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What should be considered absenteeism? Procedure for dismissal for absenteeism. Dismissal for absenteeism: there is no person - but there is a problem

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

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

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

Step 1. Record the fact of absence

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

Sample act of absence of an employee from the workplace

Sample form for an employee's absence from work place

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

Step 2. Note the absence on the time sheet

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

Sample of recording absenteeism in a time sheet

Until a written explanation is received

After receiving a written explanation

Step 3. Notify the company management

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

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

Sample memo about employee absenteeism

Step 4. Ask questions

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

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

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

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

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

Sample act of refusal to provide written explanations

Sample letter with questions about the reasons for absenteeism

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

Step 5. Assess the validity of the reason for absence

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

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

Sample letter of dismissal for absenteeism

Step 8. Introduce the employee to the order

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

Step 9. Fill out the work book

Sample entry in the work book upon dismissal for absenteeism

Step 10. Issue a work book

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

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

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

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

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Article 81 of the Labor Code of the Russian Federation considers dismissal for absenteeism to be a disciplinary punishment for a one-time gross violation. Read about what is considered absenteeism and how a disciplinary sanction in the form of dismissal for absenteeism is formalized in this article.

Under what article are people fired for absenteeism in 2018?

In sub. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation states that absenteeism is absence from the workplace for more than 4 hours in a row or the entire working day without good reason. It is considered that such an employee has grossly violated his duties, and dismissal for this is a punishment on the part of the employer.

• absenteeism;
• being away from the workplace for more than 4 hours in a row;
• absenteeism from work (abandonment of the workplace) before the expiration of the notice period (usually 2 weeks) about voluntary dismissal;
• leaving work before the expiration of a fixed-term contract or warning of its early termination;
• unauthorized going on vacation or using compensatory days.

Each of the listed points (except the last) contains the wording “without good reason.” That is, if there are any, absenteeism (absence) from work is not considered a gross violation.

The appeal ruling of the Sverdlovsk Regional Court dated January 10, 2018 in case No. 33-348/2018 states that a valid reason for absence from work may be a circumstance that objectively prevents attendance at work and does not depend on the will of the employee. For example:

• disease;
• serious illness of a family member who needs to be cared for;
• natural disaster, etc.

Specific examples of valid reasons are provided in the next section.

What is considered a valid reason, not absenteeism?

So, since there is no list of valid reasons for absence from work in the law, the parties determine them themselves.

Judicial practice on such disputes is varied and ambiguous. Here are some examples of decisions made in favor of the employee:

1. A young child unexpectedly fell ill and there was no one to leave him with (appeal ruling of the Supreme Court of the Republic of Sakha dated 06/05/2017 in case No. 33-2068/17).
2. The employee did not receive notice of the office move and, accordingly, the change of workplace (appeal ruling of the Moscow City Court dated June 22, 2018 in case No. 33-24126/18).
3. The employee was not familiarized with the shift schedule, which is why he went to work later than indicated in the schedule (appeal ruling of the Novosibirsk Regional Court dated November 24, 2015 in case No. 33-9772/2015).
4. The employee was being interrogated by the Ministry of Internal Affairs (appeal ruling of the Sverdlovsk Regional Court dated April 15, 2015 in case No. 33-5300/2015).
5. The employee had an appointment with an inspector of the state labor inspectorate (ruling of the Primorsky Regional Court dated March 29, 2016 in case No. 33-2941).

Let us note once again that the examples given are special cases. The court resolves labor disputes of this type individually, taking into account all the details.

Is the 4 hour period interrupted by a lunch break?

Quite a lot of controversy is associated with the correct calculation of 4 hours, exceeding which gives the employer the right to apply the article for dismissal for absenteeism.

The judicial position on this issue is ambiguous:

1. Working hours do not include lunch breaks. Therefore, the absence of an employee during lunchtime is not considered (appellate ruling of the Supreme Court of the Republic of Tatarstan dated July 30, 2015 in case No. 33-11242/2015).
2. The law provides for absence from work for more than 4 hours in a row. The time an employee is absent before lunch is not cumulative with the afternoon absence (appellate ruling of the Krasnoyarsk Regional Court dated March 14, 2018 in case No. 33-3404/2018).
3. Lunch time does not interrupt the duration of working hours, therefore it cannot interrupt the employee’s absence (appellate ruling of the Khabarovsk Regional Court dated July 17, 2015 in case No. 33-4537/2015).
4. A similar position on the non-interruption of working hours by a lunch break is set out in the appeal. determination of the Stavropol Regional Court dated February 10, 2015 in case No. 33-919/2015.

Thus, when dismissing for absenteeism, the Labor Code of the Russian Federation requires the employer, as the initiator of the procedure, to comply with the procedure for terminating the employment contract under the threat of declaring the termination illegal.

All other controversial issues are resolved by the court based on the specific situation.

The procedure for dismissal for absenteeism under Article 81 of the Labor Code of the Russian Federation in 2018

Dismissal for absenteeism is a disciplinary measure. Accordingly, the employer must comply with the provisions of Art. 193 Labor Code of the Russian Federation.

The procedure for dismissal for absenteeism according to the Labor Code of the Russian Federation is as follows:

1. The fact of absence (absence) of the employee is recorded.
2. The employee is asked for written explanations. This point also needs to be given special attention, since in the event of a trial, the employer will have to prove the fact of requesting explanations (see, for example, the decision of the Moskovsky District Court of St. Petersburg dated February 27, 2018 in case No. 2-1410/2018).
3. If the employee refuses to give an explanation, this fact is recorded.
4. Within 6 months after the day of absenteeism and 1 month from the date of discovery of this misconduct, a dismissal order is issued.
5. The employee is returned with a work book (for what entry to make in it, read the article Dismissal for absenteeism - a sample record in the work book), and a settlement is made with him.

Failure to comply with at least one of the above points (with the exception of the fifth) may become grounds for reinstatement of a dismissed employee.

What documents are required for dismissal for absenteeism?

Let's consider the documents that must be drawn up for dismissal for absenteeism under Article 81 of the Labor Code of the Russian Federation:

1. An act and (or) memo indicating that the employee left work without warning anyone or did not show up at all.

   These documents are drawn up in any form. The act must contain:

   • information about the employer;
   • information about the employee who did not show up for work;
   • date and time of the offense;
   • information about the persons signing the act (witnesses).

   In the official (report) note, the employee who discovered absenteeism indicates:

   • addressee (head of the organization);
   • the fact that a colleague is absent from the workplace;
   • the time he discovered it;
   • the measures he took to locate the missing person (for example, calls to a mobile phone), and the results of these measures;
   • date and signature of the note writer.

1. Requirement to give explanations in any form (the fact of its delivery must be somehow recorded). For example, the employee’s signature on the second copy of the request.
2. A written explanation from the employee, or a refusal to draw up such an explanation, or an act of refusal to give explanations, drawn up 2 days after the request to provide an explanation.
3. Order of dismissal for the application of penalties and termination of the employment contract (letter of Rostrud dated 06/01/2011 No. 1493-6-1).
4. If an employee does not show up for work and it is not possible to familiarize him with the documents, sometimes a notice is sent, which is described in detail in the article Notice of dismissal for absenteeism - sample.

Is it possible to fire a pregnant woman for absenteeism?

Part 1 art. 261 of the Labor Code of the Russian Federation does not allow a pregnant woman to be fired for absenteeism.

However, other disciplinary measures can be applied to a pregnant woman: reprimand, reprimand. In compliance with the rules of Art. 193 of the Labor Code of the Russian Federation, of course.

Please note that a woman’s right to visit an obstetrician-gynecologist and other doctors during working hours is guaranteed by Part 3 of Art. 254 Labor Code of the Russian Federation. At the same time, she retains her average earnings.

According to clause 3 of the regulations, approved. By order of the Ministry of Health and Social Development of the Russian Federation dated March 30, 2006 No. 224, pregnant women should visit:

• obstetrician-gynecologist - at least 10 times;
• therapist - at least 2 times;
• other doctors - 1 time.

The law says nothing about the time spent at doctors’ appointments; there are no restrictions on the duration of absence from work in connection with undergoing a medical examination.

Therefore, the absence of a pregnant woman from the workplace and her presence in a medical institution for more than 4 hours cannot be considered absenteeism if the pregnant woman is presented with a certificate from a medical institution.

Dismissal for absenteeism is a disciplinary measure permitted by Art. 192 Labor Code of the Russian Federation. When applying it, the employer draws up documents proving:

• fact of absenteeism;
• the fact of delivery of a demand for an explanation;
• fact of receipt/non-receipt of explanations.

In legal disputes, each of these facts is verified separately.

Disputes regarding dismissal for absenteeism are resolved by the court based on the specific situation. We can say that there is no clear position on any issue.

Any violation of the internal regulations of the organization, norms and rules, as well as current laws entails the termination of all labor obligations of the employer and the employee. One of these obvious violations is the absence of an employee from his workplace during the period of time that he is obliged to work in accordance with the contract with the employer. In case of failure to comply with all the requirements of the contract, the organization has every right to dismiss the unscrupulous employee from his place of work.

Disciplinary punishment for truancy is provided for in Article 81 of the Labor Code of the Russian Federation. Truancy is considered a violation that will meet certain requirements and according to which this action may be possible, that is, it will be legal.

To dismiss an employee, the following conditions must be met:

• The employee was away from work for more than four consecutive hours;
• Absence from your workplace;
• Unexcused reasons for absenteeism or lack of evidence excluding violation by the employee;
• Evidence from the employer about the fact that the employee violated the rules of the organization and the contract.

To fire an employee for absenteeism, management must fully comply with the rules for terminating an employment agreement. Since dismissal for such a violation is provided for by labor legislation, accordingly it is necessary to meet all the conditions for the legality of the procedure.

To begin with, the fact of absence is established; it can be determined for various reasons:

• Absence from work all day;
• Have not been at work for more than 4 hours in a row;
• Absent from work without warning to superiors;
• Failure to work for two weeks after dismissal;
• Absenteeism before the expiration of the employment contract with the employer;
• Illegal use of vacation or time off.

Once the employee’s violation and its reasons are determined, the procedure for dismissal for absenteeism begins. In order for a disciplinary sanction to enter into legal force, it must be formalized in accordance with Article 193 of the Labor Code of the Russian Federation.

The procedure for terminating employment obligations is as follows:

• The act of recording a violation;
• The signature of the manager and two witnesses to the violation;
• Obtaining explanations from the offender;
• The leader issues an order.
• Familiarization with the order of the truant and obtaining his signature;
• Payment of wages for the period of time worked.

Signing up for dismissal for absenteeism

According to Article 81 of the Labor Code of the Russian Federation, the fact of dismissal for absenteeism is recorded in the employee’s work book. The record includes text stating the reason for which the employment relationship was terminated.

Management can also fire an employee because an employee went on an unplanned vacation, if it is not scheduled or does not exist at all. But it is not always necessary to end the matter with dismissal, although the manager has every right to do this. Instead of terminating the contract, the employee can be subject to another form of punishment in the form of a fine or reprimand.

Terms of dismissal of an employee for absenteeism

Since there are rules of punishment for violations, there are also deadlines according to which truancy is issued. Deadlines are necessary for the document to have legal force.

As soon as the employee began to miss work, the reports indicate at what time and days this happened - these records will serve as evidence of the violation. After recording absenteeism, management sends a letter indicating the reason for demanding an explanation. In response, the truant must provide an explanatory note; in case of refusal, he will be re-sent a notification. Repeated sending of a written notification from management is possible only if the violator does not respond to the first one within two days - only working days of the week are included in the period. Next, the employer decides within a month how to punish the offending employee.

Notice of dismissal for absenteeism - sample

Before dismissing the violator, he is sent a special notice, which states what violation was committed and the time frame within which he must respond and explain. For a notice to be legal, it must be completed in accordance with all regulations.

You can view and download the sample using the following link

Sample letter of dismissal for absenteeism

After all the reasons for absenteeism have been clarified and the violation has been documented and proven, an order to dismiss the employee is drawn up. According to labor legislation, for a document to be legitimate, it must be drawn up in accordance with all regulations. After drawing up, the truant must be familiarized with the order, since he will be required to sign this document.

You can view a sample order for termination of a contract at link

Is it possible to fire a pregnant woman for absenteeism?

Despite the fact that the laws of the Russian Federation protect the rights of pregnant women from all sides. If no evidence is provided in the case of absenteeism by a pregnant woman, the fact of violation will be counted and will have to be punished. A medical certificate can serve as proof. For example, if a pregnant woman missed working hours because she was in the hospital due to her pregnancy. Such a reason will be considered valid and therefore the employer has no legal right to dismiss such an employee.

Can they be fired under a probationary period clause for absenteeism?

An employee on probation must also comply with all rules and regulations established within the organization. However, he is obliged to fulfill all the conditions specified in the contract and established by Russian legislation. If a worker violates any of these conditions, the employer has every right to fire such a person.

How to fire an employee for absenteeism: step-by-step instructions for 2018

Absenteeism is regarded by the Labor Code as a malicious violation of labor discipline, which may be grounds for dismissal. According to established standards, absenteeism is considered to be the absence of an employee from the workplace for 4 consecutive hours or more. Absenteeism also includes the situation when an employee leaves his workplace without notifying the employer and without expressing his intention to terminate the employment contract.

In this article we will talk about how to properly formalize dismissal due to absenteeism.

The concept of “truancy” in the Labor Code

The Labor Code of the Russian Federation defines two types of absenteeism - short-term and long-term. During a short-term absence, the employer knows the whereabouts of the employee and has the opportunity to contact him. Long-term absenteeism means that the employee's whereabouts are unknown and, therefore, contact with him is impossible.

In case of short-term absenteeism, a memorandum is drawn up addressed to the head of the enterprise, and later - a report on the absence of the employee from his workplace. These documents are necessary so that on their basis it is possible to request an explanatory statement from the employee, which, according to Article 193 of the Labor Code of the Russian Federation, he is obliged to provide within two working days. If the employee does not prepare an explanatory note within the specified period, it will be necessary to draw up an act on his refusal to provide written explanations for absenteeism. This act must be signed by the originator and three witnesses to the truancy. Only after these actions the employer has the right to issue an order to impose a disciplinary sanction. In this case, the day the employee is absent from work is recorded in the report card as absenteeism.

In case of long-term absenteeism, when there is no communication with the employee, the employer will have to wait for him to appear at the workplace in order to request an explanation from him. Next, the procedure for registering absenteeism is carried out in the same way as in the previous version.

It is very important that absenteeism is documented in strict accordance with labor legislation, because If an employee goes to court and the court recognizes the reasons for his absence from work as valid, he will have to be reinstated to work, while paying compensation costs.

Unlike tardiness, absenteeism is a serious disciplinary violation that is punishable by certain penalties, including dismissal. But for this, the fact of absenteeism must be documented. First of all, it is necessary to make a corresponding entry in the working time log, as well as record the readings of CCTV cameras. According to labor legislation, due to absenteeism, an employee can be dismissed within a month from the date of the commission of the offense, not counting the periods the employee is on sick leave or on vacation.

Under what circumstances can an employee be fired for absenteeism?

To dismiss an employee for absenteeism, the employer must prepare appropriate evidence and document the fact of his absence from the workplace. For this, absence reports, memos, etc. must be drawn up. Documents can be drawn up both on the day the employee is absent from work and on subsequent working days. The Labor Code allows dismissal for absenteeism if an employee fails to show up for work without a valid reason and is absent from the workplace for 4 consecutive hours or more.

In addition, you can fire an employee for absenteeism under the following circumstances:

The employee left the workplace without a valid reason. At the same time, the employer was not notified of the termination of the employment contract and the upcoming dismissal;

An employee working under a fixed-term employment contract did not return to work before the end of the period established in the contract;

The employee went on vacation or took time off on his own initiative.

The procedure for dismissing an employee for absenteeism in 2018: step-by-step instructions

To fire an employee for absenteeism, the employer must act as follows:

1. Draw up a report on the employee’s absence from the workplace.

The act can be drawn up in any form, but this document must be certified by the signatures of three witnesses. If an employee is absent from work for a long time, each day of absence is documented in a separate report.

2. Demand an explanation from the employee regarding the fact of absenteeism.

To request an explanatory note, the employer must give the employee a notice requesting a written explanation for absenteeism on the day he returns to work. Having received the notification, the employee must, within two working days, give a written explanation of his misconduct, indicating the reasons for absenteeism. If the explanatory note is not provided within the specified period, the employer must draw up a report and have it certified by the signature of three witnesses.

3. Draw up a memo about the fact that the employee is absent from work.

An explanatory note from the employee is attached to this note.

4. Issue a dismissal order for absenteeism.

The order must be drawn up in a unified form.

5. Register the dismissal order in the personnel order log.

6. Prepare a pay slip for the employee in the prescribed form.

In this case, full payment is made on the last day of dismissal.

7. Inform the employee of the dismissal order.

This issue is dealt with by the enterprise’s human resources department, which must inform the employee of the dismissal order within three working days. The fact of familiarization is the signature of the employee. If the employee does not intend to sign the document, it is necessary to draw up an act of refusal to sign in order to familiarize himself with the order. In this case, the act must be signed by the compiler himself in the presence of the employee and certified by the signature of three witnesses.

8. Make a note about the termination of the employment contract in the employee’s personal card.

The document must be certified by the signature of the HR department employee and the employee. If the employee refuses to sign, a corresponding entry is made on the card.

9. Prepare the employee’s work book.

An entry about the termination of the employment contract indicating the reason is made in the work book of the dismissed employee.

10. Issue a work book to the employee.

On the day of dismissal, the employee is given his work book with an entry about the dismissal. The issuance of the document is confirmed by the corresponding entry in the labor movement register. If the employee does not show up for the work report, the employer must send it to the postal address, ordering a receipt.

On the last day of dismissal, the employer is obliged to pay the employee in full, as well as pay for the days of his unused vacation.

Retroactive dismissal of an employee

Since the date in the dismissal order is considered the employee's last working day, retroactive dismissal is illegal. However, in some situations, for example, when an employee is absent from the company for a long time, the employer is not able to indicate the exact date of dismissal. This situation, as well as the death of an employee, are considered the only exceptions in which the Labor Code allows retroactive dismissal.

It follows from this that if an employee is absent from work for a long time (more than a month), the order for his dismissal can be issued retroactively. However, in order to avoid misunderstandings, it is necessary to maintain complete documentary order by recording entries in journals and verifying each issued act with signatures. If the employer violates the established document flow procedure, the employee will be able to challenge his dismissal in court.

The nuances of dismissal for certain categories of workers

The legislation defines special rules regarding workers with children and pregnant women. According to the law, an employer does not have the right, on its own initiative, to terminate an employment contract with an employee who is carrying a child. However, in this case there are some nuances that you should familiarize yourself with.

Firstly, an employer can terminate an employment contract with a pregnant woman if the reason for this is the liquidation of the enterprise or the cessation of its activities.

Secondly, a pregnant employee can be fired by agreement of the parties. Since in this case the initiative to terminate the employment relationship lies with both the employer and the employee, the employer does not violate the law. For dismissal, it is necessary to draw up a separate act, specifying in it an agreement to terminate the employment contract and indicating the date of dismissal.

By agreement of the parties, employees on sick leave may also be dismissed. However, please note that it is not possible to cancel this decision unilaterally.

If we are talking about dismissing an employee who is on a probationary period, then the employer can be guided by such a concept as “dissatisfaction with the results of the trial.” In this case, at least three working days before the date of dismissal, the employer is obliged to notify the subject employee of his decision.

The process of dismissal of employees on probation is regulated by Article 81 of the Labor Code of the Russian Federation. According to this article, the dismissal order must be supplemented by a separate document indicating the reasons for termination of the employment contract. In this case, it is necessary to list a list of tasks that the employee could not cope with, because a record that an employee “performed poorly” is considered illegal. If an employee on a probationary period wishes to resign on his own initiative, he is obliged to notify the employer at least three days before the date of termination of the contract.

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Dismissal for absenteeism (subparagraph “a” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation)

In accordance with subparagraph “a” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation, the employer may terminate the employment contract with the employee in the event of a single absence.

Absenteeism, as amended in October 2006 in accordance with Federal Law dated June 30, 2006 N 90-FZ, is understood as the following:

1) the employee’s absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration;

2) the employee’s absence from the workplace without good reason for more than 4 hours in a row during a working day (shift).

Clarification of the concept of absenteeism by adding the definition to absence from the workplace for the entire working day (shift) expanded the possibilities of the employer, who until October 2006 formally could not fire employees working part-time (shift) lasting 4 hours or less.

For this dismissal under subparagraph “a” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation, the validity of the reasons for the employee’s absence from the workplace for a certain time and the employee’s guilt are of the same fundamental importance as for dismissal under paragraph 5 of part one of Article 81 of the Labor Code RF. To illustrate what was said in the previous paragraph of this paragraph, we will give several examples and analyze judicial practice on this basis for dismissal.

The most common are disputes regarding absence from work for a period of time that falls under the concept of “absenteeism” due to transport problems, bad weather conditions that the employee is not able to foresee, even if he wishes. The courts have more than once found the application of disciplinary sanctions for absenteeism to be unlawful due to the fact that the employee was not to blame for his absence from the workplace for more than 4 hours in a row during the working day. In order for absence from work to fall under absenteeism, it must be due to unexcusable reasons. Whether the reason given by the employee is valid is determined by the employer. However, the court’s point of view does not always coincide with the employer’s opinion. Thus, the administrative detention of an employee, carried out on legal grounds, was recognized by the court as a valid reason for the employee’s absence, and his dismissal for absenteeism was unlawful.

An approximate list of circumstances, as well as reasons for the employee’s absence from the workplace, giving the employer grounds for applying disciplinary sanctions, is defined in the Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”

According to paragraph 39 of the said Resolution, dismissal under subparagraph “a” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation, in particular, can be made:

A) for absence from work without good reason, that is, absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);

B) for an employee being outside the workplace without good reason for more than 4 hours in a row during the working day;

C) for leaving work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about termination of the contract, as well as before the expiration of the 2-week warning period (part one of Article 80 of the Labor Code of the Russian Federation);

D) for leaving work without a good reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice period for early termination of the employment contract (Article 79, part one of Article 80, Article 280, part one of Article 292, part one Article 296 of the Labor Code of the Russian Federation);

D) for unauthorized use of days off, as well as for unauthorized departure on vacation (main, additional). At the same time, the use of rest days by an employee is not absenteeism if the employer, in violation of the statutory obligation, refused to provide them and the time the employee used such days did not depend on the discretion of the employer (for example, a refusal to provide an employee who is a donor in accordance with part four Article 186 of the Code of the day of rest immediately after each day of donating blood and its components).

When considering the case of reinstatement at work of a person transferred to another job and dismissed for absenteeism due to refusal to start work, the Plenum recommended that the courts require the employer to provide evidence indicating the legality of the transfer itself (Articles 72.1, 72.2 of the Labor Code of the Russian Federation). If the transfer is considered illegal, then dismissal for absenteeism cannot be considered justified and the employee will be subject to reinstatement to his previous job.

Neither the Labor Code of the Russian Federation nor other acts of labor legislation contain an explanation of how to count the monthly period in the event of a long absence of an employee. In order for the deadlines established by part three of Article 193 of the Code to be formally met, as well as to find out the reasons for the employee’s long absence from work, logically, the starting point should begin from the last, and not from the first, day of absenteeism. This legal position can also be seen in court decisions. However, this is only possible if the misconduct ends, that is, the employee shows up for work.

One of the most difficult situations in personnel practice is long-term absenteeism, when an employee does not appear at work for a significant period of time and does not provide any information about himself or the reasons for his absence. The employer suffers losses - the work is not completed, it is impossible to fire the employee, since the reasons for the absence are unclear, and the staffing table does not allow hiring a new employee. In this case, the employer can be advised only one thing - to send a letter of notification to the place of residence or location of the employee known to him, in which he demands from the employee an explanation of the reason for his long absence from work and warns that if within a certain period of time he does not receive a response, the employer will exercise its right to apply disciplinary sanctions, up to and including termination of the employment contract under subparagraph “a” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation. It should be noted here that when considering cases of reinstatement to work of those dismissed for long absence, the courts resolved this issue differently: there were also cases of reinstatement, since the employee was absent for a long time due to temporary disability and there was no opportunity to notify the employer, and cases of dismissal being recognized as lawful for a long absence of an employee who never showed up for work.

In this regard, attention should be paid to the explanation given by the Plenum of the Supreme Court of the Russian Federation in the above Resolution: “If, when resolving a dispute about the reinstatement of a person dismissed for absenteeism and the recovery of average earnings for the period of forced absenteeism, it turns out that the absence from work was caused by disrespectful reason, but the employer violated the procedure for dismissal, the court, when satisfying the stated requirements, must take into account that the average salary of the reinstated employee in such cases can be recovered not from the first day of absence from work, but from the day the dismissal order is issued, since only from this time absenteeism is forced” (paragraph 41).

Depending on the scheme for formalizing the application of disciplinary sanctions and dismissal adopted by the organization, the order to terminate the employment contract in Form N T-8 contains references to the documents that were used to formalize the disciplinary action against the employee (see subparagraphs 6.1.7 of paragraph 6.1 and 6.2.3 clause 6.2 of this paragraph).

Let us remind you that the facts of absenteeism are documented in the relevant acts on the employee’s absence from the workplace, as well as other documents specified in subclause 6.1.4 of clause 6.1 of this paragraph.

Based on the above, an order to terminate an employment contract in Form N T-8 can be filled out in the following ways:

Subparagraph “a” of paragraph 6 of part one of Article 81

Absenteeism Labor Code of the Russian Federation article

Employees who are dishonest about their job responsibilities, and, in particular, absentees, become a headache for the management of most enterprises. According to the Labor Code, absenteeism, in contrast to being late, is regarded as a violation of labor discipline and serves as a reason for disciplinary action and even termination of employment relations, however, in reality, not everything is so simple. For an employer, the use of extreme disciplinary measures is strictly regulated by Article 193 of the Labor Code of the Russian Federation. Moreover, both parties must know the rights. In some cases, the nuances of the process can help a conscientious person protect himself from unreasonable pressures from management and not damage his reputation. What is considered absenteeism, and what are the features of dismissal in connection with it, we will consider further.

The concept of “truancy” in the Labor Code and its types

Absenteeism according to the labor code is the intentional absence of a subordinate from the workplace (Article 209) without good reason for 4 hours in a row or more (Subclause “a”, clause 6, part 1, article 81). Absenteeism also means leaving work without permission without warning of the termination of employment obligations. The concept of absenteeism is defined (by Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2 of March 17, 2004). In addition, absenteeism includes such actions as: unauthorized going on vacation without permission from superiors; failure to fulfill duties after a legally executed transfer to another workplace; skipping shifts before the end of the agreed period when signed under a fixed-term employment contract; leaving the work zone without communicating with a superior, when collaborating under an employment contract without a specified validity period; downtime of working hours if the employer violates the rights of employees. To understand the situation, it would be better to contact the appropriate services.

Leaving work, as well as any failure to perform official duties, will be considered truancy when the truant does not indicate valid reasons and does not attach evidence to them.

There are two conventional categories of absenteeism:

1. Short-term(classic). Here the employer is warned where the subordinate is and can always talk to him. What needs to be done for absenteeism is stated in Article 193 of the Labor Code of the Russian Federation. The person is asked for an explanation for his behavior; his justification must be written down on paper and presented to his superiors within 2 working days. The basis for this is a memorandum prepared in advance addressed to the authorities and the documented fact of missing working hours on a certain day. If there is no response from the person, then a corresponding act is drawn up, which is signed by its drafters and three witnesses to the violation. And only after this the manager has the right to issue a decree imposing a disciplinary sanction, recording the date of absence on the report card as absenteeism.
2. Long-term(long-term). Here the employer does not know where the subordinate is staying, for several shifts or weeks. Therefore, he cannot be contacted. In order to fire someone for absenteeism, the employer has to wait for the employee to appear at the workplace and then proceed with the standard processing. The law allows you to request explanations by mail or telegram to the address in the personal file of the subordinate. It is necessary to carry out registration strictly according to the Labor Code of the Russian Federation; otherwise, the truant can turn the situation through the judicial authorities in his favor, be reinstated in his position and even receive compensation costs.
   The total time for collection and issuance of the corresponding order is one month.

Consequences of absenteeism

We have defined what absenteeism is under labor law; now we will consider what creates constant clashes of interests between both parties. The fact is that Article 81 of the Labor Code of the Russian Federation does not contain a list of valid reasons. As a rule, the manager decides whether the reason will be serious if local regulations strictly regulate the start and end times of the shift, and the workplace is clearly defined. When there is no clear concept of a workplace in regulatory documents, one should rely on Art. 209 Labor Code of the Russian Federation. From it it is said that a workplace is an area that is assigned to each individual staff unit of the company. A person must stay in it and perform the work assigned to him, as provided for in the regulatory and technical documentation.

In case of absenteeism, the employer may not formalize dismissal under the article for absenteeism, although he has every right to do so, it all depends on how competent he is in this matter. If an employee systematically violates the rules, then this method is simply necessary to regulate work. The employer has the right to issue a reprimand, reprimand, or collect a penalty from the truant in the form of deprivation of bonuses, although the lack of incentives is not a punishment. Let us note that the Labor Code of the Russian Federation provides for only one punishment for absenteeism at work, so if a person is reprimanded, terminating the employment relationship for this absenteeism is already prohibited.

When can you be fired for absenteeism?

Not every missed shift is grounds for dismissal. In order for a subordinate fired due to absenteeism to be unable to refute this order through the court, the reason must be disrespectful. To be legally dismissed, the following aspects must be met:

• the entire work shift is missed (even if its duration is only a couple of hours) or more than 4 hours of working time;
• the employee must be absent from the official workplace;
• the reason for absenteeism must be disrespectful;
• evidence of absenteeism must be recorded.

By law, absence will not be considered a violation if less than 4 hours of work time are missed. In addition, absenteeism is not counted in cases where a person does not have a specifically designated work area, or he was in another department of the company. If a person could not inform management about his absence or has a valid reason for absenteeism, then his absence should not be considered a violation of labor discipline.

When you can’t fire someone for absenteeism

There is no list of valid reasons; as mentioned above, this issue is decided by the employer. However, there are a number of cases that are recognized as valid unconditionally and can be documented. Situations when a person cannot be accused of absenteeism and fired:

• illness, as you can provide a certificate of incapacity for work;
• temporary disability;
• donated blood and plasma;
• participated in the rally;
• force majeure circumstances occurred, for example, a fire or accident;
• the person performed public functions assigned to him by authorized government agencies;
• summoned to court, internal affairs bodies, military registration and enlistment office;
• management delays payment of wages for more than 15 days. To legally not work, you need to notify your superiors in writing;
• the person was detained by law enforcement services;
• The reason for absenteeism was weather disasters.

After providing the relevant document, the employer is obliged to check its authenticity in order to establish the veracity of the reason for absenteeism. If the certificate or extract turns out to be forged, the manager can unconditionally terminate the employment relationship with the violator.

Controversial situations

Often, hassles associated with dismissal due to absenteeism appear when a subordinate misses shifts, having agreed verbally with management. The law does not consider this truancy if the fact of permission can be confirmed. Often employers take advantage of this “loophole”, knowing that verbal consent will not be enough and it will be impossible to prove it. But if the employee has evidence, for example, witness testimony or an audio recording, then the decision can be challenged according to the provisions of Articles 55 and 56 of the Code of Civil Procedure.

Special rules are provided for pregnant women. Most employers do not want to tolerate a pregnant employee, especially if she systematically violates labor discipline. However, the legislation does not provide for a way to break off employment relations with her on the initiative of her superiors. Dismissal is possible only when the company is completely liquidated (Article 261 of the Labor Code of the Russian Federation). Hence, pregnant women get away with any absence from work without a good reason.

The procedure for dismissing an employee for absenteeism at work according to the Labor Code of the Russian Federation

For everything to go legally, the employer must follow a certain sequence of actions:

1. Creation of an act of complete truancy, which indicates the date and time the subordinate is absent from the workplace. Please note that the date must be the one when the violation occurred, otherwise a document issued at a later date will be considered invalid. The employee's absence time is calculated excluding the lunch break. In addition, it is prohibited to sum up several missed shifts as one absenteeism, or to correctly add up time periods within one shift. A document is drawn up in any form and certified by three witnesses. After which, for review, it is given to the person upon arrival at the organization. If a subordinate is absent for a long time, then each new day of absence is documented in a separate act.

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Dismissal for absenteeism according to the Labor Code of the Russian Federation

Dismissal of an employee for absenteeism under the Labor Code of the Russian Federation does not happen often, but it is still possible. Indeed, given the nature of the disciplinary offense committed, the employer often risks his profit due to production needs. Consequently, there is a reason to terminate the employment contract even in the case of one-time absenteeism. However, the employer and employees should clearly understand the nuances of such dismissal.

Concept

In general, absenteeism according to the Labor Code of the Russian Federation is nothing more than absence from the workplace. At the same time, to recognize the fact of an employee’s absence from work as absenteeism, special conditions are required:

1. The potential violator lacks a written official explanation, which gives him the right to refer to the fact that the reason is a good reason.
2. He committed his crime intentionally.
3. The period of being outside the work area is more than 4 hours in a row.

So, if there is a written explanation from the employee, there should be no problems understanding the situation. And on both sides. But should the employer recognize his absence as legal? This is hardly always possible.

The fact is that forced absenteeism under the Labor Code of the Russian Federation can only be explained by a good reason. However, this concept is not disclosed in any way in labor legislation. The legislator did not dare to approve a universal list of valid reasons and left this issue to the employers themselves.

It is advisable that the employer, and better yet, his subordinates, know in advance about possible force majeure situations in production. However, even if this condition is met, the employer is required to follow a formal procedure for identifying absenteeism. So, you need to make a request (even if verbally) and based on it give an appropriate assessment of the incident. Neglecting this can lead to a much worse consequence for the employer than the usual reinstatement of the employee to his position.

Depending on the method of protection - the court or the labor inspectorate - the employer will be required to make monetary compensation and/or pay an administrative fine.

In both cases, absenteeism according to the Labor Code in the employer’s formulation will be considered an unlawful decision. As a result, deliberate violation of labor discipline may go unpunished.

Proving the fact of deliberate abandonment of the workplace is not so difficult. It is enough to assess the situation from the point of view of the socio-psychological state of the employee at that time.

The number of hours of absence is also easy to record. The main thing here is not the total count for the shift, but the continuity of the flow of time. A clear understanding of special cases will help you avoid incidents.

There are several reasons for terminating employment agreements to keep in mind. It is not uncommon for an employee to leave his place of work without permission in order to:

• completely neglect the validity period of your contract, without waiting for its end;
• avoid the procedure of notifying the employer of your intention.

This happens if a person has a fixed-term employment contract or an open-ended agreement, where the terms of work are established after filing an application for termination. And no one canceled them. In such situations, dismissal for absenteeism under the Labor Code of the Russian Federation will not entail any consequences for the employer, since everything is legal.

What are the legal consequences

It is important to recognize the need to take action against an absent employee. Yes, the employer has the right to complete the proceedings by dismissal under the article “absenteeism”. At the same time, such a norm is not imperative. That is, mandatory.

In general, the legislator gives companies the right, at their own discretion, to dismiss people for absenteeism under the Labor Code. But it all depends on the very factors that we mentioned at the beginning of the article.

That is, the severity of the disciplinary offense committed and the degree of respect for a particular employer may serve as the basis for imposing less severe consequences on the perpetrator. After all, in addition to absenteeism, you can limit yourself to a remark or, in extreme cases, a reprimand and not deprive him of the right to continue to perform his labor functions. In addition, the employee always has a chance to challenge wrongful dismissal, which will necessarily take into account the proportionality of the punishment to the misconduct.

Procedure for dismissal for absenteeism

Many details of the process of registering the dismissal of truant workers are prescribed in the Labor Code of the Russian Federation. It is only important to follow the sequence:

Firstly, absenteeism according to the Labor Code is accompanied by the drawing up of an act and its signing by at least 3 representatives of the employer. This document is drawn up in free form indicating the full name. and employee position, time of absence.

Secondly, they find out the reason for the absence directly from the employee and demand within 2 days to give an explanation in writing on the basis of Art. 193 Labor Code of the Russian Federation. If you refuse to sign the document or the deadline expires, you must draw up a similar document.

Then an order is issued in form T-8 with a mandatory indication of the grounds for dismissal. They prepare salary calculations and make an entry in the work book. Dismissal occurs according to the general rules with reference to subsection. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

Dismissal for absenteeism has its own statute of limitations for bringing disciplinary action:

• no more than 1 calendar month from the date of its discovery;
• no later than 6 months from the date of commission.

The article was written based on materials from the sites: legionfg.ru, bs-life.ru, hr-portal.ru, 101biznesplan.ru, buhguru.com.

Dismissal for absenteeism (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation): an approximate step-by-step procedure

TERMINATION FOR ABSENTANCE:

SAMPLE STEP-BY-STEP PROCEDURE

According to paragraphs. "a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, absenteeism is absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts). An employment contract can be terminated by the employer in cases of a single gross violation of labor duties by the employee - absenteeism.

Dismissal for absenteeism is a disciplinary sanction, therefore, when registering this dismissal, you should take into account both the general requirements of the law regarding dismissals and the requirements regarding disciplinary sanctions.

1. Recording the fact of the employee’s absence from work.

The main document for recording working time (appearances/no-appearances) is the working time sheet.

Also, to further confirm the fact of the employee’s absence from work, in practice, an act on the employee’s absence from work is drawn up, and reports are submitted by employees who discover the absence of a colleague.

These documents are registered in the manner established by the employer, for example, in the relevant registration/accounting journals.

2. It is checked whether the employee belongs to the category of workers who are prohibited from being dismissed at the initiative of the employer.

So, following step-by-step procedure for dismissal for absenteeism, note - according to Art. 261 The Labor Code of the Russian Federation does not allow termination of an employment contract at the initiative of an employer with pregnant women, except in cases of liquidation of an organization or termination of activities by an individual entrepreneur.

3. The time limits established for the application of disciplinary sanctions are checked.

If the employee refuses to familiarize himself with the order to terminate the employment contract, in this case it is necessary to draw up an act (Part 6 of Article 193 of the Labor Code of the Russian Federation). The act is registered in the manner prescribed by the employer in the appropriate registration journal.

9. Formatting a note-calculation upon termination (termination) of an employment contract with an employee (dismissal).

10. Payment to the employee.

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment. In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article (Article 140 of the Labor Code of the Russian Federation).

According to Art. 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid monetary compensation for all unused vacations.

11. Making a record of termination of the employment contract in the work book and personal card. The employee certifies these records with his signature in the prescribed manner.

According to clause 12 of the “Rules for maintaining and storing work books, producing work book forms and providing them to employers”, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225 “On work books”, with each entry made in the work book about the work performed, transfer for another permanent job and dismissal, the employer is obliged to familiarize its owner with a signature on his personal card, which repeats the entry made in the work book. The form of the personal card is approved by the Federal State Statistics Service.

12. Making a copy of the work book dismissed employee for the employer's archive.

13. Issuance of a work book to the employee on his last working day.

If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. Notifications are registered in the manner established by the employer, for example, in the register of notifications and proposals to employees. Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s application.

14. Confirmation of the fact that the employee has been issued his work book. The employee confirms with his signature the fact of receipt of his work book in the book of registration of the movement of work books and inserts in them. The form of this book is approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69 “On approval of the Instructions for filling out work books.”

15. Issuance of a certificate/certificates regarding the amount of earnings(clause 3, part 2, article 4.1 of the Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”).

If an employee refuses to receive a notification, read it, and put his signature, it is recommended to draw up an appropriate act, which is certified by the signatures of the originator and the employees present at the refusal, and send the notification to the employee’s home address by letter with a notification and a list of attachments. The act is registered in the manner prescribed by the employer in the appropriate registration journal.

See the step-by-step procedure for bringing an employee to disciplinary liability (announcing a reprimand or reprimand).

If an employee refuses to receive a work book, it is advisable to draw up a report on the employee’s refusal to receive a work book. The act is signed by the originator and the employees present at the refusal. The law does not require the drawing up of such an act, but it can be useful as evidence of the employer’s innocence if a dispute arises over the dismissal and the case ends up in court. The act is registered in the manner prescribed by the employer in the appropriate registration journal.

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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. And all possible solutions, 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 a failure to show up for work without warning, for others it is 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. The legal definition of truancy 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 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 define the “workplace” for a specific employee.

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

If there is no clear concept of what is considered a workplace in local acts or labor agreements, 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. It 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;
• emergencies;
• road accidents or incidents;
• housing and communal accidents;
• other.

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

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

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

Step-by-step procedure for dismissal for absenteeism

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

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

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

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

Nuances of action during long absences

The situation when there is a long walk deserves special attention. When dismissing someone for long absence, the step-by-step instructions are almost the same as for normal dismissal, that is, there are discrepancies:

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

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

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

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 other regulatory documents to regulatory authorities.