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How many hours is not considered absenteeism? How can one be fired for absenteeism? Absenteeism or lateness

Production is continuous and obtaining overall positive indicators requires constant work. Many factors can interfere with internal processes, some of which cannot be predicted or planned. But what to do if everything is disrupted due to a person’s absence from his workplace.

Absenteeism has a negative impact on the activities of the enterprise, and therefore is considered one of the most serious violations and entails serious penalties.

Absenteeism under the Labor Code can lead not only to dismissal, but also to other, less radical penalties. The employer is obliged in each specific situation to determine the degree of guilt and impose disciplinary punishment. Let's figure out how to correctly document the fact of absenteeism, and what penalties to apply in each specific case.

When entering into an employment relationship, the parties assume a number of obligations. The employer must provide the employee with the conditions to perform his duties and pay his work on time. And the employee must efficiently and fully carry out the work that he has undertaken.

In addition to the quality of work, compliance with discipline is an important factor. When a hired person gets a job in an organization, he is subject to the general working conditions in it. Familiarization with the work schedule and internal regulations is carried out on the first day against signature. After this, the worker is obliged to strictly follow the established rules. One of the most important points for labor relations is the timely start and end of working hours.

Knowing his personal work schedule, the employee is obliged to come to the workplace, strictly following it. You can be absent during working hours only if there are valid reasons:

1. Leave has been issued.
2. Sick leave is open.
3. A person is sent on a business trip.

Absences for unexcused reasons are considered absenteeism.

Duration

Absenteeism is defined as being late for work for more than four hours. In fact, if a person is late for less time, then the employer cannot charge him with absenteeism, and therefore does not have the right to use punishments appropriate to this offense.

Claiming absenteeism when failing to show up at the workplace or leaving it earlier than the established time is possible only if the employee has not justified his absence in any way. The Labor Code does not establish that an employee must necessarily notify the employer of his absence in the event of illness, for example. Of course, labor cooperation implies that the employee must notify his employer about the current force majeure circumstances that violate mutual plans. In fact, even if a person did not report the reason, but when going to work he was able to document his absence, then this is not considered absenteeism.

Possible reasons

The legislation does not establish a list of reasons that cause unauthorized absence from work and are considered absenteeism.

In general, it is not needed, because skipping work is illegal, and it does not matter what exactly caused this fact. But in order to avoid getting into trouble and not being a truant simply out of ignorance, it is better to understand what reasons may lead to disciplinary action, including dismissal.

Absenteeism is considered absence from work for the following reasons:

1. Being late for more than four hours in a row.
2. Leaving the workplace without written notice of dismissal.
3. Unauthorized taking of a vacation period.
4. Reluctance to perform duties after transfer.
5. Refusal to work as a response to violations by the employer.

Each action must be warned by a written statement from the hired person; only then can failure to appear be taken into account as protection of one’s rights, and not as absenteeism.

Ways to record absenteeism

An incident is recorded in several steps, but the first and most important of them is confirmation of the fact of absenteeism. It can be confirmed by a report from the immediate superior, which sets out the circumstances. Printouts from the checkpoint indicating the absence of a mark indicating the passage of the turnstile, video recordings and other documents may also be attached. Absenteeism can be recorded only after four hours have passed and the employee has not arrived or reported himself in any way.

After the absence itself is confirmed, the management of the organization is obliged to create a commission that will confirm the absence in writing. An act is drawn up at the truant’s workplace. The act indicates the date and hours of the established absence. The form is signed by members of the commission, who can confirm that the person was not at the place of work at the specified hours.

Consequences for the employee

The absence of compelling reasons for absenteeism necessarily leads to the truant being subject to disciplinary action.

Punishments for truancy may vary. Only the head of the organization decides what to do in a particular case. There are several types of penalties:

1. Comment. It does not entail any consequences, it is, as it were, a warning and may lead to more stringent measures if a violation is detected again.
2. Rebuke. This is a written penalty, which is recorded on paper and is valid for 12 months. If the violation is not repeated within a year, then the penalty can be considered extinguished, and if there is a repeated failure to appear, then the contract is automatically terminated.
3. Depreciation. The truant may have his premiums temporarily withdrawn or not be paid a bonus.
4. Dismissal. An extreme measure, but completely legal, which is established in Article 81 of the Labor Code of the Russian Federation. Long absence is considered a serious offense and in most cases ends with dismissal under the article.

Only one penalty from the list above can be applied at a time. It must correspond to the offense and be individually selected.

If the truant does not agree with the punishment, he has the right to challenge the employer’s actions in court.

Employer's procedure

The entire registration procedure falls on the shoulders of the organization’s management. In these cases, several leading specialists usually act together at once - a lawyer, the head of the personnel department and the director himself. The procedure must be carefully verified with the existing legislative framework.

Step-by-step instructions for correctly registering unauthorized absence from work require the following actions:

1. Record the fact of absence. For this purpose, a written act is drawn up.
2. To look for a truant, you can call him on the phone, go to his home, etc.
3. Take an explanation for his absence.
4. Announce a penalty.
5. Provide information about the applicable punishment in the documents.

Each item is performed after the previous steps are completed. It is impossible to punish immediately without establishing the reasons.

Request for written explanation

The explanatory document is the basis for future collection. After all, the measure that will be applied to the employee as a result of the clarification will depend on its content. The employee is not obliged to write an explanatory note if he does not consider it appropriate or necessary, but it is in his interests to interpret his actions.

The document is written in any form addressed to the director of the organization, indicating the personal data of the absentee on whose behalf it is being drawn up. The main thing in this paper is not the form, but the content. In his own words, the employee explains why he did not go to work at the appointed time. And although this document assumes a laconic statement of facts, it often contains rather emotional statements. If there is any evidence and evidence, it should be collected and attached.

If an employee refuses to give written explanations for his actions, this does not mean that further procedure is impossible. A second act is drawn up about the truant’s refusal to give an explanation and you can proceed directly to the punishment.

Disciplinary action

All disciplinary sanctions, except reprimands, are reflected in the employee’s documents. Before the decision is reflected in the employee’s personal file or other personal documents, an order must be issued. The director's order is the logical conclusion of the absenteeism recorded in the act. It must specify what exactly was established during the inspection and the imposition of what penalty would be appropriate in this case.

It is extremely important to comply with the statutory deadlines for applying official penalties. The measure of responsibility for absenteeism should be established within a month from the moment the offense itself was recorded. These 30 days do not include the time that the absentee was on vacation or sick leave. The established punishment should be applied no later than six months from the date of the truancy. If the case went to court, then the time of litigation is not included in these six months.

Missed deadlines will only indicate that the employer, for some reason, did not want to apply punitive measures, and, therefore, had no claims against the employee.

Termination of an employment contract

Unexplained circumstances of absenteeism, falsification of supporting documents, or long absences will definitely lead to the employee’s dismissal. Sometimes a person can simply disappear for a long time and not give any news about himself, meanwhile the organization is obliged to somehow end relations with him. In some cases, employers do not know how many days they must wait before starting the dismissal procedure itself. There are no minimum terms here. If the management of the organization is confident in absenteeism already in the fifth hour of no-show, then the process should be launched. Sometimes the fact of absenteeism is established later, for example, when a false ballot is submitted.

The contract can be terminated only after evidence has been collected that the absence is unfounded. The more thoroughly an employer prepares, the lower the risk that the decision made will be groundless and the possibility of claims from an unlawfully injured employee.

Who is not subject to dismissal?

Not all truants can be brought to the extreme degree of responsibility and relations with them can be terminated.

Groups protected from dismissal include:

1. Employees who are in a position. This rule also applies to cases where the employer himself has not yet been notified of the pregnancy.
2. Minors. They can be dismissed only with the consent of the Labor Inspectorate and the Commission on Minors' Affairs.

The time spent on vacation cannot be considered absenteeism if the management of the organization wants to recall the vacationer, but he disagrees. In addition, the presence of papers confirming that the absence was justified also does not make it possible to terminate the relationship with the temporarily absent person.

Preparation of an order

After all the circumstances of the case have been considered, the reasons have been clarified, and the decision to terminate the relationship has been made, a dismissal order is issued.

The order must be based on the act drawn up in case of failure to appear, and on the employee’s explanatory note, if any. The director's order states:

1. The essence of the established offense. It is clarified who is a truant, when the absence was committed, for how long the person was absent.
2. Reasons for absence. Here the arguments of the employee himself and the conclusions of management can be given.
3. Established penalty. It is indicated that the truant should be fired under paragraph 6a of Article 81 of the Labor Code of the Russian Federation.
4. The deadline for completing the order is specified.

The truant is familiarized with his signature. If you refuse to sign, information about this is entered into the order and certified by the responsible person.

Making an entry in the work book

The employer has the right to dismiss a person without indicating the real reason for the termination of the relationship, or can make an entry in the work book about the offense committed. Such a note in the work report can seriously harm the employee in his subsequent activities. After all, having such a record, you do not need to count on the trust of the new employer. Many organizations simply refuse to accept unreliable people who have unflattering characteristics.

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

The article will talk about the concept of “absenteeism” according to the Labor Code of the Russian Federation and how to operate with it. How to properly fire someone for absenteeism and how to register an employee’s absenteeism in 2018, as well as what nuances and features apply to forced absenteeism. What limitation periods for providing an explanatory note and drawing up a report on absenteeism apply and whether they include the period of sick leave or vacation.

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When faced with violations of discipline in the form of absenteeism without a good reason, both the employee and the employer can make typical mistakes. The employer - having rudely formalized the dismissal procedure for absenteeism with violations and risking entering into litigation, the employee - without knowing the nuances and rights, has to come to terms with the illegal termination of the employment agreement. The law must be observed. How to correctly record a “crime”, fire a boss for absenteeism and be able to defend in court the correctness of his actions to an employee, we will discuss in the article.

What is considered absenteeism according to the Labor Code of the Russian Federation?

The law says: dismissal under an article for gross violation of Labor Code norms is formalized at the initiative of the employer, on the basis of a corresponding written order (in the T-8 form). One of the disciplinary offenses is absenteeism. The Labor Code of the Russian Federation defines absenteeism as absence from the workplace without good reason throughout the entire shift, regardless of its duration, or for 4 hours in a row without good reason. That is, the duration is from 4 hours to one day. This is recorded in the working time sheet. The report card will become indisputable evidence.

• The fact that the employee is absent from the workplace.

The worker performs his duties in accordance with the job description. It determines the specific place where the fact of absence during the working day is recorded. The Labor Code of the Russian Federation refers to where the workplace is the entire territory of the employing company.

• The time of absence of the employee and the beginning of its countdown (in the time sheet).

Absence from work is a gross violation of the employment contract and entails sanctions in the form of termination of the relationship and dismissal for absenteeism. An article of labor legislation indicates absence from the workplace for more than 4 hours in a row during the working day. In this case, the lunch break does not count. If the employee was not at the workplace without valid reasons and circumstances for a continuous 4.5 hours, which included a regulated lunch, then it is impossible to dismiss the employee under the article for absenteeism on the initiative of the employer. Violated? For this reason, the manager issues warnings, and if these warnings are ignored, a reprimand is issued. To record the moment of arrival, enterprises introduce passes, fingerprint marks or written recording of the actions of arrival and departure.

Reasons for absence from work

Circumstances vary. A worker may not appear due to both significant and insignificant reasons for absence during the working day and must make an explanation.

Valid grounds for absence from work for more than 4 hours in a row (they are documented):

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

Important

What needs to be proven to the employer is the fact of forced absenteeism. To confirm, certificates from the traffic police, utility services, medical institutions, and witness statements are accepted. An explanatory note is also written about the circumstances that forced you to take time off work.

Unexcused reasons for absence from work are other events that are not valid for obtaining leniency from superiors. A specific case of absenteeism without valid reasons and circumstances remains at the discretion of the manager, based on the value and personal characteristics of the employee. A number of reasons for absence during a shift can be forgiven for a good employee. After all, one order can ruin a person’s life.

Dismissal for absenteeism: step-by-step instructions

To avoid further troubles for management, including due to receipt of subpoenas for legal proceedings, it is necessary to comply with formalities in office work and dismiss for absenteeism. It should also be remembered that the period for penalties for the absence of an employee without good reason for more than four hours in a row is limited to 1 month from the date of violation. The dismissal procedure will be as follows:

1. When dismissal for absenteeism, an employee absenteeism report is drawn up. The act of absence of an employee from the workplace (a sample of which can be downloaded) without good reason is a statement of the fact of lateness, indicating and signed by witnesses. To draw up an absence report in all cases, the number, duration of absence from the workplace, as well as the explanation for the absence are recorded. Typically, a document is drawn up after explanations of the reasons have been received. It is better to endorse it immediately.
2. Requiring a written explanation from the employee (explanatory). The absenteeism report is given to the employee upon his appearance at the workplace for review. One of the important rules on how to properly fire someone for absenteeism is to try to get an explanation. In all cases, the employee is given 2 days to do this. The offender either provides a response or refuses to provide one. Lack of feedback from the employee leads to the drawing up of another act of refusal to provide explanations. The signature of witnesses is required.
3. A memo stating that the employee was absent. It is submitted to higher management along with an act of refusal to explain and is a reason for imposing a disciplinary sanction on the employee due to the absence of an employee and drawing up a dismissal order for absenteeism (a sample memo can be downloaded).
   
4. Order of dismissal for absenteeism under article. The issuance of an order due to the absence of an employee occurs after analyzing the precedent. The key role is played by the presence of good reasons, as well as the employee’s status in the company. The order uses standard wording. The document is drawn up on the date preceding the absence, if the employee does not provide an explanation. When receiving explanations qualified as disrespectful, the date of the order will coincide with the day the explanatory note was written. The perpetrator is presented with the order upon signature. The order is certified by the signature of the director.
5. Notice of dismissal for absenteeism. There is a sample document; it is given to the dismissed person within 3 days from the date of drawing up the order for signature. Refusal to familiarize yourself with this is also recorded in an additional recording in front of witnesses.

Registration of a work book: payments

An entry in the labor record upon dismissal for absenteeism completes the dismissal procedure. Entered:

• Record serial number;
• The date of dismissal coinciding with the day of the order;
• Record of dismissal for absenteeism and a link to Article 81 of the Labor Code of the Russian Federation;
• Signature of the personnel officer and seal of the organization.

The book is issued on the last day of work. If the dismissed person fails to appear, a notification is sent to receive a work permit. If they don’t show up for the book, it continues to be stored at the last place of work. It is also possible to send written permission to forward the work report to the place of registration, which will relieve the boss of a fine for withholding the document.

Payments include all salary debts, sick leave, and unspent vacation.

Sickness Bulletin

Filing a claim for termination of a contract for absenteeism due to illness requires not only the provision of a certificate of incapacity for work, but also proof of notification to superiors. If the employee provided a certificate of temporary incapacity for work to the manager, then the court will side with the dismissed person. In this case, not only reinstatement can be assigned, but also compensation for each missed day of work. Deliberate concealment of sick leave will leave dismissal for absenteeism unchanged.

Pregnancy

Absence from work during pregnancy is not uncommon, but is it possible to fire a pregnant woman for absenteeism? The Labor Code is on the woman’s side here; it prohibits the application of Article 81 in relation to a female employee. Exceptions would be violations in educational institutions or liquidation of an 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 he will be compensated for absenteeism through no fault of his. It is calculated like this:

(O cm x 12 months / K rd) x K vp,

Where About cm– average monthly salary,

K rd– number of working days in a year,

To VP,— the number of non-working, forcedly missed days.

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

Typical mistakes of HR specialists

More and more employees are becoming “savvy” in matters of labor relations. This point is often underestimated by personnel officers who cannot formulate it correctly and make mistakes in their work. It's connected with:

• Lack of all necessary papers;
• Inconsistency of dates;
• Lack of timeliness in drawing up the first acts of admission;
• We included vacation and illness during the period of absenteeism.

It is useful to know how to determine the categories of workers to whom you can apply?

FAQ

Didn't go to work after lunch. Is this considered truancy? If an employee was absent for a total of more than 4 hours, then yes, this is a violation of the contract.

Absenteeism from work after a 15-day delay in payment of wages is considered absenteeism? No, labor legislation has established a six-month period after which an employee may not go to work without a good reason if the fee is delayed.

Was absent from work for about 6 hours. He refused to give written explanations. What actions should the manager take in this situation? An act of refusal to explain and a report on the employee is drawn up. She initiates the preparation of a dismissal order.

Is it necessary to search for a missing employee? Necessarily! Search using 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 long does it take to get fired? Dismissal may occur 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 absence was before sick leave? A valid reason, in this case illness, is not an obstacle to paying for a missed day.

The deadline for bringing to disciplinary liability has been violated. In this case, the employee needs to make sure that more than 1 month has passed since the offense was committed and file a claim or contact the labor inspectorate.

For example, a manager, analyzing the discipline of employees, notices from the statistics of arrivals that 2 months ago a certain subordinate did not show up for work. It is impossible to punish him or fire him, because... The statute of limitations has expired.

The rules for dismissal for absenteeism were violated. Any “jambs” during dismissal in the preparation of paperwork allow labor law to be challenged in court.

For example, a notice of termination arrived by mail on December 1, but the dismissal order itself was drawn up on November 20. This is considered a direct violation on the part of management. In this case, the court will side with the employee, since the procedure for dismissal for absenteeism must be strictly followed.

Improper performance of job duties cannot be equated to absenteeism. One of the typical mistakes of personnel officers is dismissal due to absenteeism. . There must be unjustified reasons for absenteeism.

For example, a cleaner was fired for absenteeism because she did not show up to the office and did not clean. Studying the employment contract, the court did not find any specification of the schedule and duration of the shift, which contradicts the concept of “absenteeism from the workplace.” But failure to fulfill job duties here will be the correct wording for dismissal.

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

Is it possible to fire an employee who was not allowed to work for absenteeism? The employment relationship begins after the conclusion of the employment contract and entry into the book.

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

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

When does the court recognize dismissal as legal? Subject to the rules for registering dismissal and the absence of compelling 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 contact management and relied on a certificate of ability to work. Absence within 2 days is qualified as an absence.

What are the features of dismissal of athletes and coaches? The contract between a coach or an athlete is suspensive, i.e. it can be concluded on one date, and the deadline for fulfilling obligations is set later. If before this deadline an athlete writes a statement of his own free will and does not go to work, then the coach does not have the right to fire him for absenteeism. For example, a football player entered into a contract on May 1 with an effective date of June 1. On May 28, he writes a statement, but receives no response. On May 30, he is not counted, which is illegal, because... The contract comes into force only on June 1.

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

The employer's liability for unlawful actions when dismissing an employee for absenteeism. Managers can be fined and brought to administrative liability if their actions caused harm to the dismissed person.

Dismissal for absenteeism: risks for the employer. An employer may be held liable if it violates labor relations standards. For example, if he fires an employee who provides a pregnancy certificate.

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 complete registration without the presence of an employee?? Through written notifications, or in case of refusal to contact. In this case, appropriate acts must be drawn up. Or only in the case of an unknown loss, which must be recognized by a judge.

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In some cases, labor legislation provides for the possibility of dismissal for a one-time commission of a disciplinary offense. So, for example, absenteeism according to the Labor Code of the Russian Federation is absence from work.

What is truancy

It is important to consider that absenteeism is not only absence from work. In the current labor legislation, five types of absenteeism can be distinguished:

• the employee did not come to work and was absent throughout his entire working day (regardless of its specific duration), and he cannot explain his absence with valid reasons. There is no list of valid reasons, and the company has the right to decide for itself whether certain reasons for absence from work are valid. However, the company is obliged to ask the employee for the reasons for his absence and evaluate these reasons. Otherwise, dismissal for absenteeism may be declared unlawful by the court;
• the employee was absent from his workplace for more than four consecutive hours during his working day;
• an employee on an open-ended employment contract submitted a resignation letter of his own free will and did not go to work, ignoring the two-week work period;
• an employee on a fixed-term employment contract does not return to work before the expiration of the contract or the notice period for early termination of the contract;
• the employee used unauthorized days off or went on vacation without permission. This situation is also considered absenteeism if we are not talking about violations on the part of the organization. So, for example, if an employee was legally entitled to rest days, and the organization did not have the right to influence at what time the employee could use them (for example, in the case of donating blood). In this case, dismissal for absenteeism will be unlawful.

Consequences of absenteeism

It must be remembered that dismissing an employee for absenteeism is only the right of the company, but not an obligation. In practice, this means that, depending on the severity of the offense and the degree to which the reasons are valid, the company may decide to apply a lighter disciplinary sanction - a reprimand or reprimand that does not automatically lead to the dismissal of the employee. In the event of a labor dispute, the court will evaluate, among other things, the proportionality of the punishment to the offense.

Registration of dismissal for absenteeism

The dismissal procedure includes several stages:

• registration of an absence certificate.

The act is drawn up in free form, since there is no unified form. The act must contain information about the position and full name of the employee, the time of his actual absence from the workplace, as well as the full name and signatures of the employees who recorded absenteeism, and the time the event was recorded. In practice, the act is signed by three employees;

• finding out the reasons.

The next step in the dismissal procedure is to clarify the circumstances of the absence. Explanations must be received in writing (Article 193 of the Labor Code of the Russian Federation) in free form. The employee will have two working days to do this.
If an employee refuses to sign the notice, then it is necessary to draw up a report using a procedure similar to drawing up a report on absenteeism.
If the employee has not explained the reasons for absence from work after two working days, then this fact must also be recorded in a document;

• application of disciplinary action.

Dismissal in this case occurs according to paragraphs. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation according to the general rules of dismissal. First of all, an order is issued (Form No. T-8) to terminate the employment contract on the specified basis. In addition, it is necessary to draw up a calculation note and make a corresponding entry in the employee’s work book.
However, there are some features of dismissal on this basis. It is possible to dismiss an employee for absenteeism according to the Labor Code if the deadlines are met - no more than a month from the date of discovery of absenteeism and no later than six months from the date of committing absenteeism (

After concluding an employment contract, each employee is required to familiarize himself with the job description, internal regulations of the organization and other local regulatory documents.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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Strictly complying with the norms of both federal and local legislation is the responsibility of every worker. In particular, it is the responsibility of each employee to be present at the workplace during the work schedule established by the schedule.

Definitions

Absenteeism is the absence of a worker from his work place:

• during a full working day, regardless of how long it lasts (5, 6 or 7 hours);
• or 4 hours in a row during the 1st working day.

Legislation

The Labor Code of the Russian Federation regulates under what article dismissal for absenteeism is carried out, the procedure for issuing an order and familiarizing the employee with it, what disciplinary measures, other than dismissal, can be applied, etc.

basic information

Absenteeism is recognized as a gross violation of labor duties, along with:

• the appearance of a worker at work in a state of intoxication;
• disclosure of trade secrets that became known to the worker;
• theft at the place of work or damage to government property;
• violation of safety regulations resulting in the death of workers or other persons through negligence.

For the above-mentioned offenses and for absenteeism, dismissal may be made, or other types of disciplinary punishment may be applied - at the choice of the employer and taking into account the severity of the offense committed / the personality of the offender.

What exactly is considered truancy?

The Labor Code of the Russian Federation states that absenteeism is either absence from work for 4 or more hours in a row, or absence from work at all on any working day.

Article for absenteeism under the Labor Code of the Russian Federation, dismissal

Article of the Labor Code of the Russian Federation for dismissal for absenteeism - paragraphs. “a” clause 6 of Art. . It is this basis that is entered into the work book.

When dismissal on this basis, the Labor Code of the Russian Federation does not indicate any restrictions for the employer on the application of the most severe disciplinary measure - dismissal.

The choice of liability is left to the discretion of the employer, who, taking into account the severity of the offense committed and other factors (for example, repeated absenteeism), imposes:

• or a remark;
• or a reprimand;
• or dismissal.

For example, with the 1st absence, the employer can issue a reprimand, with the 2nd, a reprimand, and only with the 3rd, dismissal, or even with the 1st absence, issue an order to terminate the employment relationship.

Rules and order

The procedure for dismissal for absenteeism includes 2 components:

• imposition of disciplinary punishment in the form of dismissal;
• the dismissal itself.

The 1st procedure proceeds as follows:

1. The fact of absenteeism is recorded by drawing up, which must indicate the names of witnesses (at least 3 people), as well as the specific time and date of absenteeism.
2. An explanation is required from the employee.

This article of the Labor Code of the Russian Federation does not specify the terms of dismissal for absenteeism, but it seems that the date specified in the order will be the final date of dismissal.

First of all, the manager issues an order to terminate the employment relationship in a single or form of organization, which indicates:

• date of conclusion of the employment contract and expiration of its validity;
• Full name of the offending employee, his position, name of the structural unit where he worked;
• grounds for termination of relations (entry in the labor record) – paragraphs. “a” clause 6 of Art. Labor Code of the Russian Federation;
• documents confirming absenteeism (memorandum of absence from work, etc.);
• signature of the head of the company and transcript.

At the request of the employee, an order in the company form or T-8 must be issued to him, having previously certified the document.

At the final stage of the procedure, a final settlement is made with the employee.

Absenteeism was forced

Forced absenteeism is recognized as a worker’s lack of actual opportunity to report to work.

List of such possible cases:

• illegal dismissal;
• conclusion of an employment contract not within the established deadlines;
• execution of a court verdict on reinstatement at work was not carried out on time;
• the employer entered incorrect wording into the work book, which prevented the employee from taking another job.

There is a reprimand for absenteeism

Dismissal for absenteeism is possible, but is applied only in exceptional cases - for example, if an employee has performed poorly at his place of work, constantly violated labor discipline rules, or otherwise failed to comply with the requirements of his immediate superiors.

If the worker has skipped work for the first time, has a good reference at the place of work and has never previously been noticed in violating local labor rules, the head of the company may limit himself to a remark or reprimand.

The procedure is the same as for dismissal, that is:

• first, the employer requests a written explanation from the employee;
• waits 2 days;
• if after this time the explanatory note has not been submitted, a corresponding act is issued;
• further, no later than 30 days from the date of absenteeism, issues an order to impose a reprimand, which the worker must familiarize himself with within 3 working days, confirming familiarization with his signature.

After a reprimand is issued, the employee will be considered subject to disciplinary liability for 1 year (Article of the Labor Code of the Russian Federation).

The employer has the right to remove the penalty even before the expiration of 1 year:

• at your own request;
• at the request of the employee himself;
• at the request of the employee’s immediate superior or trade union.

Consequences of a reprimand

The consequences of imposing a reprimand, other than dismissal for subsequent tardiness or other violations of internal regulations, are not defined by the Labor Code of the Russian Federation. In particular, it is not indicated whether the employee will be deprived of bonuses and other material incentives during the period of the reprimand.

Absenteeism is one of the grounds for termination of an employment contract at the initiative of the employer (). Let us remind you that absenteeism means the absence of an employee from the workplace without good reason for more than four hours in a row or throughout the entire working day (shift), regardless of its duration. The employer has the right to regard the following circumstances as absenteeism (clause 39 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 No. 2 ""; hereinafter referred to as the Resolution of the Plenum of the RF Armed Forces No. 2):

• abandonment of work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the contract, as well as before the expiration of the two-week warning period ();
• abandonment of 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 warning period for its early termination (,);
• unauthorized use of days off, as well as unauthorized going on vacation.

Despite the apparent transparency of these provisions, employers, and sometimes the courts, to this day are at an impasse when deciding whether certain actions of an employee constitute absenteeism. And often the conclusions they come to turn out to be hasty.

Let's look at several specific cases of dismissal of employees for absenteeism, as well as the reasons why employers should not have made such a decision.

How voluntary dismissal turned into absenteeism

On November 1, 2013, D. submitted to her employer, individual entrepreneur K., a letter of resignation of her own free will. Based on the provisions, the employee believed that she was subject to dismissal after the expiration of the 14-day period, that is, November 15, 2013. This day was D.’s last working day, but no payment was made to her and no work book was issued. On November 18, she already began working for another employer. However, the entrepreneur considered that the employee continued to work for him even after the notice period for dismissal had expired. Therefore, when on December 6, 2013, D. demanded that a work book and other work-related documents not issued on the last day of work be sent to her, she received a response that the employment relationship with her had not been terminated, and, therefore, the requested documents cannot be given to her. And in February 2014, the employer still fired her, but for absenteeism, having issued a corresponding order.

Find out about the specifics of the procedure for dismissing an employee who is not at work from the material
"Dismissal of an absent employee for absenteeism" in the Encyclopedia of Solutions Internet version of the GARANT system.
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D. considered these actions illegal and filed a lawsuit in which she asked to recognize the dismissal for absenteeism as illegal, to oblige K. to issue an order to dismiss D. at his own request on November 15, 2013 and to recover from the former employer all payments due, as well as compensation moral harm.

The court of first instance refused to satisfy the claims (decision of the Frunzensky District Court of the city of Saratov dated April 17, 2014 in case No. 2-1209/2014). At the same time, he was based on the time sheet submitted by the employer, according to which D. worked for K. until November 19, 2013 inclusive. The court emphasized: since after the expiration of the notice period the employee continued to work for K. and did not insist on dismissal, this gave the employer the right to continue the employment contract (). And, therefore, D.’s further failure to show up for work was rightfully interpreted by K. as absenteeism.

The employee did not agree with this position and filed a complaint with a higher court, demanding that the decision be overturned. And the appeal sided with D. ().

The court indicated that from the contents of the working time sheet for November 2013, it is impossible to reliably establish the fact of D.’s attendance or absence from work, since there are contradictions in this timesheet: after November 15, 2013, on the days from November 20 to 23 and from November 25 to On November 29, 2013, along with an indication of the plaintiff’s attendance at work, there is also information about absenteeism. In addition, the time sheet is not indisputable confirmation of the plaintiff’s performance of work after November 15, 2013, and the employer did not provide other evidence.

The Court of Appeal also recalled that an employee has the right to terminate an employment contract on his own initiative by notifying the employer in writing no later than two weeks in advance, unless a different period is provided by law (). The specified period begins the next day after the employer receives the application from the employee. By agreement between the parties, the employment contract can be terminated earlier. Thus, the defendant, having received a resignation letter from D. on November 1, 2013 and without agreeing with the employee on a different period, should have issued an order to dismiss the plaintiff on November 15, 2013, that is, after the expiration of the two-week notice period. In addition, since the employee did not show up for work and had already found another job, there was no reason to believe that she did not insist on dismissal. Therefore, the court indicated that D.’s failure to show up for work after November 15, 2013 cannot be considered absenteeism.

In this regard, the court overturned the earlier decision and satisfied the plaintiff’s demands to impose on K. the obligation to issue an order to dismiss D. at his own request on November 15, 2013, as well as to pay 10 thousand rubles. for compensation for moral damage.

OUR HELP

Conventionally, absenteeism can be divided into two groups: short-term (when an employee, for example, after missing one or several working days, appears at his workplace or does not appear, but can be contacted by phone) and long-term (when you find the employee and ask him for an explanation does not seem possible).

In the first case, everything is simple. The main thing is to comply with the requirements and, before applying a disciplinary sanction, request an explanation from the employee in writing. In case of refusal, a corresponding act must be drawn up. At the same time, the employee’s refusal to give an explanation is not an obstacle to dismissal, but in this case it would not be superfluous to take written testimony from colleagues and the immediate supervisor about the employee’s absence from the workplace. And after this you can draw up a dismissal order.

In the second case, it is not worth dismissing an employee without finding out the reasons for his absence from the workplace. The fact is that if the reasons for absence are subsequently recognized as valid, the court will reinstate the employee at work and oblige the employer to pay all amounts due to him, including the average earnings for the period of forced absence. To resolve this situation, you can send the employee a letter by mail (with a notification and a list of attachments) asking him to explain the reasons for his absence from the workplace. If the employee cannot be found, a report should be drawn up about this. At the same time, a record of the employee’s absence due to unclear circumstances should be entered into the work time sheet. Reports from the immediate supervisor of the absent employee confirming the fact of absence are important. If, nevertheless, the whereabouts of the employee are not established, he can be dismissed as missing (), if the corresponding decision is made by the court.

How an employer’s lack of sick leave from a pregnant employee resulted in dismissal

On July 27, 2012, N. registered with the antenatal clinic due to pregnancy, and three days later she notified the director of the enterprise by mail. It later turned out that this letter did not reach the addressee and was returned to the sender. In addition, in the period from August 2 to August 10, 2012, the employee was on sick leave, which she presented to the employer. Subsequently, N. repeatedly received certificates of incapacity for work, which she sent to management by mail, but none of them reached the employer. Due to the fact that N. was absent from the workplace for a long time, the management of the enterprise sent her a notice of the need to report to work to provide explanations. Having received this notification, the employee never showed up for work and did not provide supporting documents for her absence from the workplace. The employer recorded in the report the fact that there was no written explanation from the employee and issued an order to dismiss N. for absenteeism. The employee learned about this from a letter she received on April 12, 2013, signed by the director of the company.

N. considered that the employer had violated the ban on dismissing a pregnant woman at the initiative of the employer () and went to court with a demand to reinstate her at work.

The court of first instance refused to satisfy the stated requirements (decision of the Oktyabrsky District Court of Krasnodar dated October 8, 2013 in case No. 2-668/2013). The court confirmed that N. handed over her sick leave to her employer for the period from August 2 to August 10, 2012, but emphasized that no explanations were received from her about the reasons for her absence before and after these dates. In addition, the employer did not have information about the plaintiff’s pregnancy. In this regard, according to the court, there was N.’s abuse of his right (), and since the defendant fully complied with the procedure for dismissing an employee for absenteeism, this gave him the right to apply this disciplinary sanction to N.

The court of appeal upheld the judicial act issued without change ().

N. decided to defend her position in the cassation instance and filed a complaint with the Supreme Court of the Russian Federation, which agreed with the plaintiff’s demands ().

The Supreme Court recalled the position of the Constitutional Court of the Russian Federation, which at one time noted that the rule prohibiting the dismissal of pregnant women at the initiative of the employer is intended to ensure the stability of the position of such employees and their protection from a sharp decline in the level of material well-being due to the fact that the search for a new job for them difficult during pregnancy (). The RF Supreme Court also added that in the event of a gross violation of her duties by a pregnant woman, she can be subject to disciplinary action with the use of disciplinary sanctions other than dismissal.

In addition, the law does not make the possibility of dismissing a pregnant woman dependent on whether the employer was notified of her pregnancy or not (clause 25 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of January 28, 2014 No. 1 "").

This became the basis for the cancellation of acts issued by the courts of first and appellate instances, and the case was sent for a new trial.

How part-time work for another employer was taken for absenteeism due to delayed wages

D. worked at P.’s plant from January 13 to April 18, 2014. Due to the delay in payment of wages, he decided to look for other sources of income. On April 10, 2014, D. wrote to the general director of the plant asking for leave without pay because he had found a part-time job with another employer. However, he did not receive the consent of the manager and the leave at his own expense was not formalized in the prescribed manner. Despite this, the employee did not show up for work. D. also did not provide management with an application for suspension of work due to delayed salaries (). In this regard, the employer considered the employee’s absence from the workplace to be absenteeism and fired him in compliance with the procedure prescribed by law ().

Disagreeing with the management’s decision, D. filed a lawsuit to reinstate him at work, recover wages for the period of forced absence and compensation for moral damage.

The court of first instance rejected D.'s claim (decision of the Sovetsko-Gavansky City Court of the Khabarovsk Territory dated May 20, 2014 in case No. 2-604/2014). He motivated his position by the fact that D. was absent from the workplace without good reason, having arbitrarily left the workplace before the start of the work shift.

However, the prosecutor did not agree with this position and prepared an appeal, in which he asked the court to cancel this decision. But the appellate court did not satisfy the prosecutor’s proposal (appeal ruling of the judicial panel for civil cases of the Khabarovsk Regional Court dated August 8, 2014 in case No. 33-4885/2014). But the cassation found the prosecutor’s position justified, canceled the previously issued judicial acts and sent the case for a new trial (resolution of the Presidium of the Khabarovsk Regional Court dated April 13, 2015 in case No. 44-g-26/2015). Reconsidering this case, the appellate court came to the following conclusions ().

When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account (). The question of whether the violation committed was gross is decided by the court, taking into account the specific circumstances of each case (). And the responsibility to prove that such a violation actually took place and was of a gross nature lies with the employer.

The employer did not dispute the fact of untimely payment of wages to employees. On the contrary, at the court hearing he explained that the company was in a difficult financial situation, which resulted in a delay in paying wages. As the court emphasized, mandatory remuneration is enshrined in current legislation. Moreover, the Labor Code of the Russian Federation, prohibiting forced labor, names as one of its signs the violation of established deadlines for payment of wages or payment in an incomplete amount (). And since the employer did not fulfill his obligations to timely and fully pay wages to the employee, a disciplinary sanction in the form of dismissal, even despite the absence of an application for suspension of work due to delayed wages, was applied to D. without taking into account the gravity of the offense he committed and the circumstances of it commission.

As a result, D.'s demands for his reinstatement were satisfied. In his favor, the average earnings for the entire period of forced absence were recovered, as well as compensation for moral damage.

How a wedding became the reason for dismissal

Since February 21, 2008, S. worked in the company R. The collective agreement in force in the company provided for the provision of leave to employees on the occasion of marriage registration of up to five calendar days, one of which was provided with payment in the amount of the tariff rate (salary), and the rest - without pay wages. S. verbally warned his immediate superior about his absence from work due to the registration of his marriage. However, as soon as the employee returned to work, he was required to provide a written explanation of the reasons for his absence, and then he was fired for absenteeism.

Believing that the dismissal was illegal, S. filed a lawsuit to reinstate him at work and collect wages for the period of forced absence, as well as compensation for moral damage.

As the court found, the basis for S.’s dismissal was his absence from work without a valid reason, since he never provided a written notice of the need to take time off due to marriage registration. In this regard, the court of first instance sided with the employer and rejected the claim (decision of the Zheleznodorozhny District Court of Khabarovsk dated April 1, 2015 in case No. 2-1303/2015).

S. appealed to the appellate court, which took a diametrically opposite position ().

The court noted that, in accordance with the terms of the collective labor agreement, the plaintiff could not be denied leave on the occasion of marriage registration. The absence of written notification to the employer of absence from the workplace due to personal circumstances does not in itself constitute grounds for bringing the employee to disciplinary liability, since violation of this procedure does not exclude the employee from having a valid reason for absence. In addition, as a result of the plaintiff’s misconduct, there were no negative consequences for the employer. Considering that S. had not previously been brought to disciplinary liability, the court concluded: his dismissal was carried out without taking into account the circumstances that caused his absence from work and the severity of the offense committed.

As a result, the dismissal was declared illegal, S. was reinstated in his position, and the employer was obliged to pay the employee the average salary for the period of forced absence, as well as to compensate for the moral damage caused.

Since the employer’s obligation to provide an employee with unpaid leave in connection with marriage registration is provided for by law (), the court’s findings apply to all cases of absence from work due to one’s own wedding - regardless of whether the relevant provisions were enshrined in the collective agreement.

Thus, even if there are signs of absenteeism, the court may declare the dismissal illegal. When making a decision, it will not be the formal circumstances (for example, the absence of sick leave or a written application for leave), but the actual ones (the expiration of the notice period for voluntary dismissal, pregnancy, delayed wages, wedding and other valid reasons for the employee’s absence from work) that will be significant. .