statistics of arrivals that 2 months ago a certain subordinate did not come to work. It is impossible to punish him or dismiss him, because. the statute of limitations has expired.

Violated dismissal procedure. Any violations in the execution of papers are challenged in court.

For example, a notice of termination of the contract came by mail on December 1, but the dismissal order itself was drawn up on November 20. This is a direct violation on the part of the management. In this case, the court will take the side of the employee.

Improper performance of labor duties cannot be equated with absenteeism. One of the typical mistakes of personnel officers is dismissal due to absenteeism. . There must be a disrespectful reason for absenteeism.

For example, a cleaner was fired for absenteeism, who did not come to the office and did not clean. Studying the employment contract, the court did not find a specification of the schedule and duration of the shift, which contradicts the concept of "absenteeism from the workplace." But non-fulfillment of labor duties here will be the correct wording upon dismissal.

Suspension of work due to non-payment of wages cannot be equated with absenteeism. After a 15-day delay, absence from work is treated as forced absenteeism. Judicial practice speaks of the illegality of the application of the concept.

Is it impossible to fire an employee who was not allowed to work for absenteeism? Labor relations begin after the conclusion of an employment contract and entry in the book.

Illegally fired, reinstated and again illegally fired. Such cases are rare, since the manager and the personnel worker take into account the mistakes made during the first termination of the contract.

For example, reinstatement by a court decision is appointed on a certain date. On the same date, an act is drawn up to cancel the order and sent to the employee. If the notice comes on the days when he should already be working, then the management again considers the option of dismissal for absenteeism. This is again illegal.

When does the court recognize the dismissal as legal? Subject to the rules for registration of dismissal and the absence of good reasons for absenteeism.

For example, an employee fell ill, but provided sick leave, which opened on the third day of his absence. At the same time, he did not get in touch with the management and hoped for a work-capacity sheet. Absence within 2 days is qualified as a pass.

What are the features of the dismissal of athletes and coaches? The contract between a coach or an athlete is of a suspensive nature, i.e. it can be concluded on a single date, and the term for the performance of duties is set later. If before this period the athlete writes a statement of his own free will and goes to work, then the employee does not have the right to initiate dismissal for absenteeism. For example, a footballer entered into a contract on May 1st with an effective date of June 1st. On May 28, he writes a statement, but does not receive a response. On May 30, he is counted as a pass, which is illegal, because. The contract comes into force on June 1st.

How to dismiss an employee for absenteeism using a telephone message instead of an explanatory note? Just! Witnesses are needed in whose presence the call to the violator will be made. The conversation must be recorded on a voice recorder. Depending on the content, the telephone message will be involved in the dismissal procedure for a pass.

Responsibility of the employer for illegal actions. Managers can be fined and brought to administrative responsibility if their actions harmed the dismissed person.

Dismissal for absenteeism: risks for the employer. The employer may be held liable if he violates the norms of labor relations. For example, termination of the contract with an employee who will provide a certificate of pregnancy.

What is the statute of limitations for wrongful dismissal? You can file a lawsuit no later than 1 year after dismissal.

Is it possible to make registration without the presence of an employee? Through written notifications, or in case of refusal to get in touch. In this case, appropriate acts must be drawn up. Or only in the case of an unknown loss, which must be recognized by the court.

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The labor legislation of the Russian Federation provides the employer with a number of tools for regulating relations with employees. One of them is the application of 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 the article" is not the most humane method.

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

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

What is a walk?

Sometimes the employer or employee interprets the concept of "truancy" in their own way. For some, this is a failure to appear at work without warning, for others being late, and someone believes that absenteeism is a refusal to do extracurricular work. To resolve disputes, you need to study what the law says. The legal definition of absenteeism is given in Art. 81 of the Labor Code of the Russian Federation.

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

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

• absence of 4 or more hours;
• disrespectful reason;
• month of misconduct.

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

What is absence from work?

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

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

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

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

Time away from work

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

How is time off work calculated?

Further, during the period of absence, the lunch break is not included. 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 be at 10:00, while the break is set from 13:00 to 14:00, then this act will not be considered absenteeism, since the employee was absent only 3 hours 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, you cannot sum up periods of absence over several days or shifts.

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

Total for the whole day will be missed 4 hours 10 minutes. This can be qualified as absenteeism, subject to other procedural requirements.

Good reasons for absenteeism

The legislator for the current year 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 basis is one that did not arise at the will of the employee.

That is, they recognize as respectful:

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

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

The law also does not consider absence of an employee with the knowledge of the manager to be absenteeism. That is, if the employee "was asked for leave", then this is not absenteeism. But, as with other reasons, the fact of management 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 is absenteeism without a good reason, absence from the workplace even with the permission of the manager, if there is no written confirmation of permission.

Step-by-step procedure for dismissal for absenteeism

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

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

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

1. Document the fact of the commission of absenteeism. This can be done by composing the employee's absences. 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 a misconduct by subordinates to higher authorities.
2. . An explanatory note is drawn up only in writing. Oral explanations are not suitable. Deadline - 2 days.
3. Based on the results, either an internal investigation is closed, or an act is drawn up. Also, in the absence of explanations from the employee within 2 days, an appropriate one is drawn up (Article 193 of the Labor Code of the Russian Federation).
4. A decision is made to apply the penalty. The right to dismiss for absenteeism is not an obligation, that is, the employer may not dismiss the employee, but apply a different type of penalty.
5. A dismissal order is being prepared.
6. Familiarize the employee with the order.
7. Document the dismissal with an entry in the work book.

The nuances of actions during a long absence

Particular attention deserves the situation when a long absence is made. When dismissed for a long absenteeism, the step-by-step instructions are almost the same as for the usual one, that is, there are discrepancies:

1. Fix the absence: compose , enter data into .
2. Compose about the need to appear and provide explanations.
3. Send a notice to an employee at a known postal address.
4. After receiving notification of delivery, wait 2 days + the period required for the delivery of correspondence.
5. In case of failure to provide explanations and confirmation of the fact of receipt of the notification, draw up an act.
6. Take action to find out the reasons for the absence if the notice has not been received. This step is optional, but recommended to avoid problems in a possible lawsuit after. You can make calls to the relatives of the employee, get their testimony.
7. Write about the activities carried out, recording the information received. Optional.
8. Design .
9. Draw up an act on the impossibility of familiarizing the employee with the order.
10. Enter the information in the work book.
11. Perform payment settlement.
12. Send a notice 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. Given 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 acts on the absence of an employee during the entire period of absenteeism, or fix this in another accessible way, for example, by making notes in the arrival and departure log, in order to follow the procedure for dismissal for absenteeism without a good reason.

Registration of procedural papers

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

As part of the investigation, it may be decided to carry out dismissal for absenteeism without good cause if the employee refused to provide an explanation why he was absent. Or he did not confirm the documented reason, even if he considers it valid. This should be documented.

date of dismissal

If there is a dismissal for absenteeism, then what day to dismiss? Difficult question. To make a decision, one must be guided by Art. 84.1 of the Labor Code of the Russian Federation. According to its content, the last working day of the employee is the date of his dismissal, if for other reasons there was no place for him. In the case of absenteeism, the last day when the employee worked is the day preceding the day of absenteeism, provided that a good reason has not been confirmed.

Therefore, if absenteeism was one-time and the employee subsequently appeared and gave explanations that were regarded as a disrespectful reason, the date of dismissal and the order of dismissal for absenteeism will correspond to the day the explanatory note was received. if absenteeism is of a long nature, the daily absences of the employee are confirmed by acts and time sheets, and explanations have not been received, then dismissal is allowed on the last working day. However, there will be no violation and dismissal, dated the day the final act was drawn up on the lack of explanations.

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 which article they are dismissed for absenteeism, then article 81 of the Labor Code of the Russian Federation regulates dismissal for absenteeism. Information is entered into the employee's work book on the basis of an order. The registration data of the order itself is written in the column "Name and date of the document". Sample entry in the labor on dismissal for absenteeism:

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

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

The workbook entry 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 wish to go to work on a non-working day for himself. However, there are exceptions to this rule, the same as for recall from vacation. It is acceptable to involve employees to work on a day off if this is required for recovery after accidents or emergencies.

Dismissal and sick leave

It is unacceptable to carry out a dismissal if an employee is ill. If the 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, since the dismissal is unlawful. However, if the fact of hiding the disease and the presence of sick leave was established, then during the trial the court may take the side of the employer, believing that the employee is abusing his rights and infringing on the rights of the employer (Resolution of the Supreme Court of the Russian Federation).

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

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