Reasons for absenteeism from work. Valid reasons for absence from work - list
The legislation clearly interprets the term absenteeism, but does not contain grounds on which the reasons can be considered valid and will not provide an opportunity to fire a “negligent” employee.
What is truancy?
The legislator interprets absenteeism as a long-term absence of an employee from the workplace without a valid reason. A time of 4 hours or more 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 indicate how and within what time frame staff must report their absence so that the manager can timely redistribute the responsibilities of the absent employee among other staff;
- department head, or other authorized person must have a list of employees who can replace each other;
- the head of a department or other unit must have a reminder of what he is obliged to do if an employee is absent from the workplace without a good reason.
An example of a memo for an employer:
- In the absence of an employee, the manager is obliged to call back his known telephone numbers, home or mobile;
- Specify the reason for absence;
- Talk with the staff, perhaps the absent person reported something to his colleagues; if this happened, then it is better for the employees to put the information in writing;
- The drawn up act must describe the measures taken to find the truant;
- Transfer of all documents to the personnel department.
Recording a no-show
If an employee fails to appear, a report must be drawn up.
It is on a detailed statement of the fact that an employee is absent from the workplace without a good reason that his future fate at this enterprise will depend. Perhaps the person simply got sick or found himself in another difficult situation.
The report must be drawn up in front of witnesses; it is better to involve personnel from another department, so that in the future, the truant will not be able to put pressure on his colleagues, or prove that the report was drawn up under pressure from his superiors.
The administration of the enterprise is not required to take immediate measures to find the employee; however, if the person lives alone and the phones are not answered, then it is recommended to go to his home. If no one opens the 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 local police officer to open the premises.
If no measures to search for an absent employee have yielded any results, then it is recommended to draw up an act of absence almost every day. The report card is marked with the letter code “NN” and the person with the numeric code – 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 absence
An employee could get sick and not report it to his superiors.
If a truant shows up, presenting sick leave, a certificate from a medical institution, then all documents drawn up about absence should not be destroyed.
In cases where the employee was truly absent from the workplace without a valid reason, a written explanation should be required from him. If the truant refuses, it is recommended to make a written request and hand it over to him against signature.
Such evidence in court proceedings is much more effective than oral explanations from the employer.
Notification of the need to explain the reasons for non-appearance is not regulated by any normative act, but must contain details of the enterprise, details of the truant, and a request for a written explanation of the reasons for failure to appear within a specific time frame. As a rule, it does not take much time to draw up 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 a corresponding act.
If an employee refuses to explain his absence in writing, he is not deprived of the right to apply disciplinary sanctions, including termination of the contract. This is prescribed by law.
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 a specific absence is considered a day of absenteeism. If the staff did not have malicious intent and made mistakes in good faith, then such absence cannot be considered absenteeism.
The legislation provides options when the employer is obliged not to recognize absence as absenteeism in the following cases:
- provision of sick leave or an extract from a medical record;
- performance by an employee of public and state duties, for example, if a particular employee is a member of the election commission;
- if the employee is a donor.
In addition, if an employee was unable to 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 valid reason for absence is also an appearance in court or tax authorities to testify, as a witness, or as another person. Such confirmation is reflected in the decisions of the Supreme Council.
A fire or short circuit in the house, accidents on the way to the workplace, and other unforeseen life circumstances are also valid reasons and cannot be a reason for dismissal for absenteeism.
Regarding delays from next vacation, the opinions of experts and courts are ambiguous. For the most part, dismissal from a position 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, late plane or train, and adverse weather conditions are taken into account.
If the employee decides to leave workplace or did not show up at all, citing the fact that his computer was broken or there were no clients, will certainly be interpreted as absenteeism.
What to do with a truant?
Disciplinary action may be taken for absenteeism.
An employee’s absence from the workplace without a good reason is a real reason to get rid of “unnecessary” personnel. Although, in addition to dismissal, disciplinary punishment may be imposed, but no later than 1 month from the date of the incident.
One offense can only be punished once. The employee must be familiarized with the signature. If the employee does not want to sign, then the employer draws up a report.
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 the average salary paid for the period of forced downtime. To avoid such a situation, it is recommended to follow the evidence collection and dismissal procedure.
First of all, there must be written confirmation of the employee’s absence from the workplace, these are absence certificates, memos, 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 general rules. The employer is obliged to convey his decision to the employee in writing, with an introductory signature. If for some reason it is not possible to familiarize the employee personally, then a corresponding mark is made on him.
The day of dismissal is considered the last working day, even if the absentee was absent from the workplace. The Labor Service takes 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 date 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 bank card, all accrued payment is deposited until the dismissed employee applies to receive it.
Remember, you cannot fire a pregnant woman, even if she is a habitual 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 has been absent for a long time.
The situation is much more complicated when the employee is absent for a very long time and the employer is unable to find out the reasons for the absence. It is recommended to call him periodically, preferably with witnesses, and draw up a report.
You can send once a week postal items to the truant’s residential address, with a request to explain the reasons for the absence.
The courts confirm the right of the administration to dismiss for absenteeism a person to whom a notice was sent home, which was 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 where an employee was imprisoned for 15 days for administrative offense. On the one hand, it is not possible to terminate an employment contract with a convicted or detained person, but this applies to criminal prosecution.
Administrative punishment is not a basis for maintaining a job, since this is a different proceeding from criminal proceedings.
The practice of considering such court cases is ambiguous.
To summarize, dismissal of personnel for absenteeism requires clear written documentation and compliance with all norms of current legislation.
From this video you will learn what to do if an employee does not communicate.
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Employees who are dishonest with their job responsibilities, and, in particular, absentees, become a headache for the management of most enterprises. The Labor Code regards absenteeism, as opposed to being late, as a violation labor discipline, serves as a reason for disciplinary action and even termination labor relations, however, in reality it is not so simple. For an employer, the use of extreme disciplinary measures is strictly regulated by Article 193 of the Labor Code of the Russian Federation. Moreover, both parties must know the rights. In some cases, the nuances of the process can help a conscientious person protect himself from unreasonable pressures from management and not damage his reputation. What is considered absenteeism, and what are the features of dismissal in connection with it, we will consider further.
Missing work hours
The concept of “truancy” in the Labor Code and its types
Absenteeism according to the labor code is the intentional absence of a subordinate from the workplace (Article 209) without good reason for 4 hours in a row or more (Subclause “a”, clause 6, part 1, article 81). Absenteeism also means leaving work without permission without warning of the termination of employment obligations. The concept of absenteeism is defined (by Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2 of March 17, 2004). In addition, absenteeism includes such actions as: unauthorized going on vacation without permission from superiors; failure to fulfill duties after a legally executed transfer to another workplace; skipping shifts before the end of the agreed period when signed under a fixed-term employment contract; leaving the work zone without communicating with a superior, when collaborating under an employment contract without a specified validity period; downtime of working hours if the employer violates the rights of employees. To understand the situation, it would be better to contact the appropriate services.
Leaving work, as well as any failure to perform official duties will be considered truancy when the truant did not indicate valid reasons and did not attach evidence to them.
Failure to perform assigned duties is truancy
There are two conventional categories of absenteeism:
- Short-term(classic). Here the employer is warned where the subordinate is and can always talk to him. What needs to be done for absenteeism is stated in Article 193 of the Labor Code of the Russian Federation. The person is asked for an explanation for his behavior; his justification must be written down on paper and presented to his superiors within 2 working days. The basis for this is a memorandum prepared in advance addressed to the authorities and the documented fact of missing working hours on a certain day. If there is no response from the person, then a corresponding act is drawn up, which is signed by its drafters and three witnesses to the violation. And only after this the manager has the right to issue a decree imposing a disciplinary sanction, recording the date of absence on the report card as absenteeism.
- Long-term(long-term). Here the employer does not know where the subordinate is staying, for several shifts or weeks. Therefore, he cannot be contacted. In order to fire someone for absenteeism, the employer has to wait for the employee to appear at the workplace and then proceed with the standard processing. The law allows you to request explanations by mail or telegram to the address in the personal file of the subordinate. It is necessary to carry out registration strictly according to the Labor Code of the Russian Federation; otherwise, the truant can turn the situation through the judicial authorities in his favor, be reinstated in his position and even receive compensation costs.
The total time for collection and issuance of the corresponding order is one month.
Consequences of absenteeism
What is truancy labor legislation We have identified, now we will consider what creates constant clashes of interests between both sides. The fact is that Article 81 of the Labor Code of the Russian Federation does not contain a list of valid reasons. As a rule, the manager decides whether the reason will be serious if local acts the start and end times of the shift are strictly regulated, and the workplace is clearly defined. When a clear concept of the workplace in regulatory documents no, you should rely on Art. 209 Labor Code of the Russian Federation. From it it is said that a workplace is an area that is assigned to each individual staff unit of the company. A person must stay in it and perform the work assigned to him, as provided for in the regulatory and technical documentation.
Knowing the rights, a truant can avoid punishment
In case of absenteeism, the employer may not formalize dismissal under the article for absenteeism, although he has every right to do so, it all depends on how competent he is in this matter. If an employee systematically violates the rules, then this method is simply necessary to regulate work. The employer has the right to issue a reprimand, reprimand, or collect a penalty from the truant in the form of deprivation of bonuses, although the lack of incentives is not a punishment. Let us note that absenteeism at work provides for only one punishment under the Labor Code of the Russian Federation, so if a person is reprimanded, terminating the employment relationship for this absenteeism is already prohibited.
The employee was absent from the workplace without good reason for the entire working day. They were given no explanation. What actions are possible for the employer in this situation? Is it possible to fire an employee for?
An employee’s absence from the workplace without good reason during the entire working day, as well as absence from the workplace without good reason for more than four hours in a row during the working day, is regarded as absenteeism. In the event of such a one-time gross violation by an employee labor responsibilities it can be terminated at the initiative of the employer in accordance with paragraphs. "a" clause 6 of part one of Article 81 of the Labor Code of the Russian Federation.
As follows from this norm, one of the main signs of absenteeism is the absence of an employee from the workplace for a certain time without a good reason. In this case, the burden of proving the fact that the employee committed absenteeism rests with the employer (clause 38 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by courts Russian Federation Labor Code of the Russian Federation"; hereinafter referred to as the Resolution of the Plenum).
At the same time, in the situation you cited, the absence of an employee from the workplace can be caused by both good and bad reasons.
An exhaustive list of valid reasons is not established by law. Valid reasons include, for example, periods of temporary incapacity for work, confirmed by sick leave, as well as other periods during which the employee, for reasons beyond his control, cannot go to work.
Accordingly, in each case it is necessary to assess the “respectability” of a particular reason (see also the ruling of the Investigative Committee for civil cases of the Omsk Regional Court dated October 20, 2004 N 33-3509).
In addition, it may turn out that the employee’s absence was caused by reasons that are independent grounds for termination. employment contract. We are talking about the termination of an employment contract with an employee due to circumstances beyond the control of the parties, in particular, in connection with the death of the employee, as well as the recognition of the employee as deceased or missing (clause 6 of part one of Article 83 of the Labor Code of the Russian Federation), or the conviction of the employee to punishment excluding continuation previous job(Clause 4 of Part 1 of Article 83 of the Labor Code of the Russian Federation).
In other words, since there is always a possibility that the employee is absent for a good reason, it is not recommended to fire an employee for absenteeism before the circumstances of his absence from work are clarified. In such cases, the employer must record the fact that the employee is absent from the workplace. For this purpose, an act is drawn up in free form, which is signed by several witnesses. Such an act can be drawn up either on the first day of the employee’s absence from work or on any of the following days. If an employee has not gone to work for a long time and the exact reasons for his absence are unknown, then it is recommended to draw up such reports periodically throughout the entire period of absence.
From the first day of absence, the employee should put the mark “NN” on the work time sheet - “failure to appear for unknown reasons” (Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1 “On approval of unified forms of primary accounting documentation for accounting of labor and its payment", forms N T-12 and N T-13). Only after the reason for non-appearance has been established, can the mark “failure to appear for unknown reasons” be changed to the appropriate one, for example, to the mark “absenteeism” (PR ) or the mark “Temporary disability” (B)*(1).
From the moment of fixation in personnel documents If the employee is absent from the workplace, there is every reason not to accrue wages to the absent employee.
If the employer has data confirming that there are no valid reasons for absence from work, then the employee can be fired for absenteeism.
In accordance with Art. 192 of the Labor Code of the Russian Federation, absenteeism is a gross violation of labor duties by an employee, that is, a disciplinary offense, and a disciplinary sanction for its commission. This means that when dismissing for absenteeism, the employer must comply with the procedure for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation ( general order dismissal of an employee for absenteeism is given, for example, in the letter of Rostrud dated October 31, 2007 N 4415-6). If this procedure is violated, then in the event of a lawsuit, the court will most likely recognize the dismissal as illegal, even if it is proven that the employee committed absenteeism.
First of all, the employer must meet the deadlines for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. Thus, dismissal for absenteeism can be done no later than 1 month from the date of its discovery, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees, and no later than 6 months from the date of its occurrence. The day of detection of the misconduct, from which the month period begins, is considered the day when the person to whom the employee is subordinate for work (service) became aware of the commission of the misconduct, regardless of whether he is vested with the right to impose disciplinary sanctions (clause 34 of the Plenum Resolution) .
If an employee commits long absence the monthly period for detecting the offense should be calculated from last day absenteeism, and not from the first (see, for example, the ruling of the Ryazan Regional Court dated April 25, 2007 N 33-580, Generalization of the practice of consideration in the 1st half of 2008 by the courts of the Saratov Region of cases of termination of an employment contract at the initiative of the employer and on other grounds , not related to the will of the employee).
The second most important condition is proper documentation.
Article 193 of the Labor Code of the Russian Federation requires that even before applying a disciplinary sanction, the employer requires an explanation from the employee in writing. It is extremely difficult to request written explanations from an employee who does not show up at work, and to do this in such a way that it can then be proven that such a request for explanations has occurred. For this reason, many experts recommend waiting until the employee shows up at work and does not provide supporting documents.
If the employer nevertheless decides to dismiss the employee for absenteeism in his absence, then in case of litigation, he must collect evidence that he fulfilled all his duties in the process of applying a disciplinary sanction. Such evidence may be, for example, a postal notification of delivery of the notice to the employee with his personal signature confirming receipt of the notice.
The situation when a postal notice is returned with a mark of non-delivery, in our opinion, cannot be considered a proper request for a written explanation. Therefore, in such circumstances, we do not recommend filing a dismissal for absenteeism. Employer during the period long absence The employee may periodically send him letters demanding explanations, waiting for the employee to personally sign the notice.
If two working days have passed since the employee received the letter, and the employee has not provided an explanation, then a corresponding report is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying a disciplinary sanction, that is, dismissal *(2).
Based on the act of absence from the workplace, as well as a written explanation or an act of the employee’s failure to provide an explanation, the employer issues an order (instruction) on dismissal.
The order is announced to the employee against signature within three working days from the date of its publication, not counting the time he is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up. The absent employee should be sent a telegram or registered letter with a notification inviting the employee to familiarize himself with the dismissal order and to receive a paycheck and work book.
Please note that the date of the dismissal order must be the date of its actual issuance within the time limits for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. But the date of dismissal should be the last day of work of the employee, except for cases where the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, his place of work (position) was retained (part three of Article 84.1 of the Labor Code of the Russian Federation).
According to Art. 84.1 of the Labor Code of the Russian Federation, on the day of termination of the employment contract, the employer is obliged to issue the employee a work book. If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book. In addition, the employer is not responsible for the delay in issuing a work book if the last day of work does not coincide with the day of registration of termination of employment when an employee is dismissed for absenteeism.
Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s application.
Upon dismissal, the employer is obliged to make a settlement with the employee. In Art. 140 of the Labor Code of the Russian Federation states that payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.
Prepared answer:
Expert of the Legal Consulting Service GARANT
Panova Natalya
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Voronova Elena
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
*(1) In connection with the entry into force on January 1, 2013. Federal Law dated 06.12.2011 N 402-FZ “On Accounting” federal Service for Labor and Employment (Rostrud) in letters dated 01/23/2013 N PG/409-6-1, dated 01/23/2013 N PG/10659-6-1 and dated 02/14/2013 N PG/1487-6-1 explained that from January 1, 2013 unified forms, approved by the said resolution, are not mandatory for non-governmental organizations. Such organizations have the right to use forms of primary accounting documents developed by them independently.
*(2) In such a situation, it is possible for the employee to appeal the dismissal, because The reasons for absence in this situation are unknown. However, in this case, the court may refuse to satisfy the employee’s claim for reinstatement if it is established that the right has been abused (for example, deliberate failure to provide a document confirming the valid reasons for absence from work), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of dishonest actions on the part of the employee (clause 27 of the Plenum resolution).
The percentage of an employee being reinstated to his previous place of work after dismissal for absenteeism is high. In most cases, this is caused by a violation of the dismissal procedure. Judicial practice and the accumulated experience of companies will help eliminate the “blind spots” of legislation.
Grounds for dismissal
The employer’s right to dismiss an employee in the event of a single gross violation of labor duties, including due to absenteeism, is enshrined in Article 81 of the Labor Code of the Russian Federation. The article defines absenteeism as “absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) "Additional explanations can be found in judicial practice, in particular, an employee can be fired in such cases (clause 39 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2):
- absence from work without good reason, that is, absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);
- an employee staying outside the workplace without good reason for more than four hours in a row during a working day;
- leaving work without good reason by an employee on an open-ended employment contract without warning the employer of termination of the contract;
- abandonment of work without a valid reason by a person who has entered into a fixed-term employment contract before the expiration of the contract;
- unauthorized use of time off or going on vacation (main, additional).
Position 1. The lunch break must be included in the 4-hour period of absenteeism. If this is not done, then it is almost impossible to fire an employee for absenteeism. The fact is that the Labor Code of the Russian Federation does not define a working day as work time before lunch and after. Means, lunch break cannot interrupt the period provided for in Art. 81 of the Labor Code of the Russian Federation (sub-clause “a”, clause 6, part I).
Position 2. The lunch break is not included in the 4-hour period of absenteeism. Article 106 of the Labor Code of the Russian Federation classifies a break for meals as rest time. This means that the employee is free from performing work duties at this time. Absence from the workplace during this time cannot be blamed on the employee and may not result in disciplinary liability.
The second point of view is more common in judicial practice, but the final decision remains with the employer.
The next controversial issue is the validity of the reasons for absenteeism. Since the legislation does not contain a list of such reasons, the decision is made by the employer, aware of the possibility of verifying the validity of recognizing the reason for absenteeism as valid in court in the event of a dispute with the employee. It should be noted that in such cases, the courts take into account the severity of the employee’s offense, attitude towards work, the impact of the employee’s absence on the work process, and the circumstances of the offense. Judges considered the following reasons for an employee’s absence to be valid:
- participation in legal proceedings;
- leave without pay wages, due to the employee in accordance with the Labor Code of the Russian Federation;
- absenteeism from work after two weeks have elapsed since the employer’s written notice of the desire to resign;
- poor health (documented);
- illness of the child, which is confirmed by a doctor’s certificate, extracts from the medical record (even when the sick leave is opened only the next day);
- carrying out emergency repair work in the employee’s apartment (confirmed by a certificate from the HOA, housing office, etc.);
- the employee’s location on the way to the place of study and back;
- suspension of work due to the employer delaying payment of wages for more than 15 days (based on Article 142 of the Labor Code of the Russian Federation), even if the debt is partially repaid;
- serving an administrative punishment by an employee (administrative arrest).
Important! Dismissal of an employee for absenteeism during a period of temporary disability, the employee being on vacation, or during the employee’s pregnancy is unlawful (Part 6 of Article 81 and Part 1 of Article 261 of the Labor Code of the Russian Federation).
Algorithm for dismissal for absenteeism
You should not fire an employee for absenteeism before he shows up for work, because the reason for absence may turn out to be valid, and the employee could not inform the employer about it. Now we will consider the procedure for dismissal for absenteeism in stages in order to eliminate possible reasons for a labor dispute with an employee.Step 1. Identify the fact that the employee is absent. The law does not provide precise recommendations in this regard. Any employee of the enterprise can detect that an employee is absent: timekeeper, immediate supervisor, colleague. If there is no information about the location of the employee or the reasons for absence, any of the named employees notifies the management of the enterprise in writing.
Documentation: memo; time sheet (with the mark “NN” - absence for unknown reasons).
Step 2. Draw up a certificate of absence of the employee from the workplace. Here it is important to correctly record the period of absence. The report is drawn up on the same day when the employee’s absence is revealed, otherwise the court will not recognize the reliability of the evidence. In the act, record: the fact of absence, the time of absence, the time of drawing up the act, obtain the signatures of at least 3 people from those workers who are near the workplace and have the opportunity to observe the place of the absence. Please note that if an employee is absent for more than a day, then reports must be drawn up daily.
Documentation: act of absence of an employee from the workplace. It is advisable to draw up two documents - by the middle and by the end of the working day.
Step 3. Demand an explanation from the employee. This can also be done orally if the employee immediately provided an explanation. Otherwise, make the request in writing and hand it to the employee under personal signature. If the employee refuses to receive the request, draw up a free form statement of refusal with the signatures of at least three company employees who will attest to the fact of the refusal.
If an employee does not appear at the workplace for a long period, send him a request by mail with a receipt receipt, which must include the date the employee received the document.
Documentation: requirement to provide a written explanation; act of refusal to receive a claim.
Step 4. Receive explanations from the employee or record a refusal to provide explanations. After submitting a request for a written explanation, the employee has two days to explain his absence. The counting of days begins from the day following the day of transmission of the request. During the same period, the employee can provide evidence of valid reasons for absence. The explanation must be made in writing. If after two days the employee does not explain, then you need to draw up an act of refusal to provide an explanation. The act is certified by the signature of at least three employees.
Documentation: employee explanation (explanatory note); act of refusal to provide explanations.
Step 5. Internal investigation. Used when it is unknown whether the reason for absence was valid, or when the employee does not contact. If it is not clear whether the employee is at fault, then it is better to create a commission to conduct an investigation. The commission will draw up an official investigation report, which indicates the circumstances that were found out.
Documentation: order to create a commission to conduct internal investigation, act of official investigation.
Step 6.Deciding on the level of responsibility. Dismissal acts as a measure disciplinary liability, but the employer is not at all obliged to fire such an employee. You can apply other disciplinary measures - a reprimand or reprimand. The employer makes any decision independently.
Documentation: the idea of being held accountable.
Step 7Dismissal. By general rule A disciplinary sanction may be applied by the employer no later than one month from the date of discovery of the offense and no later than six months from the date of its commission. Violation of these terms provides grounds for dismissal to be considered illegal.
So, if the decision to dismiss has been made, it is recommended to once again check the reasons and duration of absence. After verification, collection of evidence and execution of the above documents, a dismissal order can be issued. Familiarize the employee with this document against signature - 3 days are allotted for this from the date of issuance of the order, not counting the time the employee is absent. If you refuse to sign, draw up an act. On the day of termination of the employment contract, give the employee a work book and make a payment (on the day the employee appears at work).
Please note that liability for the discrepancy between the last working day and the day of termination of the employment contract is not provided for by law. The last day of the employment contract is considered to be the day preceding the first day of absenteeism, which is the last day of work of the employee.
Today we will be interested in the step-by-step procedure for dismissal for absenteeism. This process in real life bringing it to life is not as easy as it seems. After all, absence from work is not always considered absenteeism. Therefore, employers may have some problems bringing their idea to life. Also, dismissal is not the only way to punish a negligent employee. It turns out that absenteeism does not in all cases entail loss of work. What should an employer know about this procedure? How to properly prepare for the dismissal of a truant worker?
Definition of truancy
The first step that needs to be taken is to establish the fact that the subordinate skipped work. This is very difficult to do. Under what circumstances is dismissal for absenteeism threatened? A step-by-step procedure will help you figure it out.
The Labor Code of the Russian Federation states that any subordinate can be fired for absence from work without good reason. Even if we are talking about the first pass. The main problem is that truancy has an ambiguous definition. And if the employer could not establish the fact of illegal absence of a working day without good reason, no dismissal can take place. This is the main problem employers face.
So what is truancy? This is the absence of an employee from the workplace for more than 4 hours in a row. At the same time, the Labor Code emphasizes that a subordinate should not have valid reasons for missing a work shift.
Good reasons
How is an employee fired for absenteeism? Procedure and step-by-step instructions this process difficult only at the very beginning. Namely, when determining how valid the reason for the employee’s absence from work was. Why do problems arise? There are no clear definitions in the Labor Code when missing a working day or shift is considered missed for valid reasons. But similar phenomena include:
- temporary disability of a subordinate;
- being in the performance of civil or public obligations;
- donating blood or undergoing a medical examination for this procedure;
- participation in strikes;
- taking the employee into custody (for example, arrest);
- emergency situations resulting in absence from work and transportation problems;
- salary delay for a period exceeding 15 days;
- carrying out work emergency services that require access to the employee’s home.
It may be noted that the validity of absence from work is not as easy to establish as it seems. Therefore, at the very beginning of the dismissal process, the employer must not only know the definition of absenteeism, but also understand how valid the reason for the subordinate’s absence from the workplace was. What other actions should the boss take to achieve the task?
Act of offense
How to fire an employee for absenteeism? Step-by-step instruction will help you figure this out. Basic important points have already been considered - this is the definition of absenteeism and valid reasons for absence. An error in deciding whether to dismiss a subordinate may result in liability for the employer.
If you are sure that your employee is skipping work, be sure to record the offense. deeds. Its confirmation must be any evidence of the citizen’s absence from work for more than 4 hours continuously. Remember, until this moment, absenteeism does not take place.
Also, evidence of a subordinate’s absence from work can include notes from colleagues, video recordings and other sources of information that record when employees arrive and leave the company.
Checking the possibility of dismissal
What to do next to properly formalize dismissal for absenteeism? The step-by-step procedure indicates that after drawing up an act of missing a working day (shift), as well as collecting evidence, the employer must check how legal his actions are.
In some cases, it is impossible to dismiss citizens on the personal initiative of the employer. Then the employee cannot be deprived of his job for absenteeism. For example, Labor Code prohibits the dismissal of pregnant women. The employer shall not, under any pretext, at will is not capable of depriving an employee of her position of work. Unless the company is liquidated, dismissal takes place.
Disciplinary action
The next step is not provided for all employers, but only for those who provide for violation of the employment contract disciplinary action. The step-by-step procedure for dismissal for absenteeism indicates that after all the above measures, it is necessary to check the timing of the imposition of disciplinary payments.
At the moment, such penalties are possible within a month from the day the employer learned about payments later than six months from the date of absenteeism; they are not applied.
Explanatory
Before the immediate registration of dismissal begins, the employer must demand from the subordinate explanatory note. This is the main document on which the entire process of depriving an employee of his job depends.
The explanatory note is written in free form. In it, the subordinate must describe all the circumstances under which he was absent from work for more than 4 hours. If there is evidence, it must be presented.
Next, the employer evaluates whether missing a day of work is truly considered absenteeism. If so, you can proceed to the next step. No? Then you do not have the right to fire a subordinate. If the cadre goes to court in this case, law enforcement authorities will not be on your side.
If the employee does not provide his document within 2 days from the date of request, the employer is obliged to draw up a report about this. In the event of litigation, such an approach can protect the boss.
Order
The step-by-step procedure for dismissal for absenteeism provides for the mandatory issuance of an order to remove a subordinate from work. But keep in mind that you can draw it up only after you have studied the reason for the absence of a subordinate.
When drawing up a dismissal order, remember that you cannot deprive an employee of his job who is on vacation at the time the document is issued. This restriction also applies to cases where the personnel is temporarily disabled. These rules are specified in Article 81 of the Labor Code of the Russian Federation.
Please note that it is necessary to indicate in the dismissal order the reason for applying the punishment in the form of complete removal from work. Dismissal is prescribed under subparagraph “a” of paragraph 6. This is a mandatory step. Next, the dismissal order is registered by personnel.
Familiarization
Documentation of dismissal of an employee for absenteeism is almost completed. The main part is completed. Now it's a matter of small things. After issuing the dismissal order, it is necessary to obtain the signature of the subordinate on this document. The employer must inform the employee of the penalty applied.
Of course, few people will agree to resign “under the article.” If the employer seriously intends to refuse the personnel, it is enough to make a special inscription on the order stating that the citizen refused to sign the order. It is advisable to prepare some evidence that the subordinate has familiarized himself with the document. For example, make a video recording. It may be required if an employee decides to go to court with a complaint about illegal dismissal from work. Threatened with dismissal for absenteeism? Step-by-step instructions indicate some features of this process.
If there was no signature on the order, you will have to draw up another act, which states that the subordinate refused to sign the document presented for review.
Calculation
What else is needed to properly formalize dismissal for absenteeism? The step-by-step procedure (diagram) indicates that the employer must make a payment to the subordinate for the time worked. If you neglect this point, you can prepare for liability.
The employer must prepare and provide a settlement note to the subordinate. With it, the frame is sent to the accounting department to receive the due cash for previously worked time.
Cash is paid on the day of dismissal. This is ideal. If by that time there was no frame, then this operation is carried out the next day after the employee applies for payment to the accounting department.
Work book and card
How to fire an employee for absenteeism correctly? After making a settlement with a subordinate, it is necessary to make the appropriate notes in the personnel’s work book, as well as in his personal card. The reason for dismissal must be indicated. It should be exactly the same as on the order issued earlier.
The person being dismissed must sign a personal card stating that the changes have been made and he is aware of this act. If an employee refuses to sign, a report about this is drawn up. You can do without it, but in case of litigation, any documents can help the employer prove his innocence and the legality of his actions.
The next step is to create a slave. This item is optional. Many employers simply skip it. After all, dismissal under “article” is potentially problematic situation. It spoils all statistics and has a negative impact on the employer’s reputation. Therefore, you can simply give the work book to the dismissed personnel.
By the way, this document the employer is obliged to return it to the subordinate. Even if the employee remains in debt to the company. No one has the right to keep the work books of those fired.
How to fire for absenteeism? The step-by-step procedure must be fully followed. This is the only way an employer can protect itself. Situations often occur in which the person being fired does not want to pick up the work book. In this case, you must send the employee by registered mail a notice informing that the personnel must pick up the “labor”. It is also recommended that if an employee refuses a book, draw up a report on this incident.
If there is no resistance, the frame receives a “labor certificate”, after which it signs the special magazine movement accounting work records subordinates at the enterprise. This confirms the receipt of the document.
Certificate of income
This is all. Now it’s clear how dismissal for absenteeism occurs. The instructions for this procedure provide one more point. It's optional, but if you implement it, you won't have to worry about running into another truant.
It is recommended that at the time of registration of dismissal under the “article” for absenteeism, issue the subordinate with a certificate of his income in form 2-NDFL. By law, an employee has the right to demand this document from the employer at any time.
Please note that the judicial authorities usually come to the defense of the dismissed personnel if the employer made the slightest mistake when registering the dismissal under the “article”. This must be taken into account. The step-by-step procedure for dismissal for absenteeism has been completed. By following these rules, you don’t have to worry that the process of removing an employee will be disrupted.