One of the grounds for termination of an employment contract at the initiative of the employer is the commission by the employee of a single gross violation of labor duties, in particular absenteeism (clause "a", clause 6 of article 81. However, immediately upon dismissal of the offender, personnel officers face a number of questions regarding the procedure for dismissal and proper execution of the necessary documents at the same time.

The concept of absenteeism is disclosed in paragraphs. "a" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, where absenteeism is understood as absence from the workplace without good reason throughout the working day (shift), regardless of its (its) duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day (shift). Paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" lists specific cases that should be considered absenteeism:

• 1. Absence from work without good reason, i.e. absence from work during the entire working day (shift), regardless of the length of the working day (shift);
• 2. the presence of an employee without good reason for more than four hours in a row during the working day outside the workplace;
• 3. abandonment of work without a valid reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about the termination of the contract, as well as before the expiration of the two-week notice period;
• 4. abandonment of work without a valid reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice of early termination of the employment contract;
• 5. unauthorized use of days off, as well as unauthorized leave on vacation (basic, additional).

So, the employee is caught in one of the above offenses. What's next for HR representatives? First of all, it should be noted that absenteeism can be different. Conventionally, they can be divided into two groups: short-term with determining the location of the guilty employee (when the employee, for example, after missing one or several working days, appears at his workplace or does not appear, but he can be contacted by phone) and lasting absenteeism, in which it is not possible to find an employee and request an explanation from him (for example, the employee left work, there is no information about him at his place of permanent residence, he does not provide any information about himself to work, he does not answer calls).
In the first case, everything is simple. Since the dismissal under Art. 81 of the Labor Code of the Russian Federation is a disciplinary sanction, it is necessary to comply with the requirements of Art. 193 of the Labor Code of the Russian Federation. According to this article, before applying a disciplinary sanction, the employer must request an explanation from the employee in writing. If the employee refuses to give the specified explanation, an appropriate act is drawn up. At the same time, the employee’s refusal to give an explanation is not an obstacle to the application of a disciplinary sanction, but in this case it will not be superfluous to take the written testimony of colleagues and the immediate supervisor about the employee’s absence from the workplace, without forgetting to formalize them properly. After that, an order is drawn up in the form N T-8 ("Order (order) on the termination (termination) of the employment contract with the employee (dismissal)"), approved by the Decree of the State Statistics Committee of the Russian Federation of January 5, 2004 N 1.
In the second case, it is not worth firing an employee without finding out the reasons for his absence from the workplace (although some employers do this). The fact is that if the reasons for the absence are subsequently recognized as valid, the court will reinstate the employee in the workplace and oblige the employer to pay all the amounts due to him, including forced absenteeism. At the same time, another person will already be working in the place of the improperly dismissed employee, and when deciding what to do next with the latter, difficulties may arise (either to increase staff units or transfer to vacant positions). In such a situation, it is better to accept an employee on the terms of replacing a temporarily absent main employee, and after clarifying all the circumstances, the contract can be transformed into a permanent one.
To resolve this situation, it is necessary to make every effort to find the employee and get an explanation from him. To do this, you can send a letter (with a notification and a description of the attachment) to his home address or to the address of his actual place of residence with a request to explain the reasons for absence from the workplace. If this does not bring any result, you can apply to the police for a search. If the employee cannot be found, an act should be drawn up about this. At the same time, an entry should be made in the time sheet about the absence of the employee due to unexplained circumstances, since wages are calculated on the basis of these data. Of no small importance for proving the absence of an employee in the workplace are reports from the immediate supervisor and other employees who can testify to the fact of absence. All these documents will help in justifying the dismissal, if, nevertheless, the employee appears and cannot confirm the respectfulness of his absence.
If, nevertheless, it is not possible to find the employee and the relatives do not know his whereabouts, the Labor Code of the Russian Federation provides for a special basis for terminating the employment contract - the death of the employee or employer - an individual, as well as the recognition by the court of the employee or employer - an individual as dead or missing ( paragraph 6 of article 83). According to the rules of Art. 42, at the request of interested persons (in our case, the employer), a citizen may be recognized by the court as missing if during the year at his place of residence there is no information about his place of stay.
When applying a disciplinary sanction, it should also be borne in mind that it can be imposed no later than one month from the date of discovery of the misconduct. At the same time, it is important to take into account that judicial practice has developed the concept of "lasting absenteeism", which suggests that the moment of detection of absenteeism is not the day on which the absence of the employee was discovered, but the moment the reasons for his absence are clarified. It is at this moment that the offense is considered completed and discovered.

Roman Larionov, legal adviser of "Garant" company

Absenteeism is a disciplinary offense, often leading to dismissal from work, but the manager does not have the right to expel the employee for the mere fact of absence during working hours. We will figure out what is considered absenteeism and under what conditions a penalty is imposed, and we will also name the circumstances indicating the absence of an employee for a good reason.

Truancy in the Labor Code of the Russian Federation is understood as a violation of the labor schedule, consisting in prolonged absence of an employee from the workplace without good reason.

The administration of the enterprise has the right to recognize the actions of the employee as absenteeism under three conditions:

1. non-appearance of a staff member at the workplace for more than four hours in a row;
2. the employee was absent without a valid reason or could not confirm the non-appearance due to circumstances beyond his control;
3. disciplinary violation is correctly recorded and formalized.

Does not become the basis for punishment for absenteeism according to the Labor Code:

1. absence for four hours exactly;
2. absence for more than four hours a day in total - two hours in the morning plus two and a half after lunch break, etc. Such actions are two delays;
3. absence from work on weekends / holidays, if the person did not give written consent to work on these days.

Important: an employee has the right to challenge his absence from the workplace if he is not officially assigned a specific workplace.

Systematic absenteeism does not leave the head of the organization a choice - a dismissal order is issued.

Depending on other factors, absenteeism is also distinguished:

• on probation - a good reason to recognize the employee as having failed the test;
• on a business trip - absence from the workplace is recorded in the standard manner, documents are sent to the place of main work, where a decision is made on the recovery.

Walking without a good reason

Absence from work entails negative consequences only if there are no good reasons excluding the fact of misconduct.

Personal circumstances

Absence from work is not absenteeism due to a number of personal circumstances:

Did you know

In labor practice, a very common occurrence is the absenteeism of a pregnant woman in connection with visits to the doctor. In this situation, the employer cannot dismiss the pregnant woman on her own initiative. Read more in this

• illness of an employee or his child - if you do not want to apply for a sick leave, it is confirmed by a certificate from a medical institution;
• summons to court or to the investigator - confirmed by the summons;
• emergency at the place of residence - confirmed by a certificate from the organization that eliminated the accident.

The specialist will tell about the intricacies of punishment for absenteeism, about valid and disrespectful reasons in the video below:

Force Majeure

The non-appearance of a person at the workplace is also justified by force majeure circumstances:

• breakdown of the elevator with an employee in the cabin;
• traffic accident;
• flight delay or lack of tickets for the required mode of transport, as a result of which the employee was late from a business trip, vacation or other trip;
• strong gusts of wind, flooding or other natural obstacle;
  other.

Being a hostage of force majeure, a person must find a way to confirm these circumstances.

Please note: the employee’s failure to provide documents or other evidence of absence for a good reason entails a penalty for absenteeism without good reason.

Events known in advance

The reason for not appearing at the workplace is often an event known in advance:

• funeral of a relative;
• wedding;
• another important event.

But in such cases, nothing prevents the employee from notifying the manager in advance and asking for a leave note or leave at his own expense. If the administration was not warned about absenteeism, it has the right to interpret it as absenteeism.

According to Art. 142 of the Labor Code of the Russian Federation, an employee has the right not to appear at the workplace without a good reason in the event of a delay in the payment of wages for a period of more than half a month. But even in this case, he must notify the management of his intention in advance. By the way, about how much they can delay wages according to the law - read this

The specialist will answer your questions in the comments to the article.

The legislation clearly interprets the term absenteeism, but does not contain grounds on which the reasons can be considered valid and will not make it possible to dismiss a “negligent” employee.

What is a walk?

The legislator interprets absenteeism as a long-term absence of an employee from the workplace without a good reason. Time from 4 hours can be taken into account.

To minimize losses, the employer must take some preventive measures:

• be sure to familiarize employees with the Internal Labor Regulations, which should reflect how and within what time frames the staff must report their absence so that the manager can timely redistribute the duties of the absent employee among other staff;
• the head of the unit, or another authorized person must have a list of employees who can replace each other;
• the head of a department or other subdivision must have a reminder of what he must do if an employee is absent from the workplace without a good reason.

A sample memo for an employer:

1. In the absence of an employee, the manager is obliged to call back to his known phones, home or mobile;
2. Specify the reason for the absence;
3. Talk to the staff, possibly absent, communicated something to their colleagues, if this was the case, then it is better for the employees to state the information in writing;
4. The drawn up act should describe the measures taken to search for the truant;
5. Transfer of all documents to the personnel department.

Absence fixation

If an employee fails to appear, an act must be drawn up.

It is from a detailed statement of the fact of the absence of an employee at the workplace without a good reason that his future fate at this enterprise will depend. Perhaps the person just got sick or got into another difficult situation.

The act must be drawn up in front of witnesses, it is better to involve personnel from another unit so that in the future, the truant could not put pressure on his colleagues, or prove that the act was drawn up under pressure from the authorities.

The administration of the enterprise does not require immediate measures to search for an employee, however, if a person lives alone, the phones are not answered, then it is recommended to go to his house. If no one opens an apartment or house, then it is better to ask the neighbors when they last saw the person, if no one can provide any information, then the logical step would be to call the district police officer to open the dwelling.

If no measures to search for an absent employee have yielded any results, then it is recommended to draw up an act of his absence, almost every day. The letter code "НН" is entered in the report card, the person's digital code is 30.

It is these two documents that serve as evidence in court proceedings, so their execution should be approached carefully.

The process of finding out the reasons for the absence

An employee could get sick and not report it to his superiors.

If the truant showed up, presenting a sick leave, a certificate from a medical institution, then all the absence documents drawn up should not be destroyed.

In the case when the absence of the employee at the workplace without a good reason was really present, then a written explanation should be required from him. If the truant refuses, it is recommended to draw up a written request and hand it over to him against signature.

Such evidence in court proceedings is much more effective than verbal explanations from the employer.

Notification of the need to explain the reasons for non-appearance is not regulated by any regulatory act, but must contain the details of the enterprise, the data of the truant, a request for a written explanation of the reasons for non-appearance within a specific time frame. As a rule, it does not take much time to compile an explanation, it can be 2 or 3 days.

If within the specified period, the employee has not submitted an explanation, then the employer is obliged to draw up an appropriate act.

If an employee refuses to explain his absence in writing, he is not deprived of the right to apply disciplinary action, including termination of the contract. This is written into the legislation.

What reasons can be valid?

Not all reasons are valid.

The administration of the enterprise can independently decide the "fate" of an individual employee, whether to consider a specific absenteeism as a day of absenteeism. If the staff did not have malicious intent and was honestly mistaken, then such an absence cannot be considered absenteeism.

The legislation provides for options when the employer is obliged not to recognize the absence as absenteeism in the following cases:

• providing a sick leave or an extract from a medical card;
• performance by an employee of duties of a public and state nature, for example, if a particular employee is a member of an election commission;
• if the employee is a donor.

In addition, if an employee could not get to work on time, or could not at all, due to freezing rain or a snowstorm, then no court will recognize such a reason as not valid.

A good reason for the absence is also the appearance in court, or in the tax authorities to testify, as a witness, or another person. Such confirmation is reflected in the decisions of the SMR.

A fire or short circuit in the house, incidents on the way to the workplace, other unforeseen life circumstances are also valid reasons and cannot be a reason for dismissal for absenteeism.

Regarding being late from the next vacation, the opinions of specialists and courts are ambiguous. For the most part, dismissal for such a reason is recognized as legal, since the employee is obliged to plan his trips in such a way that possible unforeseen situations, a plane or train delay, and adverse weather conditions are taken into account.

If the employee decides to leave the workplace or does not appear at all, citing the fact that his computer is broken or there are no clients, it will certainly be interpreted as absenteeism.

What to do with a truant?

Absence can be subject to disciplinary action.

An employee is absent from the workplace without a good reason - a real reason to get rid of "unnecessary" staff. Although, in addition to dismissal, disciplinary punishment may be imposed, but no later than 1 month from the moment of the incident.

One offense can only be punished once. It is necessary to familiarize the employee against signature. If the employee does not want to sign, then the employer draws up an act.

It should be remembered that a truant has the right to go to court to protect his rights. In this case, the employee will have to be reinstated and paid the average wage for the period of forced downtime. To avoid such a situation, it is recommended to follow the procedure for collecting evidence and dismissal.

First of all, there must be a written confirmation of the absence of the employee at the workplace, these are absence certificates, memorandums, explanatory and other supporting documents. You should not draw up such documents retroactively, but draw up everything on the day of absenteeism.

Further registration of dismissal is carried out according to the general rules. The employer is obliged to bring his decision to the employee in writing, under an introductory signature. If, for some reason, it is not possible to personally acquaint the employee, then a corresponding mark is made on him.

The day of dismissal is considered the last working day, even if the truant was absent from the workplace. The labor service adheres to the position that the last working day that preceded absenteeism is the day of dismissal.

Under any circumstances, the work book must be issued on the last working day, even if the contract is terminated due to absenteeism.

The imposition of a disciplinary sanction, including dismissal, cannot occur later than 1 month from the moment of the offense.

Regardless of the reasons for dismissal, the employer is obliged to make a full financial settlement with the employee on the day of his dismissal. In the event that wages are not transferred to a bank card, all accrued wages are deposited until the dismissed employee applies for its receipt.

Remember, you cannot fire a pregnant woman, even if she is a malicious truant.

Never fire a truant on the day of his absence, without a written explanation of the reasons for his absence.

You should find out why the employee is absent for a long time.

The situation is much more complicated when the employee is absent for a very long time, the employer fails to find out the reasons for the absence. It is recommended to call him periodically, preferably with witnesses and draw up an act.

Once a week, you can send mail to the address of the truant's residence, demanding an explanation of the reasons for the absence.

The courts confirm the right of the administration to dismiss a person for absenteeism who was sent a notice home, which returned with a mark of delivery, or vice versa, the letter was returned due to the expiration of the storage period or the recipient refused written confirmation of delivery of the notice.

There may be a situation that an employee was imprisoned for 15 days for an administrative offense. On the one hand, it is not possible to terminate an employment contract with a convicted or detainee, but this applies to criminal prosecution.

Administrative punishment is not a basis for retaining a job, as this is a different proceeding than criminal.

The practice of considering such court cases is ambiguous.

In summary, the dismissal of staff for absenteeism requires a clear written fixation and compliance with all the norms of the current legislation.

In this video, you will learn what to do if an employee does not get in touch.

Question form, write your

Maria Soboleva

How to skip work without unpleasant consequences?

How to skip work - well, admit it, such a question at least sometimes arises even for the most disciplined employee. We understand that this is not good, but we are not robots and we can afford not to come to the workplace once. That's just a valid and convincing reason to come up with.

How to skip work and not get fired

If you are lucky enough to have loyal management, then almost any excuse will do as an excuse for a missed work day.

In general, for absenteeism under strict bosses, any employee may well be threatened with dismissal. At best, a reprimand or a fine. So you have to think in advance how to skip work without consequences.

Absence from work — the most valid reasons

An additional day of rest, or time off, you can ask your superiors in advance for working overtime or on weekends. He will not be paid, but walking relatively legally is quite realistic. Notice of your intention to take time off must be given in writing.

Another option for not showing up for work for a good reason is to donate blood. Do a good deed in the morning and the whole day is at your disposal. This, of course, is not for everyone. Not everyone can become a donor for health reasons, and many of us are afraid of the procedure.

If you still decide on this option, fill out a certificate at the donor center and an official explanation of your unwillingness to work today will be provided.

Alibi will provide you with a certificate that you have visited a doctor, an entry in the outpatient card. You could become ill and you decided to urgently visit a doctor. But you should notify your superiors about your intention to seek medical help on the day of absence from work.

It will save you from troubles and a certificate of illness of a child or a relative who needs your help - escort to the hospital, care, supervision.

How else to skip work and not be fired: in the event of an urgent call for a repair team to eliminate an emergency - problems with gas supply, pipe break, sewer blockage.

But the installation of plastic windows or the installation of entrance doors, which made you skip work, will obviously anger a strict manager. You will be able to convincingly talk with your superiors - you are lucky.

If you have the ability to get fake certificates, don't expect to get away with it. Once or twice the number may pass, but when you abuse it, the management can check the authenticity of the documents.

The reason for the absence - what to say

Walking, of course, is not good. But since this happens to almost everyone, consider the most popular reasons for absenteeism.

Most often, employees refer to poor health, and then there is a chance for a day or two to take a break from work.

For example, you caught a cold, and in order not to infect the team, you decided to heal at home. Look for the cause of a cold depending on the season - in the winter of an infection (he caught it from Yulia from the accounting department, picked it up in a crowded trolleybus), in the summer - air conditioning or a draft.

Or a terrible migraine broke out, which will not give you the opportunity to fully work. Or you have a toothache - you will urgently have to visit the dentist.

The version of your food poisoning sounds convincing, after all, this can easily happen to anyone. They ate something like this at a party or in a cafe - and this is the result. Sit at home for a day.

You need to call with a complaint about your poor health early in the morning - it’s more convincing, the voice of waking up will be more like a patient. In addition, you are very worried about your absence and warn about it in advance.

And you can simulate a cold by drawing water into your nose, the illusion of a runny nose will be provided. When you get back to work, keep pretending to be weak, take some pills. Play the role, so perishing until the end.

Skipped work - what to do

What to do if you skipped work - write an explanatory note, and even before you are asked to present it. Describe more convincingly the reasons and circumstances of your absenteeism, it is better if the note is supported by some papers (certificates, telegrams, letters).

For example, a telegram about the urgent arrival of relatives, but you must meet and accommodate them.

Those who work with clients can come up with a meeting with one of the respectable people as an excuse for their absenteeism: they played bowling (billiards, squash) and discussed the details of the future contract.

Sometimes it helps to get rid of the banal fiction that the husband (child, mother) took away both sets of keys and you could not close the apartment.

Women have a completely natural reason for skipping work - critical days.

Lack of transport, an accident, a natural disaster - these are quite good reasons for not appearing at the place of their work. In order not to be late for work as a result of such force majeure, you decided not to come at all and work that day fully at another time.

Each person may have a personal need to miss a working day, but it is always better to negotiate with management and work out your hours later. Then there will be no need to puzzle over how to skip work. And a little respite will help you work with great enthusiasm later.

Take it, tell your friends!

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E.Yu. answered the questions. Zabramnaya, lawyer, Ph.D. n.

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

It is well known that the main value of any company is its employees. However, not all employees understand that their labor duties must be performed in good faith. And malicious violators of labor discipline, such as truants, become a headache for the employer.

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

• <или>during the whole 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- the 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 of the Labor Code of the Russian Federation.

Everyone knows: you can get fired for absenteeism b sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation. But in practice, difficulties arise: can the absence of an employee at work in a particular situation be regarded as absenteeism and punished for it?

What to do when an employee one day just stops going to work? How to correctly record absenteeism?

Before moving on to specific issues, consider the general procedure for holding accountable for absenteeism.

How to fix absenteeism and how you can punish for it

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

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

Regardless of which measure of punishment you choose, you must:

• record the fact of absence of the employee at work;
• find out the reason for this absence.

How to record an employee's absence from work

The absence of an employee from work is recorded:

How to draw up an act of absence from the workplace, see: 2010, No. 23, p. 74

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

How to determine the reason for the absence of an employee at work

After fixing the fact of the absence of an employee in 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 untimely return to work from vacation due to a flight delay.

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

If the absent employee returns 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 litigation you have evidence that you requested explanations. After receiving an explanation, you will understand whether the employee has been absent from work or had good reasons for being absent from work e Art. 193 of the Labor Code of the Russian Federation; Clause 2 of the motivational part of the Ruling of the Constitutional Court of the Russian Federation of October 17, 2006 No. 381-O.

We warn the head

Explanation of 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 requested 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 from April 27. If the employee does not give an explanation within the specified period, draw up an act 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 does not appear at work for a long time for an unknown reason, act to Art. 193 Labor Code of the Russian Federation:

1) send by mail a valuable letter with a list of attachments and a return receipt to the employee's address with a request for a written explanation 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) daily draw up, in the presence of witnesses, acts on the absence of the employee at the workplace;

3) record in the timesheet in the form of No. T-12 or T-1 3 non-appearance of the employee for unexplained reasons (until the circumstances are clarified). To do this, put in the table:

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

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

Your next steps depend on how the situation develops.

SITUATION 1. The worker came to work after some time. Ask him for an explanation and, depending on whether he had a good reason for his absence or not, decide whether to hold him accountable.

SITUATION 2. You received explanations 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 sub. "a", paragraph 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 in the mail that he received your request for an explanation. Some employers in such a situation dismiss the employee. They are guided by the fact that an explanation from the employee is requested and the employee 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 explanations. Therefore, it is prudent in such a situation to continue to make attempts to contact the employee until any explanation is received from him.

SITUATION 4. The employee does not come to work, does not send explanations, you do not have 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 acts on the absence of an employee at work on a daily basis and record absences in the time sheet, and until the reasons for the absence of an employee are clarified, they do not issue an order to dismiss him. The majority does this, guided by the fact that the reason for the absence of the employee is not known, which means that the employer does not have one hundred percent certainty that the employee is just skipping (that is, absent without good reason);
• <или>they lose patience and are fired for absenteeism if the absence of the employee is excessively prolonged, repeated attempts by the employer to contact him are unsuccessful and another employee must be hired to replace him. Courts with such absentee dismissals often agree 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 explanations about the absence from work was sent to the employee, but the postal item was not handed over 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 an employee in such a situation will be reinstated.

We warn the head

It is forbidden dismiss an employee immediately after he did not show up. You need to ask him for an explanation. Otherwise, he may then be reinstated at work by the court, and then you will have to pay him the average salary for the entire period of forced absenteeism.

Remember, there is always a chance that your employee will return and provide you with a document confirming the validity of the 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 reinstating the former employee in court, the court will oblige you to pay him the average earnings for the period of forced absenteeism a Art. 394 of the 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 an employee from work before you issue a dismissal order, since he did not work. The exception is the case when he has a sick leave.

If you have already hired a new employee to replace the dismissed employee, and the court of the dismissed employee has restored t Art. 394 of the Labor Code of the Russian Federation, then a new employee accepted for his position will have to:

• <или>transfer to another job corresponding to his qualifications, or to a lower position (lower paid job), which he can perform taking into account the state of health;
• <или>in the absence of vacancies or if the employee does not agree to the transfer, terminate the employment relationship in connection with the reinstatement by the court of the employee who previously performed this work at p. 2 h. 1 art. 83 of the Labor Code of the Russian Federation. Upon dismissal, a new employee will need to pay a severance pay in the amount of two weeks of average earnings. a Art. 178 Labor Code of the Russian Federation.

If, in connection with the appearance of the absent employee, you yourself decided (without a trial) to cancel the order to dismiss him and provide him with his previous job, then you will have to agree 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 of the Labor Code of the Russian Federation;
• <или>on termination of the employment contract by agreement of the parties n Art. 78 Labor Code of the Russian Federation.

How to record absenteeism in the time sheet

If you are convinced that the employee was truant, be sure to correct the timesheet data. Remember that the time sheet is one of the most important documents confirming the absence of an employee at 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 “НН” (or the digital code “30”) originally entered in the report card for the absenteeism code. This can be done in two ways:

• <или>just cross out the code "НН" (or "30") in the report card and write "PR" (or the digital code "24") on top. These corrections must be certified by the persons responsible in the company for maintaining time sheets and personnel records, as well as the head of the structural unit in which the truant works, indicating the date the correction was made th paragraph 5 of 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 “НН” (or “30”) stands for a truant during periods of his absence, draw up a corrective time sheet exclusively for this employee. And already in this report card for the days of absenteeism put down the code "PR" (or "24"). Attach the corrective timesheet to the main timesheet.

How long does it take to issue an order to prosecute for absenteeism

For absenteeism, as for any other disciplinary offense, you 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 of illness of the employee and his stay on vacation;
• within 6 months from the date of its execution.

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

When an employee is absent from work for a very long time, management may have concerns that the deadlines 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 just absenteeism t.

How to apply for dismissal for absenteeism

In case of dismissal for absenteeism, an order is issued to terminate the employment contract in a unified form No. T-8 approved Decree of the State Statistics Committee of Russia dated 05.01.2004 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 "Reason (document, number, date)" list all the documents drawn up as part of the procedure for bringing the employee to disciplinary liability:

• acts of absence from the workplace;
• report (official) notes;
• a written explanation of the employee or an act of refusal to give explanations.

You can find the texts of the judgments mentioned in the article: "Judicial practice" section of the ConsultantPlus system

With the order of dismissal, you need to familiarize 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 against signature, an entry about this must be made on the order m Art. 84.1 of the 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 the employment contract is terminated, send a notice to his home address about the need to appear for a work book or agree to send it by mail e Art. 84.1 of the Labor Code of the Russian Federation. Until you receive a written order on what to do, keep the work book with you.

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

Unauthorized leave on vacation - absenteeism

T.A. Ivanova, Perm

The employee was on sick leave for several months, and then wrote an application 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 issue his absence from work as absenteeism?

: Yes. As follows from your situation, the employee arbitrarily went on vacation, that is, absenteeism l Art. 192, sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation; ; Determination 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 required by law to provide the employee with time off, for example, a day off on a certain day, but did not provide it. For example, he refused to provide an employee with a donor day the next day after the employee donated blood, although according to the Labor Code of the Russian Federation he was obliged to do this b sub. "d" p. 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2; Determinations of the Moscow City Court dated October 28, 2010 No. 33-30782, dated October 14, 2010 No. 33-30069, or refused to grant leave, although according to the schedule, the employee was supposed to go on vacation at that time.

Unformed parental leave - also absenteeism

HEDGEHOG. Goncharova, Balabanovo

After the end of maternity leave (in 2008), the employee did not go to work, did not inform the employer about the birth of the child. After giving birth, she did not take parental leave. In 2011, she sent a letter asking for unpaid leave from March 7, 2011 to April 15, 2011 inclusive. Probably, on March 7, 2011, the child turned 3 years old.
Can this employee be fired?

: Can. If the employee did not exercise her right and did not take parental leave a Art. 256 of the Labor Code of the Russian Federation, then she, most likely, skips. As follows from the question, then she also arbitrarily went on vacation without saving her salary, that is, she again made absenteeism.

But before firing an employee, ask her for an explanation of the reasons for her absence from work for 3 years. And arrange for absenteeism, as expected.

It is impossible to dismiss an employee for refusing to interrupt the vacation

HELL. Starikov, Moscow

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

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

An explanatory mother will not replace an explanatory worker

S.F. Zorkin, Stavropol

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

We warn the head

If a the employee does not want to leave the vacation early, it's not a walk.

: You made the wrong decision. In such a situation, you should have requested explanations from the employee himself, and not from members of his seven and Art. 193 Labor Code of the Russian Federation.

Explanation of the mother in your situation is just an additional argument. But it cannot act as evidence of absenteeism by your employee.

It was wrong to give the mother of the worker and the 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 agree to send it by mail e Art. 84.1 of the Labor Code of the Russian Federation. Until you receive an answer from him, the work book should be kept with you.

Written agreement on vacation time with the employer - 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 in our company. Is it legal?

A: Of course, it is illegal if you have agreed your vacation with him. But in your situation, you still need to be able to prove it to the court (including with the help of witnesses). And the best proof is your vacation application with the supervisor's resolution. 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 about Determination of the Ryazan Regional Court dated April 25, 2007 No. 33-580.

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

If the employee refuses to provide explanations, an act must be drawn up

The employee did not come to work on February 15 and 16, 2011. He did not disclose the reason for his absence. Absences were recorded by acts and memos.
When he went to work, he refused to give an explanation, saying that "today he does not want to, he will write tomorrow." He did not provide documents justifying his absence from work. An act of refusal to give a written explanation was drawn up. His worker also refused to sign, arguing that he does not refuse in principle, but only does not want to give written explanations today and will write them tomorrow. It was decided to dismiss the employee for absenteeism.
Have we done the right thing?

: Probably, the employee was playing for time in the hope that the monthly period for applying a disciplinary sanction from the day the misconduct was discovered would expire and they could no longer be held liable and Art. 193 Labor Code of the Russian Federation.

In general, you did the right thing, except that it was necessary to draw up an act on the employee’s failure to provide explanations, and not on the 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.

With regard to a truant who wants to quit of his own free will, you need to act quickly

I.T. Gavrilova, Kazan

An employee did not show up for work and sent us a letter sent on the day she was absent (March 21, 2011), in which she asked to be granted unpaid leave from the specified date to April 1, 2011, and upon completion of it, to dismiss her on her own desire. The employee has not yet returned to work. Is it possible to regard her absence as absenteeism and dismiss her not of her own free will, but precisely for absenteeism?

: As follows from your situation, the employee arbitrarily went on vacation without pay, that is, she made absenteeism, which means that she can be fired for this b sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation; sub. "e" p. 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2.

However, in your case, the employee in her statement expressed her intention to quit of her own free will. Of course, this does not deprive you of the right to fire her for prog. l paragraph 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. And it does not matter for what reason the employee is dismissed.

What day to fire for absenteeism

P.D. Tyuftyaeva, Togliatti

The employee works on a rotating schedule. 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 the employment contract is the last day of work, then it is necessary to dismiss the employee for absenteeism on March 25, 2011?

: Not. Dismissing an employee the day before the first day of absenteeism, that is, in your situation on March 25, 2011, is incorrect. Indeed, according to the general rule, the day the employment contract is terminated is the last day of the employee's work. An exception is when he did not actually work, but his place of work was retained (position )Art. 84.1 of the Labor Code of the Russian Federation.

For the employee, while the employer finds out the reasons for his absence and establishes whether he had good reasons or not, the place of work must be preserved. Agree, it looks strange when the date of requesting an explanation and the date of their receipt from the employee are later than the date of termination of the employment contract. After all, after the dismissal, this person is no longer an employee and is not obliged to represent something to the employer. At the same time, the employer cannot dismiss the employee before asking him for explanations, etc. .Art. 193 Labor Code of the Russian Federation

In addition, a situation is possible when, after absenteeism, the employee goes to work and will work for some time while the employer determines whether he has 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 preceding absenteeism, nothing terrible will happen. After all, this approach is based on the recommendation of Rostrud a Letter of Rostrud dated 11.07.2006 No. 1074-6-1.

Dismissal for absenteeism - the right, not the obligation of the employer

V.D. Rusanova, St. Petersburg

The employee did not return from vacation and did not make itself felt in any way. Telegrams to the place of registration and the place of her actual residence remained unanswered. A month later, she nevertheless appeared at work and wrote a letter of resignation of her own free will.
Should we fire her of our own free will, or should we fire her for absenteeism?

: You have the right to fire an employee for a program l sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation. To do this, you must follow the procedure for bringing to disciplinary responsibility. and Art. 193 Labor Code of the Russian Federation. But you can meet her halfway - fire her of your own free will. After all, bringing to disciplinary responsibility is a right, not an obligation of the employer.

It is impossible to dismiss an employee for absenteeism during illness

L.T. Skvortsova, Volgograd

We recently hired a new employee. Unfortunately, she turned out to be a lover of intoxicants (although she did not come to work drunk). On January 11, 2011, she stopped going to work. Doesn't answer calls. As expected, we activate all her absences from work, we put “NN” in the report card.
On February 14, we received a statement from her by mail that she was on sick leave. However, we doubt that she really has a sick leave, and even more so for the entire period. And management still intends to fire her for absenteeism.
And suddenly the sick leave will be 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, keep documenting all of her absences from work. But proceed from the assumption that she is still sick. If later this is not confirmed, then you can fire her for absenteeism.