The act of absence of the employee at the workplace. How to fire an employee for being absent from work without a good reason

It is the circumstances in connection with which the employee was not at the workplace that are decisive in the matter of his dismissal for absenteeism. Absence for how long is not absenteeism and what reasons are considered valid?

As labor legislation tells us, absenteeism is the absence from the workplace without good reason for more than four hours in a row during the working day (shift) or throughout the working day (shift), regardless of its (her) duration. Cases when the absence of an employee can be recognized as absenteeism are given in paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2.

Appeals of workers to the labor inspectorate on the issue of their illegal dismissal happen often, - says state labor inspector Yulia Gavrilenko. - Employers violate the dismissal procedure in case of absenteeism. They do not take an explanatory note to find out how valid the reasons for absence from work are. They do not notify that it is necessary to pick up the work book. Of course, in this case, the employee is reinstated at the workplace. The courts make decisions depending on the evidence of a violation of the labor law, and are also guided by their own convictions.

To determine the exact duration of an employee's absence from the workplace, several points must be taken into account:

• whether the period of absence of the employee fell on working time or on rest time;

• what is the duration of the specified period;

• whether the time of the employee’s absence from the workplace is correctly determined if the employee was not found at the workplace several times during the day.

Good reasons?

It happens that an employee has circumstances due to which he could not come to work. In such cases, if, nevertheless, the employee was fired for absenteeism, the court will assess how valid the reasons are for this situation.

• The employee fell ill, while there is an entry in his outpatient card or a certificate from a doctor, but there is no sick leave. In this case, the dismissal will most often be considered illegal. Even in the absence of a certificate of incapacity for work, the medical documents of the initial examination of the employee or a medical certificate are appropriate evidence of a valid reason.

• The employee could work during working hours, but underwent a medical examination on his own initiative. In this case, if the employee did not have a sick leave, passing various medical examinations is not a valid reason for not showing up for work, except in cases where the employee is required to undergo a periodic medical examination (Article 213 of the Labor Code of the Russian Federation).

• An employee's child fell ill and was unable to work because he was seeking emergency medical care for a minor. In this case, judicial practice suggests that this is still a good reason.

• The employee was on sick leave, but during the period of disability he worked and was absent only periodically, but did not coordinate the time of absence with the manager. In this situation, the dismissal will be illegal, because the employee has a sick leave, and the fact that he worked does not indicate the restoration of his ability to work. But if the employer did not know that the employee was on sick leave, due to the fault of the employee himself, the dismissal may be recognized as legal.

• The worker's home was undergoing emergency repairs, and he had to provide access to the apartment for repairmen. In this case, judicial practice speaks of the illegality of dismissal. Absence from work for these reasons is considered valid. This does not apply, for example, to the installation of various kinds of equipment or the production of current repairs at the request of the employee himself.

• The employee was absent from the workplace due to participation in the court session as a plaintiff. The courts consider such a reason for absence to be valid. According to Art. 46 of the Constitution of the Russian Federation, the right to judicial protection includes the right to personal participation in a court session. In addition, the calls and appeals of the courts are binding on everyone without exception and are subject to strict execution. But if the employee does not perform public duties and is simply a representative, then the reason for his absence is considered disrespectful. By the way, visiting other state bodies during working hours on personal matters is also not considered a good reason for absenteeism.

• There are cases when the employer did not notify the employee that it was necessary to go to work at a certain time. In this case, the dismissal will be considered unlawful, since, according to the law, the employer is obliged to acquaint employees under signature with local regulations directly related to their work activity. In such a situation, the absence of an employee at work is not absenteeism. The same applies to the situation when the employee was not notified of a change in his workplace.

• In the event that the employee did not go to work due to non-payment of wages accrued to him, the dismissal will be considered illegal. In the event of a delay in the payment of wages for a period of more than 15 days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period until the payment of the delayed amount(part 2 of article 142 of the Labor Code of the Russian Federation). Workersk, who notified the employer in writing of the suspension of work, is absent from the workplace for a good reason.

About what is considered a disciplinary sanction and what responsibility awaits for non-compliance with the procedure for imposing a disciplinary sanction, read in the next issue.

Time is everything

The question of the correct calculation of the time of absenteeism plays a decisive role. Many different situations have already been considered by the courts, and by analyzing judicial practice, we can come to the following conclusions.

Dismissal of an employee is illegal if:

1. the employee was not present at work for four hours or less;

2. the employee was absent from the workplace for more than four hours in a row, but excluding the time of absence during the lunch break, the working time accounted for less than four hours of absence. According to Art. 108 of the Labor Code of the Russian Federation during the working day, the employee must be given a break for rest and food for no more than two hours and no less than 30 minutes. This break during working hours is not included and is not paid. That is why, when calculating the time of absence of an employee, lunch time should be subtracted from the time of absence from the workplace.

It is legal if:the employee was absent from the workplace for more than four hours of working time, but neither before the lunch break nor after it did the absence exceed four hours. The lunch break does not apply to working time, therefore, the time of absence of the employee before and after the lunch break is subject to summation.

Occasionally, events occur that prevent an employee from showing up for work. Very often it does not depend on him, but on the weather or transport.

In legislation no concept of walking, but there is an article describing the consideration by the courts of labor disputes when skipping for good or bad reasons ().

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

Reasons for absence from work

But before considering the pass as absenteeism, it is necessary to pay attention to the reason for the absence from work. 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-attendance that associated with the worker. For example, a disease. In this case, the employee must provide one from the following evidence:

• sick leave;
• a record of a doctor's appointment in a hospital card.

Sample certificate from a doctor

However, in many enterprises sick leave is not paid.

Every year, all employees must pass medical examination by doctors. This will take place during working hours, so such omissions are considered a good reason.

Sample application for release from work in connection with a medical examination

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

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

sample court summons

Also, a good reason is that a 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 a document to the employee indicating the reason for the 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, such a reason is also considered valid.

Sample summons to the military registration and enlistment office

Objective

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

• road accident;
• technological disaster;
• military actions;
• strong blizzard;
• landslide, fire or flood;
• earthquake or hurricane;
• a road littered with snow, if it was not cleared in time;
• broken transport (if it is impossible to get to work on foot);
• road repair;
• an unexpected breakdown associated with the public utilities sector (a pipe burst or a gas leak began);
• delayed salary (if delayed for more than 15 working days, the employee may not work until he receives his money, but is obliged to notify the authorities in writing in advance);
• elevator breakdown (a person is stuck inside);
• epidemic in the region and compulsory vaccination;
• lack of transport tickets;
• delay or cancellation of transport.

If for the boss the cases listed above are not considered a good reason and the employee is threatened with dismissal, a court hearing will be held. With a high probability, the court will decide that the dismissal was illegal.

In addition, the Labor Code of the Russian Federation indicates several more good reasons for absenteeism. Among them labor activity on:

• holiday;
• weekends;
• 1 day more than necessary.

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

A list of all good reasons is in the articles,,, Labor Code of the Russian Federation.

According to the statement

This reason is also valid. You write a statement to the director indicating the reason for the absence. Take it to an official. The director gets acquainted with him and decides whether this reason is considered valid or not. The most important thing in such cases is to give the authorities a statement before the missed work. Among these reasons:

• parent meeting at school;
• event in honor of the first or last call;
• the need to submit documents to the place of study of the child;
• 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 little 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 followed. It contains 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 regulation;
• 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, there was a dismissal

Contact to the labor inspectorate with a complaint that the boss is violating labor laws.

You will not be able to control the review process. As a result, litigation times can be very long.

Some very large companies have labor dispute commissions. This is a group of people independent of the authorities that deals with such issues.

The best solution is to go to court. But an 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 issued. If the court determines the illegality of the dismissal, you will be immediately reinstated at your place of work, and you will also be paid moral compensation, which depends on your salary. A court session is a paid procedure, but the price will be within reasonable limits.

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

It is best to negotiate with the authorities peacefully without involving third parties. Litigation can lead to bad relationships with management.

If you're going to miss work, it's better notify your boss ahead of time by writing a statement. If he refuses to let you go, promise him to work another day.

Absenteeism of an employee of the enterprise must be issued in accordance with the current labor legislation. How to prove the absence of an employee at the workplace? What documents need to confirm this fact? You will find answers to these and other questions in our article.

What is considered truancy

According to the Labor Code of the Russian Federation, absenteeism is the absence of an employee from the workplace according to the work schedule without good reason. It is recognized as a gross violation by the employee of labor discipline and the terms of the employment contract with the employer, as well as non-compliance with the rules of internal labor regulations.

And what do modern employers mean by absenteeism? Of course, the absence of employees at work on time can cause a lot of trouble for the company's management. And employers often intimidate employees with dismissal for being late for work, being late after a lunch break, leaving work early, etc. But these situations, as a rule, are not absenteeism.

On the other hand, there is no clear list of good reasons in the Labor Code of the Russian Federation. Our legislators leave this issue to the discretion of the company's management. Apparently, the manager must independently assess the degree of validity of the reasons for absence from the workplace. Good reasons include illness, death of loved ones, natural disasters, road accidents, housing problems that require immediate solutions, etc. Each such absence must be confirmed by a sick leave certificate, a certificate from a medical institution, the traffic police, a housing management company, etc. d.

IMPORTANT! If the employee verbally warned the manager in advance about his absence from work, this will not be considered absenteeism. Especially when this fact can be confirmed by other employees of the enterprise - direct witnesses.

Employee absenteeism can create problems in the organization's activities, including financial ones. For example, a failure in the production process of an enterprise operating on a continuous cycle, an unsigned contract for a major commercial transaction, as a result of which the enterprise could increase revenue, etc.

Important conditions for recognition of absenteeism

In judicial practice, there are cases when truants won lawsuits due to an incorrectly executed and undocumented fact of absenteeism and were reinstated at work. That is why the employer must carefully draw up all documents related to absenteeism. However, you shouldn't do it retrospectively. As practice shows, such facts are provable and the court will take the side of the employee who allowed absenteeism.

In what cases is the absence of an employee at work regarded as absenteeism:

• In the absence of an employee at the workplace during the entire work shift (even if it lasts less than 4 hours).

If the employee did not have a documented workplace and he was on the territory of the organization, the employer will not be able to give him official absenteeism. Conclusion: assign a workplace to each employee in the employment contract when he enters the job.

• If the employee is absent from the workplace for more than 4 hours.

Moreover, if the employee was absent for exactly 4 hours, such an absence will not be considered absenteeism.

• Absence from work for unexcused reasons.

Each employee must confirm his absence from the workplace with supporting documents. For example, a sick leave, a subpoena or an inquiry, a certificate from a medical institution and other documents. At the same time, the employer does not have the right to dismiss a pregnant woman who allowed absenteeism.

• When the fact of absenteeism is proven.

Every walk must be documented. Otherwise, if the employee goes to court, justice will not be on the side of the employer.

Article 81 of the Labor Code of the Russian Federation in 2018

In Art. 81 of the Labor Code of the Russian Federation, namely sub. “a”, paragraph 6, states that in the event of absenteeism, the employer can legally fire the employee. In this case, the conditions mentioned earlier must be met.

But does a manager always have to fire an employee for absenteeism? This article gives him the right to do so, but does not establish such an obligation. Legislators leave the choice to the management of the company. It can issue an employee a reprimand, a remark, or simply leave absenteeism unattended.

In some cases, the dismissal of an employee is possible due to his going on unauthorized leave without warning the management. Each enterprise must draw up an annual vacation schedule. It is communicated to employees. The absence of a schedule is recognized as a violation of labor laws.

But in any case, going on vacation without the consent of the management is a violation of labor discipline, and the employee may be held liable for absenteeism.

You may also find the following articles helpful:

• “How to arrange a vacation with subsequent dismissal?” ;
• "Order for annual paid leave - sample and form" .

Sometimes it also happens that absenteeism ends with the desire of an employee to quit of his own free will. An employee writes a letter of resignation and, having not worked for 2 weeks, does not go to work at the appointed time.

If the employer dismisses the employee for absenteeism, he makes a corresponding note in his work book with reference to Art. 81 of the Labor Code of the Russian Federation.

How to prove absenteeism of an employee

The main difficulty in documenting an employee's absenteeism is to prove the disrespectfulness of the reason for his absence from the workplace. In some cases, the employee cannot inform the manager about his absence from work for objective reasons. For example, there was an emergency on the road, an employee was unexpectedly hospitalized in intensive care, etc.

IMPORTANT! You do not need to immediately prepare an order for dismissal or disciplinary action on the day of absenteeism. The main thing is to record the fact of the absence of a person at his workplace in the presence of several witnesses.

To do this, the personnel department must draw up an act on the absence of an employee in any form on the letterhead of the company. It is signed by witnesses who can confirm the situation. In addition, the act should indicate the place of compilation, the date and necessarily the exact time, the full name of the employee who compiled this document, as well as witnesses.

After the act is drawn up and until the reasons for the absence of a potential truant at the workplace (if any) are clarified, the time sheet in the form of T-12 and T-13 is marked "HH" (absence for unexplained reasons). In the future, if the employee submits supporting documents, the “HN” mark is corrected, for example, to “B” (sick leave). If the employee does not have such documents, “PR” (truancy) is affixed.

On our website you can find out the procedure for filling out time sheets, as well as download their forms. See articles:

• "Unified form T-12 - form and sample" ;
• "Unified form T-13 - form and sample" .

When an employee appears at the workplace, it is mandatory to take an explanatory note in writing from him about the reasons for absenteeism (in the absence of supporting documents). There are cases when an employee dismissed for absenteeism filed a lawsuit against his employer in court for illegal dismissal and won the lawsuit.

Why can a dismissal be declared illegal if the fact of absenteeism has been proven? The employee may refer to the last paragraph of Art. 192 of the Labor Code of the Russian Federation and the fact that the employer did not even ask about the reasons for absenteeism and did not assess the severity of the misconduct and the circumstances of its commission.

IMPORTANT! In case of absenteeism, be sure to require a written explanation from the employee.

But there are times when employees refuse to give an explanation of the reasons for absenteeism in writing. Then the employer should give the employee a notice of the need to submit an explanatory note against signature. The document must indicate the number of days during which the employee must explain his absence. This is 2 business days (Article 193 of the Labor Code of the Russian Federation).

If the employee refused to receive a notification or did not submit an explanatory note after the specified time, this should also be recorded in an act in the presence of witnesses.

Documentation of employee absenteeism

So, we figured out in which cases the absence of an employee in the workplace is considered absenteeism and how to prove it. And how to document absenteeism of an employee and its consequences?

The final decision on the punishment of the employee for absenteeism is made by the employer. An employee may be held liable for absenteeism in the form of:

• Layoffs. When dismissed for absenteeism, it is not necessary to draw up 2 orders - on the imposition of a disciplinary sanction and termination of the employment contract. An order to terminate the employment contract is sufficient. As the basis for such an order, memos, acts, explanatory notes from the employee, a time sheet are indicated, that is, documents that prove the fact of absenteeism and justify the dismissal.
• Disciplinary action. It is issued by order of the head of the institution. This order does not have a unified form, so each enterprise can develop its own sample order. You can take unified forms of other orders as a basis, so as not to forget to indicate all the necessary details in the document. For example, an order in the T-6 form to grant an employee leave.

You can download a sample order in the T-6 form on our website "Unified form of order T-6 - download the form and sample" .

Such an order must reflect the following points:

• the fact of violation by the employee of labor discipline, that is, absenteeism itself, indicating its date;
• documents that prove the fact of absenteeism of the employee (memorandums, acts, explanatory notes from the employee, time sheet);
• type of punishment (consequences of violation): reprimand, remark, deprivation of another bonus, etc.

On our website you can download an example of a disciplinary order form. See article "Order on disciplinary action - sample and form" .

In order to, if necessary, punish an employee for absenteeism, the employer must, when hiring, familiarize him with labor duties (employment contract, job description) and internal labor regulations against personal signature. Then, after the decision to dismiss or disciplinary action is made, if the employee goes to court, there will be more chances that justice will side with the employer.

Results

Absenteeism is the absence of an employee from the workplace for more than 4 hours in accordance with the work schedule. This is a gross violation by the employee of labor discipline, the terms of the employment contract with the employer and the internal labor regulations. To be recognized as absenteeism, a number of conditions must be met:

• the absence of an employee at the workplace during the entire work shift;
• the absence of an employee at his workplace for more than 4 hours;
• absence from work for unexcused reasons;
• proof of truancy.

In case of absenteeism, the employer must demand from the employee a written explanation of his absence from the workplace. An employee may be held liable for absenteeism in the form of:

• dismissal, which is formalized by an order to terminate the employment contract with the employee;
• disciplinary sanction, which is also issued by the relevant order.

Each incorrectly executed document can affect the outcome of the lawsuit not in favor of the employer if the employee goes to court due to illegal dismissal. So all documents must be properly drawn up at the right time and, if necessary, signed by witnesses of this situation.

The employee was absent from the workplace without good reason during the whole working day. They were not provided with an explanation. What actions can the employer take in this situation? Can an employee be fired for?

The absence of an employee from the workplace without good reason throughout the working day, as well as the 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 single gross violation by the employee of labor duties, he may be terminated at the initiative of the employer in accordance with paragraphs. "a" clause 6 of the first part of article 81 of the Labor Code of the Russian Federation.

As follows from this rule, one of the main signs of absenteeism is the absence of an employee at the workplace for a certain time without a good reason. At the same time, the burden of proving the fact that an employee has committed absenteeism lies with the employer (paragraph 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 the courts of the Russian Federation of the Labor Code of the Russian Federation"; hereinafter - 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 valid and disrespectful reasons.

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

Accordingly, in each case, it is necessary to assess the "validity" of a particular reason (see also the definition of the IC in civil cases of the Omsk Regional Court of October 20, 2004 N 33-3509).

In addition, it may turn out that the absence of the employee was caused by reasons that are independent grounds for terminating the 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 dead 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 a punishment excluding the continuation of the previous work (clause 4 of the first part of article 83 of the Labor Code of the Russian Federation).

In other words, since there is always a possibility that an employee is absent for a good reason, it is not recommended to dismiss an employee for absenteeism until the circumstances of his absence from work are clarified. In such cases, the employer must definitely record the fact of the absence of the employee at the workplace. For this, an act is drawn up in any form, which is signed by several witnesses. You can draw up such an act both on the first day of the employee’s absence from work, and on any of the following days. If the employee did not go to work for a long time and the exact reasons for his absence are unknown, then it is recommended to draw up such acts periodically during the entire period of absence.

From the first day of absence in the timesheet, the employee should mark "НН" - "absence for unknown reasons" (Decree of the State Statistics Committee of the Russian Federation of 05.01.2004 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 the absence is established, you can change the mark "absence for unexplained reasons" to the appropriate one, for example, to the mark "absenteeism" (PR) or to the mark "Temporary disability" (B) * (1).

From the moment of fixing in personnel documents the absence of an employee at the workplace, 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 a gross violation of labor duties by an employee, that is, a disciplinary offense, and a disciplinary sanction for committing it. This means that when dismissing for absenteeism, the employer must comply with the procedure for applying disciplinary sanctions established by Art. 193 of the Labor Code of the Russian Federation (the general procedure for dismissing an employee for absenteeism is given, for example, in a letter from Rostrud dated October 31, 2007 N 4415-6). If this procedure is violated, then in the event of a trial, the court will most likely recognize the dismissal as illegal, even if the fact that the employee has committed absenteeism is proved.

First of all, the employer must meet the deadlines for applying the disciplinary sanction established by Art. 193 of the Labor Code of the Russian Federation. So, you can be fired for absenteeism no later than 1 month from the date of its discovery, not counting the time the employee was ill, being on vacation, as well as the time required to take into account the opinion of the representative body of workers, and no later than 6 months from the date of its commission. The day when the misconduct is discovered, from which the monthly period begins, is the day when the person to whom the employee is subordinate at work (service) became aware of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions (clause 34 of the Resolution of the Plenum) .

In the event that an employee commits a long absenteeism, the monthly period for detecting misconduct should be calculated from the last day of 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 consideration practice in the 1st half of 2008 . courts of the Saratov region of cases on termination of the employment contract at the initiative of the employer and on other grounds not related to the will of the employee).

The second most important condition is the correct 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 demand written explanations from an employee who does not appear at the workplace, and to do this in such a way that later it would be possible to prove the fact of such a request for explanations. For this reason, many experts recommend waiting until the employee appears at work and does not submit supporting documents.

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

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

If two working days have passed from the moment the employee received the letter, and the employee has not provided an explanation, then an appropriate act is drawn up. The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction, that is, to dismissal * (2).

Based on the act of absence from the workplace, as well as a written explanation or an act on 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 of his absence from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then an appropriate act is drawn up. An absent employee should be sent a telegram or a registered letter with a notification in which they invite the employee to familiarize themselves with the dismissal order and to receive the calculation 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 the application of a disciplinary sanction established by Art. 193 of the Labor Code of the Russian Federation. But the date of dismissal should be the last day of the employee’s work, with the exception of cases when the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, the 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 issue a work book to the employee. In the event that it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send a notification to the employee about the need to appear for the work book or agree to send it by mail. From the date of sending the said notification, the employer is released from liability for the delay in issuing a 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 the termination of employment when the employee is dismissed for absenteeism.

At the written request of 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 request.

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

Prepared answer:
Legal Consulting Service Expert GARANT
Panova Natalia

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

The material was prepared on the basis of an 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" the Federal Service for Labor and Employment (Rostrud) in letters of January 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 clarified that from January 1, 2013, the unified forms approved by the said resolution for non-governmental organizations are not required. Such organizations have the right to use the forms of primary accounting documents developed by them independently.

*(2) In such a situation, an appeal against the dismissal by the employee is not excluded, because the reasons for the absence in this situation are unknown. However, in this case, the court may refuse to satisfy the employee’s claim for reinstatement if the fact of abuse of the right is established (for example, intentional failure to provide a document confirming the validity of the reasons for absence from work), since in this case the employer should not be liable for adverse consequences that occurred as a result of dishonest actions on the part of the employee (paragraph 27 of the resolution of the Plenum).

The legislation clearly interprets the term absenteeism, but does not contain grounds on which the reasons can be considered valid and will not make it possible to dismiss a “negligent” employee.

What is a walk?

The legislator interprets absenteeism as a long-term absence of an employee from the workplace without a good reason. Time from 4 hours can be taken into account.

To minimize losses, the employer must take some preventive measures:

• be sure to familiarize employees with the Internal Labor Regulations, which should reflect how and within what time frames the staff must report their absence so that the manager can timely redistribute the duties of the absent employee among other staff;
• the head of the unit, or another authorized person must have a list of employees who can replace each other;
• the head of a department or other subdivision must have a memo on what he must do if an employee is absent from the workplace without a good reason.

An example of a memo to an employer:

1. In the absence of an employee, the manager is obliged to call back to his known phones, home or mobile;
2. Specify the reason for the absence;
3. Talk to the staff, possibly absent, communicated something to their colleagues, if this was the case, then it is better for the employees to state the information in writing;
4. The drawn up act should describe the measures taken to search for the truant;
5. Transfer of all documents to the personnel department.

Absence fixation

If an employee fails to appear, an act must be drawn up.

It is from a detailed statement of the fact of the absence of an employee at the workplace without a good reason that his future fate at this enterprise will depend. Perhaps the person just got sick or got into another difficult situation.

The act must be drawn up in front of witnesses, it is better to involve personnel from another unit so that in the future, the truant could not put pressure on his colleagues, or prove that the act was drawn up under pressure from the authorities.

The administration of the enterprise does not require immediate measures to search for an employee, however, if a person lives alone, the phones are not answered, then it is recommended to go to his house. If no one opens an apartment or house, then it is better to ask the neighbors when they last saw the person, if no one can provide any information, then the logical step would be to call the district police officer to open the dwelling.

If no measures to search for an absent employee have yielded any results, then it is recommended to draw up an act of his absence, almost every day. The letter code "НН" is entered in the report card, the person's digital code is 30.

It is these two documents that serve as evidence in court proceedings, so their execution should be approached carefully.

The process of finding out the reasons for the absence

An employee could get sick and not report it to his superiors.

If the truant showed up, presenting a sick leave, a certificate from a medical institution, then all the absence documents drawn up should not be destroyed.

In the case when the absence of the employee at the workplace without a good reason was really present, then a written explanation should be required from him. If the truant refuses, it is recommended to draw up a written request and hand it over to him against signature.

Such evidence in court proceedings is much more effective than verbal explanations from the employer.

Notification of the need to explain the reasons for non-appearance is not regulated by any regulatory act, but must contain the details of the enterprise, the data of the truant, a request for a written explanation of the reasons for non-appearance within a specific time frame. As a rule, it does not take much time to compile an explanation, it can be 2 or 3 days.

If within the specified period, the employee has not submitted an explanation, then the employer is obliged to draw up an appropriate act.

If an employee refuses to explain his absence in writing, he is not deprived of the right to apply disciplinary action, including termination of the contract. This is written into the legislation.

What reasons can be valid?

Not all reasons are valid.

The administration of the enterprise can independently decide the "fate" of an individual employee, whether to consider a specific absenteeism as a day of absenteeism. If the staff did not have malicious intent and was honestly mistaken, then such an absence cannot be considered absenteeism.

The legislation provides for options when the employer is obliged not to recognize the absence as absenteeism in the following cases:

• providing a sick leave or an extract from a medical card;
• performance by an employee of duties of a public and state nature, for example, if a particular employee is a member of an election commission;
• if the employee is a donor.

In addition, if an employee could not get to work on time, or could not at all, due to freezing rain or a snowstorm, then no court will recognize such a reason as not valid.

A good reason for the absence is also the appearance in court, or in the tax authorities to testify, as a witness, or another person. Such confirmation is reflected in the decisions of the SMR.

A fire or short circuit in the house, incidents on the way to the workplace, other unforeseen life circumstances are also valid reasons and cannot be a reason for dismissal for absenteeism.

Regarding being late from the next vacation, the opinions of specialists and courts are ambiguous. For the most part, dismissal for such a reason is recognized as legal, since the employee is obliged to plan his trips in such a way that possible unforeseen situations, a plane or train delay, and adverse weather conditions are taken into account.

If the employee decides to leave the workplace or does not appear at all, citing the fact that his computer is broken or there are no clients, it will certainly be interpreted as absenteeism.

What to do with a truant?

Absence can be subject to disciplinary action.

An employee is absent from the workplace without a good reason - a real reason to get rid of "unnecessary" staff. Although, in addition to dismissal, disciplinary punishment may be imposed, but no later than 1 month from the moment of the incident.

One offense can only be punished once. It is necessary to familiarize the employee against signature. If the employee does not want to sign, then the employer draws up an act.

It should be remembered that a truant has the right to go to court to protect his rights. In this case, the employee will have to be reinstated and paid the average wage for the period of forced downtime. To avoid such a situation, it is recommended to follow the procedure for collecting evidence and dismissal.

First of all, there must be a written confirmation of the absence of the employee at the workplace, these are absence certificates, memorandums, explanatory and other supporting documents. You should not draw up such documents retroactively, but draw up everything on the day of absenteeism.

Further registration of dismissal is carried out according to the general rules. The employer is obliged to bring his decision to the employee in writing, under an introductory signature. If, for some reason, it is not possible to personally acquaint the employee, then a corresponding mark is made on him.

The day of dismissal is considered the last working day, even if the truant was absent from the workplace. The labor service adheres to the position that the last working day that preceded absenteeism is the day of dismissal.

Under any circumstances, the work book must be issued on the last working day, even if the contract is terminated due to absenteeism.

The imposition of a disciplinary sanction, including dismissal, cannot occur later than 1 month from the moment of the offense.

Regardless of the reasons for dismissal, the employer is obliged to make a full financial settlement with the employee on the day of his dismissal. In the event that wages are not transferred to a bank card, all accrued wages are deposited until the dismissed employee applies for its receipt.

Remember, you cannot fire a pregnant woman, even if she is a malicious truant.

Never fire a truant on the day of his absence, without a written explanation of the reasons for his absence.

You should find out why the employee is absent for a long time.

The situation is much more complicated when the employee is absent for a very long time, the employer fails to find out the reasons for the absence. It is recommended to call him periodically, preferably with witnesses and draw up an act.

Once a week, you can send mail to the address of the truant's residence, demanding an explanation of the reasons for the absence.

The courts confirm the right of the administration to dismiss a person for absenteeism who was sent a notice home, which returned with a mark of delivery, or vice versa, the letter was returned due to the expiration of the storage period or the recipient refused written confirmation of delivery of the notice.

There may be a situation that an employee was imprisoned for 15 days for an administrative offense. On the one hand, it is not possible to terminate an employment contract with a convicted or detainee, but this applies to criminal prosecution.

Administrative punishment is not a basis for retaining a job, as this is a different proceeding than criminal.

The practice of considering such court cases is ambiguous.

In summary, the dismissal of staff for absenteeism requires a clear written fixation and compliance with all the norms of the current legislation.

In this video, you will learn what to do if an employee does not get in touch.

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