Valid reasons for absenteeism. Absenteeism at work - consequences and types of punishment under the Labor Code of the Russian Federation

Sometimes events happen that prevent an employee from showing up for work. Very often it depends not on him, but on the weather or transport.

In legislation there is no concept of truancy, but there is an article describing the consideration by courts of labor disputes in case of absence for good or bad reasons ().

Absenteeism is considered absence from work without a valid reason for 3 hours or more. In this case, the hours are not counted consecutively. If an employee works only 5 out of 8 working hours, this is considered absenteeism.

Reasons for absence from work

But before considering absence as absenteeism, you need to pay attention to the reason for not showing up for work. The reasons can be both valid and disrespectful.. Only the employer can determine the category. To do this, he needs an explanation from the employee and the attached documents.

Subjective

Subjective reasons are those reasons for non-appearance that associated only with the employee. For example, illness. In this case, the employee must provide one from the following evidence:

• sick leave;
• record of an appointment with a doctor in the hospital record.

Sample certificate from a doctor

However, at many enterprises sick leave is not paid.

Every year all employees must undergo medical examination by doctors. This will happen in work time, therefore such omissions are considered a valid reason.

Sample application for release from work due to a medical examination

Also, a person cannot be fired if participated in the court hearing as:

• witness;
• victim;
• the defendant;
• juror

Sample subpoena

Also, a valid reason is that the person participated in an investigative experiment, checking the premises as a witness, or in other actions related to the law. In this case, law enforcement agencies are required to issue the employee a document indicating the reason for absence from work.

There are times when an employee received a summons to the military registration and enlistment office. He must appear there at the exact time, otherwise he will face problems with the law. If he misses work, this is also considered a valid reason.

Sample summons to the military registration and enlistment office

Objective

Objective reasons are those that make it impossible to get to work, due to an emergency. Among these:

• road accident;
• technological disaster;
• hostilities;
• severe snowstorm;
• landslide, fire or flood;
• earthquake or hurricane;
• a road blocked with snow if it was not cleared in time;
• broken transport (if it is impossible to get to work on foot);
• road repair;
• unexpected failure associated with the sphere utilities(a pipe burst or a gas leak began);
• salary delay (if the delay is more than 15 working days, the employee may not work until he receives his money, but is obliged to notify his superiors in advance in writing);
• elevator breakdown (person stuck inside);
• epidemic in the area and mandatory vaccination;
• lack of transport tickets;
• delay or cancellation of transport.

If the above cases are not considered a valid reason for the boss and the employee faces dismissal, a court hearing will be held. It is highly likely that the court will decide that the dismissal was illegal.

In addition, the Labor Code of the Russian Federation specifies several other valid reasons for absenteeism. Among them work activity at:

• holiday;
• days off;
• 1 day more than necessary.

In such cases, you work overtime and has the right to demand monetary compensation or time off from management. Remember about the day when you are going to take a day off, you need to warn in advance to avoid problems in the future.

The list of all valid reasons is in articles , , , Labor Code of the Russian Federation.

According to the application

This reason is also valid. You write a statement to the director indicating the reason for absence. Take it to the official. The director gets acquainted with it and decides whether it is considered this reason respectful or not. The most important thing in such cases is to submit a statement to your superiors before you miss work. Among these reasons:

• parent meeting at school;
• an event in honor of the first or last bell;
• the need to submit documents to the child’s place of study;
• bad feeling;
• wedding;
• death of a loved one;
• birth of a child.

According to Article 128 of the Labor Code of the Russian Federation, the last three reasons allow you to take a day off for 5 working days. According to the same article, you can take a short time off if it concerns the first 4 reasons. But missed days are not paid.

Regulatory regulation

Regulatory regulations are documents with the structure, functions and legal status of employees. They are developed on the basis of legislation, so they must be adhered to. There is all the information about managers and employees. And this is where the certificates and statements you provide will be located.

List:

• documents related to labor standards;
• documents on the structure, departments and number of employees in the company;
• documents related to working conditions, organization of workplaces, etc.;

What to do if, despite good reasons, dismissal occurs

Contact V labor inspection with a complaint that the boss is violating labor laws.

You will have no control over the review process. Therefore, the duration of the proceedings can be very long.

In some very big companies present labor dispute commissions. This is a group of people independent from management that deals with such issues.

The best solution is to go to court. But the application for consideration must be submitted no later than 1 month from the date of dismissal. Evidence will be collected, witnesses will be interviewed and a decision will be made. If the court determines that the dismissal was illegal, you will be immediately reinstated at your place of work, and you will also be paid moral compensation, which depends on your wages. A court hearing is a paid procedure, but the price will be within reasonable limits.

We bring to your attention a video that tells you what an employer should do if an employee does not show up for work.

It is best to negotiate with your superiors peacefully without attracting unauthorized persons. A lawsuit can lead to poor relations with management.

If you're going to miss work, you better notify your superiors in advance by writing a statement. If he refuses to let you go, promise him to work another day.

Many employers go to any lengths to get rid of so-called unnecessary people. At the same time, they forget that failure to comply with the dismissal procedure for the same absenteeism may lead to legal proceedings and the reinstatement of the employee to his position.

Indeed, one of the most common violations is absenteeism. Therefore, it is very important for the enterprise administration to know the features of the entire procedure.

Concept and types

The term absenteeism in the Labor Code of the Russian Federation is interpreted as an unjustified absence from the workplace for 4 or more hours. This refers to situations where an employee does not show up at the place of implementation labor activity or left it without permission, without the consent of management. The fact of absence must be confirmed by eyewitness accounts compiled in writing.

Types of absenteeism are divided into two categories:

• The main one, that is, when an employee is absent, but the employer can still contact him and knows why he did not come and when he will appear at the workplace. In such situations, the reason is usually good.
• Long absence. In such a situation, the employee cannot be contacted, and he may not be at work for several days or even weeks. These are the most complex cases upon dismissal and punishment for absenteeism.

“Legal” truancy

The reasons for absenteeism can also be valid. You cannot fire a person if he provided medical assistance to another person and applied for it himself. It is not necessary that force majeure circumstances occur or emergency. In this case, even calling an ambulance for assistance is equivalent to providing assistance. stranger and waiting for doctors. However, you should be on the safe side and request a supporting document from doctors.

Absence from work due to the need to participate in investigative activities, interrogations or legal proceedings also cannot be interpreted as absenteeism without good reason. Typically, in such cases, the person has a subpoena or court order stating the date, address and time of arrival. If he does not have such a document, then he needs to request a certificate that will confirm the reason for absence from work. For example, an employee may become a participant or witness of an accident. Or he is detained until his identity is clarified. The main thing is that the date and time on the certificate coincide with the period of absence from work.

Refusal of “free” work cannot be interpreted as absence from work without a good reason. The legislation clearly establishes payment deadlines. If the employer delays payment for more than 15 days, the employee has the right not to fulfill his job responsibilities, but on one condition. The employee is obliged to inform the employer about his decision by submitting an appropriate application. In this case, it will be impossible to accuse him of absenteeism. In this case, if the case goes to court, the employee, who has a copy of the application with a mark of acceptance by the enterprise administration, will be able to prove that refusal to work is forced absenteeism.

Absenteeism and refusal to perform work in dangerous or hazardous conditions cannot be considered absenteeism. harmful conditions, unless this is stipulated in the employment contract. An employee is not obliged to start work that clearly poses a threat to his life or health. Absence from work in this case may be regarded by the court as forced absenteeism.

When can you not be fired for absenteeism?

It is impossible to fire a pregnant woman, even if she often does not consider it necessary to come to work. She may be subject to other disciplinary measures.

It cannot be recognized as absence from work without a valid reason if the employee refused to leave the vacation early. A day of rest after donating blood or its components is not considered absenteeism, even if the employer refused to provide it.

Employer's actions

Before issuing an order to issue a reprimand for absenteeism, the employer must follow a certain procedure:

• Draw up a truancy report. This step may be preceded by the truant's immediate supervisor if the enterprise structure is large.
• Obtain an explanation from the truant and establish the reasons. If an employee refuses to explain the reasons for absenteeism, especially in writing, then a report must be drawn up about this. The request for clarification may be handled by the personnel department or the truant’s immediate supervisor, again depending on the structure. If the procedure is entrusted to the head of a structural unit, then he draws up a memo addressed to senior management about the proposed disciplinary measures and the explanations received.
• Removal disciplinary action. This could be a sample order of reprimand for absenteeism, imposition of a fine or dismissal.

Act

To confirm the fact that an employee is absent from the workplace, the employer must draw up a report. The form of such a document is not provided for by any normative act, so it is compiled in free form. At the same time, the act of the employee’s absence from the workplace must be drawn up and signed by members of a specially appointed commission. It must contain the following information:

• About the whereabouts of the truant. If it was not possible to establish it, then the measures that were taken to find an employee are prescribed.
• The exact date and time of the employee’s absence from the workplace.
• The date the document was drawn up, which must coincide with the date of absenteeism.

The employee must familiarize himself with the text of the act against his signature. Although, if he refused, then of great importance this does not carry any disciplinary consequences. The main thing is that the commission members put an appropriate mark indicating that the truant refused to sign.

A sample of this document looks like this:

"Act on the absence of an employee from the workplace"

Date and place of compilation

Time for drawing up the act ... hours ... minutes

Commission consisting of:

... job titles ... full name

A report was drawn up as follows:

... date ... position ... full name ... was absent from the workplace, from ... exact time ... to ... time, which in total amounted to ... hours ... minutes ...

... Full name ... was asked to provide a written explanation to his immediate superior ... position ... Full name within 2 days.

Positions... full names... of commission members

I have read the act:

Position... full name... signature

If the guilty person refused to sign the act, then an appropriate note should be made about this.

Request for an explanation

But, having drawn up the act, you should not rush to draw up a sample order of reprimand for absenteeism. The employee must be required to provide a written explanation of the reasons for his absence. First of all, the employee must be given the opportunity to justify himself. Maybe he really had to be absent or he needed time to collect supporting documents. 2 days are allotted. If the employee has not submitted an explanatory note, then a corresponding act in free form is drawn up about this.

• warning;
• rebuke;
• dismissal.

The first two measures are moral and ethical influence and are most often applied to employees who are highly qualified specialists and have committed an offense only once.

Many enterprises also use material measures of influence, for example. In fact, an employer is not always in a hurry to fire an employee.

Punishment without dismissal

So we've already looked at some samples. An order to reprimand for absenteeism is issued based on the explanations of the labor discipline violator. Absolutely all employees, regardless of position, can be held accountable. It should be remembered that only one penalty can be imposed for one violation. There is no standardized form for an order, but in practice certain requirements for this type of local document have already been formed.

Sample order "Reprimand for absenteeism"

Name and legal form

Order No.

Date and place of compilation

On imposing a disciplinary sanction

Due to absence from work... position... full name... for... hours... date...

I ORDER:

1. ... date... considered absenteeism... position... full name.
2. Impose a disciplinary sanction on ... position ... full name ... in the form of a reprimand.
3. Please familiarize yourself with this order... position... full name for signature.
4. Control over the execution of the order is assigned to ... position ... Full name.

Reasons:

1. Job description of the head of the structural unit... Full name.
2. Explanatory note from the violator of labor discipline.
3. Or an act of refusal to provide an explanatory note.
4. Act on absence from work from ... date.

Head of the enterprise ... signature ... full name

I have read the order:

... position ... signature ... full name

The order must necessarily contain an administrative part with the following information:

• description of the violation;
• time off;
• a full description of the date and time when the absence occurred;
• the reasons for such behavior, if they were clarified from the employee;
• documents that formed the basis for drawing up the order.

The violator must be familiarized with the order within 2 days from the date of its preparation. At the employee’s request, he is given a copy of the order.

Validity period of foreclosure

By general rule The validity period of a disciplinary sanction is 1 year from the date counted from the date of issuance of the relevant order. If during this period the employee has not committed another violation and a new disciplinary sanction has not been imposed on him, then it is automatically removed. Removal of the penalty in this case does not require the issuance of an additional order.

When an employee has committed a new violation, which is followed by disciplinary action, the validity period will already be calculated from the moment the last order was issued.

What to do with persistent violators?

There are two extreme measures that an employer can apply to a violator:

• deprivation of a bonus, that is, material impact;
• dismissal.

Naturally, the last measure is the most severe, and in certain circumstances it may take place.

In addition to various incentives for Good work labor legislation allows the employer to apply various penalties to negligent employees. One of the most common types of misconduct is the non-compliance of employees with respect to working hours. The most serious of them is considered to be absenteeism at work - the Labor Code of the Russian Federation provides that, as punishment for a long absence from the workplace, a manager can even fire a subordinate.

Absenteeism or lateness

Labor legislation provides a clear definition of what can be considered absenteeism. This is an absence from work lasting four hours or the entire work shift(days), if its duration is less.

Up to four o'clock is considered late.

Absenteeism must last for four hours or more at a time; if this time is broken, then such absence from work is considered late.

For example, an employee was late for three hours at the start of the working day, and then was absent for another hour and a half after the lunch break. Such lateness is not considered absenteeism, although the total absence was more than four hours.

The legislation leaves punishment for absenteeism and lateness to work at the discretion of the employer. This may include monetary penalties or the application of measures provided for by law. disciplinary liability- from a simple remark to a disdainful attitude towards the work schedule on the part of an employee.

To apply the penalty, the employee must be absent from work without a valid reason.

Therefore, before punishing an employee, the manager must find out the reason for being late or absenteeism and the degree to which it is respectful.

The legislation does not provide a clear gradation of what is considered a valid reason and what reason is not. In most cases, the decision is made by the manager, but some of the reasons for absence are still listed in the regulations.

Valid reasons for absence from work

Firstly, this is an official absence from the workplace agreed upon with the employer.. These include:

For example, at his request, an employee may be granted leave without pay in connection with the birth of a child (for the father), marriage and other family circumstances.

This fact of the employee’s absence from the workplace is known in advance and appropriate instructions or orders have been issued. In addition, there may be a verbal agreement with immediate supervisor that the employee will be absent from work for a certain period of time for personal reasons.

Secondly, Reasons that have documentary evidence are considered valid. They are unknown until the moment of absence, however, the employee can provide an official document that will confirm the seriousness of the reason for being late or absenteeism.

Such documents and grounds include:

• due to temporary disability of the employee or his minor child;
• the need to attend court hearings;
• participation in events conducted by law enforcement agencies;
• detention until guilt is determined.

Third, various force majeure circumstances that led to lateness or absenteeism. These include man-made and natural disasters, road accidents, emergencies at an employee’s home, the death of a close relative, etc.

For example, there was a hurricane at night, a tree fell and blocked the only exit from the entrance. We waited half a day for emergency services to arrive, who removed the rubble and cleared the door.

If possible, the employer must be notified of such circumstances before the registration of the fact of non-appearance begins. workplace.

Fourthly, absence from work may be caused by actions of the employer that violate labor laws. This may be more than 15 days, denial of access to the workplace for an employee reinstated by the court, violations in the field of labor protection.

For example, if there is a delay in the payment of earned money, an employee can write a statement about suspending the performance of his official duties and not appear at the workplace (Labor Code of the Russian Federation, Article 142).

Punishment under the Labor Code of the Russian Federation for absenteeism at work

The validity of the reason for the employee’s absence (other than those established by law) is left to the employer’s consideration.

For unjustified absence from the workplace, the Labor Code provides for three types of disciplinary liability - reprimand, reprimand, dismissal (Labor Code of the Russian Federation, Art. 192). For certain categories of workers, for example, state and municipal employees, personnel armed forces, additional penalties may be provided - reduction in rank (position) or deprivation of a special insignia.

The employer may, but is not obligated to, apply penalties for absenteeism; for example, at work, an employee is considered a responsible person and performs official duties at the proper level. In this case, a single delay can be forgiven. Or get off with a verbal reprimand in a conversation with management.

When an employee systematically violates discipline, the manager applies punishment for absenteeism in accordance with the labor code.

In addition to disciplinary liability, the company may also apply material penalties.

The system of monetary fines is prohibited by law, but the employee can be deprived of part or the entire amount of bonus payments.

Sometimes employees receive part of their salary in circumvention of the law through various “gray” schemes, and company management can fine them by non-payment of this money. The very fact of unofficial salary can become a reason for punishment of both the management of the organization and its employees by regulatory authorities.

If an enterprise fines workers money for any violations, this may be a reason to contact the labor inspectorate. In such a situation, the employer will receive a fine legally.

Registration of absenteeism from work without good reason

In order to apply disciplinary or monetary penalties, it is necessary to correctly document the fact of the employee’s absence.

First, an act of absence from the employee’s assigned workplace for an unknown reason is drawn up. The mark “NN” is placed on the working time sheet.

If an employee fails to appear for several days, it is better to draw up such acts daily, since after returning to work the employee can provide documents for some of these days confirming the justification of his absence.

For example, an employee has been away from work for two weeks. One report was drawn up for the entire period of absence. However, upon returning to the workplace, the absentee presented a sick leave certificate for an injury lasting one week. Such circumstances make the application of penalties problematic.

Then, after the truant shows up at work, it is necessary to request an explanation from him in writing about the reason for his absence. The employee is given two days to draw up this document. If he never provided an explanation, then the note “refused to explain the reason” is put in the absence certificate.

After this, a decision is made to apply measures. Depending on the type of punishment, a decree (order) is issued to issue a reprimand, reprimand or dismissal of the negligent subordinate. He familiarizes himself with this document against signature.

Disciplinary punishment in the form of a reprimand or reprimand is not reflected in the violator’s work book, but the employee of the personnel department makes a note about this fact in the personal card or personal file of the truant.

Upon dismissal, Art. 81.6 of the Labor Code of the Russian Federation, such a reason for termination labor relations will create a lot of problems for a careless employee when looking for a job in the future.

The dismissal procedure is similar to any other. Payment of due Money, compensation for unused vacation, issuing a work book to the employee.

If the employee never returned to his workplace after absenteeism for an unexcused reason, then the last working day is considered the day when he last time Was at work.

Except documentation the fact of absence from work, it is also necessary to comply with the deadlines for applying the penalty.

Terms of punishment for absenteeism and removal of disciplinary sanctions

Any kind disciplinary punishment for absenteeism cannot be applied to a negligent employee if more than six months have passed since the absenteeism (Labor Code of the Russian Federation, Article 193). In addition, no more than a month must pass from the date of discovery of the fact of absence from work without a valid reason. This period does not include the employee’s sick leave or vacation, as well as the time period during which, if necessary, the union’s permission to apply disciplinary action is sought.

For one fact of absenteeism, only one type of punishment can be applied.

For example, you cannot reprimand a person and then fire him for a one-time incident of absenteeism.

A disciplinary sanction is lifted a year after it was imposed, if during this period the employee does not commit similar actions (Labor Code of the Russian Federation, Article 194). This fact is taken into account when choosing measures to influence an employee when he repeatedly commits absenteeism. When more than a year has passed since the previous incident of absence from work, such an employee is considered punished for the first time.

If the employee has corrected himself and behaves in a disciplined manner and does not commit other violations in his work, then the manager has the right, by his order, to lift the penalty earlier than the period established by law.

Appealing a penalty for absenteeism

In a situation where an employee does not agree with the fact of absenteeism or the correctness of the measure taken, he can appeal the employer’s actions in court.

To do this, the first thing the employee needs to do is not sign documents that record the facts of the violation.

A signature under the act of detected absenteeism, an order to impose a disciplinary sanction or deprivation of a bonus is an admission of the offense itself.

In addition, in writing, the employee must express his point of view on the fact of absenteeism, supported, if possible, by official documents confirming his presence in another place and the impossibility of attending work.

In addition, an employee cannot be fired for absenteeism if he has previously submitted an application to the employer to suspend work due to violations labor legislation or labor safety standards.

When a penalty is nevertheless imposed, the employee files a claim in court demanding the removal of the remark or reprimand, or. If there are compelling reasons, the courts will satisfy the employee’s demands.

In order to avoid a situation with legal proceedings, all documents regarding absenteeism must be completed properly, and the deadlines established for this must be met.

The most common violation by employees is lateness or absenteeism (long absence) from work. The consequence of such employee behavior is sanctions from the employer. If the employee fails to appear for unexcusable reasons, the employee can be deprived of a bonus, given a reprimand or reprimand, and if the violation is systematic, even fired. Whether to take coercive measures or limit yourself to a simple conversation - such a decision is made by the employee’s direct employer, since the law does not oblige the company’s management to punish the employee.

The employee was absent from the workplace without good reason for the entire working day. They were given no explanation. What actions are possible for the employer in this situation? Is it possible to fire an employee for?

An employee’s absence from the workplace without good reason during the entire working day, as well as absence from the workplace without good reason for more than four hours in a row during the working day, is regarded as absenteeism. In the event of such a one-time gross violation by an employee labor responsibilities it can be terminated at the initiative of the employer in accordance with paragraphs. "a" clause 6 of part one of Article 81 of the Labor Code of the Russian Federation.

As follows from this norm, one of the main signs of absenteeism is the absence of an employee from the workplace for a certain time without a good reason. In this case, the burden of proving the fact that the employee committed absenteeism rests with the employer (clause 38 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by courts Russian Federation Labor Code of the Russian Federation"; hereinafter referred to as the Resolution of the Plenum).

At the same time, in the situation you cited, the absence of an employee from the workplace can be caused by both good and bad reasons.

An exhaustive list of valid reasons is not established by law. Valid reasons include, for example, periods of temporary incapacity for work, confirmed by sick leave, as well as other periods during which the employee, for reasons beyond his control, cannot go to work.

Accordingly, in each case it is necessary to assess the “respectability” of a particular reason (see also the ruling of the Investigative Committee for civil cases of the Omsk Regional Court dated October 20, 2004 N 33-3509).

In addition, it may be discovered that the employee's absence was due to reasons such as independent reasons termination employment contract. We are talking about the termination of an employment contract with an employee due to circumstances beyond the control of the parties, in particular, in connection with the death of the employee, as well as the recognition of the employee as deceased or missing (clause 6 of part one of Article 83 of the Labor Code of the Russian Federation), or the conviction of the employee to punishment excluding continuation previous job(Clause 4 of Part 1 of Article 83 of the Labor Code of the Russian Federation).

In other words, since there is always a possibility that the employee is absent for a good reason, it is not recommended to fire an employee for absenteeism before the circumstances of his absence from work are clarified. In such cases, the employer must record the fact that the employee is absent from the workplace. For this purpose, an act is drawn up in free form, which is signed by several witnesses. Such an act can be drawn up either on the first day of the employee’s absence from work or on any of the subsequent days. If the employee long time did not go to work and the exact reasons for his absence are unknown, it is recommended to draw up such reports periodically throughout the entire period of absence.

From the first day of absence, the employee should put the mark “NN” on the work time sheet - “failure to appear for unknown reasons” (Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment”, forms N T-12 and N T-13). Only after the reason for non-appearance has been established, can the mark “failure to appear for unknown reasons” be changed to the appropriate one, for example, to the mark “absenteeism” (AB) or to the mark “Temporary disability” (B)*(1).

From the moment the employee’s absence from the workplace is recorded in personnel documents, there is every reason not to accrue wages to the absent employee.

If the employer has data confirming that there are no valid reasons for absence from work, then the employee can be fired for absenteeism.

In accordance with Art. 192 of the Labor Code of the Russian Federation, absenteeism is gross violation employee of work duties, that is disciplinary offense, and - disciplinary action for its commission. This means that when dismissing for absenteeism, the employer must comply with the procedure for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation ( general order dismissal of an employee for absenteeism is given, for example, in the letter of Rostrud dated October 31, 2007 N 4415-6). If this procedure is violated, then in the event of a lawsuit, the court will most likely recognize the dismissal as illegal, even if it is proven that the employee committed absenteeism.

First of all, the employer must meet the deadlines for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. Thus, dismissal for absenteeism can be done no later than 1 month from the date of its discovery, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees, and no later than 6 months from the date of its occurrence. The day of detection of the misconduct, from which the month period begins, is considered the day when the person to whom the employee is subordinate for work (service) became aware of the commission of the misconduct, regardless of whether he is vested with the right to impose disciplinary sanctions (clause 34 of the Plenum Resolution) .

If an employee commits long absence month period to detect an offense should be calculated from last day absenteeism, and not from the first (see, for example, the ruling of the Ryazan Regional Court dated April 25, 2007 N 33-580, Generalization of the practice of consideration in the 1st half of 2008 by the courts of the Saratov Region of cases of termination of an employment contract at the initiative of the employer and on other grounds , not related to the will of the employee).

Second the most important condition is proper documentation.

Article 193 of the Labor Code of the Russian Federation requires that even before applying a disciplinary sanction, the employer requires an explanation from the employee in writing. It is extremely difficult to request written explanations from an employee who does not show up at work, and to do this in such a way that it can then be proven that such a request for explanations has occurred. For this reason, many experts recommend waiting until the employee shows up at work and does not provide supporting documents.

If the employer nevertheless decides to dismiss the employee for absenteeism in his absence, then in case of litigation, he must collect evidence that he fulfilled all his duties in the process of applying a disciplinary sanction. Such evidence may be, for example, a postal notification of delivery of the notice to the employee with his personal signature confirming receipt of the notice.

The situation when a postal notice is returned with a mark of non-delivery, in our opinion, cannot be considered an appropriate request written explanation. Therefore, in such circumstances, we do not recommend filing a dismissal for absenteeism. During a period of long-term absence of an employee, the employer may periodically send him letters demanding an explanation, waiting for the employee to personally sign the notice.

If two working days have passed since the employee received the letter, and the employee has not provided an explanation, then a corresponding report is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying a disciplinary sanction, that is, dismissal *(2).

Based on the act of absence from the workplace, as well as a written explanation or an act of the employee’s failure to provide an explanation, the employer issues an order (instruction) on dismissal.

The order is announced to the employee against signature within three working days from the date of its publication, not counting the time he is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up. The absent employee should be sent a telegram or registered letter with a notification inviting the employee to familiarize himself with the dismissal order and to receive a paycheck and work book.

Please note that the date of the dismissal order must be the date of its actual issuance within the time limits for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. But the date of dismissal should be the last day of work of the employee, except for cases where the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, his place of work (position) was retained (part three of Article 84.1 of the Labor Code of the Russian Federation).

According to Art. 84.1 of the Labor Code of the Russian Federation, on the day of termination of the employment contract, the employer is obliged to give the employee work book. If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book. In addition, the employer is not responsible for the delay in issuing a work book if the last day of work does not coincide with the day of registration of termination of employment when an employee is dismissed for absenteeism.

Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s application.

Upon dismissal, the employer is obliged to make a settlement with the employee. In Art. 140 of the Labor Code of the Russian Federation states that payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Panova Natalya

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Voronova Elena

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

*(1) In connection with the entry into force on January 1, 2013 of the Federal Law of December 6, 2011 N 402-FZ “On Accounting” federal Service for Labor and Employment (Rostrud) in letters dated 01/23/2013 N PG/409-6-1, dated 01/23/2013 N PG/10659-6-1 and dated 02/14/2013 N PG/1487-6-1 explained that from January 1, 2013, the unified forms approved by the said resolution are not mandatory for non-governmental organizations. Such organizations have the right to use forms of primary accounting documents developed by them independently.

*(2) In such a situation, it is possible for the employee to appeal the dismissal, because The reasons for absence in this situation are unknown. However, in this case, the court may refuse to satisfy the employee’s claim for reinstatement if it is established that the right has been abused (for example, deliberate failure to provide a document confirming the valid reasons for absence from work), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of dishonest actions on the part of the employee (clause 27 of the Plenum resolution).

According to the Labor Code of the Russian Federation, the employer is obliged to remove from work (not allow to work) an employee:

1. appeared at work in a state of alcohol, drug or other toxic intoxication;
2. not passed in in the prescribed manner training and testing of knowledge and skills in area of ​​labor protection;
3. who has not undergone mandatory, as well as mandatory psychiatric examination in cases provided for by the Labor Code of the Russian Federation and others federal laws;
4. when identified in accordance with a medical report contraindications for the employee to perform work stipulated by the employment contract;
5. in case of suspension for a period of up to two months special law employee (licenses, rights to manage vehicle, the right to bear arms, other special rights) in accordance with federal laws, if this entails the impossibility of the employee fulfilling his duties under the employment contract;
6. at the request of the authorities or officials authorized by federal laws.

Employer suspends from work(does not allow the employee to work) for the entire period of time until the circumstances that served as the basis for removal are eliminated.

During the period of suspension from work (preclusion from work), the employee’s wages are not accrued.

In cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory medical examination through no fault of his own, he is paid for the entire period of suspension from work as idle time.

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REASONS FOR EMPLOYEE'S ABSENCE AT WORKPLACE

The Labor Code does not say what reasons for an employee’s absence from the workplace should be considered valid. Still, what criteria should be used when deciding to punish an absent employee?

Indeed, there is no list of valid reasons, and in each specific case the employer, or rather the manager, needs to deal with this issue. To be fair, it must be said that the legislation still provides for something. For example, it obliges the employer to release the employee from work while he performs state or public duties. This means that if the employee was busy performing these duties, his absence can no longer be considered absenteeism. Or, for example, an employee was absent due to illness and brought sick leave - there is a good reason ().

Everything is clear with sick leave, but in what cases is the employer obliged to release a person from work?

For example, when the employee is a member of an election commission or a juror.

Do you need to pay such an employee for the days he did not work?

No, you do not need to pay for these days. Government body or public association who engaged the employee to perform these duties pay the employee compensation for this time (). As they say, whoever attracts pays. An exception is made only for donors. Here, among the measures of social support, the legislation obliges the employer not only to release the donor from work on the day of blood donation and provide him with an additional day of rest, but also to pay him for these days average earnings(Article 6 of the Law of the Russian Federation dated 06/09/93 No. 5142-1 “On the donation of blood and its components”; ).

We were talking about sick leave, but what if the employee did not go to work and went to the doctor, but was not given sick leave?

This case was considered by the Moscow City Court (Determination of the Moscow City Court dated October 28, 2010 No. 33-34051). The employee, challenging his dismissal for absenteeism, referred to the fact that he felt unwell and consulted a doctor. For this reason, he did not show up for work. The court found that the employee actually went to the clinic for medical help. He was examined, but he was not recognized as incapable of work and a sick leave certificate was not issued. And since after that he still did not come to work and was absent from the workplace all day, the court decided that in this case there was absenteeism and the employer had the right to fire the employee.

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That is, if an employee saw a doctor, but did not receive sick leave, the reason for absence is not valid?

Not certainly in that way. It has already been noted that it does not establish a list of valid or not valid reasons. After all, the reasons for visiting a doctor are different. Let’s say an employee decides that he is sick and goes to the doctor. The doctor found no cause for concern, did not issue a sick leave certificate, and the employee reported to work. Perhaps the reason for seeing a doctor was eliminated during the appointment. Each case is individual, and there is no universal recipe. In this regard, I would like to once again turn to the same decision of the Moscow City Court (Determination of the Moscow City Court dated October 28, 2010 No. 33-34051). In it, the court expressed a very correct idea. The exercise of employee rights, in this case the exercise of the right to seek medical help, should not be aimed at abuse or violation of the rights of others. Let's say an employee suspected he had an illness and went to the doctor, his assumptions were not justified, and he went to work. Of course, this is a valid reason, but if an employee goes to the clinic every other day to look for illnesses, and the doctors! they are not found, then it’s worth thinking about.

If an employee treats his teeth during working hours, is this a valid reason, is it impossible to check?

If your employee went to the doctor during working hours with acute pain, then there should be no doubt - the reason is valid. And if this is a scheduled examination, then the employee must agree with the employer about his absence.

No need to investigate. You still won’t be able to get direct evidence, but you can understand whether a person is deceiving you or not, for example, by the number of such calls to the doctor during working hours. Of course, there is always the possibility that you will make a mistake and make an unfounded decision to take disciplinary action. The employee will challenge it, and the court will request information from the medical institution. And perhaps you will be wrong, and the court will side with the employee.

What other examples are there when an employee was absent from the workplace, and the court decided that this happened for a good reason?

In 2010, the Supreme Court (Determination Supreme Court RF dated 04/30/2010 No. 6-B10-1) admitted that the employee was absent for a good reason, since he was summoned by the internal affairs authorities as a witness in a criminal case. The court found that the employee spent almost the entire work shift there.

Giving evidence is a valid reason for absence from work. The witness is required to appear to testify, otherwise he may be subject to arrest. Even in cases where a witness has the right to refuse to testify, one cannot evade the call.

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Will it be a valid reason if the employee is not at the police station as a witness? For example, he was arrested for 15 days.

Oddly enough, yes. Labor Code provides as a basis for termination of an employment contract the conviction of an employee to a punishment that precludes the continuation of his previous work, in accordance with a court verdict that has entered into legal force, Art. 83 Labor Code of the Russian Federation>. But for administrative arrest Art. 3.9 of the Code of Administrative Offenses of the Russian Federation> this norm does not apply, because it deals with conviction by sentence. And this is only possible within the framework of criminal proceedings. Administrative arrest as a punishment is imposed by the court by resolution of Art. 3.2, clause 1 part 1 >. And the person is absent from work not of his own free will.

Examples when the employee was wrong, and it turns out that only the employer violates the rights of employees.

Examples when an employee actually violates labor discipline, also not little. For example, the Leningrad Regional Court considered such a dispute. When an employee was denied leave without pay, he simply did not come to work. And in court he referred to the fact that he left his workplace to protect his rights, since the workplace did not comply sanitary requirements. The employer had to prove the opposite with the results of workplace certification. And the court recognized the dismissal for absenteeism as lawful.

Here is another example where the court did not find a valid reason for the employee’s absence. This dispute has already been considered by the Moscow City Court. Challenging the dismissal for absenteeism, the employee referred to the fact that he returned from a business trip on Sunday and decided to take a day off on Monday, which he agreed with his immediate supervisor over the phone.

Provides that, at the request of an employee who worked on a day off or a non-working holiday, he may be given another day of rest. However, both the manager and the secretary did not confirm at the court hearing that the employee called the organization at all. And the court came to the conclusion that the employee did not go to work without permission and the employer had grounds to fire him.

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Act on the absence of an employee from the workplace

ACT No._________

About the absence of an employee from the workplace

Me________________________
position, surname and initials of the person who drew up the act

in the presence _________________
positions, surnames and initials of persons,

Those present during the drawing up of the act

___________________________
This act has been drawn up on the following.
__________________________ during an inspection of employees’ compliance with internal regulations, it was established that there was no ________________________
position (profession) of the employee
___________________________________
last name, first name, patronymic of the employee

at work ___________________________
specific workplace

Control checks of the presence of workers at workplaces carried out by ____________________________ established
time

What __________________________
last name, first name and patronymic

did not show up at work until __________________.

The total time away from work was __________________.
___________________________
Additional Information
___________________________

position of the person who compiled the act signature transcript of the signature
date
_________________________ ___________________ _______________________
position of the person who compiled the act signature transcript of the signature
date
________________________ ___________________ _______________________
position of the person who compiled the act signature transcript of the signature
date