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 persistent violators of labor discipline, such as absentees, 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 by an employee labor responsibilities. 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 “severe” 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 from the 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 the employee long time doesn't show up at work for a reason unknown to you, act 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"thirty".

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 mailing 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 through the court, and then you will have to pay him average earnings for the entire period of forced absence.

Remember, there is always a chance 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 the employment relationship in connection with the reinstatement of the employee who previously performed this work by the court at clause 2, part 1, art. 83 Labor Code of the Russian Federation. Upon dismissal, the new employee will need to be paid 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 of his dismissal 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>about termination employment contract by agreement of the parties n Art. 78 Labor Code of the Russian Federation.

How to record absenteeism on a timesheet

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 the 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 head of the structural unit in which the absentee 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 time sheet drawn up for all employees, where the absentee during periods of absence is marked “NN” (or “30”), draw up a corrective time sheet 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 to terminate the employment contract is issued according to the 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 a 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 wages 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 record 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, employment history 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?

: The employee was probably playing for time in the hope that month period applications disciplinary action from the date of discovery of the offense will expire and he will 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 a rotating 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, March 25, 2011. After all, according to general rule The day of termination of the 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 provide 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.

The May holidays are just around the corner - a time when you can finally relax and take a little break from work. But what if you don’t want to go to work today? Agree, it happens that you seem to have earned the image of a hardworking employee, and your conscience is frankly against it... but you really want to skip work, remaining to continue lying in a warm bed or on the couch, watching morning TV shows... And if the child is sick or you are in captivity powerless after last night's party?

No, you can, of course, hope for understanding from your superiors. But what if the relationship with the manager is not warm? Then, of course, it’s better not to skip – you know what the consequences are. But if you still decide to pass, you better enlist the support of the law - fortunately, it contains several options for successful maneuvering. Careerist.ru will help you find a truly “good reason.”

1. Donation

Probably the most proven way to avoid going to work is to donate blood. It allows you not only to realize your noble intentions to help humanity, but also provides material benefits in the form of food or monetary compensation at the donor center. Well, besides, according to Art. 186 of the Labor Code, on this day you can quite legally skip work. Moreover, the day after donating blood can be similarly missed, and this will not affect your salary in any way, so you will not lose money either. If there is no desire to rest specifically on these days, no problem; days off on the occasion of donation, at your sole discretion, can be transferred to any other day or added to the vacation. The main thing is that the bosses don’t get mad at such tricks... Although, the law is on your side, right?!

2. Work on weekends and holidays

If your bosses like to take advantage of your flexible nature and are ready to “drive” you out to work on Sunday, it’s time to use it against them. You shouldn’t immediately refuse to work on a day off, because it provides you with a good trump card in case your desire to sleep is stronger than your boss’s screams. So, according to Art. 153 of the Labor Code, if you are unlucky and your boss forces you to go to work on the weekend, then you may well demand a day off on another day convenient for you. But this is only if you do not need the money, because if you do not ask for an additional day off, the work must be paid double. If absenteeism is needed today, you can offer your boss a small reshuffle: a day off today, and back to work on Sunday. Perhaps he will agree...

3. Temperature violations

Not the most “corporate” way to justify your own absenteeism, but still. So, if the office is too cold in winter and too hot in summer, the employee has every right to suspend labor activity, having notified the employer about this in writing. In particular, according to the Hygienic Requirements for the Microclimate of Industrial Premises, the air temperature in the office during the cold period should not fall below 13˚C, and during the warm period – no higher than 28˚C. Violation of these limits can reduce performance, worsen your well-being and generally harm your health, and this, according to Art. 379 of the Labor Code, gives the employee the right to refuse to perform work by notifying his superiors in writing. Yes, and for this period your salary is retained. True, not every boss will tolerate such “maneuvers,” so if you’re going to sabotage the work, it’s better to work with the whole team.

4. “At your own expense”

Since Soviet times, in the corporate culture of workers there has been such a thing as going “at your own expense,” that is, getting an unpaid day off or several days off. Today this possibility also exists - according to Art. 128 of the Labor Code, for family and other valid reasons, at the employee’s written request, he may be provided with several such days “at his own expense.” The duration of such rest is negotiated with the authorities, and can even be 1 day. This, however, is only the right of the employer. But it can become his responsibility if, for example, you are a pensioner, a working disabled person, you have had a child, you are celebrating a wedding or your close relative has died, you combine work with study, and in other cases provided for in Art. 128 TK.

5. Corporate time off

Corporate time off, unfortunately, is rare and is not established by law, so not everyone has the opportunity to receive it. But if you are determined to skip work tomorrow, you might want to read your employment contract. The fact is that many companies practice providing employees with paid (or unpaid) time off without requiring an explanation of the reasons - corporate culture, what can you say. But you might not have been told about this when you were hired, so take the employment contract and carefully study the section “Rights and Responsibilities of the Employee,” “Working Time and Rest Time,” as well as “Other Conditions.” If, lo and behold, in these sections there is a rule about granting you time off, take care of your employer, only a few are so lucky.

6. Study leave

Studying and working at the same time is the lot of real heroes, so only for this they need to be given extra days off. But the law thinks differently, providing the opportunity not to attend work only during sessions, passing state exams and writing thesis. In particular, according to Art. 173 of the Labor Code, during sessions of 1-2 courses, up to 40 days are provided, and then up to 50 days (when receiving secondary education, 30, respectively). Moreover, leave of up to 4 months is given for state examinations, and 10 months before their start, the employee has the right to demand a layoff from the employer working week for 7 hours, which can be done by giving the employee one more day off from work per week. It turns out that for 10 months before the “states”, you may have one more floating day off per week. It’s worth going to study just for that!

7. Medical examination

A medical examination is always troublesome. You have to visit a lot of doctors, stand in kilometer-long queues and generally spend a lot of time on this. And if the employer sends you to undergo it, he understands perfectly well that such things cannot be done quickly. By the way, yes, you are not required to take it in work time– medical examination, if it is carried out in regular professional examination hospitals, then this is always working hours. At the same time, according to Art. 185 of the Labor Code, the time of undergoing a medical examination is fully paid by the employer, even if it is half a working day, or even several days. And here you need to understand that the speed of its passage will depend solely on you, your acquaintances at the hospital and efficiency in queues. Or maybe required certificate and in general was received in advance, and will the day of the medical examination be carried out outside of medical institutions?

8. Child's illness

Is your child sick? There is absolutely no problem with this - the law allows one of the child’s parents to take out sick leave for the duration of his illness. According to Order of the Ministry of Health and Social Development No. 624n, which regulates the procedure for issuing certificates of incapacity for work, sick leave is issued in the case of caring for a sick child under 7 years old - in any case of illness, and up to 15 years old - in case of outpatient treatment or the need for a joint stay in the hospital. And if a parent cares for a disabled child, then according to Art. 262 TK, he is given 4 additional days off every month.

9. Work in the village

If you are lucky (or unlucky) to work in rural areas and at the same time be born a woman - know, according to Part 2 of Art. 262 TK, you are entitled to 1 additional unpaid day off per month, which is provided at the request of the employee herself without argumentation or explanation. I want to relax, that’s all! This is due to the difficult working conditions in rural areas, especially since women usually work there either on livestock farms or in the field. Nevertheless, the day off is granted regardless of the presence of children and other subjective factors, even if you are a milkmaid or the chief accountant of the village council. The main thing is that this is an application to their management, and that’s it, you don’t have to go to work!

10. Delay in salary

Even if this is a negative example, an employee has every right to suspend his work activity and not go to work by notifying his superiors in writing, if the delay in wages was 15 days. No salary? Work yourself! According to Art. 142 of the Labor Code, such a lonely protest against corporate tyranny can last until the delayed amount is paid. If the employee is ready to pay the delayed amount, he must go to work the next day. At the same time, at the time of suspension of work, he is not required to be at the workplace, so if wages have not been paid for 2 weeks, stay under the covers, having first written a statement to your superiors. Don’t be afraid for your salary - for the period of such a strike, according to Part 4 of Art. 142 of the Labor Code, the employee retains his average earnings.

In general, it’s better to get along with your superiors a good relationship, and always having the opportunity to take time off is the law, and a trusting relationship with management is worth much more.

Absenteeism is a fairly serious violation of labor discipline by an employee. It is expressed in the absence of an employee within his workplace for 4 or more hours without a good reason. Such a disciplinary violation gives the employer the right to legally terminate the employment relationship with its employee. Dismissal for absenteeism is provided for in Article 81 of the Labor Code of the Russian Federation, namely clause "a", clause 6, part 1. The concept of truancy Plenum Supreme Court The Russian Federation summarized the practice of courts considering disputes between an employer and an employee and issued a resolution “On the application by courts of the Labor Code of the Russian Federation.”

How to properly fire an employee for absenteeism?

Therefore, such an employee does not need to register absenteeism - an order from the manager on the appropriate grounds is sufficient. During shift work mode Shift work mode involves shifts of a certain duration.

Accordingly, the same legal norms apply - if an employee is absent for more than 4 hours while a shift is in progress, you can safely record a violation and register absenteeism. Civil servants Civil servants are fully subject to the regulations of the Labor Code, including those regarding absenteeism.

Long-term (several days) Unauthorized abandonment of work by a person who has entered into an employment contract for an indefinite period is subject to the same disciplinary measures as for a single absence. Absence for several hours If an employee is absent for more than 4 hours in a row, the employer has the right to issue absenteeism.

Conditions and legal grounds for dismissal for absenteeism

The manager is the first to sign and study the order, after which he is brought to the notice of the violator of the employment contract. According to the law, 3 days are allotted for preparation of the order and familiarization.

Info

If the employee does not agree with the decision and refuses to sign, a report is drawn up. An act is prepared in the presence of witnesses, which records that the worker refused to sign the document.

How to formalize absenteeism with dismissal As already said, the boss himself decides what punishment to apply. In practice, if an employee comes and does not want to explain anything, he is simply fired for absenteeism.

To arrange everything correctly, you should:

• Prove that the employee was really not at work at the specified time.

How to properly register absenteeism for an employee under the Labor Code of the Russian Federation?

But what is considered a workplace? An office, company territory or a chair on which an employee sits while working? IN this issue should first study job description and an employment contract with the employee, as well as collective agreement, if available. Additionally, other local acts (orders, instructions, regulations) may be used, defining “ workplace» for a specific employee. For example, an instruction or order for a worker may indicate that his workplace is a specific machine or workshop number. In this case, absenteeism will be considered the time that the employee spent outside the workshop or at the machine.
If there is no clear concept of what is considered a workplace in local acts or labor agreements, then you need to be guided by Art. 209 of the Labor Code of the Russian Federation, which defines that a workplace is a territory where an employee needs to arrive to perform assigned functions.

Long absence: difficulties of dismissal

Let's consider the registration procedure:

1. Drawing up an act.

IN mandatory an act is drawn up that contains all the personal data of the employee who violated the terms of the contract. In addition, information about the employer and two witnesses is indicated.
All persons who will appear in the act must sign it - this is important. Afterwards, it is described in detail when and how long the subordinate was absent from the workplace of his own free will.
Well, the act must be completed by making a decision - what the employee receives for his negligence.

1. Memorandum.

This is the second mandatory document, which also indicates the reason for the violation and the timing of unauthorized absence. An act is attached to the note and handed over to the head of the company.

1. Order.

Only when an authorized employee receives all the documents does he prepare an order.

How to correctly register an employee’s absenteeism + sample orders

Attention

QUESTION: Good afternoon! I work in small company. I didn’t show up for work on one of my shifts. In this regard, I want to ask, can my director fire me for one absence? Evgeniy, Mr.

Syktyvkar ANSWER: Evgeniy, hello! Issues of discipline at work are regulated by the Labor Code of the Russian Federation. According to paragraph a) of Part 6 of Article 81 of the Labor Code, absenteeism is recognized as: Absence from work without good reason for a whole working day or shift, regardless of their duration. Absent from work for 4 consecutive hours during a shift or workday. According to Part 6 of the same article, absenteeism is a gross violation of labor discipline, and, therefore, one absenteeism is enough to terminate your employment contract. However, the Labor Code of the Russian Federation provides such a right to the employer, which he may not take advantage of.

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But how to draw up documents if the head of the organization is ready to “forgive” an employee for a serious offense? Documents and their samples Since all documents drawn up upon absenteeism are drawn up to confirm the imposition of a disciplinary sanction specifically for this offense, if the employer wishes not to take any measures, acts, orders and other documentation are not drawn up. Time limits The employer can still apply penalties, even if he previously decided to act differently.

The standard period is 1 month from the date of discovery of the offense. It should be noted that in the absence of a drawn up act, it will be quite problematic to prove the fact of absenteeism. This, however, does not prevent you from using witness testimony after some time.

In the report card Absenteeism without disciplinary action is noted in the report card in the standard way - “PR”.

Can you get fired for one absence?

As part of the investigation, a decision may be made to dismiss for absenteeism without a valid reason if the employee refuses to provide an explanation for why he was absent. Or he did not confirm the documented reason, even if he considers it valid.

An act should be drawn up about this. You can download a sample act of dismissal for absenteeism by clicking on the link. Requesting an explanation personally from an employee can sometimes be problematic. For example, if the employee never came to work. In this case, it is necessary to notify the employee of dismissal for absenteeism (sample) in case of refusal to provide explanations for his actions. Notification is sent via mail. You can notify by registered mail or telegram. The two-day period must be counted from the date of receipt of the notification by the employee.

The nuances of dismissing an employee from work for one absence

It would also be reasonable to draw up daily reports of the employee’s absence during the entire period of absenteeism, or to record this in some other way. in an accessible way, for example, by making notes in the arrival and departure log in order to comply with the procedure for dismissal for absenteeism without a good reason. Preparation of procedural papers The first document that needs to be prepared is confirmation of the fact of absence.

The most common option is to draw up a report, although a report can also be used, based on the results of which an official investigation is opened. After requesting an explanatory note, you must wait two working days.

Immediately on the day of absenteeism, it is impossible to issue a dismissal order for absenteeism sample and terminate the employment contract.
It turns out that if a citizen was not at his workplace due to undergoing a medical examination, this is not considered absenteeism. But do not forget that a subordinate cannot make a personal decision when to undergo an examination; this action must be agreed upon with his superiors and preferably in writing.

1. Participation in litigation.

By law, any person can be summoned to court, as a victim or witness. In this case, failure to appear will be considered forced absence, which will not be punished.

1. Utility accident.

At any moment, a utility accident may occur as a result of which you will not be able to go to work: your neighbors are flooded, a pipe bursts, a gas leak occurs, or a fire breaks out.

If the employee missed 1 day

Valid reasons for absenteeism The legislator for the current year 2018 does not define in any article of the Labor Code what are valid reasons for absenteeism. It is believed that this fact must be established within the framework of the proceedings, that is, separately in each individual case. In practice, a valid reason is one that arose not at the will of the employee. That is, they recognize as respectful:

• employee illness;
• illness (death) of a close relative;
• emergencies;
• road accidents or incidents;
• housing and communal accidents;
• other.

Of course, valid reasons for absenteeism must be documented or otherwise confirmed, for example, by testimony of witnesses. Documents must be certified in accordance with the general procedure. For example, get a medical certificate, a copy of the accident report.

The grass is turning green, the sun is shining. And we, like complete fools, rush to work. And this is instead of a trip to nature with friends and barbecue. It's a shame! This injustice in life must be corrected. So, do your best to come up with a manageable excuse and skip work. Here are some ready-made methods.

1. Get sick. Early in the morning, call work, having previously put a clothespin on your nose, and moan into the phone: “Oh, I can’t, I’m sad, woeful! My death has come imminently! I’ll rest for a day today, and tomorrow, if not to the cemetery, then Definitely get to work!" Any leader, if he is not a complete sadist, will allow you to rest for a day or two. This is much more profitable for him than sending you on sick leave for a couple of weeks. If you don't have enough artistry to portray a dying person, you can invent a terrible stomach disorder. Then you will simply limit yourself to a short call: describe your problem in a nutshell and end the conversation under the pretext of urgent matters in the restroom area. You can go another way. For several days, complain about feeling disgusting, and then “go to the doctor.” Then you will say that you did not get an appointment or that the doctor did not find anything for you except terrible overwork.

2. Invent a lonely grandmother suffering from a myriad of illnesses. Then you can go away to bring the old lady medicine, take her to the hospital, give her an injection, give an enema, and just sit at the bedside of your “dying” relative. Just don’t even think about asking to attend her funeral - your grandmother will come in handy more than once.

3. Call work and say that your clueless spouse has taken both sets of keys from the house and you cannot leave the apartment. The same series of excuses includes leaking sewerage, damaged water supply and other faults that require your presence in the apartment. Report misfortunes with regret, lament the disruption at work, and calmly stay at home.

4. Induce your relative or friend to deceive. Let him fake a call from the police. He will call you at work, officially ask you to come to the phone and allegedly inform you that your apartment was robbed and you need to come urgently to make a list of lost things. If you fight in hysterics and scream that you stole 37 items acquired through back-breaking labor (a deck of cards and an opener), in addition to time off, you will also receive financial assistance. In addition to “policeman,” the options “flooded neighbor” and “gas worker” are well received.

5. Call work and report that there is a bomb in the office. Only now, if your deception is revealed, you will lose not only your job, but also a huge amount of money that you will have to pay in the form of a fine.

6. Call the SES to combat rats, cockroaches, bedbugs, cabbage butterflies and other living creatures. These pests can be brought from home and dispersed throughout the office. Then you will not be the initiator of calling the stainers, and you will not be suspected of anything.

7. If you get there by car, say that you broke down in the middle of a deserted highway and waited half a day for a tow truck. Somewhere towards the end of the working day, call work and express your desire to come. In 9 cases out of 10 you will be dissuaded. You can make up an accident. But then you will have to travel on foot for some time while the car is supposedly being repaired. But it will be possible to ask for time off early under the pretext of trips to a car service center.

8. Obtain a plan for your institution’s communications system and, under cover of darkness, chew through a cable or dig a hole in the sewer. Everyone will be sent home. Just be careful: wear galoshes and gloves - the cables are live. It’s also good to wear an orange jacket - if you are noticed doing your dirty work, they will take you for a repairman.

9. Be rude to your boss and fail a responsible area of ​​work. You will sit at home as much as your heart desires and do personal business, search new job, For example.

10. Earn by exemplary behavior. Go to work on weekends, work in the evenings, complete tasks well. You will be appreciated, respected, indulged in your whims and, perhaps, even given a library day. It’s just a pity that this method is not suitable for those who are already figuring out which of the previous 9 to use.

It seems that there can be no two interpretations about whether one can be fired for absenteeism. But will dismissal be legal in all cases? We suggest studying the most typical situations.

Truancy and truancy are different

Before figuring out whether someone can be fired for absenteeism, it is necessary to clearly describe the concept itself and its interpretation in Labor legislation, because a situation in which an employer will illegally fire someone due to being late or leaving early for a good reason is not at all excluded. Who is considered a truant?

Some of those fired will say that in his case it was a matter of absence from the office for many days, some - about a significant delay due to the apartment being flooded in the morning, and some - about a reluctance to indulge management and come in as a replacement. Which of them were fired illegally?

We find the definition in Article 81 of the Labor Code:

Absenteeism is absence from work for the entire working day (shift) or more than 4 hours, regardless of the length of the working day.

Important! An absentee employee does not have a valid reason.

So can they be fired for absenteeism? Yes, but under one of three conditions:

30 days have not passed since the offense occurred;

the employee was absent for more than 4 hours;

there was no valid reason for absenteeism or lateness.

Let's look at the specifics

The easiest way to understand the principle of the mechanism of dismissal for absenteeism is through specific examples.

Without explanatory note

Sergei K. was fired as a truant, and the management was so furious because of his failure to appear at work that they violated the dismissal procedure. In particular, Sergei was not given the opportunity to explain himself. This helped the dismissed person achieve reinstatement in court.

Since the presence of a good reason is one of the criteria that does not allow an employee to be thrown out, finding out what prevented him from going to work is a key task for the HR department and management.

Is it possible to fire someone for absenteeism without an explanation? No, the employee always has the opportunity to prove his own innocence by writing an explanatory note (preferably with evidence). Whether the reason will be recognized as valid is another question.

A respectful reason

One working day, Vladimir S. was forced to take his elderly mother for a regular medical examination. The visit to the hospital lasted longer than planned, and Vladimir arrived at work at the end of the working day. The management was not satisfied with his written explanations, since the boss did not receive documentary evidence of a medical examination.

In most cases, determining the status of the cause is left to the discretion of the manager. Whether he recognizes the excuse as valid or not depends on many factors: starting from the character of the boss and ending with the value of a particular employee, it is no secret that the bosses often turn a blind eye to the absences of some, while others do not allow an extra minute to linger in the toilet room.

Can they be fired for absenteeism for 1 day, not to mention a longer absence for a valid reason? Unfortunately, in Labor Code There is no clear list of cases that are clearly recognized as valid for a truant; however, dismissal is considered unacceptable if the employee has provided:

sick leave (even for one day);

a summons summoning him as a witness to the investigator or to court;

certificate from transport company about flight delay (cancellation);

a copy of the accident report;

other documentary evidence of absence through no fault of your own.

Good reasons in practice usually include:

employee illness;

death of a close relative or the first day of a serious illness of one of the relatives;

emergencies;

traffic accidents;

utility accidents.

Thoughts about the workplace

Svetlana M. was asked to leave when she was in Once again was away from work for more than 4 hours, chatting with colleagues from a new department in another wing of the building. She failed to prove the dismissal was unfair.

In law we're talking about about absence from work. But how to determine its boundaries? Do you need to constantly be on company premises, in a specific building, on the desired floor, in an office and in your own chair? To understand what constitutes a workplace in a particular case, you should study:

job description;

contract of employment;

additional orders from management.

If there are no specifics in these documents, then, on the basis of Article 209 of the Labor Code, a workplace is considered to be the territory where the employee arrives to perform work functions. The chatterbox Svetlana apparently had specifics, and the workplace meant a specific office, and not the neighboring wing of the building.

Time off

The working day at company N begins at 9 am, lunch break is from 12 to 1 pm. The head of the department, Nikolai P., appeared in the office at 13.45, but the management did not fire him due to absenteeism, not only as an “irreplaceable specialist”, but also because the time of absence did not exceed 4 hours.

In this situation, it is important to remember that the lunch break is not included in the calculation, so Nikolai was absent from the workplace for only 3 hours and 45 minutes - and this time is not enough to qualify his absence as absenteeism.

To finally understand how working time is taken into account, consider another case.

Margarita M. came to work an hour late. Then she came back an hour and a half late from lunch and didn't finish work for another two hours. The employee was fired.

Even if the time of absence is discrete, that is, divided into time periods, they are all summed up. In Margarita’s situation, the total time of her absence during the day was 4 hours 30 minutes - enough for the management’s patience to burst.

I asked for time off and was fired

Konstantin P. called the boss on the phone and received permission not to go to work on Friday. On Monday, an unpleasant surprise awaited him - a dismissal order.

Can they be fired for one day of absenteeism if the employee has previously agreed on his absence with his manager? Yes, they can, if the employee does not have written confirmation of the consent of his superiors. This is exactly the situation that Konstantin found himself in, having received only verbal confirmation from his boss.

Violation of procedure

Olga R. was fired due to frequent absence from work, but the judge sided with her due to the fact that the defendant violated the dismissal procedure.

The main argument for defense in court and reinstatement may be a violation of the procedure. In the case of dismissal, it is almost no different from the standard one, but has some nuances. Here are the steps an employer must take:

draw up an absence report from the workplace (longer than 4 hours) and enter the time into the time sheet;

notify the employee in writing of the need to provide explanations (hand over in person against signature or send to the residence address);

consider explanations or find out the reasons why they were not given;

draw up an order (if it is impossible to familiarize the employee with it, then draw up a separate act about this indicating the reason);

make appropriate entries in the labor record;

make a full calculation;

notify the employee of the need to obtain labor and payment.

If at least one of the points is not fulfilled, then the employee has the right to be reinstated in court.

On a note! The employer has only a month to implement the procedure.

Statute of limitations

Mikhail S. was fired 43 days after the offense was committed. The court declared the manager's actions illegal.

Is it possible to fire someone retroactively for absenteeism? Death and absenteeism are two cases when retroactive dismissal is allowed. However, no more than a month should pass from the moment of the offense. Thus, after a year or even after 43 days, it is impossible to terminate the employment contract with a truant worker.

On a note! In cases of prolonged illness of an employee, the permissible monthly period may increase to six months (Article 193 of the Labor Code).

And one more nuance - the last working day is considered the date of a fully worked shift.

Fired for absenteeism due to heavy pregnancy

Ksenia S. managed to receive compensation for illegal dismissal in court after she proved that she was absent from work for a good reason (she visited a gynecologist, all certificates were provided), although at the time of dismissal she was not absolutely sure of pregnancy.

Is it possible to fire a pregnant woman for absenteeism? IN labor legislation there is a series of articles that protect certain groups of workers. In addition to the fact that it is impossible to fire a truant during his illness or vacation, we are also talking about:

about pregnant women, even in cases where at the time of dismissal the mother did not know about her situation (Article 261);

about minors who are officially employed (Article 269).

It turns out that in the case of Ksenia, her dismissal was indeed illegal, but only if:

the initiative to terminate the employment contract came from the management;

the procedure was not related to the liquidation of the enterprise or termination of its activities.

But if the heroine were a single mother with a young child, then the dismissal would be completely legal. The Labor Code does not make exceptions for single mothers, and therefore the question is: Is it possible to fire a single mother for absenteeism?, has a clear answer – positive.

The same practice applies to working pensioners. Is it possible to fire a pensioner for absenteeism? Undoubtedly, and this is done on a general basis.

If an employer is trying to fire you for absenteeism, first of all, determine whether your absence meets the definition enshrined in the Labor Code, and also remember the listed nuances that will prevent you from losing your job.