Absence from work for a valid reason. Long absenteeism: the difficulties of dismissal

Absenteeism of an employee of the enterprise must be issued in accordance with the current labor legislation. How to prove the absence of an employee at the workplace? What documents need to confirm this fact? You will find answers to these and other questions in our article.

What is considered truancy

According to the Labor Code of the Russian Federation, absenteeism is the absence of an employee from the workplace according to the work schedule without good reason. It is recognized as a gross violation by the employee of labor discipline and the terms of the employment contract with the employer, as well as non-compliance with the rules of internal labor regulations.

And what do modern employers mean by absenteeism? Of course, the absence of employees at work on time can cause a lot of trouble for the company's management. And employers often intimidate employees with dismissal for being late for work, being late after a lunch break, leaving work early, etc. But these situations, as a rule, are not absenteeism.

On the other hand, there is no clear list of good reasons in the Labor Code of the Russian Federation. Our legislators leave this issue to the discretion of the company's management. Apparently, the manager must independently assess the degree of validity of the reasons for absence from the workplace. Good reasons include illness, death of loved ones, natural disasters, road accidents, housing problems that require immediate solutions, etc. Each such absence must be confirmed by a sick leave certificate, a certificate from a medical institution, the traffic police, a housing management company, etc. d.

IMPORTANT! If the employee verbally warned the manager in advance about his absence from work, this will not be considered absenteeism. Especially when this fact can be confirmed by other employees of the enterprise - direct witnesses.

Employee absenteeism can create problems in the organization's activities, including financial ones. For example, a failure in the production process of an enterprise operating on a continuous cycle, an unsigned contract for a major commercial transaction, as a result of which the enterprise could increase revenue, etc.

Important conditions for recognition of absenteeism

In judicial practice, there are cases when truants won lawsuits due to an incorrectly executed and undocumented fact of absenteeism and were reinstated at work. That is why the employer must carefully draw up all documents related to absenteeism. However, you shouldn't do it retrospectively. As practice shows, such facts are provable and the court will take the side of the employee who allowed absenteeism.

In what cases is the absence of an employee at work regarded as absenteeism:

In the absence of an employee at the workplace during the entire work shift (even if it lasts less than 4 hours).

If the employee did not have a documented workplace and he was on the territory of the organization, the employer will not be able to give him official absenteeism. Conclusion: assign a workplace to each employee in the employment contract when he starts work.

If the employee is absent from the workplace for more than 4 hours.

Moreover, if the employee was absent for exactly 4 hours, such an absence will not be considered absenteeism.

Absence from work for unexcused reasons.

Each employee must confirm his absence from the workplace with supporting documents. For example, a sick leave, a subpoena or an inquiry, a certificate from a medical institution and other documents. At the same time, the employer does not have the right to dismiss a pregnant woman who allowed absenteeism.

When the fact of absenteeism is proven.

Every walk must be documented. Otherwise, if the employee goes to court, justice will not be on the side of the employer.

Article 81 of the Labor Code of the Russian Federation in 2019-2020

In Art. 81 of the Labor Code of the Russian Federation, namely sub. “a”, paragraph 6, states that in the event of absenteeism, the employer can legally fire the employee. In this case, the conditions mentioned earlier must be met.

But does a manager always have to fire an employee for absenteeism? This article gives him the right to do so, but does not establish such an obligation. Legislators leave the choice to the management of the company. It can issue an employee a reprimand, a remark, or simply leave absenteeism unattended.

In some cases, the dismissal of an employee is possible due to his going on unauthorized leave without warning the management. Each enterprise must draw up an annual vacation schedule. It is communicated to employees. The absence of a schedule is recognized as a violation of labor laws.

But in any case, going on vacation without the consent of the management is a violation of labor discipline, and the employee may be held liable for absenteeism.

You may also find the following articles helpful:

“How to arrange a vacation with subsequent dismissal?” ;
"Order for annual paid leave - sample and form" .

Sometimes it also happens that absenteeism ends with the desire of an employee to quit of his own free will. An employee writes a letter of resignation and, having not worked for 2 weeks, does not go to work at the appointed time.

If the employer dismisses the employee for absenteeism, he makes a corresponding note in his work book with reference to Art. 81 of the Labor Code of the Russian Federation.

How to prove absenteeism of an employee

The main difficulty in documenting employee absenteeism is to prove the disrespectfulness of the reason for his absence from the workplace. In some cases, the employee cannot inform the manager about his absence from work for objective reasons. For example, there was an emergency on the road, an employee was unexpectedly hospitalized in intensive care, etc.

IMPORTANT! You do not need to immediately prepare an order for dismissal or disciplinary action on the day of absenteeism. The main thing is to record the fact of the absence of a person at his workplace in the presence of several witnesses.

To do this, the personnel department must draw up an act on the absence of an employee in any form on the letterhead of the company. It is signed by witnesses who can confirm the situation. In addition, the act should indicate the place of compilation, the date and necessarily the exact time, the full name of the employee who compiled this document, as well as witnesses.

After the act is drawn up and until the reasons for the absence of a potential truant at the workplace (if any) are clarified, the time sheet in the form of T-12 and T-13 is marked “HH” (absence for unexplained reasons). In the future, if the employee submits supporting documents, the “HN” mark is corrected, for example, to “B” (sick leave). If the employee does not have such documents, “PR” (truancy) is affixed.

On our website you can find out the procedure for filling out time sheets, as well as download their forms. See articles:

"Time sheet in the form of T-12 - form";
"Unified form T-13 - form and sample" .

When an employee appears at the workplace, it is mandatory to take an explanatory note in writing from him about the reasons for absenteeism (in the absence of supporting documents). There are cases when an employee dismissed for absenteeism filed a lawsuit against his employer in court for illegal dismissal and won the lawsuit.

Why can a dismissal be declared illegal if the fact of absenteeism has been proven? The employee may refer to the last paragraph of Art. 192 of the Labor Code of the Russian Federation and the fact that the employer did not even ask about the reasons for absenteeism and did not assess the severity of the misconduct and the circumstances of its commission.

IMPORTANT! In case of absenteeism, be sure to require a written explanation from the employee.

But there are times when employees refuse to give an explanation of the reasons for absenteeism in writing. Then the employer should give the employee a notice of the need to submit an explanatory note against signature. The document must indicate the number of days during which the employee must explain his absence. This is 2 business days (Article 193 of the Labor Code of the Russian Federation).

If the employee refused to receive a notification or did not provide an explanatory note after the set time, this should also be recorded in an act in the presence of witnesses.

Documentation of employee absenteeism

So, we figured out in which cases the absence of an employee in the workplace is considered absenteeism and how to prove it. And how to document absenteeism of an employee and its consequences?

The final decision on the punishment of the employee for absenteeism is made by the employer. An employee may be held liable for absenteeism in the form of:

Layoffs. When dismissed for absenteeism, it is not necessary to draw up 2 orders - on the imposition of a disciplinary sanction and termination of the employment contract. An order to terminate the employment contract is sufficient. As the basis for such an order, memos, acts, explanatory notes from the employee, a time sheet are indicated, that is, documents that prove the fact of absenteeism and justify the dismissal.
Disciplinary action. It is issued by order of the head of the institution. This order does not have a unified form, so each enterprise can develop its own sample order. You can take unified forms of other orders as a basis, so as not to forget to indicate all the necessary details in the document. For example, an order in the T-6 form to grant an employee leave.

You can download a sample order in the T-6 form on our website "Unified form of order T-6 - download the form and sample" .

Such an order must reflect the following points:

the fact of violation by the employee of labor discipline, that is, absenteeism itself, indicating its date;
documents that prove the fact of absenteeism of the employee (memorandums, acts, explanatory notes from the employee, time sheet);
type of punishment (consequences of violation): reprimand, remark, deprivation of another bonus, etc.

On our website you can download an example of a disciplinary order form. See article "Order on disciplinary action - sample and form" .

In order to, if necessary, punish an employee for absenteeism, the employer must, when hiring, familiarize him with labor duties (employment contract, job description) and internal labor regulations against personal signature. Then, after a decision is made to dismiss or disciplinary action, if the employee goes to court, there will be more chances that justice will side with the employer.

Results

Absenteeism is the absence of an employee from the workplace for more than 4 hours in accordance with the work schedule. This is a gross violation by the employee of labor discipline, the terms of the employment contract with the employer and the internal labor regulations. To be recognized as absenteeism, a number of conditions must be met:

the absence of an employee at the workplace during the entire work shift;
the absence of an employee at his workplace for more than 4 hours;
absence from work for unexcused reasons;
proof of truancy.

In case of absenteeism, the employer must demand from the employee a written explanation of his absence from the workplace. An employee may be held liable for absenteeism in the form of:

dismissal, which is formalized by an order to terminate the employment contract with the employee;
disciplinary sanction, which is also issued by the relevant order.

Each incorrectly executed document can affect the outcome of the lawsuit not in favor of the employer if the employee goes to court due to illegal dismissal. So all documents must be properly drawn up at the right time and, if necessary, signed by witnesses of this situation.

Labor activity in Russia has a huge number of features and nuances. All citizens are not only workers, but also ordinary people. Therefore, employers have a variety of questions in the course of their activities. For example, today we have to find out if they can be fired for absenteeism. What is needed for this? In fact, the topic under study is extremely serious. It occurs quite frequently in practice. However, employers and subordinates have different views on this kind of situation. What does Russian labor law say? How to terminate an employment relationship with a truant? The answers to all these questions will be found below. If you understand it well, then no problems and disputes will arise.

Controversy

Can they get fired for absenteeism? As already mentioned, the answer to the question posed cannot be called unambiguous. Some say that they can get fired for being absent from work. Some people say otherwise. But who is right?

It all depends on the circumstances and the specific situation. The Labor Code of the Russian Federation is a set of laws governing the relationship between a superior and subordinates. It was created in order to resolve controversial issues. The rights of workers are protected by the Labor Code.

In general, a citizen can really be fired for being absent from work. But under certain circumstances. The topic will be discussed in more detail below.

The legislative framework

Can they get fired for absenteeism? It all depends on why the citizen did not show up for work. As already mentioned, termination of employment at the initiative of the employer due to the absence of a subordinate at work is possible. But not in all cases.

The Labor Code of the Russian Federation indicates that the boss can dismiss a person who, without a good reason, was absent from work for a long time. This right is established by Article 81. Accordingly, in order not to be afraid of dismissal, it is necessary to fulfill the signed employment contract all the time.

However, sometimes circumstances are stronger than a person's will. Therefore, it is not always possible to fire for absenteeism. Article 81 of the Labor Code allows you to terminate the relationship between the employee and the boss only in the absence of good reasons. In addition, it is important to establish that it was absenteeism, and not being late. This is extremely important.

Definition of absenteeism

But how exactly? What is a walk? Without a valid reason, a citizen is absent from work for more than 4 hours in a row. It is this behavior in modern Russian legislation that is interpreted as truancy. How does the Labor Code qualify absenteeism?

It follows that if the employee had good reasons, then skipping a working day or a long absence from work is not grounds for dismissal.

The main problem is to establish respect. The Labor Code of the Russian Federation does not have any clear instructions as to which cases are considered a valid absence from work. Therefore, each absenteeism is considered separately. This is normal.

good reasons

Can they get fired for absenteeism? Yes, if it has been proven. In other situations, missing work will not be grounds for termination of employment. So you don't have to worry.

As already mentioned, the legislation of the Russian Federation does not indicate cases in which absence from work is considered valid. However, in practice, you can more or less decide when absenteeism is such.

The most common reasons for being absent from work include:

disability of a citizen, documented;
stay in state or public works;
passing a medical examination;
donation of blood and its components;
detention;
participation in rallies and strikes;
emergency situations that interfere with normal work (for example, the cancellation of a flight or a bus breakdown);
delayed salary for more than 15 days.

The main thing is that a citizen can somehow confirm the existence of certain situations. Absenteeism without a good reason, according to the law, can indeed be punishable by dismissal. But isolated cases, as a rule, are not so dangerous for a subordinate.

Bad reasons

Life is unpredictable. Therefore, it is not always easy to decide whether they can be fired for absenteeism. Often the correct answer will be given by the judiciary. After all, employers and subordinates are not always able to resolve such a controversial issue themselves.

Good reasons for being away from work for a long time have already been listed. Now we should pay attention to disrespectful cases. What do they include?

To date, the following circumstances are disrespectful reasons for absenteeism:

passing a medical examination without a sick leave;
time off for days worked in the absence of their official registration;
applying for parental leave if the issue of such a situation has not been resolved in advance;
finding a husband / wife in a hospital.

It follows that even if the spouse needs help during their stay in the hospital, they will have to work and fulfill the terms of the employment contract. After all, absence from work in this situation will be a reason for termination of employment.

Disciplinary sanctions

Accordingly, the most difficult decision is to determine the validity of the reason for the absence from work. Every citizen must report to the chief about his behavior. This is a legal practice.

If an employee missed a working day, an explanatory note for absenteeism is written. The employer has the right to demand such a document in writing. You have 2 days to report. If the subordinate did not write an explanatory note, the employer draws up an appropriate act.

In addition, the boss has the right to terminate relations with a negligent subordinate when the latter refuses to explain himself and does not provide evidence of a good reason for absence from work. In this case, a disciplinary sanction is applied no later than one month from the moment the absenteeism was discovered.

Can they get fired for absenteeism? As soon as the citizen has reported on his behavior, the employer must study all the documents offered to attention, after which a decision is made on how respectful this or that situation is. A subordinate who disagrees with the outcome may apply to the court for an appeal. If the employer decides to dismiss the employee, but the judiciary establishes a good reason for missing the work day, the subordinate will have to be reinstated. Such situations are not uncommon. Therefore, each employer will have to think in advance how to dismiss for absenteeism. It is important to carry out such an operation in compliance with all its features.

But disciplinary sanctions, as a rule, are calculated by the employer on their own. It is important to take into account the previous behavior of each subordinate. So, for example, a conscientious cadre can get off with a small fine or a warning, and a negligent subordinate - with high penalties.

Legal dismissal

Now a little about when exactly absenteeism will be considered as such. Good and bad reasons for being absent from work have already been presented. To make it easier for employers to navigate, it is necessary to pay attention to some specific cases.

How to get fired for absenteeism? It is necessary that the absence from the workplace is characterized by one of the following layouts:

a citizen is not working all day (regardless of the duration of the shift);
a person is absent from the place of work for more than 4 hours in a row without good reason;
the employee has entered into an employment contract, but at the same time he has not been there for a long time (lack of notification of the intention to dismiss);
the subordinate does not work after filing an application for termination of labor relations with the employer (according to the law, working off is 14 days);
unauthorized leave or use of time off.

All this is the basis for dismissal "under the article." Such circumstances are not subject to appeal in court.

Procedure

Can they get fired for one absence? In practice, such a solution is extremely rare. After all, the boss will still have to follow the standard procedure for terminating an employment relationship with a subordinate.

How do you get fired for absenteeism? Necessary:

Establish the fact of the absence of a citizen at the workplace.
Demand an explanation from a negligent subordinate. 2 days are allotted for clarification of the situation.
If the citizen refused explanations, a special act is drawn up. It is signed by the authorities. Once the person has described the situation, it needs to be established how respectful the absence from work is.
As a result of the decision, either the employer issues a dismissal, or applies a disciplinary sanction and continues the employment relationship.

It should be noted that upon dismissal, the boss is obliged to make a full settlement with the citizen. More precisely, you will have to pay for the time worked by subordinates. In addition, the employee is entitled to compensation for unused vacation.

Going to court

As already mentioned, every person who does not agree with the dismissal for absenteeism can appeal this or that decision in court. Only the judiciary will 100% say which situations are considered valid for absence from work.

Judicial practice demonstrates that in Russia employers try to fire anyone for any absence from work. However, this step is not always legal. And "savvy" subordinates will always be able to be reinstated at their former place of work.

Litigation is not to be feared. The main thing is to provide evidence that the absence of a working day had a good reason. The court always examines all the documents attached to the claim, on the basis of which it makes a decision.

Single Violation

Can they get fired for one absence? The answer is not as easy as it seems. It all depends on the integrity of the employee.

From the point of view of legislation, dismissal for a single absenteeism takes place. In practice, it occurs only when either the boss does not treat the subordinate too well, or the staff does not work well. Most often, a single absenteeism entails a disciplinary sanction, a warning and is limited to an explanatory note. This is the most common occurrence.

Results

Now the good reasons for absenteeism are clear. In addition, it is now clear whether they can be fired for being absent from work for a certain period of time.

Despite all of the above, the situation with absenteeism and termination of employment still remains rather ambiguous. Each case must be considered on an individual basis. If it turns out that there is a good reason for absenteeism, there is nothing to be afraid of.

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

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 warning period ();
leaving work without a valid reason by a person who has concluded an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice period for its early termination (,);
unauthorized use of days off, as well as unauthorized leave on vacation.

Despite the apparent transparency of these provisions, employers, and sometimes the courts, are still at a standstill, deciding whether certain actions of an employee are absenteeism. And often the conclusions they come to are hasty.

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

How voluntary dismissal turned into absenteeism

On November 1, 2013, D. submitted to her employer, individual entrepreneur K., a letter of resignation of her own free will. Focusing on the provisions, the employee believed that she was subject to dismissal after a 14-day period, that is, November 15, 2013. This day was the last working day for D., but no settlement was made with her and no work book was issued. Since November 18, she has already started working for another employer. However, the entrepreneur considered that the employee continued to work for him even after the expiration of the termination notice. Therefore, when on December 6, 2013, D. demanded to send her a work book and other work-related documents that were not issued on the last day of work, she received a response that the employment relationship with her was not terminated, and, therefore, the requested documents cannot be issued to her. And in February 2014, the employer nevertheless fired her, but for absenteeism, having issued the appropriate order.

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

The court of first instance dismissed the claims (decision of the Frunzensky District Court of the city of Saratov dated April 17, 2014 in case No. 2-1209/2014). At the same time, it was based on the time sheet submitted by the employer, according to which D. worked for K. until 19 November 2013 inclusive. The court emphasized: since after the warning period had expired, the employee continued to work for K. and did not insist on dismissal, this gave the employer the right to continue the employment contract (). And, consequently, D.'s further absence from work was rightly interpreted by K. as absenteeism.

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

The court pointed out that from the content of the time sheet for November 2013, it was impossible to reliably establish the fact that D. appeared or did not appear at work, since there are contradictions in this time sheet: after November 15, 2013, on the days from November 20 to November 23 and from November 25 to On November 29, 2013, along with an indication of the plaintiff's appearance at work, there is also information about absenteeism. In addition, the time sheet is not an indisputable confirmation of the work performed by the plaintiff after November 15, 2013, and the employer did not provide other evidence.

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

In this regard, the court overturned the earlier decision and satisfied the plaintiff's claims to impose on K. the obligation to issue an order to dismiss D. at his own request on November 15, 2013, as well as to pay 10 thousand rubles. for non-pecuniary damages.

OUR REFERENCE

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

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

In the second case, it is not worth dismissing an employee without finding out the reasons for his absence from the workplace. The fact is that if the reasons for 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 the average earnings during the forced absenteeism. To resolve this situation, you can send a letter to the employee by mail (with a notification and a description of the attachment) with a request to explain the reasons for the absence from the workplace. 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 unclear circumstances. Of great importance are reports from the immediate supervisor of the absent employee, confirming the fact of absence. If, nevertheless, the location of the employee is not established, it will be possible to dismiss him as missing (), if the appropriate decision is made by the court.

How the employer's lack of sick leave from a pregnant employee turned into a dismissal

On July 27, 2012, N. was registered with the antenatal clinic due to her pregnancy, and three days later she informed the director of the enterprise by mail. Later it turned out that this letter did not reach the addressee and was returned to the sender. In addition, in the period from 2 to 10 August 2012, the employee was on sick leave, which she presented to the employer. Subsequently, N. repeatedly received certificates of incapacity for work, which she sent to the management by mail, but none of them reached the employer. Due to the fact that N. was absent from the workplace for a long time, the management of the enterprise sent her a notice about the need to come to work to provide explanations. Having received this notification, the employee did not appear at work and did not submit supporting documents for her absence from the workplace. The employer recorded in the act the fact that there was no written explanation from the employee and issued an order to dismiss N. for absenteeism. The employee became aware of this from a letter she received on April 12, 2013, signed by the director of the company.

N. considered that the employer violated the ban on dismissal of a pregnant woman at the initiative of the employer () and went to court demanding that she be reinstated at work.

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

The Court of Appeal upheld the rendered judicial act ().

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

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

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

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

How a part-time job with another employer was mistaken for absenteeism due to delayed wages

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

Disagreeing with the management's decision, D. filed a lawsuit to reinstate him at work, recover wages for the time he was forced to take absenteeism, and compensate for non-pecuniary damage.

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

However, the prosecutor did not agree with this position - and prepared an appeal presentation in which he asked that the court's decision be canceled. But the court of appeal left the prosecutor's submission unsatisfied (appellate ruling of the Judicial Collegium for Civil Cases of the Khabarovsk Regional Court dated August 8, 2014 in case No. 33-4885/2014). But the cassation considered the position of the prosecutor justified, canceled the earlier judicial acts and sent the case for a new trial (decision of the Presidium of the Khabarovsk Regional Court of April 13, 2015 in case No. 44-g-26/2015). Re-examining this case, the Court of Appeal came to the following conclusions ().

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

The employer did not dispute the fact of untimely payment of wages to employees. On the contrary, at the court session, he explained that the company was in a difficult financial situation, which led to a delay in paying wages. As the court emphasized, the obligatory remuneration is enshrined in the current legislation. Moreover, the Labor Code of the Russian Federation, prohibiting forced labor, calls one of its signs a violation of the established deadlines for the payment of wages or its payment in an incomplete amount (). And since the employer did not fulfill his obligations for the timely and full payment of wages to the employee, the disciplinary sanction in the form of dismissal, even despite the absence of an application for suspension of work due to delayed wages, was applied to D. without taking into account the severity of the misconduct committed by him and the circumstances of his commission.

As a result, D.'s demands to be reinstated at work were satisfied. In his favor, the average earnings for the entire period of forced absenteeism, as well as compensation for non-pecuniary damage, were recovered.

How the wedding led to dismissal

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

Believing that the dismissal was unlawful, S. filed a lawsuit to reinstate him at work and collect wages for the time of forced absenteeism, as well as compensation for non-pecuniary damage.

As the court found, the reason for S.'s dismissal was his absence from work without a good reason, since he did not submit a written notice of the need to take time off due to marriage registration. In this regard, the court of first instance sided with the employer and dismissed the claim (decision of the Zheleznodorozhny District Court of Khabarovsk dated April 1, 2015 in case No. 2-1303/2015).

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

The court noted that, in accordance with the terms of the collective labor agreement, the plaintiff could not be denied leave on the occasion of marriage registration. The absence of a written notice from the employer about the absence from the workplace due to personal circumstances in itself is not a basis for bringing the employee to disciplinary liability, since violation of this procedure does not exclude the employee from having a good reason for absence. In addition, as a result of the misconduct committed by the plaintiff, there were no negative consequences for the employer. Considering that S. had not previously been brought to disciplinary responsibility, the court concluded: his dismissal was made without taking into account the circumstances that caused his absence from the workplace, and the severity of the offense committed.

As a result, the dismissal was declared illegal, S. was reinstated, and the employer was obliged to pay the employee the average wage for the time of forced absenteeism, as well as compensate for the moral damage caused.

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

Thus, even if there are signs of absenteeism, the court may recognize the dismissal as illegal. When making a decision, it will not be formal circumstances (for example, the absence of a sick leave or a written application for leave), but actual ones (expiration of the notice of dismissal of one’s own free will, pregnancy, wage arrears, marriage and other good reasons for the employee’s absence from work) that will become significant when making a decision. .

Good reasons for not appearing in courtIt is quite difficult for a person who does not have a legal education to determine. Faced with the judicial system, every citizen who does not understand the legal intricacies is afraid of doing something wrong. For what reasons, without harm to yourself, you can skip a court session, we will consider in this article.

Consequences of missing a hearing

The consequences of missing a court session depend on the case in which it is being held (criminal, administrative, civil proceedings) and in which capacity you participate in this session.

One of the unpleasant consequences of not appearing in court can be that the case is heard in your absence. As a result - the inability to defend one's position, provide evidence (civil proceedings), and as a result - the decision is not in your favor. Moreover, if the reason for the absence was disrespectful, then an appeal to a higher authority in this case will not help.

Good reasons for not appearing in court

So, what are the reasons for missing a court session can be considered valid? The current legislation does not give a clear answer to this question, however, it contains a requirement to notify the court of the reasons for the failure to appear and to provide evidence of the validity of these reasons (Article 167 of the Civil Procedure Code of the Russian Federation). And it will be up to the judge to decide whether your reasons are valid.

An analysis of judicial practice allows us to conclude that, of course, a valid reason for not appearing at a court session is the illness of the citizen himself or one of his relatives, if there is no one else to take care of it. The reason for the impossibility to appear in court due to objective circumstances beyond the control of the person will also be valid. These are all kinds of weather, transport, man-made accidents and disasters, as a result of which it becomes difficult or impossible to overcome the distance from home to the courthouse. Of course, if you live near the court, then, for example, the judge is unlikely to consider snowdrifts as a good reason.

Don't know your rights?

An objective good reason will be untimely notification of the time and place of the court session. In this case, if the court does not have data on your proper notice, the meeting will certainly be adjourned.

The practice of recognizing as a valid reason the need to leave somewhere on the same day or days on which the court hearing of the case is scheduled is ambiguous. Here, it will be of great importance where exactly you need to go (within the country or abroad) and, most importantly, why (rest is a disrespectful reason).