Scheme of dismissal for absenteeism. How is absenteeism formalized and what are the subtleties in different situations?

In our work practice, more than once we either had a question or even “had our hands itching” in a situation where an employee did not go to work (was absent) and such an action was performed more than once, maybe even periodically. In this case, this will be a disciplinary sanction and he can be held accountable, but how to do this and how difficult is it? Let's consider the solution to this issue and step-by-step actions.

To begin with, we can say that dismissing for absenteeism is more difficult than talking about it and for this it is necessary to carry out a number of actions and steps, record the grounds, because in the event of your unlawful actions, the employee can contact the labor inspectorate and judicial procedure challenge your actions.

Perhaps, if you have such a conflict, you will still reduce it to dismissal at will, sometimes it’s easier, but if you want to persuade an employee, then let’s start explaining.

First of all, it should be noted that dismissing an employee for absenteeism and such an entry in the labor record is always bread for conflict situation, therefore, you need to secure an evidence base, the larger it is, the better - acts of absence of the employee, letters to the employee home (be sure to send with a list of attachments), drawing up acts of refusal to sign documents, collect everything you can and attach it to the file.

Step-by-step instructions - dismissal for absenteeism

Step 1. Drawing up an employee absence report

In order for there to be a basis for dismissal for absenteeism, it is necessary to record this fact so as not to be unfounded - you need an evidence base in case the employee goes to the labor office or court. If an employee is absent during the entire working period (shift) or if he is absent from work for more than four hours, a report is drawn up. Moreover, regardless of the duration of this working day or shift (Article 81 of the Labor Code of the Russian Federation, subparagraph “a”, paragraph 6, part 1).

For each fact, it is necessary to draw up a separate act of absence, which displays the date and time of the employee’s absence. The document must be signed by the commission: immediate superior, employee personnel service, you must also have at least 2, preferably 3, independent witnesses. The day of signing this document is the day the fact of absenteeism was discovered (according to the resolution of the Plenum of the Supreme Court, paragraph 6 of paragraph 34 of March 17, 2004).

Attention! It is necessary to have witnesses when signing all documents recording the facts of the employee’s absence, otherwise the court may regard this act as unreliable.

In order to calculate the period of absence from work, the date of signing the certificate of absence from work is taken into account. If an employee is absent for several days (called long-term absenteeism), then the day of detection will be considered the day of clarification of the reasons why he was not at the workplace.

In order for the basis to be confirmed, the employee must provide an explanation of the reason why he was absent from the workplace.

Step 2. Finding out the reasons for absence from work

After the employee does show up at work, it is necessary to demand from him an explanation of the reason for his absence from work, because it happens that the situation is truly extraordinary and he had good reasons for this.

But oral stories are not enough; it is necessary to demand an explanation in writing and also make a requirement that it is necessary to give an explanation, drawn up on paper, on which the employee must sign.

If an employee refuses to sign and provide an explanatory note, a document about this is also drawn up - according to the Labor Code of the Russian Federation, Part 1 of Art. 193.

From the moment the employee is given the request (drawing up a refusal act) to write an explanatory note, he has 2 days to do this; if he has not provided you with an explanatory note, this should also be reflected in the document (Part 1 of Article 193).

In the event that an employee refuses to write an explanatory note and you have confirmation of this fact, as well as if the reasons for his absence are not valid and he has not convinced you, it is necessary to issue an order (), meaning termination of employment with him labor activity, stating the reason for termination for absenteeism.

The employer also has the right to impose an additional penalty on a negligent employee disciplinary action(reprimand, reprimand or dismissal) through . In case of dismissal, the fact of imposing a disciplinary sanction must be reflected in the dismissal order (in accordance with).

Important! The reasons for the employee’s absence should be assessed, because if he, for example, sought emergency medical care in case of illness of a minor child, this fact is recognized as a valid reason.

Step 3. Order of dismissal

After making a decision to dismiss an employee, it is necessary to draw up an order in the T-8 form, and there are time limits (Article 193 of the Labor Code of the Russian Federation):

• This measure can be applied no later than a month from the moment you discovered this fact (drawing up an act), while you do not take into account the time of illness, vacation, and the time that is necessary to take into account the opinions of the representative body of employees is not taken into account.
• You cannot apply if more than 6 months have passed since the action was taken or if audits, activity checks, audits have been carried out - no more than 2 years. Here it should be understood that a truancy report was not drawn up, i.e. revealed this crime for the first time according to these actions. This time does not include the time of the criminal proceedings.

Attention! On the day when the dismissal order was issued, it is necessary to familiarize the employee with it and obtain a signature on familiarization on the document. If the employee refuses to read and sign the order (Part 2 of Article 84.1 of the Labor Code of the Russian Federation), it is drawn up for familiarization (Part 6 of Article 193 of the Labor Code of the Russian Federation), also as part of a commission and 2-3 witnesses.

Step 4. Issuance of documents and full payment to the employee

Do not forget that in any case it is necessary to pay the employee and pay him the amounts due upon dismissal according to current legislation– and for the days worked in the month. Payment is made on the last working day.

When dismissing an employee, it must be calculated on the last working day.

Afterwards you need to give it to the employee work book and get a signature in the work record book if the employee is at the workplace.

If an employee refuses to receive a work book (or is absent from the workplace), an act of refusal is drawn up in the composition of the commission and the presence of at least 2 witnesses. You should send a letter with a list of attachments stating that it is necessary to appear for the labor document or agree to send it by mail (parts 4-6, article 84.1 of the Labor Code of the Russian Federation).

In the case of a work record being received by a proxy, it should be noted that a power of attorney, even if notarized, is not a legal requirement of the employee unless it has been stated that the proxy has the right to receive a work record book. It is necessary to make a power of attorney and attach it to the case, you also need to take a handwritten receipt from the authorized person about the fact of receiving the work permit and obtain a signature in the labor registration journal and in the employee’s personal card with a link to the power of attorney. Attach all documents to the employee’s personal file!

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One of the grounds for termination employment contract at the initiative of the employer is the commission by an employee of a one-time gross violation labor responsibilities, in particular absenteeism (subclause “a”, paragraph 6 of Article 81. However, directly upon dismissal of the offender, personnel service employees are faced with a number of questions regarding the procedure for dismissal and proper registration necessary documents wherein.

The concept of absenteeism is disclosed in paragraphs. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation, where absenteeism is understood as 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 a working day day (shift). In paragraph 39 of the resolution of the Plenum Supreme Court RF dated March 17, 2004 N 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" lists specific cases that should be considered absenteeism:

• 1. absenteeism from work without good reason, i.e. absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);
• 2. the employee is outside the workplace without good reason for more than four hours in a row during the working day;
• 3. 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;
• 4. 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 notice period for early termination of the employment contract;
• 5. unauthorized use of days off, as well as unauthorized departure on vacation (main, additional).

So, the employee is caught in one of the above offenses. What should HR representatives do next? First of all, it should be noted that absenteeism can vary. Conventionally, they can be divided into two groups: short-term ones with determination of the location of the guilty employee (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 absenteeism, in which It is not possible to find an employee and request an explanation from him (for example, the employee left work, in his place permanent residence There is no information about him, he does not provide any information about himself to work, and does not answer calls).
In the first case, everything is simple. Since dismissal under Art. 81 of the Labor Code of the Russian Federation is a disciplinary sanction, it is necessary to comply with the requirements of Art. 193 of the Labor Code of the Russian Federation. According to this article, before applying a disciplinary sanction, the employer must request an explanation in writing from the employee. If the employee refuses to give the specified explanation, a corresponding act is drawn up. At the same time, the employee’s refusal to give an explanation is not an obstacle to applying a disciplinary sanction, 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, without forgetting to properly document them. After this, an order is drawn up in form N T-8 (“Order (instruction) on termination (termination) of an employment contract with an employee (dismissal)”), approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1.
In the second case, it is not worth dismissing an employee without finding out the reasons for his absence from the workplace (although some employers do this). The fact is that if the reasons for absence are subsequently found to be valid, the court will reinstate the employee to the workplace and oblige the employer to pay all amounts due to him, including forced absenteeism. At the same time, another person will already be working in place of the improperly dismissed employee, and when deciding what to do next with the latter, difficulties may arise (either increase staffing levels, or transfer to vacant positions). In such a situation, it is better to hire an employee on the basis of replacing a temporarily absent main employee, and after all the circumstances have been clarified, the contract can be transformed into a permanent one.
To resolve this situation, it is necessary to make every effort to find the employee and get an explanation from him. To do this, you can send a letter to his home address or the address of his actual place of residence (with notification and a list of attachments) with a request to explain the reasons for absence from work. If this does not bring any results, you can apply to the police for a search. 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 working time sheet, since wages are calculated on the basis of this data. Of no small importance for proving the absence of an employee from the workplace are reports from the immediate supervisor and other employees who can attest to the fact of absence. All these documents will help in justifying the dismissal if the employee nevertheless appears and cannot confirm the justification of his absence.
If, nevertheless, it is not possible to find the employee and his relatives do not know his whereabouts, the Labor Code of the Russian Federation provides for a special basis for terminating the employment contract - the death of the employee or the employer - individual, as well as recognition by the court of an employee or employer - an individual as dead or missing (clause 6 of Article 83). According to the rules of Art. 42, according to the statement interested parties(in our case - the employer) a citizen can be recognized by the court as missing if during the year there is no information about his place of stay at his place of residence.
When applying a disciplinary sanction, it should also be borne in mind that it can be imposed no later than one month from the date of discovery of the misconduct. It is important to take into account that judicial practice has developed the concept of “continued absenteeism,” which assumes that the moment of detection of absenteeism is not the day on which the employee’s absence was discovered, but the moment the reasons for his absence are clarified. It is at this moment that the offense is considered completed and discovered.

Roman Larionov, legal consultant at Garant company

According to the legislation of the Russian Federation, it is possible only in the event of a failure to appear or absence of a specialist at the place of implementation of his professional activity throughout the day or more than 4 hours without a break. A day here is considered the entire length of working time during a day or shift.

If we consider the situation in more detail, then before deciding whether it is possible to fire a specialist for absenteeism, it is necessary to establish the reasons why the absentee did not arrive at work. From their character it can be concluded whether it will be possible dismissal for absenteeism.

In such an unpleasant situation, the main signs of a person committing a wrong act are:

• a person’s absence from the place of performance of his professional functions;
• the duration of such time period;
• the circumstances that led to this.

The main factor in such situations is, first of all, the unreasonableness of the reason why the person disappeared. That is, a situation that does not prevent the missing person from arriving at the organization and conscientiously fulfilling his duties. functional responsibilities.

Duration of employee absence and its impact on the choice of disciplinary action

It is important for the employer to record the duration of the worker’s absence from the workplace.

Since the law provides for the possibility of dismissal due to absenteeism only in the absence of an employee for more than 4 hours in a row, dismissal for absence for 3.5 hours, as well as being late, is no longer allowed. A separate article of the labor code on dismissal for absenteeism— subparagraph “a” of paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation.

In this case, disciplinary sanctions stipulated by part 1 of Article 192 of the Labor Code of the Russian Federation may be applied to the employee for committing an offense. This is a reprimand, reprimand and termination of employment relations, i.e. dismissal.

In addition, it is not allowed to sum up the time of a worker’s total absence, for example, over several days, for individual hours of delay (morning, afternoon) or those associated with leaving earlier than expected.

Dismissal due to absenteeism is considered to be the rights of the employer, and not its responsibilities. Therefore, if there is a fact of absenteeism, he can apply one of the types of disciplinary sanctions against the employee or not apply anything at all.

Short-term absence

The employee is absent from work for a period of time or several days. In this case, you can establish contact with the employee, for example, by telephone.

Long-term absenteeism

The employee is absent from the workplace for a long time, and it is impossible to contact him in any way (he does not answer phone calls, correspondence does not reach the specified address). The reasons for the absence are also unknown to the employer and there is no way to establish them.

Forced absenteeism

Dismissal for absenteeism is not allowed if it is considered forced, that is, if the employee does not have the opportunity to start work or show up for work. workplace due to the fault of the employer. Such cases include:

• illegal dismissals or transfer of an employee to another position;
• untimely conclusion of an employment contract;
• non-execution or untimely execution of a court decision on reinstatement;
• incorrect wording about the reasons for dismissal in the employee’s work book, which prevents him from going to another job;
• failure to provide or untimely provision of a work book after dismissal.

How to fire someone for absenteeism retroactively

Labor law prohibits dismissal on a previous date. However, if an employee is absent for quite a long time and there is no way to establish or find out the reason, then his dismissal is permitted retroactively. In this case, the last day of his work will be considered the day of dismissal. This data must be reflected in the time sheet. Retroactive dismissal is also permitted in the event of the untimely death of an employee.

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 may unconditionally terminate labor Relations with the intruder.

The reason for absenteeism must be valid.

Dismissal for absenteeism: step-by-step procedure, diagram

Dismissal for absenteeism step-by-step instruction employer:

1. An absence from work report is drawn up. The act is drawn up in any form and must be certified by at least 3 witnesses. Each day of absenteeism is documented in a separate document.
2. Requesting an explanation from an employee for the fact of absenteeism - on the day he returns to work, give a notice requesting a written explanation for the fact of absence from work. Employee Labor Code 2 working days are provided to provide explanations indicating valid reasons for the offense committed. In case of failure to provide an explanatory note, an act is drawn up, which is signed by the compiler himself and at least 3 witnesses.
3. A memo is drawn up about the fact of absence from the workplace - written in any form. An explanation for the fact of absence from one's place is attached to the note.
4. An order of dismissal for absenteeism is issued - it has unified form and must be properly executed.
5. The order is recorded in the personnel order log.
6. A payslip is drawn up with the employee, which has a unified form. Full payment is made on the last day of dismissal.
7. The HR department informs the employee of the dismissal order within 3 working days against signature. To be on the safe side, it is important to draw up, along with the order, an act of refusal to sign in order to familiarize yourself with this order. The act is signed in the presence of the employee by the compiler himself and 3 witnesses.
8. A record of termination of the employment contract is made in the personal card. This document is signed by the HR officer and the employee. If he refuses to sign, a corresponding entry is made on the card.
9. Making an entry about the termination of the employment contract in the employee’s work book.
10. Issuance of a work book - the employer is obliged to issue a work book on the day of dismissal with an entry about the dismissal. The issuance is confirmed by an entry in the work book movement book. If issuance is impossible, the employer sends it to postal address with notification of delivery to the addressee.
11. The employee is paid in full for work on the last day of dismissal, and also paid for days unused vacation.

Learn more about how to fire someone for absenteeism correctly in the following video:

Recording the fact of absenteeism

All actions regarding these facts begin from the moment the violation itself is discovered. There are several ways to do this.

Firstly, direct detection. This means that the specialist was not found at the place of work during the entire duration of the shift. In practice, this method is used by immediate managers.

Secondly, not passing the security post. Every organization has such points equipped with special technical means control.

Thirdly, video recording Lately Video surveillance tools are very popular. Such materials make it possible to establish exactly when a person arrived and left the territory of the enterprise. The last method is perhaps the most reliable, since it allows you to determine the time of absence with an accuracy of the minute.

Drawing up an act

The next stage of the procedure is the preparation of the necessary documentation. In order to actually confirm non-arrival, you must fill out the appropriate paper.

It is drawn up in writing, on a standard form or on a regular sheet. Many people have no idea how to draw up such a document.

The text itself is written by hand in free form. Errors and corrections are not permitted, but it must reflect the following information:

• place and date of compilation;
• information about the compiler and those present;
• time period of absence;
• personal signatures of those who took part in the design.

The specified paper must be drawn up without fail. In most cases, the absentee will have a very real reason to complain that he was fired incorrectly for absenteeism. He will have the opportunity to recover and continue walking.

A KT N 1
absence from work without good reason
more than 4 hours in a row during a working day (shift)

Time for drawing up the act: 18 hours. 20 minutes.

Senior economist finance department Petrushov K.D. in the presence of chief accountant V.P. Skuratova and accountant of the 1st category of the settlement department Kirova G.L. has drawn up this act on the following:

April 25, 2016 Accountant of the 2nd category of the settlement department S.N. Vasilieva was absent from work at Saratov, st. Lenina, 25, office. 19 from 09 o'clock. 45 min. until 18 o'clock 00 min., including lunch break from 12 noon. 00 min. until 13 o'clock 00 min. - during the working day. (total 8 hours 15 minutes).

Vasilyeva S.N. requested to provide a written explanation within 2 business days.

Signatures of the persons who drew up the act:
______________/Petrushov K.D/
_____________/Skuratova V.P./
_____________/Kirova G.L/
I have read the act ___________/Vasilyeva S.N./

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.

Employee notification

The notice will allow the employer to avoid problems and serves as evidence of compliance with the formalities of the dismissal procedure.

In the absence of such a document, the employee has legal grounds to go to court to challenge the employer’s decision.

Notification structure:

• name of the employing organization;
• information about the employee;
• grounds for drawing up the notification (reason);
• date, signature of the head of the organization.

The document must be drawn up in writing and reflected in local logs of internal documentation.

The notification must be in 2 copies - for the employer and the employee, respectively.

The employee to whom the notice is sent puts a note on it about familiarization, signature and date.

Document form:

Filling example:

Request for an explanatory note from the employee

Before reporting to the manager about the misconduct, the dismissed person is invited to a conversation and gives his explanations for the time he missed. Required condition holding such a meeting is the person's explanation. According to Article 193 of the Labor Code of the Russian Federation, an explanation must be provided by a person no later than two working days from the moment it is requested.

It must be in writing, in your own hand. The text states:

• date and place of conversation;
• information about the person - name, when he was born, where he lives, what position he holds;
• the period of absence from the company, that is, how many days did not appear at the place of work;
• circumstances that became an obstacle to attendance;
• personal painting.

A person is obliged to draw up such a paper upon the first request of the manager. However, cases of refusal are not uncommon. Such an act must be reflected in the appropriate document.

Employee refusal act

Mandatory preparation of a document is implied in the case where the employee did not provide or refused a written explanation of the reason for his absence.

• Title of the document;
• information about the employee who refused to provide an explanatory note;
• place of compilation, date;
• information about the originator and witnesses;
• descriptive part (what date, why and in what way a written explanation was refused);
• signatures of all parties, including the employee who made the refusal.

If the employee for whom the act is drawn up refuses to leave his signature on it, the drafters of the act make a corresponding note and sign on it again.

Order of dismissal

The manager formalizes his decision on the materials studied in the form of an order. He must perform this action. The whole point is that the order is the very basis for terminating working interaction with a subordinate.

It is on this that the company’s entire position regarding the commission of an offense is based. Without it, cessation of activity will be impossible. In most cases, the text of the order is reflected on the organization’s letterhead.

It initially contains information about the full name of the company, its location, contact information and Bank details. If such forms are not available, it is allowed to compose the text on a regular sheet, but the entire the specified information will need to be reflected.

The person must be familiar with the text of the decision, about which he puts a personal signature directly on the order. One copy is handed over to HR and accounting specialists for execution.

In accordance with Article 193 of the Labor Code of the Russian Federation, the use of such a measure is allowed no later than one month from the moment the offense is discovered, and the order itself is presented for review no later than three working days from the date of its execution.

Example of an order:

JSC "Meridian"

ORDER No. 41-P dated 04/03/2016
on termination of an employment contract with an employee (dismissal)

Terminate the employment contract dated August 15, 2001 No. 43, dismiss on April 3, 2016.
Kondratyev Petr Afanasyevich (Table No. 318), senior expert-analyst of the Analytics and Financial Monitoring Department for a single gross violation of labor duties by an employee - absenteeism, subparagraph “a” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation.

Grounds for termination of the employment contract: order “On the application of disciplinary sanctions in the form of dismissal” dated March 20, 2016 No. 24-k

Head of the organization ________________ F.L. Stepantsov
The employee is familiar with the order (instruction) ________ P.A. Kondratiev
04/03/2016

Entry in the work book

The entry is made like this:

1. Column 1 – record number.
2. Column 2 – date (day, year, month).
3. Column 3 – a record of this dismissal, noting the reason and article number of the Labor Code.
4. Column 4 – date and order number.

Union Notice

Request reasoned opinion trade union becomes mandatory upon termination of an employment agreement for absenteeism, if the subordinate was among the members trade union organization(Part 2 of Article 82 of the Labor Code of the Russian Federation) and was found to have repeatedly failed to perform the labor functions assigned to him without extenuating circumstances or in the presence of several disciplinary sanctions.

All other cases, even if the employee is a member of a trade union, do not require a request for a reasoned opinion primary organization workers.

The procedure for dismissal for absenteeism: estimated payments

Upon dismissal due to absenteeism, an employee can count on cash payments in general procedure, namely:

• receiving a payment for the days actually worked;
• monetary compensation for days of unused vacation;
• sick leave payment (if the employee was sick and provided sick leave before dismissal).

In addition, upon dismissal for absenteeism, an employee has the right to compensation for travel and other expenses. business expenses losses incurred before the dismissal order was issued. To avoid delays and red tape, the employee should take care in advance to provide advance reports and documents confirming expenses.

Specialist of the financial monitoring department of Znamya JSC Kurchenko G.L. 03/21/2015 dismissed for absenteeism. Kurchenko’s salary for the period 03/01/2015 - 03/21/2015 amounted to 14,380 rubles, including bonuses of 3,740 rubles. In the period from 03/05/2015 to 03/07/2015, Kurchenko was on a business trip to Astrakhan, where he incurred expenses in the amount of 4,120 rubles, for which he provided a corresponding report. Kurchenko also transferred sick leave to the accounting department of Znamya JSC for the period 03/20/2015 - 03/22/2015. The amount of compensation for sick leave was 3,518 rubles.
On the day of Kurchenko’s dismissal, the amount of 14,760 rubles was paid, of which:

• compensation for business trip expenses to Astrakhan - 4,120 rubles;
• salary minus bonuses that were not paid due to absenteeism - 10,640 rubles;
• Kurchenko’s sick leave was not paid, since its duration came later than the date of dismissal.

The procedure for dismissal for long-term absenteeism

Special attention deserves the situation when it is committed long absence. 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: draw up an act, enter data into the working time sheet.
2. Draw up a notice of 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. Draw up a report on the activities carried out, recording the information received. Optional.
8. Issue a dismissal order.
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.

Video on how to properly fire an employee:

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, with notes in the arrival and departure log, in order to comply with the procedure for dismissal for absenteeism without a good reason.

The nuances of dismissal of some categories

The legislator has protected the rights of workers very well, especially if they are pregnant women and workers with children. He provided them with a lot of advantages over other categories of employees. The main guarantee is the prohibition of dismissal of a pregnant woman at the initiative of the employer. But even here there are some nuances: the employer is able to terminate the employment contract with a pregnant woman on his own initiative in the event of liquidation of the enterprise or termination of its activities.

Another option is dismissal by agreement of the parties. Here the initiative to end the relationship lies with both the employee and the employer. But even here, in order to be on the safe side, it is necessary to draw up a separate act, in which you need to write down an agreement on termination of the employment contract, which indicates the date of termination and its basis.

This dismissal is distinguished by its versatility. After all, in this case, the employee can be fired, even if he is on a certificate of incapacity for work. The nuance here is that it is impossible to cancel such an agreement unilaterally. Dismissal of a pregnant woman at the initiative of the employer, that is, under Art. 261 of the Labor Code of the Russian Federation, impossible. IN in this case It will be legal to reinstate her at work after presenting a certificate of pregnancy.

Dismissal of an employee for probationary period possibly as a result of dissatisfaction with the results of the trial. In this case, the employer is required to notify him of the results of the test at least 3 working days in advance and dismiss him as having failed the test before the end of the probationary period.

By virtue of Art. 81 of the Labor Code of the Russian Federation, the employer, on his own initiative, issues an order to terminate the employment contract with an employee on a probationary period, indicating the reasons for its termination. The reasons can be attached as a separate document to the order (you need to specify which tasks it failed to complete). Records that an employee worked poorly are considered illegal. An employee can resign of his own free will during the probationary period by notifying the employer 3 days in advance and writing a statement.

Difficulties and nuances of dismissal

An employee dismissed for absenteeism under the article has the right to go to court to challenge his dismissal for absence from work. How to avoid this? What nuances need to be taken into account to avoid problems in the future? In order for the procedure for registering dismissal under the article for absenteeism to go smoothly, the step-by-step instructions presented above must be strictly followed.

There are a number of mistakes or shortcomings that employers make most often:

• lack of a completed truancy report. If there is no act, then we can assume that the employee, when going to court, will most likely win the case. Therefore, the activation process must be approached with special responsibility. The act must be drawn up taking into account all legal norms. Remember, an act must be carried out for each case of absenteeism;
• errors in drawing up the truancy report. As mentioned earlier, the report must indicate the date and time, down to the minutes, when the employee was absent from work. Under no circumstances should you use phrases such as “in the morning”, “after lunch”, etc. Must stand exact time;
• no requirement to provide an explanation for absenteeism. If the employer did not demand an explanation from the employee in writing, and does not have this demand signed by the employee, it means that he did not demand anything and the absenteeism suited him. Without a demand, you will also not be able to win in court. An oral request is not taken into account;
• violation of deadlines for issuing a demand and signing an order. Failure to meet deadlines can also lead to problems in court. Therefore, making a decision and signing the order cannot be put off for a long time;
• lack of entry in the work book. Even despite the presence of a corresponding order, in the work book, in the record of dismissal for absenteeism, Article 81 of the Labor Code of the Russian Federation must be indicated. The entry must indicate that the employee was dismissed under the relevant article of the Labor Code, which is confirmed by an order for the enterprise;
• the presence of deliberately false data in the act or order. If the employer deliberately slandered the employee, and the employee can prove this, then serious problems will also arise in court, which will be followed by the employee’s reinstatement and financial compensation.

Russian legislation gives an employee the right to challenge his dismissal.

To reinstate an employee, just one of the violations listed above is sufficient.

In principle, dismissing an employee for absenteeism is quite simple. The main thing is to do this carefully and competently, not to violate deadlines for drawing up documents, and to record your every step on paper in order to have irrefutable evidence.

How to avoid mistakes when quitting

To defend yourself in court former employee can collect documents that confirm that he has a valid reason for absence from work. Usually the evidence is a fake sick leave. Therefore, when issuing a dismissal order, the employer must study the supporting documents provided by the employee. The sick leave must be checked for authenticity; a patient card must be requested from medical institution, as well as confirm the patient’s diagnosis.

To submit a report to the labor commission, to which the employee can apply, it is necessary to prepare documents that confirm the fact of absenteeism. They must be completed in accordance with legal requirements. Errors in paperwork may result in an employee being reinstated to his or her position.

Unlawful dismissal for absenteeism

IN judicial practice there are many examples when decision dismissal of an employee for absenteeism is considered illegal.

The key points in this matter are the following:

• absence of an employee from the workplace without good reason;
• the severity and circumstances of the offense committed;
• compliance with the dismissal procedure.

The court, when making a decision to recognize the dismissal as illegal, takes into account all the circumstances of the case, gives them a proper assessment, and takes into account the practice of higher courts.

Let's try to analyze the main reasons for making such decisions:

1. There is no written explanation from the employee and the employer does not have evidence of their proper demand within the established time frame.
2. If a specific place of work is not assigned to an employee, but the latter was located on the employer’s premises, then dismissal for absenteeism may be considered illegal. An employee’s workplace is usually specified in an employment contract, indicating a specific location (office, office).
3. Continuous absence from work for more than 4 hours in a row. The key is the time period. If there were less than 4 hours left before the end of working hours and the employee left without a good reason, then this offense should not be followed by dismissal for absenteeism, but by another disciplinary sanction.
4. The employee was absent for a long time and the employer issued an order to terminate the employment relationship under paragraphs. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. However, it later turned out that the employee was on sick leave or absent for other valid reasons. In this case, it is more advisable to cancel the order. It is possible to terminate an employment relationship with an employee due to incapacity only upon the employee’s personal application.
5. The employer artificially restricts the employee’s access to the workplace (blocks the electronic pass, changes the lock code, etc.). A competent employee will record such circumstances (telegram, act, etc.) and without much difficulty will be restored by a court decision.

The examples given are not a complete list of circumstances under which the courts cancel an illegal order to dismiss an employee for absenteeism. Almost every business has individual characteristics.

Unlawful dismissal statute of limitations

Claim about illegal dismissal must be prepared and filed (sent) to the district court within one month from the date the employee receives the dismissal order or receives the work book. The specified period is not preemptive and does not deprive the plaintiff of the right to file a claim in court to challenge illegal dismissal. The court will schedule the case for hearing and will consider it until a procedural decision is made.

But in this case, the defendant will have the right to file a motion to enforce the plaintiff’s missed deadline for filing a lawsuit to resolve a labor dispute related to illegal dismissal.

In response to this, the plaintiff, if there are good reasons, must prepare a petition to restore the missed deadline for going to court. Such reasons may be: the employee is undergoing hospital treatment, caring for a sick family member, being on a business trip, etc. The list of valid reasons is not established and is assessed by the court individually.

Statement of claim for illegal dismissal for absenteeism

The form for drawing up a statement of claim for illegal dismissal must comply with the requirements of Articles 131, 132 of the Code of Civil Procedure of the Russian Federation. It must contain the following information:

• the name of the district court and its location;
• information about the plaintiff, defendant (full name, place of registration, telephone);
• subject of the dispute (circumstances of dismissal and the appealed decision of the employer),
• grounds for canceling the decision (violation of labor legislation upon dismissal);
• procedural requirement (recognition of the dismissal order as illegal, reinstatement at work, or changing the wording to dismissal at will, penalty wages for forced absenteeism, recovery of moral damages and legal costs)
• a list of documents that are attached to the statement of claim (a copy of the claim for the defendant, copies of the disputed documents, evidence in the case).
• the statement of claim must contain the date of preparation and the signature of the plaintiff.

In order to correctly determine which district court to file the claim, you need to know the current legal address of the employer. The district court having jurisdiction over this address will hear the dispute.

There is also an alternative to filing a claim in court at the place where the employment contract is executed. In this case, it is necessary to submit an employment contract to the court, which contains a note about the location of the workplace (city, street, house number).

How does reinstatement work?

When a court (another competent authority) makes a decision in favor of a dismissed employee, and the employer’s decision is declared illegal, the latter is obliged to:

• reinstate an illegally dismissed person. In this case, the conditions of employment must be the same as when applying for a job for the first time;
• compensate for damages for the period when the person did not work;
• remove the notice of dismissal from the employee’s work book and personal card.

Watch the video. What to do if you were fired for absenteeism:

Consequences for the employee

Main negative consequence This kind of dismissal is an entry that appears in the work book. After all, the article and the actual reason for dismissal will be indicated there.

Which will have a negative effect on subsequent employment attempts. Therefore, it makes sense for the truant to try to resolve the issue of dismissal under Article 80 (own desire).

Features of employment after dismissal

At a new place of work, they are always interested in the work record and carefully review the work record. This is why problems very often arise during subsequent employment. In such situations, it is necessary to explain to the new employer the reason for such an entry and find a rational and convenient explanation. The easiest way is to say that they could not find a common language with their former boss, and he thus decided to take revenge. In most cases, this explanation is sufficient. Especially if applying for a job - good specialist.

But you should still avoid dismissal for absenteeism - this entails many different problems. In addition, there are almost always various ways to avoid this type of entry in the work book. You can see the procedure for voluntary dismissal during a probationary period in the article: voluntary dismissal during a probationary period.

Conclusion

Dismissing a working citizen due to absenteeism is a very unpleasant procedure that can ruin the relationship between the parties to the labor relationship, so it is important to know how to properly fire an employee. Also, dismissal due to absenteeism can result in difficulties during the job search process in the future. However, you shouldn’t worry about this – it’s enough to draw the right conclusions in time so as not to repeat previously made mistakes.

It is also important for the parties to be aware of the responsibility upon dismissal based on the same principle. If the dismissal procedure was not carried out in accordance with the law, or if the employer independently committed at least one minor violation, the employee has every right to go to court to assert his rights during legal proceedings.

Any violation internal regulations 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 for which this action may be possible, that is, 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;
• Walk before expiration labor 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 absenteeism 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 the legitimacy of a document, 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 skipped work time due to the fact that she was in the hospital due to 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 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 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 established order document flow, 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 cancel this decision unilaterally is impossible.

If we're talking about about the dismissal of 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.

Under absenteeism as specified since October 2006 in accordance with Federal law dated June 30, 2006 N 90-FZ, the edition of the said norm is understood as follows:

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 guilt of the employee are of the same fundamental importance as for dismissal under paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation. 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 legally, 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 to formally meet the deadlines established by part three of Article 193 of the Code, as well as to clarify the reasons long absence employee at 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 non-appearance are unclear, and it is not possible to hire a new employee staffing table. 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 at 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 unjustified reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account that average earnings in such cases, the reinstated employee may be charged 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 with 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 the employer, the use of extreme disciplinary measures 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 did not indicate valid reasons and did 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 reverse the situation through judiciary in your favor, be reinstated 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 a clear concept of the workplace in regulatory documents no, you 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 absenteeism at work provides for only one punishment under the Labor Code of the Russian Federation, 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, taking into account the nature of the disciplinary offense committed, the employer, due to production needs often risks his profits. 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 case Absenteeism according to the Labor Code of the Russian Federation is nothing more than absence from work. 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 defense - court or Labour Inspectorate– the employer will be obligated 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 particular cases will help you avoid incidents.

There are several reasons for termination to keep in mind labor agreements. 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 fulfill his duties. 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.

The percentage of an employee being reinstated to his previous place of work after dismissal for absenteeism is high. In most cases, this is caused by a violation of the dismissal procedure. Judicial practice and the accumulated experience of companies will help eliminate the “blind spots” of legislation.

Grounds for dismissal

The employer's right to dismiss an employee in the event of a single gross violation labor duties, including due to absenteeism, are enshrined in Article 81 of the Labor Code of the Russian Federation. The article defines absenteeism as “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 (shift) "

Additional explanations can be found in judicial practice, in particular, an employee can be dismissed in such cases (paragraph 39 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2):

• 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);
• an employee staying outside the workplace without good reason for more than four hours in a row during the working day;
• leaving work without a valid reason by an employee on an open-ended employment contract without warning the employer of termination of the contract;
• abandonment of work without a valid reason by a person who has entered into a fixed-term employment contract before the expiration of the contract;
• unauthorized use of time off or going on vacation (main, additional).

Determining the period of absence of an employee from work and valid reasons for such absence are especially problematic issues for the employer. Thus, neither the courts nor the specialists labor law cannot clearly answer the question of whether to include breaks for meals in the four-hour period of absenteeism. There are two points of view on this issue.

Position 1. The lunch break must be included in the 4-hour period of absenteeism. If this is not done, then it is almost impossible to fire an employee for absenteeism. The fact is that the Labor Code of the Russian Federation does not define a working day as working time before and after lunch. This means that a lunch break cannot interrupt the period provided for in Art. 81 of the Labor Code of the Russian Federation (sub-clause “a”, clause 6, part I).

Position 2. The lunch break is not included in the 4-hour period of absenteeism. Article 106 of the Labor Code of the Russian Federation classifies a break for meals as rest time. This means that the employee is free from performing work duties at this time. Absence from the workplace during this time cannot be blamed on the employee and may not result in disciplinary liability.

The second point of view is more common in judicial practice, but the final decision remains with the employer.

The next controversial issue is the validity of the reasons for absenteeism. Since the legislation does not contain a list of such reasons, the decision is made by the employer, aware of the possibility of verifying the validity of recognizing the reason for absenteeism as valid in court in the event of a dispute with the employee. It should be noted that in such cases, the courts take into account the severity of the employee’s offense, attitude towards work, the impact of the employee’s absence on the work process, and the circumstances of the offense. The judges considered the following reasons for the absence of an employee to be valid:

• participation in court proceedings;
• leave without pay, due to the employee in accordance with the Labor Code of the Russian Federation;
• absenteeism from work after two weeks have elapsed since the employer’s written notice of the desire to resign;
• poor health (documented);
• illness of the child, which is confirmed by a doctor’s certificate, extracts from the medical record (even when the sick leave is opened only the next day);
• carrying out emergency repair work in the employee’s apartment (confirmed by a certificate from the HOA, housing office, etc.);
• the employee’s location on the way to the place of study and back;
• suspension of work due to the employer delaying payment of wages for more than 15 days (based on Article 142 of the Labor Code of the Russian Federation), even if the debt is partially repaid;
• serving an administrative punishment by an employee (administrative arrest).

If a dispute arises about the legality of dismissal, the employer must prove the fact of absenteeism. Therefore, it makes sense to resort to dismissal for absenteeism only if there is conclusive evidence that the reasons for absence from the workplace are not valid, as well as documented information about the employee’s absence for a 4-hour period.

Important! Dismissal of an employee for absenteeism during a period of temporary disability, the employee being on vacation, or during the employee’s pregnancy is unlawful (Part 6 of Article 81 and Part 1 of Article 261 of the Labor Code of the Russian Federation).

Algorithm for dismissal for absenteeism

You should not fire an employee for absenteeism before he shows up for work, because the reason for absence may turn out to be valid, and the employee could not inform the employer about it. Now we will consider the procedure for dismissal for absenteeism in stages in order to eliminate possible reasons for a labor dispute with an employee.

Step 1. Identify the fact that the employee is absent. The law does not provide precise recommendations in this regard. Any employee of the enterprise can detect that an employee is absent: timekeeper, immediate supervisor, colleague. If there is no information about the location of the employee or the reasons for absence, any of the named employees notifies the management of the enterprise in writing.

Documentation: memorandum; time sheet (with the mark “NN” - absence for unknown reasons).

Step 2. Draw up a certificate of absence of the employee from the workplace. Here it is important to correctly record the period of absence. The report is drawn up on the same day when the employee’s absence is revealed, otherwise the court will not recognize the reliability of the evidence. In the act, record: the fact of absence, the time of absence, the time of drawing up the act, obtain the signatures of at least 3 people from those workers who are near the workplace and have the opportunity to observe the place of the absence. Please note that if an employee is absent for more than a day, then reports must be drawn up daily.

Documentation: act of absence of an employee from the workplace. It is advisable to draw up two documents - by the middle and by the end of the working day.

Step 3. Demand an explanation from the employee. This can also be done orally if the employee immediately provided an explanation. Otherwise, make the request in writing and hand it to the employee with a personal signature. If the employee refuses to receive the request, draw up a free form statement of refusal with the signatures of at least three company employees who will attest to the fact of the refusal.

If an employee does not appear at the workplace for a long period, send him a request by mail with a receipt receipt, which must include the date the employee received the document.

Documentation: requirement to provide a written explanation; act of refusal to receive a claim.

Step 4. Receive explanations from the employee or record a refusal to provide explanations. After submitting a request for a written explanation, the employee has two days to explain his absence. The counting of days begins from the day following the day of transmission of the request. During the same period, the employee can provide evidence of valid reasons for absence. The explanation must be made in writing. If after two days the employee does not explain, then you need to draw up an act of refusal to provide an explanation. The act is certified by the signature of at least three employees.

Documentation: employee explanation ( explanatory letter); act of refusal to provide explanations.

Step 5. Internal investigation. Used when it is unknown whether the reason for absence was valid, or when the employee does not contact. If it is not clear whether the employee is at fault, then it is better to create a commission to conduct an investigation. The commission will draw up an official investigation report, which indicates the circumstances that were found out.

Documentation: order to create a commission to conduct internal investigation, act of official investigation.

Step 6.Deciding on the level of responsibility. Dismissal acts as a disciplinary measure, but the employer is not at all obliged to fire such an employee. You can apply other disciplinary measures - a reprimand or reprimand. The employer makes any decision independently.

Documentation: the idea of ​​being held accountable.

Step 7Dismissal. By general rule A disciplinary sanction may be applied by the employer no later than one month from the date of discovery of the offense and no later than six months from the date of its commission. Violation of these terms provides grounds for dismissal to be considered illegal.

So, if the decision to dismiss has been made, it is recommended to once again check the reasons and duration of absence. After verification, collection of evidence and execution of the above documents, a dismissal order can be issued. Familiarize the employee with this document against signature - 3 days are allotted for this from the date of issuance of the order, not counting the time the employee is absent. If you refuse to sign, draw up an act. On the day of termination of the employment contract, give the employee a work book and make a payment (on the day the employee appears at work).

Please note that liability for the discrepancy between the last working day and the day of termination of the employment contract is not provided for by law. The last day of the employment contract is considered to be the day preceding the first day of absenteeism, which is the last day of work of the employee.