Absence from work. Punishment for truancy: official and unofficial methods

There are situations when an employee does not come to work for a long time without a good reason. The manager has grounds to apply a harsh disciplinary measure - dismissal for absenteeism.

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This procedure must be carried out in a certain sequence, observing the deadlines and rules for processing documents.

The legislative framework

The regulatory framework consists of:

• Labor Code of the Russian Federation: Art. 81, 192, 142, 193, 261, 392, 140.
• Resolution No. 1 “On approval of documentation forms for labor and payment accounting.”

The text of the documents can be found here:

What is considered to be truancy?

Absenteeism is the absence of an employee from the workplace for more than four hours. This is equivalent to the situation when management is not warned in advance about the early termination of the contract.

Other situations:

• arbitrary use ;
• leaving during or outside the schedule or without the permission of the boss;
• refusal to work for two weeks at .

There are two possible scenarios for future developments:

• the reason turns out to be significant, there are supporting documents - you cannot punish for absenteeism;
• the employee was absent without a good reason - penalties may be taken (at the discretion of management).

When punishing, the degree of damage to the enterprise and the prevailing circumstances are taken into account. You also need to take into account the requirements of Labor legislation and local regulations.

The consequences for the truant may be different:

• warning;
• reprimand in writing;
• dismissal.

Valid reasons for absence from work include:

• appeal for medical care;
• finding or caring for disabled relatives;
• passing a medical examination, mandatory for a number of specialties;
• participation in investigative actions and in court.

A valid reason is documented (certificate, certificate of incapacity for work, etc.).

If payment is delayed by 15 days, the employee has the right to suspend activities until payment is made.

However, he must notify management of his intention in writing.

What to do if an employee does not show up for work?

First of all, the boss writes a notification about the incident to higher management. The document indicates the time and duration of absence.

After this, the HR specialist makes a mark on the timesheet, entering letter designation“NN” opposite the last name, and the accounting department suspends payroll.

The supervisor must contact the employee to determine the reasons for absence.

If this cannot be done, he sends a registered letter to the place of residence with a requirement to present an explanatory note.

• After the letter has been successfully received, a period of two days (maximum a week) is given to present an explanatory note.
• When returning a letter with a mark of non-receipt, it is recommended to contact your neighbors, district police officer and other people. If you dismiss an employee without trial, and the reason turns out to be valid, the court will require reinstatement.

Step-by-step instructions for dismissal for absenteeism

When deciding to terminate a contract with an employee, you will need to document the fact of absenteeism.

The confirmation will be:

• mark on the report card;
• certificate of absence from work;
• a notice sent home asking you to come to work.

HR specialists must strictly follow the procedure and procedure for dismissal for absenteeism.

The process consists of the following steps:

• Recording the fact of non-appearance work time- an act is drawn up. The document does not have a unified form, so it is written in free form. The text contains the date, time and duration of absence. An example is shown in the figure (file 2).
• The act is certified by the signatures of at least three witnesses. If the employee was absent for several days, then the document is drawn up separately for each of them. Only the current date is entered; registration at a later date makes it invalid.
• Providing an act and requesting an explanatory note. All this happens immediately after the employee returns to the enterprise. He is obliged to indicate valid reasons for absence and evidence. According to the Labor Code, 2 days are allotted for the preparation of documents. In case of non-compliance or refusal, an act of failure to provide an explanatory note is created. The employee will need to sign it in front of three witnesses.
• Drawing up a report. An explanatory note is attached to it, everything is transferred to the head of the enterprise.

Example of an act:

Example of an explanatory note from an employee:

Report form:

Based on the explanations received, a decision is made on whether dismissal for absenteeism will follow.

If the reason is considered unsatisfactory, the personnel employee issues an appropriate order - it is drawn up according to a special template (form T-8):

The document must be drawn up correctly, strictly observing legislative norms. The slightest discrepancy will be grounds for challenging the decision.

Primary requirements:

• the date of termination of the contract is entered;
• a link to the reason for dismissal is provided;
• documents confirming the fact of absenteeism are listed.

Within three days from the date of issuance of the order, the truant must be informed. Next, the document is registered in the personnel register.

In the work time sheet, the letter code “NN” is replaced by “PR” - absenteeism.

Information about dismissal is entered into a personal card. The employee's signature is required.

An entry is made in the work book about the termination of the contract - the columns must contain:

• No. 1 – serial number;
• No. 2 – date of incident;
• No. 3 – information about dismissal and reference to the law;
• No. 4 – order details.

Example:

Issue work book employee, entry in accounting documents. If necessary, it is sent by registered mail to your residential address.

Terms of dismissal for absenteeism:

• from the date of commission of the offense – 6 months;
• from the moment of discovery – 1 month.

The decision can be appealed within 30 days from the date of delivery of a photocopy of the order of dismissal or receipt of the work book.

Retroactive termination of a contract is illegal except in two cases:

• long time absence;
• death of an employee.

Payments and compensations

When dismissing an employee, it is necessary to calculate the salary for the time worked, taking into account compensation for unused vacation (main and additional).

According to the law, the employer cannot have grounds to refuse.

When calculating, the following actions are performed:

• The quantity is determined calendar days, laid down for the month worked.
• The period for which the employee must receive compensation is specified. The result is rounded to the nearest full month if the surplus is 15 days or more, otherwise it is not taken into account.

The amount of payments is calculated using the formula:

Compensation = salary average.d.x vacation days

If the billing period is fully worked out, the average daily earnings are determined as follows:

ZPav.dn.=(ZPr.p.)/(DNIk.total.x 29.4)

Salary r.p. – wages for the billing period;

DNIK.general – total number of calendar days;

29.4 – average number of days in a month.

If the billing period is not fully worked out, the formula is applied:

Salary avg. days = (Salary r.p.)/(Npol.x 29 days x 1.4)

Personal income tax payment – ​​13%

Example:

Let's find the number of days actually worked. The employee did not go to the company from February 22 to February 26, that is, the required value is 22.

We determine the number of months for which compensation is due.

Since N.V. Lebedeva entered into an employment contract on November 2, 2019, and worked in full for 3 months and 20 days. The excess is more than 15 days, therefore, we round the result to 4 months.

Salary N.V. Lebedeva for February will be: 22 days x 935 rubles. = 20,570 rub.

Payments for unused vacation, which the employer must provide in accordance with Art. 140 Labor Code of the Russian Federation:
935 rubles x 4 months x 2.33 days = 8714.2 rubles.

The management of Put LLC is obliged to issue N.V. Lebedeva RUB 29,284.2

Deadline: no later than the next day after submitting the request for payment.

Controversial situations

According to Article 261 of the Labor Code of the Russian Federation, it is prohibited even in case of violation of discipline.

When a manager illegally terminates an employment contract due to absenteeism, the employee performs the following actions:

• indicates his position in a written explanation;
• attaches to the case a photocopy of the work log with a signature on the day that was mistakenly considered absenteeism;
• collects other evidence in his defense.

Sometimes subordinates try to deceive employers by claiming that the reason for absence was valid, although in fact the issue is dubious.

In this case, it is necessary to collect as many documents as possible confirming management’s concerns, as well as witness statements against signature.

Situation from practice:

A commission consisting of a manager, a mechanic and an accountant drew up an act of absence of G.V. Prokhorov (driver) at the workplace from 11.00-17.00. The man claims that at that time he was in a car service center, as he was repairing a gazelle.

You will learn:

• What does the concept of “truancy” include and what are the measures to prevent losses from absenteeism
• How to correctly record an employee’s absence from work
• What measures can an employer take in relation to a truant worker?

In any organization, it happens that employees do not go to work. Sometimes, even if there is good reasons(for example, due to illness), the employee not only does not report his absence to the employer, but also does not confirm his absence from work with supporting documents. In this case, failure to appear is considered absenteeism.

But there are situations in which it is difficult to understand immediately: for a good reason, the employee stopped going to work or not, in which situations he can be fired, and in which - absolutely not. Often, a situation that is clear at first glance turns out to be far from being so simple upon further examination.

How to correctly assess the situation? What documents should be completed and within what time frame? How to prevent violations of labor laws? We will consider these and other questions in this article.

MEASURES TO PREVENT LOSSES FROM ABSENTANCE

The absence of an employee from work, even for a short time, disrupts the work process. To minimize damage, the organization must take a number of measures:

• the Internal Labor Regulations must necessarily contain a clause obliging the employee to warn his employee in advance immediate supervisor about the inability to go to work, the reasons for absence and the expected period of absence. Fulfillment by the employee of the relevant obligations will help the manager make timely decisions on the distribution of the responsibilities of the absent employee among his colleagues;
• supervisor structural unit must have a list of employees whom he can entrust to perform the functions of the absent employee. The employees themselves, in turn, should be aware of the colleague’s affairs, which they will need to carry out in the event of his absence (not only unexpected, but also planned (for example, during a vacation or business trip));
• the leader must have specific instructions regulating his actions in the event of an employee’s failure to appear without warning (example 1).

The instructions are of an auxiliary nature; they do not have to be issued on the organization’s letterhead and certified by the signature of the manager. The main condition is that they must contain a specific algorithm of actions.

Example 1

Memo to the head of the department on actions in case of employee absence

1. Call the employee at all telephone numbers known to you (home, mobile, etc.) and find out the reason and possible deadline his absence.
2. Ask your subordinates whether the employee has spoken about possible absence from work. If one of the employees is aware of the reasons for a colleague’s absence, ask them to state them in a memo addressed to the head of the organization.
3. Draw up a report on the absence of the employee, the measures taken to find him and their results.
4. Take all documents to the HR department and receive instructions there on further actions regarding the absent employee.

State as clearly as possible in the documents workplace employee (workshop, machine, office number. If you have a chain of stores and regularly rotate personnel, such specifics, on the one hand, will complicate the work personnel services, increasing document flow, on the other hand, will protect the interests of the employer.

A workplace is a place where an employee must be or arrive in connection with his work and which is directly or indirectly under the control of the employer. According to Part 4 of Art. 57 Labor Code of the Russian Federation condition employment contract about the workplace is an optional (that is, optional) clarification of the conditions about the place of work. We recommend (if necessary) that the employee be assigned to a workplace not by an employment contract (in order to avoid subsequent problems with changing this condition of the employment contract), but by a unilateral document (an order for the organization, an order for the division, a notification, etc.).

When registering an employee - part-time worker focus his attention on the fact that part-time work (as opposed to freelancing) is being done regularly, he is entitled to leave, as at his main place of work, but it is prohibited to go on it without permission. As practice shows, many workers perceive part-time work as additional income if they have free time, not realizing that a second job is same obligations, as when performing the main one.

THE EMPLOYEE DIDN'T GO TO WORK: FIXING AN ABSENCE

On the first day of an employee’s absence from work, we cannot be sure that he is absent (or even absent) and not sick.

A clear record of absence will help if the fact of absenteeism is confirmed over time, and will not hurt if the employee brings a certificate of incapacity for work. The failure to appear report must be drawn up in the presence of two witnesses. It is better if employees from related departments act in their capacity - if an employee challenges his dismissal in court, he will not be able to refer to the alleged pressure exerted on witnesses by the manager.

The Labor Code of the Russian Federation does not oblige the employer to immediately begin an active search. But if the missing employee is a responsible person, lives alone, and his phone does not answer, we recommend going to his home - perhaps the employee needs urgent help.

For example, dentist N. did not come to work on time. None of the colleagues heard the doctor planning to leave urgently or complaining about feeling unwell. The head of the department called him throughout the day, but the phone was silent. Concerned about N.'s absence, she went to his house. Nobody opened the door. When the local police officer was called and opened the apartment, it turned out that the 45-year-old man was dead (as it turned out, due to a stroke).

If an employee does not show up for work, the letter code “NN” or the number 30 is entered in the time sheet (failure to appear for unknown reasons (until the circumstances are clarified)). If the timesheet is maintained:

If the organization is large, with a complex structure, for uniformity of document flow, the procedure for recording working time in the absence of an employee should be clearly stated in the local regulatory act.

If you are not sure that the employee is sick, for the first week it makes sense to draw up reports of his absence every day; in the future, you can limit yourself to a report of the employee’s absence during the week, drawn up on Fridays. This issue is not regulated by law, so you need to be guided by common sense and judicial practice.

The legislation also does not establish a fixed list of documents that must be completed when absenteeism. In the courts as evidence more often admit:

• time sheet with appropriate marks;
• acts or memos about the employee’s absence from the workplace;

SCIENTIFIC EDITOR'S NOTE

As well as certified printouts from electronic system accounting for the entry and exit of workers (paragraph 5 of clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1 “On the application of legislation regulating the work of women, persons with family responsibilities and minors”).

• notifications to the employee with a request to inform about the reasons for absence from work (Appeal ruling of the Moscow City Court dated August 2, 2013 No. 11-15221).

SCIENTIFIC EDITOR'S NOTE

In addition, if written explanations are not received from the employee, in accordance with Art. 193 of the Labor Code of the Russian Federation, an act of failure to provide explanations must be drawn up. In their practice, courts in most cases are of the opinion that the employer lawfully applied a disciplinary sanction, including dismissal for absenteeism, if the employee did not receive a notice to provide written explanations requested by telegram (or letter), for reasons beyond the control of the employer (Appeal ruling of the Moscow City Court dated July 28 .2014 No. 33-29793/14).

WE FIND OUT THE REASON FOR NO APPEARANCE

If an employee brings a certificate of incapacity for work or a certificate of seeing a doctor, all documents about his absence should be filed in the appropriate file. Destroy them absolutely not possible!

If the employee does not present supporting documents, in accordance with Art. 193 of the Labor Code of the Russian Federation, the employer is obliged to request from him written explanation. The Labor Code of the Russian Federation does not oblige the employer to draw up a request (notification) in writing (example 2 ® ), but in court, a document is always a more powerful argument than words. Therefore, it is better to make a request in two copies, give one to the employee, and ask him to sign on the second.

Example 2

Notice of the need to explain the reasons for non-appearance

If within two workers days the employee does not provide written explanations, an appropriate report should be drawn up.

Failure by the employee to provide explanations is not an obstacle to applying disciplinary action(including dismissals) (Part 2 of Article 193 of the Labor Code of the Russian Federation).

If an employee does not come to work for a month or more and does not answer phone calls, the search should be intensified. You can call him at home after work - there is a high probability that his relatives (and perhaps the employee himself) will be able to clarify the situation. Since it is difficult to attract witnesses to a telephone conversation in the evening, try to record the conversation on a voice recorder, and state the results of the call the next day in a memo addressed to the manager. Record telephone conversation by her own is not a sufficient reason for dismissal for absenteeism, but will be additional evidence that the employer is right.

It is also necessary to send registered letters with acknowledgment of receipt to all known addresses where the employee may be, with a requirement to explain the reasons for non-appearance in writing within 2 days, and if this is not possible, contact the HR department or immediate supervisor by phone.

SCIENTIFIC EDITOR'S NOTE

It's better if there are letters valuable With inventory of the attachment(to exclude speculation on the part of the employee) and, of course, with notification of delivery.

WHAT IS CONSIDERED A SHALKING?

Dictionary

Absenteeism— absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift) (subparagraph “a” » clause 6, part 1, article 81 of the Labor Code of the Russian Federation).

There is no exhaustive list of valid reasons for an employee’s absence from work. To assess an offense, one should be guided by judicial practice:

1. Good reasons absence from work, courts in some cases consider:

• visiting a lawyer to get advice about a violation labor rights(Decision of the Moscow Regional Court dated November 24, 2011 in case No. 33-26558);
• being on leave without pay when the employee is entitled to such leave by law in accordance with Part 2 of Art. 128 of the Labor Code of the Russian Federation (Appeal ruling of the Kemerovo Regional Court dated August 17, 2012 in case No. 33-7790);
• illness of an employee, including in the absence of a certificate of incapacity for work (Appeal determination Supreme Court Republic of Mordovia dated February 21, 2013 in case No. 33-426/2013);

SCIENTIFIC EDITOR'S NOTE

Let us note that there is also opposite judicial practice, for example, Ruling of the Chelyabinsk Regional Court dated July 10, 2014 No. 11-7179/2014 recognizing the abuse of the right by an employee to not notify the employer of his temporary disability and the absence in this case of obstacles to dismissing an employee at the employer’s initiative.

• fire, short circuit, emergencies, natural disasters (Appeal ruling of the Khabarovsk Regional Court dated March 1, 2013 in case No. 33-1372/2013).

2. For unjust reasons are clearly recognized:

• unauthorized termination of work before the expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation) or notice of dismissal (Part 1 of Article 80, Article 280, Part 1 of Article 292 and Part 1 of Article 296 of the Labor Code of the Russian Federation);
• unauthorized use of days off or unauthorized going on vacation (subparagraph “d”, paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code Russian Federation" (as amended on September 28, 2010).

The lists given are not exhaustive - anticipate everything life situations impossible, but by focusing on them, you will be able to more objectively assess the degree of guilt of the employee.

HOW TO DEAL WITH A SHUTTER

According to the Labor Code of the Russian Federation, the employer has the right to dismiss an employee for absenteeism (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation), but is not necessarily obliged to do this. Moreover, in accordance with Part 5 of Art. 192 of the Labor Code of the Russian Federation, when imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.

Extraction

from the Labor Code of the Russian Federation

Article 193. Procedure for applying disciplinary sanctions

Before applying disciplinary action, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, 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.

A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

For every disciplinary offense Only one disciplinary sanction may be applied.

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee 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.

A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

ADVICE

If you are not sure that the employee is absent without good reason, we recommend periodically calling him in the presence of witnesses, drawing up reports on the results of negotiations, and also periodically (for example, once a month) sending registered letters demanding an explanation for absences.

If the employee is actually absenteeism, you should write a memo addressed to the head of the organization detailing all the circumstances that qualify the employee’s absence as absenteeism, and attach to it all available documents (absence certificates, notifications of delivery of registered letters or returned letters, employee memos , clarifying the circumstances of non-appearance, etc.). These documents are the grounds for dismissing an employee for absenteeism, and All of them must be listed in the dismissal order. The date of dismissal of the employee will be the date the head of the organization signs the order to dismiss the absentee (Parts 3 and 6 of Article 84.1 of the Labor Code of the Russian Federation). In the order (as in the work book and personal card), the entry about the reason and basis for dismissal must exactly repeat the wording set out in the Labor Code of the Russian Federation (“dismissed/dismissed for absenteeism”).

The situation with missing workers is ambiguous:

NOTE

It is prohibited to fire pregnant women, even if the fact of absenteeism is confirmed!

THE EMPLOYEE IS FIRED. WHAT'S NEXT?

Part 2 Art. 84.1 of the Labor Code of the Russian Federation obliges the employer to familiarize the employee with the dismissal order against signature, and part 4 of the same article - to issue a work book on the day of dismissal.

According to Part 6 of Art. 84.1 of the Labor Code of the Russian Federation, if an employee is fired for absenteeism, the employer is relieved of responsibility for storing the work book, but there is an obligation to issue it no later than three days from the date of receipt of the employee’s written request.

On the dismissal order, a note should be made about the impossibility of bringing its contents to the attention of the employee due to his absence from work (Part 2 of Article 84.1 of the Labor Code of the Russian Federation). We recommend making a similar entry in your personal card.

Regardless of the reason for dismissal, on the day of dismissal you must make a full settlement with the employee: pay all due wages, as well as compensation for unused vacation. If the employee does not have bank card, the accrued amounts are deposited.

Strict adherence to all the measures described in this article will help you avoid mistakes when parting with truants and prove your case in court.

Conclusions:

1. A clear record of absence will help if the fact of absenteeism is confirmed over time, and will not hurt if the employee brings a certificate of incapacity for work.
2. Failure by an employee to provide explanations is not an obstacle to applying disciplinary action. When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.
3. Regardless of the penalty applied, it is necessary to strictly observe the procedure prescribed in Art. 193 Labor Code of the Russian Federation.

Accordingly: temporary disability with benefits, temporary disability without pay or absenteeism.

Accordingly, there is no need to send an employee fired for absenteeism a notice of the need to pick up his work book - Note scientific editor.

It is not difficult to fire an employee for absenteeism - it is enough to draw up an act, recognize the reason for absence from work as disrespectful and draw up an appropriate order. Problems may begin later. All of a sudden former employee go to court and prove that you made any procedural error when terminating the employment contract? To avoid such troubles, you need not only to get a general idea of ​​the procedure for dismissing an employee for absenteeism, but also to take into account many related nuances.

What is truancy?

Absenteeism is the absence of an employee from the workplace for the entire working day or more than four hours in a row without good reason. This definition is given by the legislator in the Labor Code.

Dismissal for absenteeism is provided for in Article 81 of the Labor Code. The problem is that the Code does not even contain an approximate list of reasons for a person’s absence from work that should be considered valid. Of course, this omission regularly leads to conflicts between employees and employers.

In theory, it is up to the employer to determine and prove that the reason for the absence was unexcused. However, this cannot be done only in accordance with personal convictions; one must also rely on judicial practice. If a dissatisfied employee goes to court and proves that he was fired without justification, you will have to reinstate the truant worker. By the way, violation of the procedural order (incorrect completion of acts, violation of deadlines, etc.) can also become a reason for canceling the dismissal order.

In what cases can you be fired for absenteeism?

Dismissal will be legal only if four conditions are met:

• the employee did not appear at work the entire day (even if his working day is one or two hours) or more than four hours in a row;
• the employee was absent from his workplace;
• he did not show up for work for an unexcused reason;
• the fact of his absence is proven and documented.

Immediately you need to consider:

• if an employee was absent from his place for exactly 4 hours and not a minute more, this is not absenteeism;
• if the workplace is not officially assigned to the employee (in the employment contract), but he was located somewhere on the territory of the company, he cannot be recognized as a truant;
• if an employee, for objective reasons, was unable to notify his superiors about his absence, the reason for his absence cannot be considered as a priori disrespectful.

In what cases can you not be fired for absenteeism?

Based on the materials of judicial practice, the principles of labor legislation and common sense, we can identify the following valid reasons for absenteeism (which in these cases is no longer absenteeism):

• temporary disability;
• performance by the employee of public duties assigned to him by an authorized state or municipal body;
• donation of blood and plasma by the employee (and subsequent medical examination, if necessary);
• taking an employee under arrest and taking him into custody by police officers;
• problems with transport (for example, due to weather conditions);
• delay in salary payment for more than 15 days (but only if the employee notified you in writing that he is not going to come);
• participation in the strike.

In all these cases, the employee must provide supporting documentation. The following documents are considered as evidence:

• certificate of incapacity for work (“sick leave”);
• a certificate from a medical institution (for example, in the case of blood donation);
• subpoena or order of arrest or detention;
• certificate from the transport organization;
• etc.

Be sure to find out the real reason employee absence. It's no secret that almost any certificate can be purchased. If it turns out and is confirmed that the employee committed such an offense, the dismissal order can be issued with full right.

The procedure for dismissing an employee for absenteeism

The dismissal procedure can be divided into three stages:

• documentation of the fact of the employee’s absence from work;
• finding out the reasons for non-appearance;
• making a decision and issuing an order of dismissal.

A procedural error can be made at any of these stages, but every minor violation can cost the company dearly! Do not forget that an employee who is outraged by what he considers to be an unjustified dismissal has the right to go to court. If he also uses the services of a good lawyer, the matter will probably turn out not in your favor. Even if all the grounds for dismissal are present, a minor formal error (for example, when drawing up a report of failure to appear) often becomes a reason for canceling the order. Therefore, pay special attention to the rules and recommendations below.

Preparation of the act

A correctly drawn up act is the main evidence of an employee’s violation of labor laws. The act has the following structure:

• name (act of absence from work, absenteeism, absence from work - acceptable different variants names);
• date, place and time of compilation;
• Full name official drawing up the act (such a person can be either the head of the company or the head of a structural unit);
• Full name of the employee who did not show up for work;
• the circumstances of the employee’s absence (this part should be filled out in as much detail as possible, indicating the exact time of absence and the actions taken by the employer - attempts to reach the truant or contact him in some other way);
• date and duration of the employee’s absence (indicating the exact time, “minute to minute”);
• date of drawing up the act and signature of the manager (for greater confidence, you can ask witnesses to sign - for example, colleagues of the truant).

It is advisable to draw up the act on the same day, without putting it off “until tomorrow.”

Finding out the reasons for the employee’s absence

Before signing an order to dismiss an employee for absenteeism under the article, you need to require an explanatory note from him. At this stage, it is important to document every action, so it is better to send the request for an explanatory note to the employee in writing (even if in the end he did come to work). Sign the request and ensure that the employee signs for its receipt. If you have to send the request by mail, do not throw away the postal receipt under any circumstances.

After requesting an explanation for failure to appear, you must wait two days. By the way, this rule applies even if the employee refuses to “give evidence” immediately - what if he changes his mind? If after two days the answer still does not come, you can move on to the final stage and draw up an order.

Let's assume that the employee nevertheless provided an explanatory note. There are three possible options:

1. The reason for absence indicated by the employee can be classified as valid, and the stated arguments are supported by documents. In this case, the person cannot be fired.
2. The truant is clearly making things up: the explanations are unconvincing and there is no evidence. Feel free to write an order.
3. The situation is ambiguous. There are no supporting documents or they are insufficient, but the arguments look convincing. Or vice versa - there is a certificate from the medical center. institution, but probably “fake”. What should an employer do? It is impossible to give a definite answer to this question. Try to assess the situation as a whole, taking into account all possible motives of the employee, his previous behavior, attitude towards his duties and the work process in general. Don’t forget – the law gives you the right to draw a conclusion and make a decision.

Order of dismissal

An order to dismiss an employee for absenteeism without good reason is drawn up and issued according to the unified form No. T-8. The law establishes following dates issuance of the order:

• no earlier than two days from the moment the request for an explanatory note is sent to the truant;
• no later than 30 days from the date of absence.

Structure of the order according to form No. T-8:

• Name;
• date, place of compilation;
• grounds for publication (absenteeism act, details of reports and explanatory notes, etc.);
• Full name and position of the employee;
• detailed description misdemeanor;
• justification of why the reasons for absenteeism cannot be recognized as valid;
• clarification of the employee’s right to appeal the dismissal decision;
• date of compilation and signature of the employer.

The employee must read the order and confirm with his signature that he is aware of its contents. If he refuses to do this, another act will have to be drawn up. After this, you should make an entry about the dismissal in the work book of the negligent specialist and send him to the accounting department for this book. This completes the dismissal procedure.

The main mistakes made by employers

As stated earlier, any procedural violation may be grounds for appealing the dismissal order. What mistakes do employers make most often?

1. Often, a report on absenteeism is simply not drawn up. This is terrible - if the case goes to court, the employee will most likely achieve reinstatement (and even compensation for wrongful dismissal). Always fill out a document.
2. Serious shortcomings in the execution of the act - first of all, incorrect indication of the time of drawing up the act and the period of absence of the employee. The wording “in the morning”, “at lunchtime”, “in the evening” is unacceptable. Always indicate exact time– “the employee was absent from 8.00 to 14.18”, “the report was drawn up at 14.58”.
3. Inconsistency of factual circumstances with the data contained in the act. Sometimes it happens that an employee pisses off the employer with his impudence. In order to be guaranteed to get rid of the truant, the employer artificially aggravates the situation - for example, he writes in the act and order that the employee showed up only the next day and insulted him in obscene language. If at trial it turns out that everything was a little wrong, the boss will have to bear responsibility for such “attacks.”
4. Dismissal of an employee without requiring an explanatory note from him.
5. Violation of the deadlines for issuing an order, dismissal of an employee for absenteeism without a corresponding entry in the labor record.

Even if you have indisputable evidence that the dismissed employee is an undisciplined and irresponsible truant, the court will still be able to reinstate him at work. It is enough to commit at least one of the listed violations.

Labor, discipline, legality

Unfortunately, the dismissal process does not always go smoothly. Even following the rules and recommendations outlined in this article, you can only minimize the risks, but not eliminate them. The laziest employee, fired for absenteeism, sometimes shows desperate determination and goes to court. And the trial is long and unpleasant, even if the case is decided in your favor.

To prevent such an undesirable development of events, always carry out the dismissal procedure carefully, methodically and carefully. Record each stage on paper, draw up acts, send requests - and the employee will be convinced that it is pointless to “go to war” with you.

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

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

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

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

How to get fired at will turned into truancy

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

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

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

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

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

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

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

OUR HELP

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How a wedding became the reason for dismissal

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

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

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

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

The court noted that, in accordance with the terms of the collective labor agreement, the plaintiff could not be denied leave on the occasion of marriage registration. The absence of written notification to the employer of absence from the workplace due to personal circumstances does not in itself constitute grounds for bringing the employee to disciplinary liability, since violation of this procedure does not exclude the employee from having a valid reason for absence. In addition, as a result of any misconduct committed by the plaintiff, any negative consequences did not occur for the employer. Considering that S. had not previously been brought to disciplinary liability, the court concluded: his dismissal was carried out without taking into account the circumstances that caused his absence from work and the severity of the offense committed.

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

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

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

One of the gross violations labor discipline is truancy. Labor legislation allows the employer to take disciplinary measures against an employee for violation of labor discipline. Moreover, Part 1 of Art. 81 of the Labor Code of the Russian Federation establishes that one of the grounds for dismissal at the initiative of the employer is absenteeism by the employee. What is meant by truancy? How to prove an employee's absence from work? What procedure must be followed to disciplinary punishment Was it legal and justified? How to properly formalize the adoption of an extreme punishment - dismissal? You will get answers to these and some other questions by reading the article.

Truancy concept

The concept of “truancy” is given in paragraphs. “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation. This is the absence of an employee from the workplace without good reason during the entire working day (shift), regardless of its duration. Let's say right away that a workplace is understood as a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer (Article 209 of the Labor Code of the Russian Federation).

Also, absenteeism will be considered the absence of an employee at the workplace without good reason for more than four hours in a row during a working day (shift). Here the question may arise: does it turn on at this time? lunch break? There are two points of view. Some experts believe that lunch is not included at this time, and their opinion is confirmed by judicial practice. Thus, the Chelyabinsk City Court in the Appeal ruling dated August 19, 2013 N 11-7864/201 indicated that a lunch break is not included in working hours and absence from the workplace during this period cannot be blamed on the employee and entail disciplinary liability. Thus, the lunch break is not counted as part of the absenteeism time. Other experts (like us) believe that lunch should be included during absenteeism, otherwise, with a work schedule, for example, from 8.00 to 17.00 with lunch from 12.00 to 13.00, it is almost impossible to fire for absenteeism. This point of view is also supported court decisions. For example, the Leningrad Regional Court in Ruling No. 33a-1462/2012 dated 04/11/2012 noted that the Labor Code does not define a working day as working time during the day before lunch and after lunch, therefore a lunch break cannot interrupt the period established by paragraphs. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

In addition, the Plenum of the Armed Forces of the Russian Federation in paragraph 39 of Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2) indicated that absenteeism can be considered:

— absence from work without good reason, that is, absence from work throughout the entire working day (shift), regardless of its duration;

- an employee staying outside the workplace without good reason for more than four hours in a row during the working day;

- abandonment of work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the contract, as well as before the expiration of the two-week warning period;

- abandonment of work without a good reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the warning period for early termination of the employment contract;

- unauthorized use of days off, as well as unauthorized departure on vacation (main, additional).

For your information.The use of rest days by an employee is not considered absenteeism if the employer, in violation of the statutory obligation, refused to provide them and the time the employee used such days did not depend on the discretion of the employer (for example, a refusal to provide an employee who is a donor in accordance with Article 186 of the Labor Code RF rest day immediately after each day of donating blood and its components).

The procedure for dismissing employees who like to “take a walk”

First of all, we note that dismissing an employee for absenteeism is the employer’s right, not an obligation. This means that the employer for the first time can “forgive” the employee for this violation of labor discipline or limit himself to a reprimand or remark. In any case, when taking disciplinary measures against an employee, it is necessary to apply the procedure for bringing her to it, established by Art. 192, 193 of the Labor Code of the Russian Federation, otherwise, even if there is absenteeism, the employee will be reinstated at work or the order to issue a reprimand or reprimand will be cancelled. Thus, in the Appeal Determination of the Vologda Regional Court dated October 23, 2013 N 334853/2013, the claim to cancel the order of dismissal for absenteeism was granted, since when considering the case on reinstatement at work, the court established the fact of absenteeism, but the employer violated the dismissal procedure (when imposing a penalty the severity of the offense and the circumstances under which it was committed were not taken into account, which is mandatory by virtue of Article 192 of the Labor Code of the Russian Federation).

Note.Days of absence of an employee from work should be noted in the time sheet with the letter code “NN” - absence for unknown reasons (until the circumstances are clarified).

So, let's move on to the dismissal procedure. If an employee's absence is detected, this fact must be recorded. Usually, for this purpose, an act is drawn up in the presence of at least two witnesses (for an example, see page 35). If an employee is absent from work for a long time (for example, a week or more), we recommend that such reports be drawn up daily, since upon return the employee may provide sick leave or other documents for certain days and, perhaps, some days will still be outside the scope of documentary evidence .

Act No. 4

about the absence of an employee from the workplace

I am familiar with the act. M. P. Galkina

M.P. Galkina refused to familiarize herself with this act.

After the employee appears, he should be asked to explain the reasons for his absence. It is better to do this in writing to avoid disputes, because the lack of evidence requiring an explanation from him about the reasons for his absence from work is a gross violation of the dismissal procedure, which means that the employee will be reinstated at work (Determination of the Leningrad Regional Court dated October 17, 2013 N 33-4778/ 2013).

Limited Liability Company "November"

Maria Petrovna!

Please submit to the HR department (room 102) an explanation of your absence on November 12, 2013 from 9.00 to 14.40 at your workplace (advertising department, room 125) in writing by November 15, 2013. If you have documents confirming the valid reason for absence, please attach them to the explanatory note.

Article 193 of the Labor Code of the Russian Federation sets a deadline for the employee to give explanations - two working days. If, after this period, the employee does not provide an explanation, a corresponding report is drawn up. At the same time, failure to provide an explanation is not an obstacle to applying disciplinary action to the employee.

Having received the employee’s explanation, the employer must assess the validity of the reasons for absence, since absence is recognized as absenteeism only for unexcused reasons. Let us note that labor legislation does not contain a list of valid reasons, so the employer will have to decide for himself whether the reason specified in the explanatory reason is such. For example, Ch. was absent from work for two days in connection with the performance of trade union duties in the interests of the collective of workers, since she is the chairman of the primary trade union organization of a branch of the OJSC. The employer considered this reason disrespectful and fired Ch. for absenteeism. However, the court reinstated the employee in her previous position, since in accordance with Part 6 of Art. 25 of the Federal Law of January 12, 1996 N 10-FZ “On trade unions, their morals and guarantees of activity”, members of trade union bodies who are not exempt from their main work are exempted from it in order to participate as delegates of congresses, conferences convened by trade unions, as well as for participation in the work of their elected bodies. Consequently, the reason for Ch.’s absence from work was valid (Appeal ruling of the Astrakhan Regional Court dated July 31, 2013 in case No. 33-2371/2013).

Moreover, the courts recognize the absence of an employee from the workplace as valid due to:

- seeking emergency medical care at a children's clinic for his minor child (Appeal ruling of the Krasnodar Regional Court dated May 31, 2012 in case No. 33-9272/12);

- carrying out emergency repair work in an employee’s apartment (for example, to replace a burst heating pipe) (Determination of the Altai Regional Court dated August 17, 2011 in case No. 33-7208/11);

- with participation in the court hearing as a plaintiff (Cassation ruling of the Khabarovsk Regional Court dated December 16, 2011 in case No. 33-9086, Determination of the Moscow Regional Court dated May 11, 2010 in case No. 33-9048/2010);

- with unauthorized use of leave without pay in connection with the registration of marriage (Appeal ruling of the Kemerovo Regional Court dated August 17, 2012 N 33-7790).

Therefore, the validity of the reason for absence from work must be assessed objectively and impartially.

Next important point When taking disciplinary action against an employee, it is necessary to comply with the deadlines for bringing disciplinary action.

So, on the basis of Art. 193 of the Labor Code of the Russian Federation, disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees. 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 Resolution No. 2 ).

For your information.Violation of the deadline for applying a disciplinary sanction almost always entails the person’s reinstatement at work (Appeal ruling of the Orenburg Regional Court dated February 13, 2013 in case No. 33-739/2013).

In any case, the penalty cannot be applied to the employee later than six months from the date of the commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

Let us pay attention to one feature of calculating the period for applying a penalty in case of long absence, for example, when an employee stopped going to work on September 10 and appeared only on November 6. In this case, the application of a disciplinary sanction to an employee for long-term absenteeism after the expiration of a month from the date of his absence from the workplace does not indicate a violation of the period provided for in Part 3 of Art. 193 of the Labor Code of the Russian Federation, since the disciplinary offense is of a continuing nature and the specified period begins to be calculated from the moment the absence ends. This opinion is also shared by the courts (Appeal ruling of the Moscow City Court dated September 12, 2013 in case No. 11-26543).

So, after studying the employee’s explanations, the employer may not punish him if he recognizes the reasons for his absence from work as valid, but may take disciplinary measures against the employee: reprimand, reprimand, dismissal. If the chosen punishment is a reprimand or reprimand, the employer issues an order to impose a disciplinary sanction. There is no unified form for such an order, so it is issued in any form.

Note!Let us note that according to Part 6 of Art. 81 of the Labor Code of the Russian Federation, it is impossible to dismiss an employee for absenteeism during his period annual leave or temporary disability. Moreover, it will not be possible to fire a woman who likes to “go for a walk” if she is pregnant - such violators of labor discipline can only be fired if the organization is liquidated or ceases to operate individual entrepreneur(Article 261 of the Labor Code of the Russian Federation). But it is quite possible for women with children under three years of age, single mothers and other people with children to be fired for absenteeism.

If an extreme punishment is chosen - dismissal, it is not necessary to issue an order to apply a disciplinary sanction in the form of dismissal in this case: you can immediately prepare an order on the unified T-8 form for dismissal (for an example of an order, see page 42). Although the issuance of two orders (on the application of penalties and on dismissal) will also not be a violation of labor legislation. Rostrud drew attention to this in Letter dated 06/01/2011 N 1493-6-1.

When issuing an order, difficulties may arise in determining the date of dismissal of an employee if the absence was long. To determine it correctly, you need to refer to Part 3 of Art. 84.1 of the Labor Code of the Russian Federation, according to which the day of termination of the employment contract in all cases is the last day of work of the employee, with the exception of cases when the employee did not actually work, but in accordance with this code or other federal law, his place of work (position) was retained. Therefore, if the employee never returned to work, the day of dismissal will be the last day of his work, that is, the day preceding the first day of absenteeism. Well, if he does show up at work, then he is given two working days to explain, after which he can be fired (here there should be no difficulty in determining the date of dismissal).

The order to dismiss the employee should be familiarized with signature within three working days from the date of issue of such an order, not counting the time of absence from work (Part 6 of Article 193 of the Labor Code of the Russian Federation). If the employee refuses to familiarize himself with the specified order against signature, a corresponding act is drawn up.

For your information.If the order to terminate the employment contract cannot be brought to the attention of the employee or he refuses to familiarize himself with it against signature, a corresponding entry is made in the order (Article 84.1 of the Labor Code of the Russian Federation). The absence of such an entry in the order may serve as a reason for reinstatement of the employee.

Based on the order, an entry is made in the work book. By virtue of the Instructions for filling out work books and the Rules for maintaining and storing work books, an entry about the reasons for termination of the employment contract is made in the work book in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law.

The entry on the termination of the employment contract is certified by the signature of the employee responsible for maintaining work books, the seal of the employer and the signature of the person being dismissed (clause 35 of the Rules for maintaining and storing work books).

On the last working day, the employer is obliged to:

1) issue the employee a work book with a record of dismissal. Based on clause 41 of the Rules for maintaining and storing work books, the employee must confirm its receipt by signing in the book for recording the movement of work books and their inserts and a personal card. If it is impossible to issue a work book to an employee on the day of dismissal 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 have it sent by mail. From the date of sending such notification, the employer is released from liability for the delay in issuing the work book;

Note!The employer is also not responsible for the delay in issuing the work book in case of a discrepancy last day work with the day of registration of termination of labor relations upon dismissal of an employee on the basis provided for in paragraphs. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (Part 6 of Article 84.1 of the Labor Code of the Russian Federation).

2) pay the employee all amounts due to him, including compensation for unused vacation (Article 140 of the Labor Code of the Russian Federation). If an employee was absent from work on the day of dismissal, the corresponding amounts must be paid to him no later than the next day after the dismissed request for payment is presented. In the event of a dispute regarding the amount of these amounts, the employer is obliged to pay the amount not disputed by the employee;

3) issue him a certificate of the amount of wages, other payments and remunerations for the two calendar years preceding the year of termination of work (service, other activities) or the year of applying for a certificate of the amount of wages, other payments and remunerations, and the current calendar year, for which insurance premiums were accrued, and the number of calendar days falling in the specified period for periods of temporary disability, maternity leave, parental leave, the period of release of the employee from work with full or partial retention of wages in accordance with the legislation of the Russian Federation, if insurance contributions to the Social Insurance Fund were not accrued for the retained wages during this period. The form of such a certificate and the procedure for issuing it are approved by Order of the Ministry of Labor of the Russian Federation dated April 30, 2013 N 182n;

4) send to the military registration and enlistment office information about the dismissal of an employee subject to military registration. Information is reported in the form provided for in Appendix 9 to Methodological recommendations on maintaining military records in organizations, developed by the General Staff of the Armed Forces of the Russian Federation (paragraph “a”, paragraph 29 of these methodological recommendations).