Compensation for forced absenteeism in case of illegal dismissal. Forced absenteeism

Walking is a broad term. It may be the fault of the employee or the employer. It is extremely important to determine its type, since the features of payments depend on it.

The concept of forced absenteeism according to the Labor Code of the Russian Federation

The TC does not disclose the term "forced absenteeism." Traditionally, it is considered that this is the absence of working days by an employee through the direct fault of the employer. For example, the boss wants to fire the worker, but the latter does not seek to draw up a letter of resignation of his own free will. The employer literally forces the employee to leave, not letting him into the workplace. The worker cannot continue to work, which can be recognized as forced absenteeism (IT). As a rule, this concept is associated precisely with.

The concept of forced absenteeism is set out in the following articles of the Labor Code of the Russian Federation:

• Article 373. Establishes the obligation of the employer in the event of illegal dismissal to restore the employee to his former rights, as well as pay for all days of forced absenteeism.
• Article 391. A person, if he cannot get a job due to an illegal entry in the work book or due to the non-issuance of a work book, can recover compensation through the court from the employer for the days of the EaP.
• Article 394. Establishes the need for the employer to pay compensation to the employee in the amount of the average earnings for the days of the EaP.

The Labor Code of the Russian Federation protects the rights of the worker. If the employer infringes on the interests of the employee, the latter may apply to the labor inspectorate or the court.

In what cases does forced absenteeism occur?

Absence may be considered forced in the following circumstances:

• The employer is trying to force the employee to leave the organization by not letting him into the workplace. This fact needs to be confirmed. Testimony of witnesses, photos and videos are used as evidence.
• Transfer of an employee to a position with a lower pay without sufficient grounds.
• Refusal to hire a person for no reason.
• The employer illegally dismisses the employee “under the article” (for example, the dismissal occurs due to absenteeism of the worker, but the fact of non-attendance at the workplace has not been confirmed or documented in any way). As a result, the person cannot get a job.
• The employer does not issue a work book to the employee upon his dismissal. This again makes it difficult to get a job. A person is forced to stay at home, and not continue his work activity.

In all these cases, the employer commits an offense. He is obliged not only to make all the necessary payments for the period of the EaP, but also to eliminate the violation of the law. For example, to reinstate an employee in the service or remove a negative entry from his work book.

How is the duration of forced absenteeism determined?

It is extremely important to determine the duration of the EP, since in order to calculate compensation, you need to know the terms for which accruals occur. The absenteeism period is the time between the date of dismissal (the first involuntary absence from work) and the date of the decision of the legal structure (court).

Example 1

On May 15, 2016, the man was illegal. He immediately filed a lawsuit in court for the restoration of his rights. On June 15, a court ruling entered into force, according to which the employer is obliged to remove the wording of dismissal from the work book, which is illegal in this case, and also to reinstate the employee in his position. The period of forced absenteeism in this case is a month. The employer must calculate compensation for all these days.

How is forced absenteeism paid?

For each day of absenteeism through no fault of the employee, compensation is calculated equal to the average salary of the worker per shift. First, the accountant must determine the average salary of an employee.

ATTENTION! The rules for calculating the average income are set out in article 139 of the Labor Code of the Russian Federation. They are also fixed in the Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

Calculation of payments to an employee with VP

How will the average income of an employee be calculated in this case? When calculating, the following sources of income for the worker are taken into account:

• Salary.
• Premium.
• Various surcharges.
• Allowances.

ATTENTION! The calculations do not take into account the payment of benefits and contributions to the pension fund. That is, before determining the official earnings, they must be deducted from the employee's income.

To determine the average income, you must first calculate the employee's total income since the beginning of the year. For example, on February 1, he received 31,700 thousand. From this amount, standard accruals to funds, amounting to 1,700 rubles, are deducted. The amount received must be divided by the number of days since the beginning of the year. It turns out 1,000 rubles. This is the employee's daily income.

IMPORTANT! When calculating, only the official salary of the employee is taken into account. For example, if an official worker received only 8,000 rubles, but his unofficial salary was 100,000 rubles, the calculations will be made on the basis of the official 8,000 rubles. That is why it is beneficial for an employee to have a “white” salary.

What's next?

The average daily wage of a person is multiplied by the number of days of VP. For example, absenteeism due to the fault of the employer amounted to 30 days. The average daily salary is 1,000 rubles. The amount of payments in this case will be 30,000 rubles.

Are payments subject to income tax?

Reflection of payments in accounting

Data in accounting, according to the Letter of the Ministry of Finance of June 17, 2016, must be entered simultaneously with the elimination of the offense against the employee. For example, if an illegal dismissal occurs, the accountant enters information simultaneously with the reinstatement of the employee in his position and the cancellation of the order to dismiss him. Payments for the period of forced absenteeism and accrued insurance premiums can be included in expenses in the general manner.

Example 2

An employee was illegally fired in February. He went to court to restore his rights. The court satisfied his claim and ordered the employer to pay 110,000 rubles for the EP period. The employee was reinstated and received the funds in full. As of the date of compensation:

• The employee does not have rights to the standard deduction for.
• The amount of compensation does not exceed the maximum amount accepted for calculating insurance premiums.

The accountant makes the following entries:

• DT20 (25, 26, 44) KT70. Explanation: calculation of average earnings. Amount: 110,000 rubles.
• DT20 (25, 26, 44) KT69. Explanation: Calculation of premiums for insurance. Amount: 33,220 rubles (110,000 * 30.2%).
• DT70 KT50. Explanation: payment of compensation to an employee. Amount: 110,000 rubles.
• DT70 KT68. Explanation: withholding personal income tax. Amount: 14,300 rubles (110,000 * 13%).

This is the standard procedure for reflecting information in accounting.

Additional compensation

An employee can also count on additional compensation for moral damage. The decision on the obligation to pay it is made by the court. The amount of compensation depends on the requirements of the employee, as well as the decision of the judge. For example, a worker may request a million rubles, but the judge will assess the moral damage caused in a smaller amount and oblige the employer to pay 10,000 rubles.

IMPORTANT! When initiating such cases, automatic calculation of compensation does not occur. To obtain them, you must indicate the corresponding requirement in your claim.

Hello! In this article we will talk about absenteeism due to the fault of the employer.

Today you will learn:

1. What is forced absenteeism;
2. What are the reasons for forced absenteeism;
3. What payments are due in cases of such absenteeism.

Employees allow absenteeism not always through their own fault. Often the reason for absenteeism is the employer. When this happens and what payments are due to the employee, we will discuss further.

What is considered forced absenteeism

Forced absenteeism is usually called the period when a person had a desire to do work, but did not have the opportunity to do so due to the fault of the employer.

How is the issue regulated?

• Labor Code of the Russian Federation;
• Tax Code of the Russian Federation;
• Plenums of the Supreme Court;

Reasons for absenteeism in which the employer is to blame

The most common situations are:

• The specialist was suspended from work for no reason;
• An employee was fired without good reason;
• The work book was issued much later than the last working day.

Based on labor legislation, if an employee is completely sure that absenteeism was not due to his fault, but the management of the company or organization is to blame, he can apply for the protection of his rights to the judicial authorities. If he is proven right, the employer will be charged both and compensation to the employee.

There are a number of other valid reasons why an employee may be absent from the workplace:

• Poor health, which is confirmed by medical documents and doctor's records;
• Children's health status (with the same evidence);
• Participation in a court session as a plaintiff, witness or juror. This is also easy to confirm by presenting the summons to the employer;
• Participation in the election commission;
• Elimination of utility accidents in your apartment, house. At the same time, scheduled inspections of housing and communal services are not considered a good reason for absence.

There are also objective reasons that the employee, with all the desire, will not be able to overcome:

• Technical accidents;
• Severe weather conditions;
• accidents on the road;
• military actions.

In this case, compensation is paid on the date when the decision to cancel was made. Do not wait for the court decision to come into force, make the payment.

All decisions in cases relating to labor disputes are best executed immediately after they are made.

It is not difficult to calculate the period of forced absenteeism. To do this, you need to know the date when the employee was fired, as well as the date when the court ruled to reinstate him at work. The time between these numbers will be considered forced absenteeism. Let's look at an example.

Example. The employee was fired on 05/11/17. The court decided to reinstate him at work on 12/29/18. Determine how many working days have passed during this period. So, from 05/12/17 to 12/31/17 the number of working days was 186. From 01/01/18 to 12/29/18 the number of working days is 298. Based on this, temporary absenteeism will be equal to 384.

So, from the above example, we see that the period of absenteeism is not considered from the date indicated in the dismissal order, but from the next day.

absenteeism payment

Not all violations are related to illegal dismissal. It happens that a work book was not issued to a person on the day of dismissal, and because of this, he could not get a new job, which means he lost his profit. Your duty is to pay him these days.

If an entry is made incorrectly in the work book, and your former employee has lost a new job because of this, you will also have to pay him the profit that he lost. Of course, he will have to prove in court that the reason for the denial of employment is precisely the entry in the labor.

It happens that the employer for absenteeism or an employee who looked after a small child. If you do not want litigation, get advice on how legal it is to dismiss a particular specialist.

We calculate compensation

Be sure to take into account:

• Paid out ;
• insurance payments;
• The amount of allowances;
• Increased rate and more.

We do not take into account:

• Assistance given to the employee by the trade union;
• Payment for travel to work;
• payment;
• Reimbursement of money spent on food.

If an employee has worked for you for less than 12 months, we calculate based on the average daily earnings. To do this, we divide the days that he worked by dividing by the salary that was received for the year, subtracting all the allowances that are not related to the salary. We also do not take into account the places where a person worked before.

If during the time of illegal removal of a person from work, the rate increased, take this into account when you make the calculation.

If the employee was paid severance pay upon dismissal, albeit illegal, then count this amount. But this does not mean at all that you do not need to pay for absenteeism through your fault.

In fact, the rule is quite simple - they fired a person for absenteeism through your fault - compensate for everything that he lost. Also, keep in mind that the employee may demand in court to compensate for the moral damage caused to him. But what will be the amount of the payment, the court will decide.

Now let's calculate exactly how much the employee should receive for his forced absenteeism.

Example

Mechanic S., before he was fired, received 41,000 rubles a month. His forced absenteeism is equal to 2 months, 42 working days. We calculate the average salary: we take data for the last year preceding the dismissal. From January to December 2017 - 365 days.

The average earnings per day will be: (41,000 * 12) / 365 = 1347.95 rubles. So much S. earned per day.

So, we consider the payment: 1347.95 * 42 = 56,613.90 rubles. S. must receive this amount of money.

Suppose the court decided to recover from the employer the amount of compensation for non-pecuniary damage in the amount of 13,000 rubles and legal costs of 23,000 rubles. As a result: the employee will be reinstated at work and he should receive: 56,613.90 + 13,000 + 23,000 = 92,613.90 rubles.

The right of the unlawfully dismissed to leave

If the court confirmed the fact that absenteeism was allowed through the fault of the employer, it turns out that the employee's length of service was not interrupted, which means that he can qualify for paid leave.

VP and experience

This period of time is included in the total work experience of a person.

Manager's responsibility

If the employer does not pay compensation according to the court decision, the plaintiff can count on 1/300 of the refinancing rate set by the Central Bank of the Russian Federation for each day of delay.

Arbitrage practice

Let us dwell on this issue in more detail, because it is not uncommon for workers to apply to the judiciary for whom they are not to blame. This category of cases also includes incorrect execution of dismissal, threatening employees in order to force them to write a statement about.

Most decisions on dismissal for absenteeism due to the fault of the employer are made in favor of former employees. The only thing is that not all of them go to court for help, because they do not have sufficient knowledge and are simply afraid to start a lawsuit with a former employer.

Conclusion

Summing up, I would like to give a little advice: do not bring the matter to court proceedings, if you decide to fire a person, consult lawyers on how to do this without violating the law.

A mistake made can cost a lot of money, a damaged reputation, and the employee will have to be reinstated. You will also pay all legal costs out of your own pocket.

If you have not avoided the court, settle accounts with the employee as soon as possible and do not wait for the court decision to come into force.

Forced absenteeism through the fault of the employer in the Labor Code of the Russian Federation and payment for it are established by a court decision or an act of the labor inspectorate. Uncertainty in the formulation of this concept is a frequent cause of controversy. Meanwhile, practitioners agree that forced absenteeism is the absence of an employee at the place of performance of his duties for more than four hours in a row or during the entire shift through the fault of the employer. It is paid only after the illegality of the actions of the administration is proved.

Forced absenteeism through the fault of the employer in the Labor Code of the Russian Federation takes place in the following cases:

• illegal dismissal;
• groundless transfer of an employee to another job;
• untimely approval of the labor agreement or unreasonable refusal to accept the job seeker;
• simple;
• incorrect wording regarding dismissal, preventing the search for a new job;
• untimely issuance of a work book;
• delay in the execution of the decision of the state body to reinstate the employee.

Important! If the employee succeeds in proving that one of the listed cases has occurred, his manager is obliged to pay for the time of forced absenteeism.

What payments are due to the employee

Article 234 of the Labor Code imposes an obligation on the administration of the enterprise to compensate for all payments not received by subordinates during forced absenteeism. When making calculations, you should check yourself with an online calculator. This service helps to avoid many errors in the calculation of compensation and other payments.

The formula for self-calculation or verification of the data that the calculator produces:

compensation = average earnings * number of days absent from work.

If we are talking about idle time, then the employer is obliged to pay 2/3 of the average earnings for this period. Thus, the formula can be adjusted for this case.

To calculate wages for the time of forced absenteeism, the following data will be needed:

• the size of the average income of an employee;
• adjustment coefficient (when the level of salaries changes, earnings are indexed);
• forced walk time.

In addition, the employer should be prepared that the subordinate will demand moral compensation due to the illegal actions of the administration. Its size and accrual procedure are determined individually for each issue. The degree of guilt of the manager, the personality of the employee and many other factors that deserve attention are taken into account.

How to calculate average earnings

The procedure for calculating payments is regulated by the norms of Decree No. 922 of 2007. To do this, it is necessary to calculate the average earnings of an employee for the last calendar year. Payment for forced absenteeism during illegal dismissal occurs by deriving the average earnings accrued before the end of the employment relationship. Compensation includes the following payments:

• wages paid on the basis of tariff and piece rates;
• commissions;
• wages in kind;
• remuneration for public service;
• royalties to authors;
• allowances and surcharges;
• premiums.

Read also The nuances of dismissal of an employee from work for one absenteeism

When calculating compensation for forced absenteeism, you can use a special accounting tool - an online calculator. This service carries out not only the correct calculation, but also takes into account all changes made to the legislation. The calculator is recommended to be used for other types of accruals. The following formula will help you calculate the average salary on your own:

average earnings per day = total earnings for the year / hours actually worked.

For example, citizen Ivanov was fired from his job in January 2019. Salary during 2016 was 30,000 rubles. In the summer there was an annual vacation lasting 2 weeks (10 working days). Only full calendar months and days of actual performance of labor duties are taken for calculation:

1. the entire salary of the employee will be 360,000 rubles (30,000 * 12 months);
2. to get the number of days worked, you should raise the accounting documentation and add up the work shifts of the employee, for example, it turned out 242 days (vacation is not included here);
3. Ivanov's daily earnings will be 1,487 rubles.

To recover the average earnings during the forced absenteeism, you need to contact the judicial authority. This is the only way to prove your right to receive payments.

Earning indexation

Forced absenteeism during illegal dismissal is not easy to prove in practice, and even more so not quickly. During this time, the company may experience changes in the calculation of earnings. The withdrawn amount of average income is subject to indexation in such situations:

• there was an increase in wages in the calculated period;
• income at the enterprise increased after the illegal dismissal of an employee.

The adjustment factor is calculated by dividing the earnings set to date by the income actually received by the employee. This indicator is multiplied by the accruals received in each month until the increase in income. It is more convenient for a dismissed employee to make these accruals using the indexation calculator.

An example is the following. Citizen Ivanova was fired in January 2019. She didn't have a vacation in 2016. The income of employees at the enterprise was 30,000 rubles, and after her dismissal it increased to 35,000 rubles. In total, 252 working days were worked in the year. Thus, on the day of her earnings is 1,428 rubles. Now we need to take into account the difference in salaries. The coefficient is 35,000 / 30,000 = 1.16. The average earnings are adjusted, and 1,656 rubles come out. It is from this indexed amount that the income that the employee will receive as compensation is calculated.

When it comes to skipping working hours, a word such as “truancy” sounds in the mouth of a personnel officer. Both employer and employee agree to this. What is forced walking?

What does the labor code say about absenteeism

The Labor Code of the Russian Federation gives the following concept of "truancy" - this is the absence of an employee at his immediate workplace without a good reason for 4 hours in a row or during one work shift. Making absenteeism, the employee violates the daily routine and norms of labor discipline. This is a disciplinary offense, which is punished in accordance with the norms of the Labor Code of the Russian Federation.

For absenteeism, the employer has the right to dismiss the employee within one working day, but for this he must receive written explanations from him about what happened and draw up quite a lot of personnel documents.

To qualify as a misdemeanor, it must meet the following criteria:

• the employee does not appear at the workplace for 4 hours in a row;
• he cannot justify the reasons for his act, that is, there is no good reason for missing work;
• if all signs of absenteeism are present, and the authorities decided to dismiss the delinquent employee, then the documents must be drawn up correctly. Otherwise, absenteeism may become "forced absenteeism", which will serve as the basis for the reinstatement of the employee in the workplace by a court decision.

So, skipping work hours can occur for the following reasons:

• respectful;
• disrespectful.

Not a single normative act defines a valid or disrespectful reason. Accepting the reason as a valid one is the right of the employer, not his obligation.

But as practice shows, good reasons include:

• illness of an employee and registration of a disability certificate;
• sick leave for caring for a sick relative or a sick child;
• funeral of close relatives;
• participation in court hearings or other operational and investigative activities;
• elimination of emergencies at the place of residence of the employee;
• elimination of the consequences of natural disasters;
• traffic accidents on highways.

That is, if the employee could not warn his employer in time that he would be absent from the workplace for some time, then after the employer requires written explanations and receives them, he cannot dismiss the employee. In this case, the latter will have to confirm his words. For example, if the reason for the absence is an accident on the road, then you will need to present a copy of the accident protocol. Then this day will not be considered absenteeism, but it will not be paid either.

There are still disrespectful reasons in the presence of which an employee can be fired. These include the same reasons as above, but without documentary evidence.

Reasons for forced absenteeism

There is no such thing as "forced absenteeism" in the Labor Code of the Russian Federation. There is such a thing as "truancy through the fault of the employer." That is, the labor inspectorate or the court, considering the materials on illegal dismissal, decide whether the work time was missed due to the fault of the employer or not.

Based on practice, a forced absence of a working day can be defined as a situation where an employee was unable to perform his labor functions and duties due to the fact that the employer violated his labor rights by terminating labor relations with him in violation of the norms of the current labor legislation.

Such absenteeism can occur both through the fault of the employer and through the fault of the employee himself. Although in the latter case we will already talk about simple absenteeism and the reasons for its occurrence.

Due to the fault of the employer

Absence from work due to the fault of the employer can include situations when:

• the worker was unlawfully suspended from the performance of his immediate labor duties;
• the employee was illegally fired;
• the employee was transferred to another job without his consent;
• the worker was reinstated at his workplace in violation of the terms specified in the decision of the labor inspectorate or the court;
• the authorities deliberately delay the issuance of a work book to their employee after dismissal. This may lead to the fact that a citizen cannot begin to perform labor duties in a new place;
• management deliberately entered incorrect information in the work book.

Important! If the court or the labor inspectorate establishes the fact that forced absenteeism has taken place, the employer will be obliged to pay monetary compensation to the employee.

Due to employee

Forced absenteeism due to the fault of the employee does not happen. If an employee misses work, then we can only talk about absenteeism. But it can be done for a good or bad reason.

If an employee has an excuse for skipping his work day, then we can say that the forced absenteeism was made for a good reason. For example, an employee’s child fell ill, and he waited half a day for a doctor to call in order to issue a sick leave. After this employee goes to work, he will present his superiors with a properly executed sick leave. This will be an excuse for forced absenteeism.

Some workers allow themselves to miss work without good reason. Unfortunately, the most common reason for "not going to work" is alcoholism and other addictions. The authorities have the right to dismiss such a negligent employee during the day if the documents are correctly filled out.

Compensation for forced absenteeism

The calculation of the amount due for forced absence from work is based on data on the average earnings of a particular employee, which is calculated in accordance with Art. 139 of the Labor Code of the Russian Federation.

For a correct calculation, it is necessary to take into account all payments that management makes to its employees, and which relate to the remuneration system:

• bonus payments;
• various allowances;
• insurance indemnities;
• regional coefficients.

Cannot be taken into account:

• material assistance from superiors or trade unions;
• compensation payments for food, mobile communications, travel, fuel and lubricants, etc.;
• funds that are a return for studies and advanced training courses.

Also, for the calculation, it is necessary to take into account the actual hours worked by these workers. Do not take into account periods when:

• the average salary was kept for this employee;
• the employee was on sick leave;
• the worker was in idle time, which was formed through the fault of the management or for reasons that in no way depend on the parties;
• other periods listed in paragraph 5 of Resolution No. 922.

In Art. 139 of the Labor Code of the Russian Federation provides a unified algorithm for calculating average earnings. The formula is:

Wed salary = actual wages for the last year / number of days actually worked in this period

The amount of compensation for the days of forced absenteeism is calculated according to the following formula:

Total Comp. = average earnings of a particular employee * number of days of forced absenteeism

Important! It is necessary to take into account exactly those days that a particular employee had working days. That is, it is necessary to take into account not calendar days, but working days, according to the time sheet.

Salary for the period of forced absenteeism

Since the employee does not go to work during forced absenteeism, then he is not entitled to wages. He is being compensated for these days. The calculation is based on average earnings.

The decision on the payment of funds is made by the court, considering the statement of claim from the citizen. The plaintiff can independently calculate the amount to be compensated by the employer who unlawfully fired him. The invoice must be attached to the claim. The court has the right to approve this amount or change it upwards or downwards.

Making an independent calculation, the plaintiff must start from documents confirming his average earnings. He can obtain such documents from the former employer by writing a written request addressed to him. They do not have the right to refuse a former employee.

Compensation for forced absenteeism in case of illegal dismissal is paid to employees whose rights are violated by an unscrupulous employer. Let's take a closer look at the procedure for collecting it.

What absenteeism is considered forced

In the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), only the concept of absenteeism is indicated: the absence of an employee at the workplace without any good reason for a period of 4 hours to the entire working day or shift (clause “a” part 4 of article 81 TC RF). The actions of the latter listed in paragraph 39 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 (hereinafter - PP No. 2) are equated to absenteeism, as a result of which the termination of the employment contract with the employee is possible.

There is no definition of the term "forced absenteeism" in any of the laws. But this concept is found in court decisions and some by-laws regulating labor relations. Among them are Decree of the Government of the Russian Federation “On the Peculiarities of the Procedure for Calculating Average Wages” dated December 24, 2007 No. 922 (hereinafter referred to as Decree No. 922) and the already mentioned PP No. 2.

From the analysis of the above legislative norms, the following concept of forced absenteeism follows: this is a period of 4 hours during which the employee was absent from the workplace (was outside the workplace) or was deprived of the opportunity to work and receive wages for this through the fault of the employer.

NOTE! We focus on an important feature: an employee is forced to be absent from the workplace or stop performing his immediate duties not by circumstances that can be considered valid, but precisely by illegal actions on the part of the employer.

Typical situations of forced absenteeism

The most typical situations in the field of labor relations, in the event of which we can talk about forced absenteeism, are mentioned in paragraphs. 41 and 62 of PP No. 2, as well as Art. 394 of the Labor Code of the Russian Federation. Let's highlight the main ones:

• groundless dismissal;
• removal from the performance of immediate duties without good reason;
• violation of the procedure for dismissal, even in the absence of an employee at the workplace for disrespectful reasons (clause 41 of PP No. 2);
• an error in formulating the grounds for dismissal;
• delay in issuing a work book to a dismissed person;
• delay in the execution of a court decision on reinstatement at work.

The last of the 2 indicated grounds can be recognized as forced absenteeism in and of themselves, and if these reasons have become an obstacle to the employee's admission to another job (paragraph 8 of article 394 of the Labor Code of the Russian Federation).

The procedure for recognizing absenteeism as forced

In order for absenteeism to be recognized as forced, one opinion of a dissenting employee is not enough. Controversial questions about whether absenteeism was or not are resolved in 2 ways:

1. By considering the labor conflict that has arisen by the commission on labor disputes (CTC). As follows from Art. 385 of the Labor Code of the Russian Federation, the powers of the CCC include consideration of questions on the legality of applying a disciplinary sanction. It follows that this body is quite competent to make decisions on recognizing absenteeism as forced. Meanwhile, consideration of the issue of payment for forced absenteeism is the exclusive prerogative of the court (Article 391 of the Labor Code of the Russian Federation).
2. Judicially. Let's dwell on this point in more detail.

The powers given to the court by law make it possible to resolve a wider range of issues related to forced absenteeism. It is the court that decides:

• the legitimacy of suspension from work or dismissal;
• changing the wording of the grounds for illegal dismissal to dismissal of one's own free will;
• the procedure for reinstatement at work or transfer to another position;
• the procedure and amount of payment of compensation for the time of forced absenteeism.

This list is not exhaustive. Disputes of this kind belong to the category of labor disputes, and decisions on them are individual for each specific case.

Recovery of compensation in case of illegal dismissal

The recognition of dismissal as illegal and the procedure for paying compensation for forced absenteeism are reflected in court decisions on labor disputes. Within the meaning of Art. 394 of the Labor Code of the Russian Federation and clause 62 of PP No. 2, after recognizing the dismissal as illegal, and absenteeism as forced, the court will oblige the employer to take one of the following actions against the employee:

• reinstate at the previous job;
• if it is impossible to restore due to the liquidation of the organization, pay compensation for the entire time of forced absenteeism and replace the wording of the reasons for dismissal with paragraph 1 of part 1 of Art. 81 of the Labor Code of the Russian Federation;
• pay compensation without recovery, changing the wording to dismissal of one's own free will;
• pay the amount recovered for the delay in the execution of the court on reinstatement.

If during the period of forced absenteeism in the organization tariff rates, salaries and monetary rewards increased, the amount of compensation collected increases by a coefficient calculated according to the following formula:

K \u003d TS1 / TS2,

where: TS - tariff rate (salary, monetary reward) on the day of the first day after the restoration of the working day;

TC2 - a similar indicator in the billing period (clause 17 of Resolution No. 922).

Non-payment of compensation for unused vacation upon dismissal

According to the general rule established by Art. 127 of the Labor Code of the Russian Federation, if there are unused vacation days at the time of dismissal, the employee receives monetary compensation for each of them, and on the day of dismissal. The exception is the condition when the total number of all days worked in the organization did not exceed a crescent (clause 35 of the Rules on Regular and Additional Leaves approved by the USSR TNKT dated April 30, 1930 No. 169, hereinafter referred to as the Rules).

How the amount of the type of compensation in question is calculated is discussed in paragraph 28 of the Rules. Non-payment of compensation upon dismissal of an employee is punishable by a warning or a fine (part 6 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).

In a situation where the dismissal of an employee is subsequently declared illegal, the procedure for paying the type of compensation in question is as follows. If earlier, on the day of dismissal, such compensation was already received by the employee, then when he is reinstated at his previous workplace and the amount of the penalty is calculated, it is offset. In other words, the amount of recovery of average earnings is reduced by the amount of previously paid compensation for unused leave upon dismissal (clause 62 of PP No. 2). At the same time, the reinstated employee retains his right to annual paid leave.

If compensation for forced absenteeism was not paid to the reinstated employee, then when granting leave, the employer recalculates the payments made earlier as compensation for the unused part of the leave (letter of Rostrud dated 06/14/2012 No. 853-6-1).

Is the payment of involuntary absenteeism taxable?

All income received by an individual is subject to taxation (Article 210 of the Tax Code of the Russian Federation). It is a mistake to assume that this type of compensation is related to those named in paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, even if such compensation is paid by a court decision.

Called the word “compensation”, the payment is essentially the average earnings of the employee, that is, his income. As follows from the content of Art. 234 of the Labor Code of the Russian Federation, the employer compensates the employee for lost earnings, restores the violated right of the employee to receive payment for labor, but does not compensate him for any costs and does not compensate for any damage associated with his failure to fulfill his labor duties or other duties provided for by law (letter Ministry of Finance of the Russian Federation dated July 24, 2014 No. 03-04-05 / 36473, JSC IC for Administrative Cases of the Vladimir Regional Court dated September 8, 2015 in case No. 33-3035 / 2015).

For this reason, income tax is payable on the amount recovered. The employer himself must withhold the amount of taxation, since it is he who is recognized as a tax agent in relation to the specified income and must fulfill the obligations stipulated for tax agents in Art. 226 of the Tax Code of the Russian Federation (letter of the Ministry of Finance of the Russian Federation of December 26, 2011 No. 03-04-06 / 6-358).

But when compensating for moral damage caused to an employee, the amount of which is determined by the court, its amount is recognized as a compensation payment and on the basis of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation is no longer subject to taxation (letter of the Ministry of Finance of the Russian Federation of November 28, 2008 No. 03-04-05-01 / 450).

Summarizing what has been said, we note that the burden of proving the fact of forced absenteeism lies with the illegally dismissed employee. After the establishment of such a fact, the employer is obliged to restore the employee's rights, including to pay compensation. Additional will of the employee is not required.