Labor Code truancy article. Valid and disrespectful reasons for absenteeism. Punishment if the dismissal procedure for absenteeism is carried out illegally

Today we will be interested in the step-by-step procedure for dismissal for absenteeism. This process in real life bringing it to life is not as easy as it seems. After all, absence from work is not always considered absenteeism. Therefore, employers may have some problems bringing their idea to life. Also, dismissal is not the only way punishment of a negligent employee. It turns out that absenteeism does not in all cases entail loss of work. What should an employer know about this procedure? How to properly prepare for the dismissal of a truant worker?

Definition of truancy

The first step that needs to be taken is to establish the fact that the subordinate skipped work. This is very difficult to do. Under what circumstances is dismissal for absenteeism threatened? Step by step procedure will help you figure this out.

The Labor Code of the Russian Federation states that any subordinate can be fired for absence from work without good reasons. Even if we are talking about the first pass. The main problem is that truancy has an ambiguous definition. And if the employer could not establish the fact of illegal absence of a working day without good reason, no dismissal can take place. This is the main problem employers face.

So what is truancy? This is the absence of an employee from the workplace for more than 4 hours in a row. At the same time, the Labor Code emphasizes that a subordinate should not have valid reasons for missing a work shift.

Good reasons

How is an employee fired for absenteeism? The procedure and step-by-step instructions for this process are difficult only at the very beginning. Namely, when determining how valid the reason for the employee’s absence from work was. Why do problems arise? There are no clear definitions in the Labor Code when missing a working day or shift is considered missed for valid reasons. But similar phenomena include:

• temporary disability of a subordinate;
• being in the performance of civil or public obligations;
• donating blood or undergoing a medical examination for this procedure;
• participation in strikes;
• taking the employee into custody (for example, arrest);
• emergency situations resulting in absence from work and transportation problems;
• salary delay for a period exceeding 15 days;
• carrying out emergency services work that requires access to the employee’s home.

It may be noted that the validity of absence from work is not as easy to establish as it seems. Therefore, at the very beginning of the dismissal process, the employer must not only know the definition of absenteeism, but also understand how valid the reason for the subordinate’s absence from the workplace was. What other actions should the boss take to achieve the task?

Act of offense

How to fire an employee for absenteeism? Step-by-step instruction will help you figure this out. Basic important points have already been considered - this is the definition of absenteeism and valid reasons for absence. An error in deciding whether to dismiss a subordinate may result in liability for the employer.

If you are sure that your employee is skipping work, be sure to record the offense. deeds. Its confirmation must be any evidence of the citizen’s absence from work for more than 4 hours continuously. Remember, absenteeism does not take place until this moment.

Also, evidence of a subordinate’s absence from work can include notes from colleagues, video recordings and other sources of information that record when employees arrive and leave the company.

Checking the possibility of dismissal

What to do next to properly formalize dismissal for absenteeism? The step-by-step procedure indicates that after drawing up an act of missing a working day (shift), as well as collecting evidence, the employer mandatory must check how legal his actions are.

In some cases, it is impossible to dismiss citizens on the personal initiative of the employer. Then the employee cannot be deprived of his job for absenteeism. For example, the Labor Code prohibits the dismissal of pregnant women. The employer shall not, under any pretext, at will is not capable of depriving an employee of her position of work. Unless the company is liquidated, dismissal takes place.

Disciplinary action

The next step is not provided for all employers, but only for those who provide for disciplinary sanctions for violations of the employment contract. The step-by-step procedure for dismissal for absenteeism indicates that after all the above measures, it is necessary to check the timing of the imposition of disciplinary payments.

On this moment Such penalties are possible within a month from the day the employer learned about payments; payments later than six months from the date of absenteeism are not applied.

Explanatory

Before the immediate registration of dismissal begins, the employer must require an explanatory note from the subordinate. This is the main document on which the entire process of depriving an employee of his job depends.

The explanatory note is written in free form. In it, the subordinate must describe all the circumstances under which he was absent from work for more than 4 hours. If there is evidence, it must be presented.

Next, the employer evaluates whether missing a day of work is truly considered absenteeism. If so, you can proceed to the next step. No? Then you do not have the right to fire a subordinate. If the cadre goes to court in this case, law enforcement authorities will not be on your side.

If the employee does not provide his document within 2 days from the date of request, the employer is obliged to draw up a report about this. In the event of litigation, such an approach can protect the boss.

Order

The step-by-step procedure for dismissal for absenteeism provides for the mandatory issuance of an order to remove a subordinate from work. But keep in mind that you can draw it up only after you have studied the reason for the absence of a subordinate.

When drawing up a dismissal order, remember that you cannot deprive an employee of his job who is on vacation at the time the document is issued. This restriction also applies to cases where the personnel is temporarily disabled. These rules are specified in Article 81 of the Labor Code of the Russian Federation.

Please note that it is necessary to indicate in the dismissal order the reason for applying the punishment in the form of complete removal from work. Dismissal is prescribed under subparagraph “a” of paragraph 6. This is a mandatory step. Next, the dismissal order is registered by personnel.

Familiarization

Documentation of dismissal of an employee for absenteeism is almost completed. The main part is completed. Now it's a matter of small things. After issuing the dismissal order, it is necessary to obtain the signature of the subordinate on this document. The employer must inform the employee of the penalty applied.

Of course, few people will agree to resign “under the article.” If the employer seriously intends to refuse the personnel, it is enough to make a special inscription on the order stating that the citizen refused to sign the order. It is advisable to prepare some evidence that the subordinate has familiarized himself with the document. For example, make a video recording. It may be required if an employee decides to go to court with a complaint about illegal dismissal from work. Threatened with dismissal for absenteeism? Step-by-step instructions indicate some features of this process.

If there was no signature on the order, you will have to draw up another act, which states that the subordinate refused to sign the document presented for review.

Calculation

What else is needed to properly formalize dismissal for absenteeism? The step-by-step procedure (diagram) indicates that the employer must make a payment to the subordinate for the time worked. If you neglect this point, you can prepare for liability.

The employer must prepare and provide a settlement note to the subordinate. With it, the frame is sent to the accounting department to receive the due cash for previously worked time.

Cash is paid on the day of dismissal. This is ideal. If by that time there was no frame, then this operation is carried out the next day after the employee applies for payment to the accounting department.

Work book and card

How to fire an employee for absenteeism correctly? After making a settlement with a subordinate, you must make the appropriate notes in work book frame, as well as in his personal card. The reason for dismissal must be indicated. It should be exactly the same as on the order issued earlier.

The person being dismissed must sign a personal card stating that changes have been made and he is aware of this act. If an employee refuses to sign, a report about this is drawn up. You can do without it, but in case of litigation, any documents can help the employer prove his innocence and the legality of his actions.

The next step is to create a slave. This item is optional. Many employers simply skip it. After all, dismissal due to “article” is a potentially problematic situation. It spoils all statistics and affects the reputation of the employer Negative influence. Therefore, you can simply give the work book to the dismissed personnel.

By the way, the employer is obliged to return this document to the subordinate. Even if the employee remains in debt to the company. No one has the right to keep the work books of those fired.

How to fire for absenteeism? The step-by-step procedure must be fully followed. This is the only way an employer can protect itself. Situations often occur in which the person being fired does not want to pick up the work book. In this case, it is necessary to send the employee a notification by registered mail, informing him that the employee must pick up the “labor” document. It is also recommended that if an employee refuses a book, draw up a report on this incident.

If there is no resistance, the personnel receives a “labor record”, after which they sign in a special journal for recording the movements of the work books of subordinates at the enterprise. This confirms the receipt of the document.

Certificate of income

This is all. Now it’s clear how dismissal for absenteeism occurs. The instructions for this procedure provide one more point. It's optional, but if you implement it, you won't have to worry about running into another truant.

It is recommended that at the time of registration of dismissal under the “article” for absenteeism, issue the subordinate with a certificate of his income in form 2-NDFL. By law, an employee has the right to demand this document from the employer at any time.

Please note that the judicial authorities usually come to the defense of the dismissed personnel if the employer made the slightest mistake when registering the dismissal under the “article”. This must be taken into account. The step-by-step procedure for dismissal for absenteeism has been completed. By following these rules, you don’t have to worry that the process of removing an employee will be disrupted.

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 main value 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: is it possible for an employee to be absent from work in one or another specific situation 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 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 “ main book. 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"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 the courts note as a violation of the dismissal procedure that a notice of the need to give an explanation for absence from work was sent to the employee, but the postal item was not delivered 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 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 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>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 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 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 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, the work book should 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 the month’s application period would 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 provide her with specified date until April 1, 2011, leave without pay, and at its end - dismiss her at her own request. 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 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 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.

22.06.2018, 0:37

Among various disciplinary measures, dismissal for absenteeism is considered one of the most severe. In order to understand whether this will be a lawful decision, you must first find out the circumstances of what happened. In some situations, management may limit itself to issuing a reprimand or reprimand. Also, if the employee was absent for valid reasons, no punishment will follow. In any case, there is a clear concept - absenteeism in the Labor Code of the Russian Federation. It includes several conditions under which absence from work can already be called absenteeism.

What is considered truancy?

Not every absence of an employee from his place can be called absenteeism. The following conditions must be met:

• the employee did not come to work without good reason;
• the absence lasted more than 4 hours or the entire work shift.

Such an incident is considered absenteeism. However, if an employee was absent from work due to illness, caring for a child or other family member, or participation in legal proceedings, then this will no longer be a reason for imposing a punishment. However, a valid reason must be supported by relevant documents. It could be:

• sick leave;
• reference;
• agenda;
• other papers, depending on the situation.

In addition, an employee has the right to suspend work if his salary is delayed for more than 15 days. However, in this case, he must notify the employer of his intention by drawing up a corresponding statement.

If there are no valid reasons for absence, and there is no supporting documentation, then the employee may be fired for absenteeism. The choice of punishment remains with management. Indeed, in some situations, only a reprimand is possible.

Dismissal for absenteeism

Given the current standards, absenteeism under the Labor Code can be considered a reason for dismissal. The employer has the right to terminate the employment contract, however, the choice of punishment remains at his discretion. Therefore in different situations An employee can either be fired after a single absence or be limited to a reprimand or reprimand.

It is worth considering that in judicial practice there are cases of dismissal being declared invalid if it did not correspond to the gravity of the offense. Also, when considering the case, the employee’s labor merits, his behavior and other nuances may be taken into account. That is why management needs to carry out the dismissal lawfully and in accordance with all the rules, so that later this action is not recognized as illegal.

Procedure

When dismissing an employee, you must follow the established procedure:

• First, an act is drawn up recording the very fact of absenteeism. At the same time, the employee who was absent from the workplace must also be familiar with this document;
• after this, you can demand written explanations from the employee regarding the absence. 2 days are given for this, and if after this the employee refuses to give any explanations, a report is also drawn up recording this event;
• a memo is drawn up addressed to the head of the organization, which describes the fact of absenteeism;
• if the absence had no valid reasons, an order of dismissal is issued in the usual manner.

Before dismissing an employee, it is necessary to understand the reasons for absenteeism, identifying the accompanying circumstances. This responsibility falls on the employer and is within his area of ​​responsibility. If he does not do this, then the court may declare the dismissal illegal, provided that the employee decides to challenge this decision.

Find out how to formalize dismissal for absenteeism, how to record an employee’s absence from the workplace and draw up an act. In the article you will find sample documents to be filled out by the HR officer. Only our experts have collected the most up-to-date information!

In the article:

Download the most popular document. Find 3 more useful materials in the article ⬇

When is it possible to file a dismissal under an article for absenteeism?

Dismissal for absenteeism is carried out in a certain sequence established by current labor legislation. Absenteeism is absence from work for the entire work shift or for four hours in a row. Such absence is considered a gross violation of the terms of the employment contract, labor duties and established discipline.

Dismissal under the article for absenteeism can be carried out even for a one-time absence from the workplace without good reason, if there are no direct prohibitions for this (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code, rulings of the Constitutional Court dated July 19, 2012 under No. 1078-O, dated February 19, 2009 under No. 75-O-O and dated October 17, 2006 under No. 381-O). A direct prohibition includes the dismissal of pregnant women, even if at the time of absenteeism the woman did not report pregnancy or was not aware of it.

It is impossible to terminate an employment contract due to absence from the workplace for the entire shift or for more than four hours in a row with minors, unless the consent of the state labor inspectorate and the commission for minors is obtained. It is also impossible to terminate the employment relationship with an employee during his illness or vacation. An expert from Sistema Personnel will tell you what features must be taken into account when dismissing a minor employee

Absenteeism is considered to be the case if an employee:

• arbitrarily decided to take advantage of the days off that he is entitled to for working on weekends and holidays;
• I decided to go on vacation without permission.

Notifying an employee of the need to report to work

Rest days that the employer is required to provide but did not provide will not be considered absenteeism. For example, if the vacation is approved according to the schedule or the employee worked for six months, but at his request, rest days were not provided (based on paragraph 39 of the resolution of the Plenum Supreme Court dated March 17, 2004 under No. 2).

Note! If time off or unscheduled leave was previously agreed upon with the manager, but the relevant documents were not completed for some reason and the employee did not show up for a shift, this may be considered absenteeism (as determined by the Sverdlovsk Regional Court dated August 20, 2013 under No. 33-10241 /2013).

Explanatory note about absence from work

★ Look special collection on dismissal for absenteeism, prepared by experts from System Personnel. In it you will find answers to difficult questions upon dismissal for absenteeism. Ideal samples of personnel documents for processing the termination of a TD on this basis. Labor disputes, thematic video lectures.

What facts are taken into account when dismissing someone for absenteeism: Article 192 and 193 of the Labor Code of the Russian Federation

When following the procedure for dismissal for absenteeism, and making a decision, we recommend taking into account the following circumstances:

1. The severity and circumstances of the offense committed.
2. The employee's general attitude towards work.
3. Duration of work in the company.
4. Possibility of applying less severe penalties.

In addition, it is important to consider what reasons for absence from work can be considered valid. The law does not establish a list of such reasons. This issue is decided in each specific situation by the manager on the basis of Article 193 of the Labor Code of the Russian Federation.

In practice, valid reasons include transport failures, illness of a relative, the employee himself, the occurrence of natural disasters, fire, and so on. In a written explanation, the employee must indicate a complete list of the reasons that served as the basis for his absence from work. Just an explanation is not enough. It is necessary to confirm the validity of the reason with relevant documents, for example, certificates, extracts, summonses, and so on.

How to fire someone for absenteeism: step-by-step procedure

Dismissal for absenteeism: instructions

Step 1

It is necessary to record the employee's absence from the workplace. To do this, fill out a time sheet and draw up a report. The fact of absenteeism is documented. The law does not have a specific list of documents that are drawn up when absenteeism. The fact of absenteeism is recorded by making a note on the report card. After that, they draw up an act or memo about the employee’s absence from his workplace and send him a notice asking him to come to work.

Important! Courts review such documents when a dispute arises. Therefore, be sure to put the appropriate mark on your time sheet to be able to confirm the employee’s absence from work. IN commercial organizations put the code “NN”. In case of temporary disability, it can be corrected to “B” or to “PR” - absenteeism.

In state or municipal institutions, if they use a working time sheet in form No. 0504421, they enter the code “P”. If absence from work occurred with the permission of the administration, the code is corrected to “A”, for illness - to code “B” (based on Methodological recommendations, approved by order of the Ministry of Finance dated March 30, 2015 No. 52n).

Step 2

Draw up an employee absence report. This document is drawn up in any form with the signature of at least two witnesses. A report is drawn up for each day the employee is absent. If he is away from work for a long time, you can draw up acts less frequently. Instead, it is enough to write a report addressed to the head of the organization. It should indicate the fact that the specialist is absent from work. Describe methods for finding him, for example, calling home, mobile, conducting official checks, and so on. The report and report indicate the time of absence in days, hours and minutes.

Step 3

Get the employee to provide a written explanation of the reason for the absence. The employee is given two working days to provide explanations. Based on this, it is possible to determine whether the reasons for absence are valid or not. If the employee refuses to provide written explanations for absenteeism, draw up a report.

Step 4

After collecting all evidence of absence from work without good reason, draw up a dismissal order. The document can be drawn up using the unified form No. T-8 or on a form developed independently by the organization. The order is presented to the employee against his signature. If he refused to sign the document, a document about this is drawn up in any form.

Sample letter of dismissal for absenteeism

Step 6

Make an entry in the work book with the wording: “Dismissed due to absenteeism, subparagraph “a” of paragraph 6 of part 1 of Article 81 of the Labor Code.” The employee's personal card is closed. Termination of the employment relationship must be carried out within one month from the discovery of the violation. The time the offender is absent from work is not included in this period.

An expert from the magazine “Personnel Business” will tell you. From the article you will find out whether it is possible to fire an employee for absenteeism if he has not taken sick leave. What transport reasons can justify the absence. How to fire a part-time employee for absenteeism.

Punishment if the dismissal procedure for absenteeism is carried out illegally

According to the law, the dismissal procedure for absenteeism must be carried out without violations. If the documents are completed incorrectly or some are not prepared at all, the court may reinstate the dismissed person at work. The employer will pay for forced downtime in the amount of average earnings.

★ An expert from the magazine “Personnel Business” will tell you... From the article you will find out whether it is necessary to draw up absence reports on a daily basis. How to request an explanation from an employee. What date of dismissal should be indicated in the absenteeism order?

Dismissal for absenteeism is carried out in a certain sequence established by current labor legislation. It is necessary to record the employee’s absence from the workplace by drawing up a number of documents. If they are completed incorrectly or some are not prepared at all, the court may reinstate the dismissed person at work.

2018-09-19T15:20:53+00:00

https://site/progul-na-rabote-tk-rf-nakazanie/

Absenteeism from work according to the Labor Code of the Russian Federation: what punishment is provided for absence from work without a good reason. What is considered absenteeism under the labor code and what article regulates liability for absenteeism. When an employee can be fired for absenteeism, the procedure for dismissal and how to appeal an employee’s dismissal.

What is considered absenteeism under the labor code? Absenteeism is an employee’s absence from work without a valid reason for 4 hours in a row.

What happens after just one day of absence from work? What orders are used to formalize disciplinary sanctions?

One of the most serious offenses in labor relations is absenteeism from work under the Labor Code of the Russian Federation; the punishment may vary. Such disregard for labor discipline can lead to not just a reprimand or a severe reprimand, but even dismissal.

How to challenge dismissal in case of absenteeism? We'll talk about this and more further.

Truancy article of the Labor Code of the Russian Federation

General information regarding absenteeism at work and all types of punishments for it are contained in the Labor Code of the Russian Federation.

As for the internal labor regulations of a particular enterprise, the duration working day or shift, such information will be contained in local acts, such as collective and labor agreements, or other agreements.

Consequences

In Art. 192 Labor Code Here is a list of all types of consequences awaiting a truant:

• comment;
• rebuke;
• dismissal under article.

Individual federal laws The consequences of violation of discipline in the form of absenteeism for government officials and military personnel have also been established.

Here are some of them:

• warning;
• severe reprimand;
• deprivation of bonuses;
• outfit out of order;
• reduction in rank or rank;
• deprivation of insignia;
• early termination of the contract.

Based on this, we can conclude that the maximum penalty is dismissal; any other types of punishment are considered unlawful.

Valid reasons for absence from work

Firstly, this is an official absence from the workplace agreed with the employer. These include:

• business trips;
• performing public or trade union duties;
• labor, additional and educational leaves; time off;
• additional days of rest;
• other grounds provided for in labor or collective agreements.

For example, at his request, an employee may be granted leave without pay in connection with the birth of a child (for the father), marriage and other family circumstances.

This fact of the employee’s absence from the workplace is known in advance and appropriate instructions or orders have been issued. In addition, there may be a verbal agreement with the immediate supervisor that the employee will be absent from work for a certain time for personal reasons.

Secondly, reasons that have documentary evidence are considered valid. They are unknown until the moment of absence, however, the employee can provide official document, which will confirm the seriousness of the reason for being late or absenteeism.

Such documents and grounds include:

• sick leave for temporary disability of the employee or his young child;
• the need to attend court hearings;
• participation in events conducted by law enforcement agencies;
• detention until guilt is determined.

Thirdly, various force majeure circumstances that led to lateness or absenteeism. These include man-made and natural disasters, road accidents, emergency situations at an employee’s home, death close relative etc.

For example, there was a hurricane at night, a tree fell and blocked the only exit from the entrance. We waited half a day for emergency services to arrive, who removed the rubble and cleared the door.

If possible, the employer must be notified of such circumstances before the registration of the fact of non-appearance begins. workplace.

Fourthly, absence from work may be caused by actions of the employer that violate labor laws. This could be a delay in payment of wages for more than 15 days, denial of access to the workplace of an employee reinstated by the court, or violations in the field of labor protection.

For example, if there is a delay in the payment of earned money, an employee can write a statement to suspend the fulfillment of his official duties and not appear at the workplace (Labor Code of the Russian Federation, Article 142).

What reason is considered disrespectful?

It doesn’t matter how long the employee’s absence from the workplace is, the main thing is that he can explain his absence and document its validity. In this case, it will be possible to do without dismissal, although the fact that the employee did not warn about his intentions is quite unpleasant for the employer and may chill further relations.

Short or long absence will be considered a disciplinary offense if, for example:

1. The person overslept, forgot, or simply did not want to go to work.
2. For his own reasons, he left his place of work before its completion without the consent of his immediate supervisor.
3. Doesn't skip work, but refuses to fulfill his duties.
4. The circumstances of the failure to appear have not been clarified, but the employee himself refuses to give an explanation.

In this case, the employer can issue an order of dismissal for absenteeism. Although there are other options for punishment, if management, for special reasons, wants to mitigate the disciplinary sanction for the absentee.

When can you be fired for absenteeism?

Not every missed shift is grounds for dismissal. In order for a subordinate fired due to absenteeism to be unable to refute this order through the court, the reason must be disrespectful. To be legally dismissed, the following aspects must be met:

• all missed work shift(even if its duration is only a couple of hours) or more than 4 hours of working time;
• the employee must be absent from the official workplace;
• the reason for absenteeism must be disrespectful;
• evidence of absenteeism must be recorded.

By law, absence will not be considered a violation if less than 4 hours of work time are missed. In addition, absenteeism is not counted in cases where a person does not have a specifically allotted working area, or he was in another department of the company. If a person could not inform management about his absence or has a valid reason for absenteeism, then his absence should not be considered a violation of labor discipline.

In essence, a reprimand is not much different from a reprimand, but this measure is still more serious. For example, some enterprises introduce a system of punishment for employees in which the presence of several reprimands is grounds for subsequent dismissal.

A reprimand represents negative rating actions of the employee on the part of the employer, expressed by the latter in official form. Like a reprimand, a reprimand is not noted in the work record book, but can be displayed on the employee’s personal card.

The procedure for issuing a reprimand is similar to applying a reprimand and includes the following actions:

1. Preparation of documents confirming the employee’s guilt (absenteeism report and memo).
2. Receiving a written explanation from the employee (in case of refusal to provide an explanation, a report is also drawn up).
3. The employer's decision regarding the employee's guilt. For example, if the reason for absenteeism was valid (a summons to court, an accident, illness) and the employee is able to confirm this, punishment may not be applied.
4. Issuing an order to reprimand the employee. Within three working days he must be familiarized with it against his signature.

The terms for imposing a reprimand are the same as for a reprimand - six months and a month from the date of commission and discovery of the offense, respectively.

After the end of the year, the reprimand is also removed from the employee, unless during this time he has committed new disciplinary offenses.

Actions on the part of the employer

The supervisor must contact the employee to determine the reasons for absence. If this cannot be done, a ordered letter, which sets out the requirement to provide explanations regarding the reasons for absenteeism.

The citizen is given a two-day period to respond to the employer’s administration, during which he is obliged to submit an explanatory note.

If the letter is returned with a note that the citizen is absent from the specified address, the employer must contact neighbors or the police station in order to find out the whereabouts of the employee.

This measure is necessary, because if an employee is detected and compelling reasons are provided for the person’s absence from the workplace, the employee is subject to full reinstatement through the court.

Thus, a mandatory condition for dismissal under the article for absenteeism will be the presentation of conclusive evidence of the very fact of absenteeism without a good reason. The following documents will help document the fact that an employee is absent from the workplace:

1. Entry in the report card.
2. A document drawn up establishing the fact of the employee’s absence.
3. A notice sent to the employee's home address asking him to return to work.

By following this step-by-step procedure, the administration will be able to fire a truant without any undesirable consequences in the future:

1. Obtaining grounds for dismissal - drawing up an absence certificate. The act is drawn up in free form, but must necessarily reflect information about specific day, time, duration of absence.
2. Certification of the act by witnesses.
3. If there are several absences, a report is signed for each day of absence.
4. Explanatory Requirement. If an employee appears at the workplace, the administration requires an explanation for the unapproved absence
5. Within two days after receiving the request to provide an explanatory note, the employee prepares a note outlining the reasons for his absence.
6. If the note is not provided within the required period, this is recorded in the presence of three witnesses in the relevant act.
7. The manager prepares a memo addressed to the director of the organization with a note from the employee attached.
8. If the reason for non-appearance is considered disrespectful, an order is issued in the strictly established T-8 form.

This order serves as the basis for further dismissal procedures. Because any deviation from established by law sample will allow you to challenge it in court. When drawing up and issuing an order, follow the following instructions:

1. The date of termination of the employment agreement must be reflected.
2. The reason for dismissal is indicated.
3. The order mentions the documents that served as confirmation of absenteeism.

Three days are allotted for the employee to familiarize himself with the order, followed by registration of the order in a special personnel register. Changes are made to the work time sheet: the NN mark changes to PR, which records the fact of absenteeism.

It is very important to fire a negligent employee correctly by making correct entries in the employment record:

• in the first column indicate the entry number in order;
• in the second - the date of the event;
• the third column is filled in with information about dismissal indicating Article 81 of the Labor Code of the Russian Federation;
• in the fourth indicate the number and date of the order.

After completing the registration, the employee is given latest documents, settlement, and if the employee never showed up for work, if it is impossible to hand over the documents, they are sent to the address of the dismissed person by registered mail.

Before giving the work record to the dismissed person, the records are duplicated into a personal card in the T-2 form and certified by the employee’s signature. Each entry from the labor record must be reflected in the card and certified by the signature of the dismissed employee.

According to Article 81 of the Labor Code (clause a, clause 6.p.1), as a basis for dismissal, an entry is made in the labor report about dismissal “in connection with a single gross violation of labor duties.” To avoid problems with the Social Insurance Fund in the future, a copy is made of the work book and transferred to the archive.

Features of the concept of “truancy”

Absence from work for 4 hours is considered absenteeism. At the end of today’s article, it would be useful to pay attention to all sorts of legislative subtleties and nuances of absenteeism. Of course, the main and most of features of the concept have already been highlighted above, but a small part of them remains unmarked.

More precisely, we are talking about the following:

• Firstly, you should write a few words about forced absences. This combination of words in the Labor Code of the Russian Federation means that the employee did not show up to the workplace not through his own fault, but due to the carelessness of the employer or some natural disaster. The presence of such circumstances makes it impossible to dismiss a “truant” worker, so the adoption of even less significant punishments would be illegal here. Examples of forced absenteeism include a worker’s failure to show up for work due to his illegal transfer to another position, violations in the process of registering labor relations with the employer, and similar reasons.
• Second, let's look at less severe and more commonly used penalties for truancy. Today at labor sphere In the Russian Federation, reprimands are the most common in this regard. The procedure for presenting them to truant workers is completely similar to that described for dismissal, so its implementation usually does not cause any difficulties for anyone. Less often, instead of reprimands, deprivation of bonuses is used, if this is discussed in the employment contract, or similar forms of punishment.
• And thirdly, a few suggestions about whether it’s worth challenging dismissal for absenteeism. It all depends on the desires of the employee, his place of work and, most importantly, the fairness of the dismissal. If the latter was implemented completely legally, there is no point in suing the employer. In other cases, it is quite possible to try to fully or partially restore rights. Do you need it? Decide for yourself.

The procedure for dismissing an employee for absenteeism

First of all, the employer must determine whether the employee committed absenteeism. The definition of absenteeism is given in the Labor Code of the Russian Federation. This is absence from work without good reason, that is:

• absence of an employee from his workplace during the entire working day. In this case, the length of the shift or working day does not matter;
• the absence of an employee for 4 hours in a row at his workplace without good reason;
• the absence of an employee who has entered into an employment contract for an indefinite period from his workplace without warning the employer that he wants to terminate the employment contract;
• the employee’s absence from the workplace after writing a letter of resignation without having worked the required 2 weeks. At the same time, the employee is not a “beneficiary” and must work this period;
• the absence of an employee who has entered into a fixed-term employment contract at his workplace before the expiration of this contract and without warning of its termination;
• unauthorized use of time off or unauthorized going on vacation. Unauthorized use of time off and vacation without warning the employer and without writing the appropriate document.

Order on punishment for absenteeism without a good reason

Based on what was written above, if your reason is not in any way involved in valid reasons, the next step is quite likely - an order for punishment.

In order to motivate your employees to be more punctual and not have the desire to skip in vain work time, may be ordered to recover compensation from them for damages caused to the employer during their absence. Typically, funds are deducted from the salary of the offender and compensation cannot exceed a quarter of the amount of earnings.

Order to impose a disciplinary sanction for absenteeism - sample

Usually, before thinking about extreme measures after a person has committed a minor (or significant, depending on the situation) offense, the following scheme is used:

• First, he needs to point out that he is wrong in a remark;
• If your remark was not authoritative for the employee and he does not disdain repeating his simple action, then a reprimand follows (for greater persuasiveness, it can be written);
• If this measure also went unnoticed by the employee, there is no point in continuing to engage in such behavior; immediately prepare an order for the dismissal of such a person, without sparing “beautiful” speech patterns in his work book.

Sample

The current labor legislation does not provide a unified form of order to impose discipline. collections. Therefore, the employer will have to compose the text himself.

The text of the order must consist of stating, administrative and final parts.

The ascertaining part includes:

• details of documents used during the investigation (memos, acts, etc.);
• description of the fact disciplinary offense with references to labor legislation violated by the employee.

The administrative part includes the text of the final decision on the type and nature of the penalty imposed, and the final part includes the date of preparation, the signature of the head of the company, and the seal of the organization.

After completion of the investigation, the second part of the procedure follows, carried out in accordance with Art. 84.1. Labor Code of the Russian Federation.

This article of the Labor Code of the Russian Federation does not specify the terms of dismissal for absenteeism, but it seems that the date specified in the order will be the final date of dismissal.

First of all, the manager issues an order to terminate the employment relationship using the unified T-8 form or the organization form, which indicates:

• date of conclusion of the employment contract and expiration of its validity;
• Full name of the offending employee, his position, name of the structural unit where he worked;
• grounds for termination of relations (entry in the labor record) – paragraphs. “a” clause 6 of Art. 81 Labor Code of the Russian Federation;
• documents confirming absenteeism ( memo, act of absence from work, etc.);
• signature of the head of the company and transcript.

At the request of the employee, an order in the company form or T-8 must be issued to him, having previously certified the document.

At the final stage of the procedure, a final settlement is made with the employee.

Amount of fine for absenteeism at work

According to the Labor Code of the Russian Federation, an employer cannot impose a fine on his ward for failure to appear. Therefore, on the one hand, you might think that this is illegal. But, as a rule, directors and owners of organizations ignore this fact, and sometimes issue fines for such violations, but not more than five thousand rubles.

Regardless of the size of the fine, the employee can challenge it, and, moreover, has the right to go to court. But deprivation of a bonus does not apply to a fine (that is why directors come to this type of penalty), and accordingly, this decision cannot be challenged in any way.

Dismissal for violation of labor discipline

Subject to all temporary (absence for more than 4 hours in a row) and conceptual norms (the workplace is qualified as the place where the employee directly performs his work function - a machine, an office, a device) and the qualification of the employee’s act as absenteeism, the employer must:

Draw up a report on the absence of a specific employee from the workplace. This document must indicate all the detailed information about this employee - initials, position, circumstances under which the employee is not present, the time of absence and, of course, the time of drawing up the report;

Obtaining an explanation from the employee when establishing the fact of absenteeism and the presence of a corresponding act. Such explanations are formalized in the form of an explanatory one.

The employee may refuse to give any explanations (which will lead to termination of the employment relationship and dismissal, since he will not be able to explain his position). In this case, a corresponding mark is placed on the act of absenteeism. Also, if after two days the employee does not provide the appropriate explanations, it is necessary to draw up a special act (the form is determined by Article 193 of the Labor Code of the Russian Federation);

Upon receipt of an explanatory note, if the facts do not relieve the employee of responsibility in the opinion of the employer, the termination of the employment relationship is formalized in accordance with the law (Article 81, 84.1 of the Labor Code of the Russian Federation).

When dismissal for absenteeism, there is no necessary special procedure, all actions are standard - drawing up an order for the organization (institution), making settlements with the employee for all types of payments due and issuing the relevant documents.

As a result, the employee may not be held accountable for absenteeism if only he independently proves the reason for absence from work as valid (the labor inspectorate adheres to the same provision in its letter dated October 31, 2008 N 5916-TZ).

1. In case of absenteeism for several days without good reason, it is recommended to record each day in the order.
2. If an employee’s vacation is followed by a period of temporary incapacity for work with a supporting document, termination of the employment contract is allowed only after recovery.
3. Refuse to draw up an absenteeism report “retrospectively” - the court will easily reveal this fact, which will give an additional advantage to the employee.
4. It is not allowed to deprive an employee of bonuses or other salary increases due to absenteeism.
5. Record of dismissal under paragraphs. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is recorded in the work book. It is possible to indicate the wording as “dismissed for absenteeism” or “the employment contract with the employee was terminated at the initiative of the employer”, indicating a reference to Art. Labor Code of the Russian Federation.

Is it necessary to reflect the period of absenteeism in the dismissal order?

There are no legislative requirements for the employer to indicate the period of absenteeism in the dismissal order. However arbitrage practice speaks of the need to indicate in the order a detailed statement of the facts and circumstances of the misconduct, the progress of the judicial investigation, indicating the previous behavior of the employee.

What are the legal consequences

It is important to recognize the need to take action against an absent employee. Yes, the employer has the right to complete the proceedings by dismissal under the article “absenteeism”. At the same time, such a norm is not imperative. That is, mandatory.

In general, the legislator gives companies the right, at their own discretion, to dismiss people for absenteeism under the Labor Code. But it all depends on the very factors that we mentioned at the beginning of the article.

That is, the severity of the disciplinary offense committed and the degree of respect for a particular employer may serve as the basis for imposing less severe consequences on the perpetrator. After all, in addition to absenteeism, you can limit yourself to a remark or, in extreme cases, a reprimand and not deprive him of the right to continue to perform his labor functions. In addition, the employee always has a chance to challenge wrongful dismissal, which will necessarily take into account the proportionality of the punishment to the misconduct.