Dismissal for absenteeism step by step procedure. How to file a dismissal for absenteeism. Employee absence certificate

Users are interested in how to fire an employee for absenteeism and comply with labor laws. We provide a complete algorithm of actions and tell you how to act in problematic situations. At the end of the article there is a visual cheat sheet.

If an employee does not show up for work and does not answer the phone, do not rush to issue a dismissal order for absenteeism. Without documentary evidence, the court will declare the dismissal illegal, and the manager will have to not only leave the negligent violator in the workplace, but also accrue average salary for days of forced downtime.

Truancy from the point of view of the law

Absenteeism is the absence of an employee without a valid reason:

• for the entire working day (shift), regardless of its duration;
• more than 4 hours in one working day (shift).

There are a number of nuances to consider here.

1. If a person was absent for 4 hours or less, you cannot immediately fire the employee for absenteeism: reprimand him or deprive him of his bonus.
2. If a lunch break falls during the absence, it is not taken into account. Example: a subordinate was not at work from 9:00 to 13:30. By staffing table from 12:00 to 13:00 he has lunch. Therefore, the employee missed 3 hours and 30 minutes and cannot be fired.
3. If during one working day/shift an employee was absent several times without a valid reason, these periods can be summed up. For example, an employee was absent for 2 hours in the morning, half an hour after lunch and 2 hours in the evening, for a total of 4.5 hours of absenteeism. The fact of absenteeism is easy to prove if the enterprise has introduced a pass-card regime.

The deadline for dismissal for absenteeism is 1 month from the date of failure to appear. However, there are exceptional situations when the unfortunate employee does not show up at work and does not get in touch. Then the period is increased to 6 months.

Leading lawyer of the European Legal Service Alexander Spirinov:

Require the employee to provide documentary evidence that the reason is truly valid. For example, witness statements, a certificate of illness of a relative, a copy of the accident report. If these are family circumstances, give him unpaid leave. Basis – art. 128 Labor Code of the Russian Federation

Valid/unexcusable reasons for absence from work

When dismissing, it is necessary to take into account not only the fact of the employee’s failure to appear, but also the reasons that led to this (decision of the Supreme Court of the Russian Federation No. 66-KG18-8 of June 18, 2018). Let's take a closer look.

The Labor Code does not list what reasons are considered valid. The manager makes his own decision on this issue. But keep in mind that the court will side with an employee who was unable to come to work due to circumstances beyond his control.

Good reasons

Not good reasons

Illness of the employee himself, medical examination, vaccinations, required leave for blood donors Illness or death of a close relative Road accidents, transport delays, housing and communal services accidents or other incidents Weather conditions that prevented a person from getting to the workplace Participation in a strike or rally due to non-payment/delay wages Participation in investigative actions and legal proceedings

Absence from work without the consent of management (consent must be written) Vacation without permission from management Using allotted days off unless authorized by management Absenteeism during a shift work schedule Loss of communication between an employee and an employer - when an employee disappears and does not answer calls and letters

Sofia Povzikova,

Even if your subordinate fails to show up once for an unexcused reason, you have the right to fire him. The basis is the ruling of the Constitutional Court of the Russian Federation dated June 19, 2012. No. 1078-O. This is how the law protects the rights of the employer from the actions of negligent employees.

But there is an important exception. According to the Labor Code of the Russian Federation, dismissal for absenteeism is prohibited in relation to pregnant women; the court will definitely take their side. You cannot voluntarily “say goodbye” to minor workers– you need to wait for the consent of the labor inspectorate and the commission for minors. And also the court will be loyal to parents of large families, those caring for the disabled, and other preferential categories of citizens

To collect evidence of employee absenteeism and prepare documents for dismissal, use the services of specialists. A careless employee will not have a single chance to challenge your decision.

Revealing step-by-step algorithm procedures for dismissal for absenteeism.

Step 1. Write a memo

The Labor Code does not have clear instructions on what documents need to be drawn up, the main thing is to record the offense. For example, you can write a memo addressed to the manager. In it, indicate the date and time of absence, and also indicate how you tried to contact the employee: by phone, mail, etc.

Example of a memo:

General Director

LLC "Cherry"

Stadnitsky P.R.

Marketing department

Memorandum

Absenteeism from work

dated 08/19/2019 No. 45

I inform you that marketing manager Igor Valerievich Zaitsev did not show up for work today (09/19/2019). All attempts to contact him by phone are unsuccessful; Igor Valerievich Zaitsev does not pick up the phone. I suggest that after your return you request this employee written explanations, after which consider the issue of bringing Igor Valerievich Zaitsev to disciplinary liability.

Head of Marketing Department Volkov V.I.

Step 2. Draw up an employee absence report from the workplace

The document is signed by 3 people - the boss and two other employees of the company.

If an employee does not go to work for a long time, fill out documents daily in the first week, then you can do one document a week: until the absentee shows up, or until you send him a letter to his home address.

Step 3. Keep a time sheet

Until you find out the reason for absenteeism (with written evidence), mark the report card as NN - failure to appear for an unknown reason.

You can change the code to PR (absenteeism) after the employee has given an explanation in writing, admitted to misconduct, and you consider the reasons for absenteeism to be disrespectful.

This is what the time sheet looks like before the reasons are clarified:

After the reason is recognized as disrespectful, the NN mark is crossed out, and the PR code is added at the bottom of the “Absence for Reason” column. Be sure to make a note that corrections have been made:

Step 4: Demand an explanation

According to the law, it is impossible to initiate dismissal under an article for absenteeism until the culprit gives written explanations. He is given 2 days for this from the moment he appears at work.

The explanation can be written in free form:

Step 5. Send a registered letter if the employee does not show up

In free form, write a letter asking to come to work and explain the reasons for your absence.

Yuryev R.R.

139329, Stavropol

st. Moskovskaya, 71, no. 4, apt. 5

LLC "Zazhigalka"

Ref. dated 08/19/2019 No. 67

Absenteeism from work

You are absent from work from 08/01/2019 to the present day. In accordance with Article 193 of the Labor Code of the Russian Federation, we ask you:

1. By September 5, 2019, provide a written response about the reasons for absence from work.
2. Send a letter to Zazhigalka LLC, addressed to: general director Pavlova I.P., at the address 502963, Stavropol, st. Lazurnaya, house 34.

If you do not provide written explanations, this will not prevent disciplinary sanctions from being applied.

General Director Pavlov I.P.

If the employee does not respond, draw up a statement of refusal to provide written explanations. The act is signed by at least three people - the manager and two witnesses.

Sofia Povzikova, HR Expert at Coleman Services:

I advise you to send a request by registered mail with a description of the contents. In the event of a legal dispute, this will help you prove the fact that you gave the employee the right to explain the reasons for his absence. Please allow approximately 2 weeks to respond. Otherwise, you will violate the procedure for dismissal for employee absenteeism.

Step 6. Prepare a package of documents for dismissal

As a result of the previous steps, you have collected a package of documents, it includes:

• memorandum of absence from work;
• act of absence of an employee from the workplace (or several acts if the person was absent for more than one day);
• a copy of the time sheet;
• an explanatory note from the culprit or an act of refusal to provide written explanations.

The documentary base is ready, then the personnel officer prepares a memo addressed to the boss with a request to bring the violator to disciplinary liability. The boss decides whether to agree to dismiss the employee for absenteeism or apply other sanctions.

Draw up a dismissal order

For such an order, use the special form T-8

Within three working days, the employee must read the order and sign it. If he refuses to sign, draw up an act of refusal. The act is written in free form, it is certified by the head and 2 witnesses.

Dismissal for absenteeism, entry in the work book, sample 2019

Dismissal under the article for absenteeism is formalized with the following entry:

“Dismissed due to absenteeism, pp. And clause 6, part 1, art. 81 Labor Code of the Russian Federation."

Calculate the employee and pay him the due salary, hand over the work book. If the person never shows up at the office, send him a written notification about the need to pick up the document (the employee may ask to send the work document by mail). If you do not receive an answer, keep your work book for 75 years.

Dismissal for absenteeism if the employee never shows up for work

If an employee does not show up for work and does not make himself known, the employer should take steps to find him.

The law does not establish an employer's obligation to search for an employee. At the same time, until the facts about the employee’s condition are clarified (by the employer or through the court), the organization has no grounds to dismiss him. The possibility cannot be ruled out that the employee is absent for a valid reason, for example, detained by law enforcement agencies or involved in an accident and is unconscious. Therefore, if in such a situation the dismissal of an employee is formalized without establishing the facts of his absence, then the employee will have every reason to appeal to the court with a request to reinstate him at work.

Thus, when an employee does not show up for work and does not make himself known, the employer is recommended to take the following actions:

• draw up an employee’s absence from work report and document it periodically (preferably daily) until the reasons for such absence are clarified;
• send an employee of the organization to the place of residence of the missing employee to find out the reasons for his absence. In this case, it is advisable for the employee to have with him a written request for an explanation of the reasons for absence in case the “missing person” turns out to be at home;
• in the absence of an employee at his place of residence, send a request for written explanations by registered mail with acknowledgment of receipt. It is important that such a letter has an inventory of the contents and a declared value. Otherwise, the employer will not be able to prove in court that he sent the employee a request and not a blank sheet;
• send inquiries to medical institutions at the employee’s place of residence, contact relatives and friends;
• submit an application to law enforcement agencies (police) at the employee’s place of residence. Police officers are required to accept the application, issue a notice of its acceptance and registration.

The further procedure depends on the search results.

For example, if it turns out that an employee does not show up for work because he was detained by law enforcement agencies or sentenced by a court, then this is a valid reason for absence. An employer can dismiss such an employee only if there is a court verdict that has entered into legal force (clause 4, part 1, article 83 of the Labor Code).

If the missing employee is discovered and does not provide valid reasons for his absence, the employer can fire him for absenteeism (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code).

If the employee is absent for a long time, and the search activities of law enforcement agencies do not bring results, then the employer has the right to apply to the court to declare the employee missing or dead. A citizen is considered missing if during the course of a year there is no information at his place of residence about where he is. A citizen is declared dead if there is no such information within five years. This is stated in articles 42 and 45 Civil Code. After the court satisfies the application, the employment contract with the missing employee can be terminated under clause 6 of part 1 of Article 83 Labor Code(letter of Rostrud dated 09/05/2006 No. 1552-6). The legality of this approach is also confirmed by the courts, see, for example, the ruling of the Primorsky Regional Court dated May 21, 2014 No. 33-4878/2014.

For small business news, we have launched a special channel on Telegram and groups in

When planning to be fired for absenteeism, you should understand that you will most likely have to prove your case in court. Let’s take a closer look at how to act when an employee is absent from work and what arguments will help protect the interests of the company.

In the article:

• When absence from work is absenteeism
• Long absence and consequences
• Dismissal for absenteeism for good reasons
• How to fire an employee for absenteeism: a step-by-step diagram
• Documentation upon dismissal for absenteeism

Absenteeism as grounds for dismissal

Absenteeism is absence from the workplace without good reason (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation):

• throughout the entire working day (shift), regardless of its duration;
• more than four hours in a row during a working day (shift).

That is, when you are fired for absenteeism, there are two situations.

1. The employee is absent for whole days or shifts. In this case, the length of his working day or shift does not matter. Even if it is less than four hours. This is possible if the employee works, for example, part-time.
2. An employee goes to work on a day of absenteeism. He can be fired for absenteeism only if he was absent from the workplace for more than four hours in a row. Over four hours, not exactly four hours.

Employers often have a question: whether or not to take into account the lunch break when calculating absentee time (see table below). The court, as a rule, decides the issue this way. A break for rest and food does not interrupt the time of unjustified absence from work, however, it must be excluded from the calculation of the total number of hours of absenteeism (Articles 106, 108 of the Labor Code of the Russian Federation). This view is shared by most courts. However, there are also exceptions, most likely due to the subjective view of a particular judge on the situation. For example, when the court recognizes that a lunch break interrupts the course of the absence period.

When absence from work is considered absenteeism

Dismissal for long absence

If an employee long time does not show up at work, does not get in touch, and telegrams sent to his residence address are returned, other attempts to find him remain unsuccessful, such a person cannot be fired in absentia. After all, the employer does not have a written explanation for the fact of failure to appear (Article 193 of the Labor Code of the Russian Federation). Dismissal for absenteeism in this case will be illegal and can be easily challenged in court. This means that the employee will be reinstated at work, regardless of whether he violated labor discipline or not, and his absence from work from the moment of dismissal will be paid as forced absenteeism(Articles 234, 394 of the Labor Code of the Russian Federation).

In such a situation, you need to have significant evidence sufficient to confirm the fact of the employee’s failure to appear. If an employee does not show up for several days, it is safest to file an absence report every day. But you can also draw up one act in several days (for example, once a week).

If the reason why the employee is absent from the workplace is unknown, enter the code “NN” in the time sheet if you use the T-12 or T-13 form. When the employee shows up later and brings sick leave or cannot explain his absence in any way, you will clarify the time sheet. Namely: letter code Correct "NN" to code "B" - temporary disability (illness) or "PR" - absenteeism.

The more evidence of an employee’s absence from work is collected, the better. For example, evidence may include:

• data from the electronic registration system of arrivals and departures from the office;
• letter from educational organization, to which the employee was sent for advanced training courses, that the student did not show up for classes, etc.

In all cases, it is imperative to wait until the absent employee returns to work in order to comply with the application procedure. disciplinary action(Article 193 of the Labor Code). That is, request written explanations from the employee or document the refusal to give them in an act, and then determine whether a penalty can be imposed or not.

It is possible to fire a remote worker for absenteeism, but it is risky, since this category of workers distributes working hours at your own discretion (Article 312.1 of the Labor Code).

If there is a court decision recognizing the missing employee as dead or missing, he can be dismissed, but on a different basis - due to circumstances beyond the will of the parties (Clause 6, Part 1, Article 83 of the Labor Code).

Let’s imagine that an employee took two months off work without good reason. The question arises on what day to fire him. Lawyers have two opinions on this matter.

Termination day employment contract in case of long absence is:

• the day preceding the first day of absenteeism. Arguments: the day of termination of the employment contract on general rule is the last day of work of the employee, with the exception of cases when he did not actually work, but by law his place of work (position) was retained (Article 84.1 of the Labor Code);
• the day on which the order of dismissal for absenteeism is issued. Arguments: the dismissal order must be dated by the actual date of its issuance.

Employers often use the second option as it is more expedient and less risky, since employees in court, as a rule, do not demand that their dismissal date be changed to an earlier date. In addition, the costs of the first point of view are that all subsequent actions of the employer - conducting an internal audit, requesting an explanation, issuing a dismissal order - are actually carried out after the date of termination of the employment relationship, which contradicts the principles of formal logic.

If absenteeism is followed by a period of temporary incapacity for work, confirmed by sick leave, then the employee can be fired only after he recovers (Part 3 of Article 84.1 of the Labor Code, letter of Rostrud dated July 11, 2006 No. 1074-6-1).

Often, company management turns to a HR specialist with a question: will the court reinstate an employee who has only been absent once, if otherwise there are no complaints about his work? When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account (Article 192 of the Labor Code). As well as the employee’s previous behavior, his attitude towards work (clause 53 of the resolution of the Plenum of the Armed Forces of the Russian Federation No. 2).

If the court comes to the conclusion that the fact of misconduct actually occurred, but the employer decided on the penalty without taking into account the listed circumstances, the employee’s claim for reinstatement at work may be satisfied (determination of the RF Armed Forces dated March 30, 2012). Thus, previous labor merits can save an employee who has been absent once from dismissal.

Dismissal for absenteeism for good reasons

Formally, the employer has grounds to dismiss for absenteeism even if the employee was sent by the organization during working hours for training (short-term training), but never showed up for classes. Or he refused to take part in a corporate event that takes place during working hours in the office.

At the same time, it is important to find out the reasons why the employee missed work, school, or a corporate event. To do this, you need to ask him for an explanation. In addition, it would not be amiss to stipulate in the employment contract with the employee the latter’s obligation to undergo training and attend corporate events if they are held during working hours and are directly related to the performance of his job function.

If an employee is fired for absenteeism and declares valid reasons for his absence, then he must provide evidence of their valid reasons.

When deciding on possible dismissal for absenteeism, the employer must take into account the validity of the reason for the employee’s absence from the workplace. At the same time, the list of valid reasons labor legislation does not contain. This issue remains at the discretion of the employer, and subsequently the court, taking into account the explanations of the employee and the supporting documents presented by him (table below). The list of reasons is open. If the court considers the reason for the employee’s absence or lateness to be valid, then his absence from the workplace will no longer be considered absenteeism.

Some reasons for absence from work that the courts recognize as valid

Cause	Details of the court decision
Visiting a lawyer to get advice on violation of labor rights	Definition of Moscow regional court dated 11/24/11 in case No. 33-26558
Summons to court hearing	Determination of the Moscow City Court dated November 14, 2011 No. 33-36615/2011
Being on leave without pay when the employee is entitled to such leave by law (part two of Article 128 of the Labor Code)	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 02.21.13 in case No. 33-426/2013
Fire, short circuit, emergencies, natural disasters	Appeal ruling of the Khabarovsk Regional Court dated 03/01/13 in case No. 33-1372/2013

If the employer calculates the period for applying a disciplinary sanction from the first day of absenteeism, he may miss the deadlines necessary to formalize the misconduct. In this case, the monthly period for imposing a disciplinary sanction is calculated from the date when it became known that the employee was absent (for example, from the moment an explanation was received or an act of refusal to give one was issued). In such cases, the court sides with the company (appeal ruling of the Khanty-Mansiysk court Autonomous Okrug- Ugra dated November 6, 2012 in case No. 33-4728/2012).

Dismissal for absenteeism: step-by-step procedure

It is very important to comply with all formalities: dismissal for absenteeism is a serious conflict with the employee, it is possible that he will complain to the court or labor inspection. But officials and judges tend to take the employee’s side. Therefore, the employer cannot be given a reason to accuse him of violating the dismissal procedure. Step by step diagram See below for sample documents.

STEP 1: Request an explanation . An employee cannot be fired for absenteeism if he was not required to explain the reasons for his absence from work. This is what the judges think (Appeal ruling of the Moscow City Court dated June 24, 2015 No. 33-21714). Therefore, a company that intends to dismiss an employee for absenteeism must definitely ask him for an explanation.

Notification of the need to report to work to provide an explanation for absence from work is provided in writing. It is signed by the head of the company, and then the notification is sent to the employee.

The notification must indicate:

• the basis for sending the notification (the employee’s absence from the workplace);
• what the employee must do (appear to the company’s HR department to give an explanation).

The employee can put his signature on receipt on the second copy of the notice, which remains with the employer. If the notice is sent by registered mail, the date of mailing will be confirmed by the receipt.

If the employee does not provide an explanation within two working days, a report about this is drawn up (Part 1 of Article 193 of the Labor Code of the Russian Federation).

It is worth waiting about a week so that the employee has time to send a response by mail. After this period, if there is no response, the employee can be fired. If the letter is returned with a note that the addressee did not receive it, it is safer to first find out why the employee is absent. For example, interview neighbors, apply to the local police officer, etc. Otherwise, if the employee was sick (or absent for another good reason), after dismissal he will be able to be reinstated through the court (appeal ruling of the Moscow City Court dated January 14, 2015 No. 33–156 ). And the employer will have to pay for the time from the date of dismissal until reinstatement by court decision.

STEP 2. Drawing up an absence from work report . If the company nevertheless decides to dismiss an employee for absenteeism, it is necessary to draw up an act of absence of the employee from the workplace. This document is required to confirm absenteeism.

STEP 3. Issuing a dismissal order .

Entry in the work book about dismissal for absenteeism

As a general rule, information about disciplinary sanctions is not entered into the employee’s work book (Part 4 of Article 66 of the Labor Code of the Russian Federation). Penalty in the form of dismissal is an exception. The corresponding entry is made in the employee’s work book on the day of his dismissal for absenteeism (clause 10 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225).

The employee must be familiarized with the record of dismissal for absenteeism, and he must confirm the fact of familiarization with his signature on his personal card (clause 12 of the Rules). An entry in the work book about dismissal for absenteeism is made with gel, feather or ballpoint pen black, blue or purple (clause 1.1 of the Instructions for filling out work books, approved by Resolution of the Ministry of Labor dated October 10, 2003 No. 69). We showed how to make such a recording in the example.

In column 1, the serial number of the entry is entered (in the work book, the numbering of entries must be continuous). In column 2 - the date from which the employee quits. In column 3 it is necessary to provide the full and abbreviated name of the employing company in the form of a heading. However, since the entry is made in the same company as the previous one, you do not have to write the title again, but enter information about the dismissal immediately after the previous entry.

In addition, it is necessary to make a reference to subparagraph “a” of paragraph 6 of part 1 of Article 81 of the Labor Code (clause 16 of Rules No. 225). Column 4 contains details of the order of dismissal for absenteeism. Abbreviations cannot be made in entries, that is, the word “order” must be written down in full, and short version(for example, “pr.” or “prik.”) will already be a violation of the procedure for filling out a work book.

Order of dismissal for absenteeism: sample

The law does not oblige the employer to indicate the period of absenteeism in the dismissal order. At the same time, as judicial practice shows, such orders must contain a detailed statement of the circumstances and facts of the misconduct, the progress of the official investigation, and also reflect the employee’s previous behavior. The specific content of the order depends on the specific circumstances of the violation (sample below).

In practice, the justification for applying a disciplinary sanction in the form of dismissal may consist of several pages. The obligation to familiarize the employee with the order implies that he must understand for what offense he is being punished and have an idea of ​​the timing of the penalty.

Last modified: March 2020

Even the most responsible employee cannot physically remain at the work machine continuously throughout the entire working day. Most absences (short or multi-day) are agreed upon with the administration, and only a small percentage of employees allow themselves to arbitrarily adjust their working hours. Depending on the reason for absence and its duration, the employer is free to decide on an equivalent penalty from simple edification to dismissal for absenteeism.

What is considered truancy (regulatory framework)?

When an employee has been absent for several hours in a row, and his disgruntled employer does not intend to let this situation take its course, it is better for the company’s personnel service to refresh its memory of the provisions of the two main rules on the use of disciplinary measures. There is a direct indication of how to clear the ranks of the team of truants in the following standards:

• subparagraph a) of paragraph 6) of Article 81 of the Labor Code;
• clause 39 of the Resolution of the Plenum of the Supreme Council No. 2 of 2004.

The listed standards contain a number of criteria that help to clearly qualify the time of being late or not showing up as absenteeism. It is legal to recognize an offense as a gross violation of discipline if all of the following signs coincide at once:

• the person was not seen throughout the entire shift or for 4 or more hours (not counting the lunch break);
• the time period was continuous (summing up periods is unacceptable);
• the employee is not at the work point specified in his contract (in accordance with the requirements of Article 209 of the Labor Code);
• the reason for failure to appear or absence for many hours has not been agreed upon with the employer and is not recognized by him as valid.

A specialist hired on a part-time basis (4 hours or less per shift) may also suffer if he decides to miss at least one exit. Article 81 of the Labor Code specifically states that the duration of the shift does not play a role if a person has never checked in at his work point.

If, upon examination of the situation, it turns out that the employee’s absence does not meet all the criteria, then the offending specialist can only be punished for being late. In the case where this is the first violation, the maximum penalty in severity should not exceed the force of a reprimand, Art. 192 TK.

How to calculate the duration of absenteeism?

You can record the time of no-show or lateness from the first minute of the start of the working day or unauthorized unmotivated absence from the workplace. The immediate superior of the violator of discipline or his colleagues (both in writing and orally) can notify management.

To correctly classify absenteeism or tardiness, it is necessary to follow several rules for documenting and timing the situation:

• when receiving a signal from team members, officially confirm the fact of untimely arrival or unauthorized abandonment of work (report of one or more colleagues, recording from CCTV cameras, absence of a mark in the daily registration log of the time of appearance at the enterprise);
• in the same way it is necessary to record the hour and minute of the offender’s return;
• between two time marks a minimum of 4 hours and 1 minute must pass (minus a 60-minute meal break, which cannot be included in the total period);
• if a person never shows up (within the hours specified in his employment contract), then at the end of the day, witnesses to the misconduct must draw up and sign an absence report for the entire shift.

There are several conditions when missing work cannot be considered absenteeism, even if the reason for this action was not valid:

• if the employee appeared at the enterprise at least for a minute before lunch and after, and at the same time he has witnesses ready to confirm this;
• if the contract does not specify a specific place of work (workshop, machine number or office), but a general address, then the employee’s aimless movement around the outskirts of the enterprise territory cannot be considered absenteeism;
• if a part-time worker or a specialist invited for a part-time job has only the duration of the shift in the employment contract, but there is no fixed time frame, then he is free to come at any hour convenient for him (absenteeism can only be proven in the case where the employee never showed up superiors).

For example, a hired specialist left the office at 10:00 am without permission from his superiors and returned only at 2:30 pm. In a normal 8-hour working day, this absence cannot be considered absenteeism, even though the total period of absence was 4.5 hours. In this case, the main condition is not met: the time period is interrupted lunch break, which means it lasts 3.5 hours.

It is extremely important to clearly record the start time of absence from work and the moment the employee reports or ends the shift. If in court the employee can prove bias or distortion of these facts, which will shorten the period of unauthorized absence, then the decision will be made in favor of the hired person.

Valid reasons for absenteeism

An explanatory statement from the guilty party will help to assess what happened. Providing an opportunity to clarify the situation is the direct responsibility of the employer. If this requirement is not met, then the dismissal may be considered illegal and the form of punishment of the employee excessive.

After appearing at work, the employer must provide the absentee with 2 working days to provide evidence of valid reasons for absence (minus weekends, holidays, vacation or sick leave). Refusal to provide explanations or failure to provide them within 2 days releases management from the obligation to take into account the employee’s opinion.

If written excuses are nevertheless received, then the employer needs to know that the root causes of absenteeism can be unconditionally valid (as required by the Labor Code of the Russian Federation) or subjective (in the opinion of management or inspection bodies). The following are guaranteed to justify:

• absence agreed with the employer (vacation, time off, business trip, separate assignment);
• sick leave (you can provide a certificate of incapacity for work any day 6 months after discharge);
• using days of rest or release from work, even without the consent of the employer, if the latter was obliged to provide them (pregnant leave, recovery days for a donor, medical examination, study leave);
• participation in court hearings, investigative activities and pre-trial proceedings;
• a strike organized in accordance with the law and refusal to work due to malicious non-payment of wages, Art. 145 TK.

The main condition is the availability of supporting documents. However, prior notice to the employer does not always play a decisive role. For example, a sick leave certificate or a summons can be provided in person.

Subjectively assessed circumstances usually include unforeseen life situations, domestic accidents, illness of loved ones, visiting a clinic without opening a certificate of incapacity for work, etc. The right to evaluate and recognize the cause as an objectively compelling circumstance remains with management.

How to properly fire an employee for absenteeism: step-by-step instructions

The employer's inconsistent behavior when dismissing someone for absenteeism may result in a labor dispute simply because there was not enough documentary evidence to confirm the clearly inconsistent absence.

To avoid problems, you need to follow a simple algorithm:

1. Establish the fact of failure to appear or leave without permission during a regulated working day, and record the time.
2. Over the next four hours, check to see if the employee shows up on site. At this time, it is possible, but not necessary, to try to contact the person who is late to rule out sick leave or an accident.
3. When an employee arrives at work or at the end of a shift, draw up a report about what happened.
4. Demand in writing from the employee an explanation or provision of documents. Further steps can be taken no earlier than after 2 working days, Art. 193 TK.
5. If the reason stated in the explanatory note cannot be considered valid, the employer has the right to decide on the severity of the penalty imposed (from reprimand to dismissal). You can exercise your right within the next 30 days after the violation is discovered. The expiration of the deadline will mean complete rehabilitation on the part of the employer.
6. Sign the dismissal order.
7. Make an entry in the work book and pay the settlement. In such a situation, severance pay is not provided, but the rest of the salary and compensation for vacation will have to be calculated and paid out, Art. 84.1 TK.

The same norm stipulates that upon termination of an employment relationship, the personnel service must issue a certified copy of the order, a certificate of income subject to insurance premiums during the previous 2 full years.

How to confirm the fact of absence from work?

Before drawing up a truancy report, you need to carry out work to collect evidence (reports, videos, journal entries, etc.). Analysis of these materials will help you make a choice between two possible options:

• Absenteeism is clearly allowed;
• in fact, the person was on the territory, but did not perform duties or was distracted too often.

If the collected data is not enough to consider the offense as truancy, the collected evidence will be useful in holding the negligent specialist accountable for failure to fulfill his duties.

The act must set out the circumstances of the detection of the offense, the date of compilation and the exact time, the signatures of witnesses and the violator himself. If the employee never comes to work, then the act is drawn up and signed without him.

The legislator does not oblige management to draw up a report daily if absenteeism lasts for several days. It is quite acceptable to draw up one document for the entire period immediately after the specialist’s appearance. But in this case, there is a possibility that the employee will be able to confirm the validity of the reasons for absence for some days (for example, a certificate from the hospital). Then the employer faces problems if the situation goes to court.

If absenteeism lasts several days, it is better for management to draw up a separate report for each fact of absence.

Can a pregnant woman be fired for absenteeism?

The Labor Code strictly limits the severity of measures taken against women in position. In Art. 261 of the Labor Code says that dismissing a pregnant woman operating enterprise without her desire it is impossible. Management has only two types at its disposal disciplinary penalties in relation to such truants - a warning and reprimand.

But even if the usual procedure for dismissing an employee for absenteeism does not apply to an expectant mother, this does not mean that you need to let the situation go “on the brakes.” A correctly drawn up act and carefully collected evidence of a woman’s absence from work will allow the employer to:

• not to reasonably pay for missed work time;
• adjust the distribution of the bonus fund and production rate indicators, if the company has a similar system of material incentives;
• maintain discipline in the enterprise.

Immunity from dismissal does not exempt a pregnant woman from her job responsibilities. Moreover, days unpaid for this reason will directly affect the final amount of maternity benefits, since days of absenteeism are not excluded from the calculation period.

How and when to make an order?

A single act of absence from work without justifying reasons can provoke the dismissal of an employee for absenteeism. However, you should not rush to place your order. Even in an ideal case, the process will take at least 5 working days:

1. Day of absenteeism.
2. The date of the employee’s appearance and the issuance of a written order to give explanations.
3. Two days to provide excuses.
4. Date of dismissal (issue of order).

Options are possible when deadlines are repeatedly delayed, especially if an employee disappears without explanation and never appears again. The main problem is that dismissing an employee for misconduct without explanation will be considered illegal.

In this case, you can play it safe and send the hired person a letter (registered with an inventory) demanding him to appear to clarify the circumstances. If there is no response and the shipment is returned, management will be able to confirm their attempts to find out the fate of their employee and the validity of the decision. But even such precautionary behavior will not guarantee protection from inspections and court.

After many months, a dismissed employee can bring documentation of long-term treatment of a serious injury in a hospital. This will entail not only the reinstatement of the employee, but also compensation for lost earnings and moral suffering.

What will they write in the order?

The law does not provide a special form for processing payments for gross misconduct. Personnel department can use the standard T-8 form. However, when filling out the order column, you need to disclose in as much detail as possible the reason for the calculation (“for absenteeism”), refer to paragraphs. a) paragraph 6) art. 81 TC, and also list all applications.

It is another matter whether the date of issuing the order and the termination of the employment contract coincides in the event of a long trial and refusal to appear at the enterprise. The safest option is to specify one day for dismissal and signing of the order, and simply not pay for the missed days.

What will be written in the work book?

The most offensive thing for the employee is that the impartial wording about the reason for termination of relations with the employer will be exactly transferred from the order to his work book. In addition, the following must be entered in the document confirming the availability and duration of experience:

• next record number;
• date of termination of cooperation with the employer;
• the reason for the calculation and reference to the Labor Code of the Russian Federation;
• details of the order (instruction) on dismissal.

The accuracy of the entry must be confirmed with a “wet” seal and signatures of the manager and employee.

Why is it better to resolve the situation peacefully?

A person convicted of committing a serious disciplinary offense with further dismissal is always interested in changing at least the wording in the order. However, the employer himself may be interested in agreeing to a settlement.

The legality of termination of employment relations on the basis of the employee’s guilty actions is confirmed not so much by the fact of absenteeism, but by the correctness of the investigation procedure and assessment of the situation. The slightest flaw in the preparation of supporting papers makes it possible to challenge the employer’s decision and be reinstated in the same place and receive a financial bonus according to a court decision.

In this case, both the employee and the employer you can’t do without the help of a qualified lawyer, who can justify the line of defense or claims of the injured party.

In order not to add complications to itself, management can offer a more acceptable, quick and painless way of separation - by agreement, Art. 78 TK. The main advantage is the irreversibility of the decision made. This means that former employee will not be able to demand restoration of relations in any form, and also declare the illegality of the actions of the enterprise management.

The legislation provides for the right of the employer to terminate the contract with the employee, and the administration of the business entity will act as the organizer of the termination. This can be done when an employee has repeatedly failed to fulfill his labor functions or when dismissal occurs for absenteeism. In any case, the procedure for such termination requires complete documentation of the entire process. Let's look at how to arrange it correctly in 2019.

This definition enshrined in the Labor Code of the Russian Federation. Absenteeism is the absence of a company employee from the workplace during the day, namely more than four hours without valid circumstances.

It can be called:

• A person’s absence from work;
• Leaving an employee’s workplace for a period of time exceeding four hours;
• Being late for work by more than four hours;
• Termination of work upon refusal to work a two-week period before dismissal;
• Termination of work by an employee before the expiration of the fixed-term contract;
• The employee took advantage of his time off, but did not notify his employer about this.

It is very important to establish and enshrine in local regulations the operating mode of the enterprise, for example, in. The employee must know when his working day begins, what time it ends, and the time of breaks. Confirmation of this knowledge is the employee’s familiarization with the work schedule under signature.

Micro enterprises are allowed this information include in . Only then can we say that he, knowing that he had a working day, was absent from his place of work.

When an employee was not present at his place for less than four hours or an equal time, it is impossible to immediately dismiss him for absenteeism under Article 81 of the Labor Code of the Russian Federation. In this case, we are talking only about his failure to fulfill the established labor responsibilities. The contract with him can be terminated only if this violation is repeated several times and is recognized as repeated.

Important! The main condition for recognizing an employee’s absence as absenteeism is documenting this fact. Without documents drawn up in accordance with established rules, it is impossible to issue an order of dismissal for absenteeism. And the dismissal could be considered illegal.

In some cases, if the employee’s guilt is proven and he admits it, the parties can come to an agreement and can formalize the employee’s departure from the company in his or her form. In order not to make a negative entry in the work book and not to carry out a complex procedure for terminating the contract.

Forced absence for valid reasons

If an employee is found to be absent from his place of work, an attempt must be made to contact him and determine possible reasons what happened. It is possible that the employee has circumstances that, according to the law, exclude his guilt, and absence from work is a forced absence.

In this case, it is considered that the working person wanted to fulfill his duties, but he did not have such an opportunity. Such absence may be the result of unforeseen factors or management decisions. In any case, valid reasons for absenteeism must be documented.

Absenteeism is considered respectful, the following happened:

• Sick leave has been opened.
• The employee performed civic duties.
• Road traffic accidents.
• Funeral of close relatives.
• Natural disasters and disasters.

Due to the fault of the employer, the following cases of forced absenteeism are distinguished:

• Unreasonable refusal to hire an employee - when judicial procedure the fact will be established. He appears all the time from the moment when of this employee should have been taken before the decision came into force.
• Dismissal of an employee in violation of standards labor law, including illegal termination of a contract, violation of the rules for entering information into the labor report, delay in issuing them, etc.
• The man started work, and the employment contract with him was drawn up much later.
• Delay in reinstatement of an employee who was illegally dismissed and reinstated by court order.

Workplace concept

There are two concepts that are very close in meaning, but at the same time there is a difference between them. This is the place of work and workplace.

The place of work is more broad concept compared to the second definition. It implies the address of the location of the enterprise as a whole, where all activities are actually carried out and includes all jobs available at the enterprise.

The workplace is the place where a specific employee performs the work stipulated by his employment contract and job descriptions functions.

The workplace can be indicated in the compiled labor agreement. If there is no information about it, then the place of work of the entire enterprise is indicated.

This distinction is especially important when registering absenteeism of an employee, since he may be absent from his place of work, but be on the territory of the enterprise. If the employee is not registered in labor contract his workplace, then in this case he cannot be fired for absenteeism. After all, he was actually present at his place of work.

What if the employee is absent during lunch time?

The law provides for the obligation to provide employees with lunch breaks. This period can range from thirty minutes to two hours. Its beginning and end, as well as its duration, are reflected in the internal regulations. Lunch break time is not included in working time.

A situation may arise that an employee was absent from work for more than four hours, but this period falls during lunch time.

In this case, it is recommended to subtract from it the period attributable to lunch to determine the actual time of absenteeism of the employee. This will avoid many problems in the future. controversial situations. Because if, after subtraction, it turns out that the employee was not at work for less than or equal to four hours, then dismissal for absenteeism will be considered illegal.

Attention! The director can also, on his own initiative, try to contact relatives, contact the police, hospitals, etc. These actions do not have to be taken, but during the trial they will confirm the bona fides of the employer.

Step 2. Record the employee’s absence from work

In order to register the absence of an employee at his place, it is usually used. It includes information about the date and time of the act, the person who executed the document.

There is no separate form for the act; it is drawn up in any form. This can be done either by the personnel officer or by the employee’s immediate supervisor.

Important! When drawing up the act, it is necessary that at least 2 people be present. They act as witnesses and sign the document at the end. When a trial is initiated, their testimony may be additional evidence in favor of the correctness of the company’s administration.

Step 3. Enter absenteeism on the time sheet

To record the appearance of an employee at his place or his absence, special forms T-12 and T-13 are used.

When it is discovered that the employee is not in his place, but the reason for the absence is unknown, the letter code “NN” or the number 30 must be entered in the time sheet.

These marks must be put in pencil, since after determining the actual reason for the absence, they will need to be changed to others.

If absenteeism during the entire working day is recorded, then instead of the code “NN” the code “PR” or digital 24 is entered.

Attention! If the absence lasted less than 4 hours, then you will need to enter the code “I” or digital 01 in the columns, and in the column below enter the number of hours actually worked.

Step 4. Request the employee to provide an explanation

The administration needs to ask the employee for an explanation for his absenteeism in writing. A request for such clarification must also be submitted in writing against signature, or sent by registered mail with the described attachment and notification of its delivery to the addressee.

The request must describe the event that was detected and indicate it exact time and date, as well as set a deadline during which the perpetrator must provide his explanations.

Attention! According to the Labor Code, the employee must be given two days to provide explanations. If, after this period, the employee provides evidence that his absenteeism occurred due to forced or reasons beyond the control of the person himself, then dismissal for this reason will be impossible.

If after the specified period of time no explanations have been received from the employee, a report about this is drawn up. At the same time, he himself needs to clearly understand that refusal to provide an explanation will not be a reason for canceling the dismissal procedure, but rather will confirm his guilt.

Step 5. Drawing up a dismissal order

Rostrud believes that if an employee is dismissed due to absenteeism, then there is no need to separately issue an order to bring him to disciplinary liability, and separately to issue the dismissal itself. You can only draw up a dismissal order. However, the first option - with the execution of two orders at once - will not be considered erroneous.

Important! According to the law, the order must be issued within one month from the fact of receiving information about the offense. This period does not include days when the employee is ill, on vacation, or receiving the opinion of the trade union body.

The completed order must be entered into the order register for the enterprise.

Step 6. Introduce the employee to the dismissal order

After filling out the document and its approval by the head of the company, the document must be shown to the dismissed employee. He must read it and put his signature in a special column as confirmation of familiarization.

If the employee refuses to sign the order, then a mark to this effect is placed in the box. Next, a commission of at least two employees from other departments is formed, with them the contents of the order are read out loud, and then an act of refusal to sign the document is drawn up.

If the employee wants, he can ask in writing to give him a copy of this order.

Step 7. Enter information into your personal card

Attention! In the case when the dismissed person does not want to get acquainted with the document and sign (for example, he does not agree with the dismissal), then a separate act is drawn up, which is stored along with the card.

Step 8. Make an entry in the work book

The procedure according to which information is entered into work books is determined by law.

Attention! If the employee who is responsible for making an entry in the labor record makes an incorrect entry, or in false wording, he is responsible for his action financial liability. He will have to pay for those days that the citizen, due to a mistake, could not get a job, based on average earnings.

Step 9. Drawing up a note-calculation

In order to determine the amount of payment upon dismissal, a calculation note is filled out at the enterprise. A special T-61 uniform was created for it.

Step 10. Pay the employee money

The employee, on his final day at the workplace, must receive all the settlement amounts allocated to him, which include:

• Last month's salary;
• Severance pay, if established by internal documents, labor or. However, if they stipulate that upon dismissal for misconduct no severance pay will be paid, the employee does not have the right to demand it, and the company may not pay it.

In practice, a case may arise when an employee is absent on his final day, and it is impossible to issue funds to him. In such a situation, the administration must give him the full payment the next day after the dismissed person expresses his desire to receive them.

If the payment is transferred to a salary card or bank account, the payment date can be moved to the next banking day.

Attention! When a dispute arises between the dismissed person and the company about the amount of the amount that needs to be paid out, then on the specified day the former employee receives only the part that is not disputed. For the rest cash negotiations are held, or the issue is resolved through the courts.

Step 11. Hand over the necessary documents

After an employee is dismissed for absenteeism, he must be given the following documents:

• Work book. On the final day of work, the personnel officer makes a note of dismissal in it and gives it to the employee for review. In addition, a record of receipt of the document is made in the labor accounting book, and the employee confirms this with a signature. If on the last day the employee did not come to pick up the book (for example, he does not agree with the dismissal), or was unable to do so (he got sick), then you need to send a written request in which you ask to come for the document, or allow it to be sent by mail. After sending such a request, the company and official Responsibility for failure to hand over the work permit is removed.
• , which was received by the employee for the previous 2 years and for the current one. For this document, a special form 182N is used.
• A certificate of the amount of insurance premiums that were calculated for the employee and transferred to the Pension Fund.
• Copies internal documents affecting the employee. Upon his written request, the organization must issue copies of documents or extracts from them that relate to the work of the dismissed person - orders for admission, transfer, dismissal, etc. The forms are issued within three days from receipt of the request.
• – liability for failure to issue it can amount to up to 50 thousand rubles.

The employee may also request to provide. This document is also issued within three days from the application. For reference, there is a recommended form from Rostrud, regional authorities can offer their own forms of certificates, and it is also possible for a company to draw up a certificate in any form.

Step 12. If necessary, notify the military registration and enlistment office of dismissal

If an employee dismissed for misconduct is classified as liable for military service, then the company must report this to the military registration and enlistment office within two weeks. Notification form developed and accepted Methodical instructions on conducting military registration in companies.

In what cases can dismissal for absenteeism be considered illegal?

When an employer dismisses an employee for absenteeism, the latter may try to challenge this step. But in order to win this case, it is necessary that the responsible persons draw up documents confirming the act with errors, or do not draw them up at all.

The reasons on which you can challenge dismissal for misconduct include:

• Mandatory procedures were not followed when recording absenteeism;
• The information specified in the act does not coincide with reality. For example, the document may contain incorrect times or dates when, in the opinion of the administration, the employee was not in his place, but he can provide evidence to the contrary.
• Incorrect preparation of documents when the employee does not agree to his transfer to another place;
• The documents do not contain written explanations from the dismissed employee about the reason for his absence from work. The court will not accept as confirmation the fact that such a request was sent to the employee by regular mail, but he did not respond to it.
• More than six months have passed since the crime was committed.

Important! If the employee can prove one of these facts, then the court will reclassify his action as forced absenteeism and force the company administration to reinstate him in his previous place. If you already work in this position new person, he will need to be transferred to another place of work.

Questions were answered by E.Yu. Zabramnaya, lawyer, PhD n.

Dismissal for absenteeism: there is no person - but there is a problem

It is common knowledge that the main asset of any company is its employees. However, not all employees understand that their job duties must be performed in good faith. And the worst offenders labor discipline, such as absenteeism, become a headache for the employer.

Absenteeism- is the absence of an employee from the workplace without good reason n:

• <или>throughout the working day, if the working day is 4 hours or less;
• <или>more than 4 hours in a row, if the working day is more than 4 hours.

Workplace- a place where the 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 I Art. 209 Labor Code of the Russian Federation.

Everyone knows: absenteeism can get you fired. b subp. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. But in practice, difficulties arise: can an employee’s absence from work in a particular situation be regarded as absenteeism and punished for it?

What to do when an employee simply stops going to work one day? How to properly record absenteeism?

Before moving on to specific issues, let's consider the general procedure for holding people accountable for truancy.

How to record absenteeism and how you can punish for it

Let's start with the fact that absenteeism is a gross violation of labor duties by an employee. Therefore, you can fire even someone who skipped work once. h subp. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. This distinguishes absenteeism from less “serious” violations, such as being late for work.

Although even in case of absenteeism, milder sanctions than dismissal may be applied to the employee - a reprimand and a reprimand r Art. 192 Labor Code of the Russian Federation.

Regardless of what punishment you choose, you must:

• record the fact of the employee’s absence from work;
• find out the reason for this absence.

How to record an employee's absence from work

The fact that an employee is absent from work is recorded:

How to draw up an absence from work report, see: 2010, No. 23, p. 74

• <или>data electronic system installed at the checkpoint (checkpoint);
• <или>a report (official) note from the truant’s immediate supervisor;
• <или>an act of absence from work, which is usually drawn up by an employee of the HR department or the immediate supervisor of the absent employee in the presence of two witnesses - colleagues of the truant.

How to establish the reason for an employee’s absence from work

After recording the fact that an employee is absent from the workplace, you need to figure out what caused this absence. After all, an employee may not come to work for a good reason, for example, in case of illness or late return to work from vacation due to a flight delay.

For more information on the procedure for bringing an employee to disciplinary liability, see: 2010, No. 23, p. 14, 74

If an absent employee comes to work the next day or a few days later, ask him for a written explanation of the absence. Moreover, it is better to do this in writing, so that in the event of a legal dispute you have evidence that you requested an explanation. After receiving explanations, you will understand whether the employee committed absenteeism or had valid reasons for absence from work e Art. 193 Labor Code of the Russian Federation; Clause 2 of the motivational part of the Determination of the Constitutional Court of the Russian Federation dated October 17, 2006 No. 381-O.

We warn the manager

Explanations about the reasons for absence from work must be requested in writing and given to the employee 2 working days to provide them.

Please note: the employee is given 2 working days to provide explanations. This period is calculated from the next day after you request an explanation from the employee. I Art. 193 Labor Code of the Russian Federation. For example, if you requested an explanation on April 26, then the above two-day period will begin to run on April 27. If the employee does not give an explanation within the specified period, draw up a report on their failure to provide And Art. 193 Labor Code of the Russian Federation.

An example of a notice of the need to provide written explanations and an act of failure to provide written explanations can be found in the publication “General Ledger. Conference hall", 2011, No. 3, p. 25-26.

If an employee does not show up for work for a long time for a reason unknown to you, take the same action. To Art. 193 Labor Code of the Russian Federation:

1) send by mail a valuable letter with a list of attachments and a notification of delivery to the employee’s address requesting a written explanation for the fact of his absence. Then, in the event of a legal dispute with an employee, you will have proof that you tried to get an explanation;

2) draw up daily reports on the employee’s absence from the workplace in the presence of witnesses;

3) record in the work time sheet according to form No. T-12 or T-1 3 failure of the employee to appear for unknown reasons (until the circumstances are clarified). To do this, put in the timesheet:

• <или>letter code "NN";
• <или>digital code "30".

Do this until you find out the reason for the employee’s absence or until management decides to fire him.

Your further actions depend on how the situation develops.

SITUATION 1. The employee showed up for work some time later. Request an explanation from him and, depending on whether he had a valid reason for his absence or not, decide whether to hold him accountable.

SITUATION 2. You have received an explanation from the employee by mail, from which it follows that he has no valid reasons for his absence. But he doesn't go to work. You have the right to issue an order to hold him accountable for absenteeism, up to and including dismissal. I subp. “a” clause 6, part 1, art. 81, articles 192, 193 of the Labor Code of the Russian Federation.

SITUATION 3. You have not received an explanation from the employee; he still does not come to work. But you received a notification by mail that he had received your demand for an explanation. Some employers fire the employee in this situation. They are guided by the fact that an explanation has been requested from the employee and the employee himself is to blame for not providing it. But such actions are associated with certain risks. After all, there is a possibility that the notice was not given to him, but to one of the family members. For example, the employee himself may be in the hospital, and the correspondence is received by his family, who are not obliged to give you an explanation. Therefore, it is prudent in such a situation to continue to make attempts to contact the employee until receiving any explanation from him.

SITUATION 4. The employee does not show up for work, does not send any explanations, and you have no confirmation that he received your letter. Or the letter was returned, never received by the addressee. This is the most difficult situation in which in practice they do this:

• <или>continue to draw up daily reports on the employee’s absence from work and record absences in the time sheet, and until the reasons for the employee’s absence are clarified, they do not issue an order to dismiss him. The majority does this, guided by the fact that the reason for the employee’s absence is not known, which means that the employer is not 100% sure that the employee is absent (that is, absent without good reason);
• <или>lose patience and fire for absenteeism if the employee’s absence is too long, the employer’s repeated attempts to contact him are unsuccessful and another employee needs to be hired in his place. Courts often agree with such dismissal in absentia Determination of the Moscow City Court dated November 12, 2010 No. 33-32370.

But sometimes courts note as a violation of the dismissal procedure that a notice of the need to give an explanation regarding absence from work was sent to the employee, but postal item was not given to the employee, but was returned to the employer yu. Although, as practice shows, if this is the only violation, then it is unlikely that the employee in such a situation will be reinstated at work.

We warn the manager

It is forbidden dismiss an employee immediately after he fails to show up. We need to ask him for an explanation. Otherwise, he may later be reinstated at work by the court, and then you will have to pay him the average salary for the entire period of forced absence.

Remember, there is always a possibility that your employee will return and provide you with a document confirming the valid reasons for his absence and the impossibility of notifying the employer in a timely manner. Then you will have to cancel the order to dismiss the employee.

If you do not do this yourself, then when the former employee is reinstated by the court, the court will oblige you to pay him the average salary for the period of forced absence A Art. 394 Labor Code of the Russian Federation; paragraph 41, paragraph 62 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. You will not have to pay for the period of absence of the employee from work before you issue a dismissal order, since he did not work. The exception is when he has sick leave.

If, however, you have already hired a new one to replace the dismissed employee, and the court reinstated the dismissed T Art. 394 Labor Code of the Russian Federation, then a new employee hired for his position will have to:

• <или>transfer to another job that corresponds to his qualifications, or to a lower position (lower paid job), which he can perform taking into account his state of health;
• <или>if there are no vacancies or if the employee does not agree to the transfer, terminate labor relations in connection with the reinstatement by the court of an employee who previously performed this work at clause 2, part 1, art. 83 Labor Code of the Russian Federation. Upon dismissal, the new employee will need to pay severance pay in the amount of two weeks' average earnings A Art. 178 Labor Code of the Russian Federation.

If, in connection with the appearance of an absent employee, you decide yourself (without court) to cancel the order to dismiss him and provide him with his previous job, then you will have to negotiate with the new employee replacing him (unless you hired him under a fixed-term employment contract):

• <или>about his transfer to another job at Art. 72.1 Labor Code of the Russian Federation;
• <или>on termination of an employment contract by agreement of the parties n Art. 78 Labor Code of the Russian Federation.

How to record absenteeism on a time sheet

If you are convinced that the employee was absent, be sure to adjust the data on the time sheet. Remember that the time sheet is one of the most important documents confirming the employee’s absence from work and the reason for this absence I Determination of the Leningrad Regional Court dated September 15, 2010 No. 33-4513/2010.

You need to correct the letter code “NN” (or digital code “30”) originally entered on the report card to the absenteeism code. This can be done in two ways:

• <или>just cross out the code “NN” (or “30”) on the report card and write “PR” (or digital code “24”) at the top. These corrections must be certified by the persons responsible in the company for maintaining timesheets and personnel records, as well as by the manager structural unit, where the truant worker works, indicating the date the correction was made th clause 5 art. 9 of the Federal Law of November 21, 1996 No. 129-FZ “On Accounting”;
• <или>in addition to the main timesheet drawn up for all employees, where the absentee during periods of absence is marked “NN” (or “30”), draw up a corrective timesheet exclusively for this employee. And already in this report card for the days of absenteeism, enter the code “PR” (or “24”). Attach the corrective time sheet to the main time sheet.

During what period can an order be issued to prosecute for truancy?

Absenteeism, like any other disciplinary offense, can be punished b Art. 193 Labor Code of the Russian Federation:

• within a month from the date of its discovery, not counting the time the employee was ill and on vacation;
• within 6 months from the date of its commission.

For more information about the timing of disciplinary sanctions, read: 2010, No. 23, p. 16

When an employee does not show up for work for a very long time, management may fear that the time limit for applying disciplinary sanctions for absenteeism will expire.

No worries. The period calculated from the date of discovery of absenteeism will begin to run not from the 1st day of the employee’s absence from work, but from the day when you became aware that the employee was absenteeism T.

How to file a dismissal for absenteeism

In case of dismissal for absenteeism, an order is issued to terminate the employment contract according to unified form No. T-8 approved Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1. In the order, do not forget to state the circumstances of the absenteeism committed by the employee, indicating the dates of absenteeism A Determination of the Moscow City Court dated November 25, 2010 No. 33-35148, and in the column “Base (document, number, date)” list all documents drawn up as part of the procedure for bringing an employee to disciplinary liability:

• certificates of absence from work;
• reports (official) notes;
• a written explanation from the employee or an act of refusal to give an explanation.

You can find the texts of the court decisions mentioned in the article: section “Judicial Practice” of the ConsultantPlus system

The dismissal order must be presented to the employee against signature. And if the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it upon signature, a note about this must be made on the order m Art. 84.1 Labor Code of the Russian Federation.

An entry in the work book upon dismissal for absenteeism is drawn up as follows.

If the employee is not at work on the day of termination of the employment contract, send to his home address a notice of the need to appear for a work book or agree to have it sent by mail e Art. 84.1 Labor Code of the Russian Federation. Until you receive written instructions on what to do, keep the work book with you.

Now let's move on to the questions from our readers.

Unauthorized going on vacation - absenteeism

T.A. Ivanova, Perm

The employee was on sick leave for several months, and then wrote a statement for annual leave. We have no grounds for granting him leave at this particular time (that is, not according to the vacation schedule). Without waiting for a response from management, he stopped going to work. Do we have the right to register his absence from work as absenteeism?

: Yes. As follows from your situation, the employee went on vacation without permission, that is, absenteeism l Art. 192, sub. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation; ; Ruling of the Ryazan Regional Court dated April 25, 2007 No. 33-580.

By the way, absenteeism is also the unauthorized use of time off by an employee. The exception is cases where the employer was legally obliged to provide the employee with rest time, for example, time off on a certain day, but did not provide it. For example, he refused to provide an employee with donor day the day after the employee donated blood, although according to the Labor Code of the Russian Federation he was obliged to do this b subp. “d” clause 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2; Rulings of the Moscow City Court dated October 28, 2010 No. 33-30782, dated October 14, 2010 No. 33-30069, or refused to provide leave, although according to the schedule the employee should have gone on leave at that particular time.

Unregistered maternity leave is also absenteeism

HEDGEHOG. Goncharova, Balabanovo

After completing maternity leave (in 2008), the employee did not go to work and did not inform the employer about the birth of the child. After giving birth, I did not take out maternity leave. In 2011, she sent a letter in which she asked to be given leave without pay from March 7, 2011 to April 15, 2011 inclusive. The child probably turned 3 years old on March 7, 2011.
Is it possible to fire this employee?

: Can. If the employee did not exercise her right and did not take out maternity leave A Art. 256 Labor Code of the Russian Federation, then she is most likely playing truant. As follows from the question, then she also went on leave without permission without pay, that is, she again committed absenteeism.

But before you fire an employee, ask her for an explanation of the reasons for her absence from work for 3 years. And register your truancy as required.

You cannot fire an employee for refusing to interrupt a vacation.

HELL. Starikov, Moscow

The employee, in agreement with the manager, went on vacation for a whole month. During his vacation, a situation arose in the organization that required his participation. However, he refused to interrupt his vacation. Can he be fired for absenteeism?

: No, in such a situation you cannot fire someone for absenteeism. According to the law, recall from vacation is possible only with the consent of the employee A Art. 125 Labor Code of the Russian Federation. Therefore, you have no grounds not only for dismissing him for absenteeism, but also for bringing him to disciplinary liability in general (even in the form of a reprimand or reprimand )Art. 192 Labor Code of the Russian Federation.

An explanatory note from a mother will not replace an explanatory note from an employee.

S.F. Zorkina, Stavropol

The employee did not come to work for several days and did not provide an explanation for the reasons for his absence. His mother came to the organization with a request to issue her son’s work book at his verbal request. The mother also said that her son was already working in another city and was not going to work for our organization.
Written explanations were taken from the employee's mother. Based on these explanations, we fired the employee for absenteeism, and gave the work book to his mother.
Now we’re thinking: did we do the right thing?

We warn the manager

If the employee does not want to leave vacation early, This is not a truancy.

: You made the wrong decision. In such a situation, you should have sought an explanation from the employee himself, and not from his family members. And Art. 193 Labor Code of the Russian Federation.

The mother's explanation in your situation is just an additional argument. But it cannot serve as evidence of absenteeism by your employee.

It was wrong to give the employee’s mother a work book, since she did not provide you with a power of attorney to receive it, written by her son. It was necessary to send a notification to the employee’s address about the need to appear for a work book or to agree to send it by mail e Art. 84.1 Labor Code of the Russian Federation. Until you receive an answer from him, work book must be kept by you.

Written agreement on vacation time with the employer is in the interests of the employee

R.P. Kutsenko, Krasnodar

The manager verbally allowed me to go on vacation for 3 days outside the vacation schedule, and upon returning to work, he fired me for absenteeism. This is not the first time this has happened in our company. Is this legal?

: Of course, it is illegal if you have agreed on your vacation with him. But in your situation, you still need to be able to prove this to the court (including with the help of witnesses). And the best proof is your application for leave with the resolution of your manager. Then the court will reinstate you at work. And if you can’t prove it, the court may decide that you went on vacation without permission. O Ruling of the Ryazan Regional Court dated April 25, 2007 No. 33-580.

If a manager constantly practices such unfair actions towards his employees in order to deal with unwanted employees, then it is worth reporting these facts to the labor inspectorate.

If an employee refuses to provide an explanation, a report must be drawn up

The employee did not come to work on February 15 and 16, 2011. He did not provide the reason for his absence. Absences were recorded in acts and memos.
When he went to work, he refused to give an explanation, saying that “he doesn’t want to today, he’ll write tomorrow.” He did not provide documents justifying his absence from work. An act of refusal to give a written explanation was drawn up. The employee also refused to sign it, citing the fact that in principle he does not refuse, but only does not want to give written explanations today and will write them tomorrow. It was decided to fire the employee for absenteeism.
Did we do the right thing?

: Probably, the employee was playing for time in the hope that the one-month period for applying a disciplinary sanction from the date of discovery of the misconduct would expire and he would no longer be held accountable And Art. 193 Labor Code of the Russian Federation.

In general, you did the right thing, except that you should have drawn up a statement about the employee’s failure to provide explanations, and not about his refusal to give them. Remember that the employee always has 2 full working days when he can change his mind and provide you with an explanation for his absence I Art. 192 Labor Code of the Russian Federation. Therefore, it is better not to take risks, wait and draw up an act of failure to provide explanations.

In relation to a truant who wants to resign of his own free will, you need to act promptly

I.T. Gavrilova, Kazan

The employee did not show up for work and sent us a letter sent on the day of absence (March 21, 2011), in which she asked to be granted leave without pay from the specified date to April 1, 2011, and at its end to dismiss her at will. The employee still hasn't returned to work. Is it possible to regard her absence as absenteeism and fire her not of her own free will, but specifically for absenteeism?

: As follows from your situation, the employee voluntarily went on vacation without pay, that is, she committed absenteeism, which means she can be fired for this b subp. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation; subp. “d” clause 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

However, in your case, the employee in her statement expressed her intention to resign of her own free will. Of course, this does not deprive you of the right to fire her for prog l clause 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. But this must be done within 2 weeks from the date of receipt of the said application from her. Otherwise, you will have to terminate the employment contract with her on her initiative. Moreover, it does not matter on what grounds the employee is dismissed.

What day to fire for absenteeism?

P.D. Tyuftyaeva, Tolyatti

The employee works on sliding schedule. On March 25, 2011 he has a working day, then two days off. On March 28, he did not go to work without good reason. Do we understand correctly that since, according to the Labor Code, the day of termination of an employment contract is the last day of work, then the employee must be fired for absenteeism on March 25, 2011?

: No. It is incorrect to fire an employee on the day before the first day of absenteeism, that is, in your situation on March 25, 2011. Indeed, as a general rule, the day of termination of an employment contract is the employee’s last day of work. The exception is when he did not actually work, but he retained his place of work (position )Art. 84.1 Labor Code of the Russian Federation.

The employee, while the employer finds out the reasons for his absence and determines whether he had valid reasons or not, must retain his place of work. Agree, it looks strange when the date of requesting an explanation and the date of receiving it from the employee are later than the date of termination of the employment contract. After all, after dismissal this person- is no longer an employee and is not obliged to present anything to the employer. At the same time, the employer cannot fire an employee before asking him for an explanation, etc. .Art. 193 Labor Code of the Russian Federation

In addition, a situation is possible when, after absenteeism, an employee returns to work and will work for some time while the employer determines whether he committed absenteeism, etc. Therefore, he cannot be fired on the day of absenteeism.

It is correct to dismiss an employee on the very day when an order is issued to dismiss him for absenteeism. But, as practice shows, even if you fire an employee on the last working day before absenteeism, nothing bad will happen. After all, this approach is based on the recommendations of Rostrud A Letter of Rostrud dated July 11, 2006 No. 1074-6-1.

Dismissal for absenteeism is a right, not an obligation of the employer

V.D. Rusanova, St. Petersburg

The employee did not return from vacation and did not make herself known in any way. Telegrams to her place of registration and place of actual residence remained unanswered. A month later, she finally showed up at work and wrote a letter of resignation of her own free will.
Should we fire her voluntarily or should she be fired specifically for absenteeism?

: You have the right to fire an employee for procrastination l subp. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. To do this, you need to follow the procedure for bringing to disciplinary liability And Art. 193 Labor Code of the Russian Federation. But you can meet her halfway - fire her at your own request. After all, bringing to disciplinary liability is a right, not an obligation of the employer.

You cannot fire an employee for absenteeism during illness.

L.T. Skvortsova, Volgograd

We recently hired a new employee. Unfortunately, she turned out to be a drinker (although she did not come to work drunk). On January 11, 2011, she stopped going to work. Doesn't answer calls. As expected, we document all of her absences from work and put “NN” on the report card.
On February 14, we received a statement from her by mail stating that she was on sick leave. However, we doubt that she really has sick leave, much less for this entire period. And management still intends to fire her for absenteeism.
What if the sick leave is confirmed? What to do in such a situation?

: In such a situation, an employee cannot be fired for absenteeism. After all, you have her written explanation that she is on sick leave.

So for now, continue to document all of her absences from work. But proceed from the assumption that she is still sick. If this is not confirmed later, then you can fire her for absenteeism.