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Can I be fired for absenteeism: we analyze various cases. Can they get fired for one long absence?

Can they be fired for one absenteeism and is it legal? After all, this is a significant violation of the labor schedule, entailing the imposition of appropriate sanctions.

Walking - what is it

In accordance with paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation, absenteeism is understood as cases where a worker is not at his place of work for more than 4 hours during the working day without any grounds for this. With this in mind, the signs of such an offense can be called the following:

Not the appearance of the employee at his workplace.
Missing work without good reason. They are of three types and are divided into force majeure, due to personal circumstances or in connection with events known in advance. Legislatively, the list of valid reasons is not established, but by default they include:

Participation in litigation as an applicant (Article 46 of the Constitution of the Russian Federation);
Absence at the place of performance official duties due to non-payment of wages for more than 15 days (Article 142 of the Labor Code of the Russian Federation);
Disability due to health issues.

Other grounds may also be accepted in court.

Not appearing at the place of work during the shift or for more than 4 hours. If the term is less than the established period, then such a violation can be qualified as being late, which is also a misdemeanor, but not a reason for dismissal. At the same time, it is necessary to take into account a half-hour break every day for rest and eating, although internal regulations may increase it. Such time is not subject to payment and is not working time. Therefore, the calculation of the time of absenteeism must be calculated without such a period. In addition, it is impossible to take into account 2 absenteeism on day 1 due to the absence of a person before lunch and after it.

Can they get fired for one day of absenteeism

How many absenteeism can be fired? Analyzing the practice of studying court proceedings between an employer and an employee, the Plenum of the Supreme Court of the Russian Federation issued a resolution “On the application by the courts of the Labor Code of the Russian Federation”. Paragraph 39 establishes situations when they can be fired for absenteeism:

Worker in working period absent from work for more than 4 hours;
Not appearing at work during the working day and even less than four hours, if such is his shift;
Leaving the place of performance job duties before the expiration date labor relations, or without notifying the employer or before the expiration of the notice of its early termination (Art. 79, 80, 280, 292 of the Labor Code of the Russian Federation);
Self-care on vacation or vacation. Does not apply to absenteeism does not appear at the place of performance of work duties on the day of legal rest, when the head should present it, but refused to do so. For example, after taking blood in a donor center, citizens are entitled to a one-day rest.

Important! Given the position of the courts, when asked whether they can be fired in one day of absenteeism, it is possible that labor legislation directly establishes. A literal interpretation of the provisions of the law shows that one offense is quite enough, provided it is serious.

Categories of persons not subject to dismissal due to absence from work

Before applying punishment, the manager needs to make sure that the violator can be fired. Since the current regulatory framework establishes a category of persons with whom it is impossible to break off working legal relations. This:

Pregnant women. Article 261 of the Labor Code of the Russian Federation establishes a guarantee of such actions. A woman fired for absenteeism, who is in a position, but does not know about it, will have to be reinstated.
Employed citizens under the age of eighteen. For the dismissal of such a category of persons, the conclusion of the labor inspectorate and the permission of specialists in juvenile affairs (Article 269 of the Labor Code of the Russian Federation) will be required.
Workers who are absent for health reasons or who are on regular leave.
Absence from work due to force majeure. Unforeseen stormy weather conditions, vehicle breakdowns, cancellation of planned public transport routes, and more.
A person who takes measures to save the life and health of people, personal and other people's property.
An employee who did not approve a transfer to a new workplace and did not appear on it.

Read also Reflection of absenteeism in the time sheet

All situations must be documented. In the absence of evidence, they may be the testimony of witnesses or other information.

What is not considered absenteeism

The employer gives an assessment of how justified absenteeism was under the article, but such a decision can be appealed in court, if there is evidence that the failure to appear was not the fault of the dismissed person. When resolving the dispute in favor of the dismissed person, they are obliged to restore him to his position and pay a work pass.

The following are not grounds for dismissal:

Vacation period. Everyone has the right to walk it off completely. You can call from it in agreement with the worker. If the head of the organization insists on his presence, and the worker does not agree, then his actions cannot be regarded as absenteeism;
Work overtime. It can also be called on only by agreement with the person performing the duties, who has the right to disagree with her;
Medical Bulletin. The employee has the right to refuse to perform actions that are contraindicated for him for health reasons. To do this, you need to confirm your disease.

Terms of dismissal

To comply with the legality of the procedure, you must follow the following instructions:

The fact of absence must be documented. As evidence of a fait accompli, there is a memorandum letter addressed to the head of the company, presented by the head of the structural unit where the absentee works, as well as an absence report indicating the period of temporary absence from the workplace, certified by at least two witnesses of the incident. In the second case, the absence of signatures of the persons present may serve as a basis for declaring the document illegal. The note serves not only as an informative document, but also includes a request for the application of a specific type of punishment, as well as a period of absence and disrespectful reasons.
It is necessary to obtain an explanation from the offender. He can be dismissed only if he refuses to provide an explanation, or the reason for the absence stated in the explanations is not valid. If the employee is not at fault for what happened, then he must provide evidence of such. Two days are legally required for this. After the expiration of the term, the employer has the right to dismiss him by preparing a certificate of refusal stating the reasons.
Compliance with the deadline. The labor law allows the employer to punish the employee for absenteeism no later than 1 month. With the expiration of the term, the employment relationship is not subject to termination for such a reason. It should be noted that not all leaders get rid of the violator for one offense. If his candidacy is of value to the company, then management may impose a penalty in the form of a warning or reprimand.
Proper documentation. It is mandatory to issue a dismissal order and familiarize the dismissed person with affixing a signature. In case of refusal, an act is drawn up about this.

The grass is green, the sun is shining. And we, like complete fools, go to work. And this is instead of a trip to nature with friends and barbecue. It's a shame! This injustice needs to be corrected. So make every effort to come up with a digestible excuse and skip work. Here are some ready made ways.

1. Get sick. In the morning, call work early, after putting a clothespin on your nose, and moan into the phone: “Oh, I can’t, I’m sorry, grief! My death has come inevitably! definitely get to work!" Any leader, if he is not a complete sadist, will allow you to lie down for a day or two. It is much more profitable for him than sending you on sick leave for a couple of weeks. If you don’t have enough artistry to portray a dying person, you can invent a terrible indigestion for yourself. Then you just limit yourself to a short call: briefly describe your problem and stop the conversation under the pretext of urgent business in the restroom area. You can also go the other way. Complain for a few days that you don't feel well, and then "go to the doctor." Then you will say that you did not get an appointment or that the doctor found nothing in you but terrible overwork.

2. Invent a suffering countless diseases of a lonely grandmother. Then you can leave to bring medicine to the old woman, take her to the hospital, give an injection, give an enema and just sit at the bedside of a "dying" relative. Just do not try to ask for time off for her funeral - your grandmother will come in handy more than once.

3. Call work and say that the stupid spouse took both sets of keys out of the house and you cannot leave the apartment. The same series of excuses includes leaking sewers, broken plumbing and other malfunctions that require your presence in the apartment. Report misfortunes with regret, grieve over the disruption of work at work, and stay calm at home.

4. Incite your relative or friend to cheat. Let him simulate a call from the police. He will call you at work, officially demand you to the phone and allegedly inform you that your apartment has been robbed and you need to urgently appear to make a list of lost things. If you fight in hysterics and scream that you stole 37 items acquired by overwork (a deck of cards and an opener), in addition to the day off, you will also receive financial assistance. In addition to the "policeman", the variants of the "flooded neighbor" and "gasman" are well perceived.

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

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

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

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

9. Get rude to the boss and fill up a responsible area of work. You will stay at home as much as you like and study personal affairs, search new job, For example.

10. Deserve exemplary behavior. Go to work on weekends, work in the evenings, do tasks well. You will be appreciated, respected, catered to your whims, and perhaps even allocated a library day. The only pity is that this method is not suitable for those who are already considering which of the previous 9 to use.

According to the Decree of the Plenum of the Supreme Court of February 17, 2004 No. 2, absenteeism is recognized:

absence from work (outside the workplace) without good reasons more than 4 consecutive hours during the working day;
unauthorized use of rest days;
voluntary leave.

A normal and responsible employee will always warn the employer if something happens to him and he does not go to work. But if he disappeared and phone calls does not answer, he is probably truant. We will analyze the procedure for issuing dismissal for absenteeism.

Step 1. We fix the fact of absence

An act is drawn up in free form in the presence of two witnesses.

Sample act of absence of an employee from the workplace

Sample form of the act of absence of an employee at the workplace

On the first day of such acts, at least two must be done. The first - before lunch, the second - before the end of the working day. In the following days (no more than three), one act is drawn up for each day of absence. If the employee never showed up, the employer continues to draw up one act per week until the person actually appears at work or decides to send him questions about the reasons for the absence by mail. Upon dismissal, this act will serve as one of the supporting documents.

Step 2. We note the absence in the time sheet

Before the employee goes to work and explains the reasons for his absence, it is necessary to put down the codes in: HH code (absence for an unexplained reason). It is impossible to put the PR code (absenteeism) until the moment of providing written explanations (or an act of refusal to provide explanations), the court may subsequently recognize such a position as biased, and dismissal - illegal.

Sample recording absenteeism in the time sheet

Before receiving a written explanation

After receiving a written explanation

Step 3. We inform the management of the company

On the first day of the absence of an employee, his manager must inform the general director about this. This message issued in the form or memo, in which:

the situation is briefly described (the employee did not appear at work and does not get in touch);
contains a proposal to obtain written explanations from the employee, followed by a decision to bring him to disciplinary responsibility, including in the form of dismissal.

Sample memorandum on employee absenteeism

Step 4. Ask questions

If the employee does not show up long time, does not answer phone calls, the employer has the opportunity to send him questions about the reasons for his absence by mail. IN this case an official letter is drawn up on the letterhead of the organization with the requirement to explain the reasons for the absence. This letter must be signed CEO. The letter is sent with a description of the attachment (for subsequent presentation to the court with a receipt for payment of the postage).

The letter must indicate the deadline by which the employee must provide his explanations. This period must be reasonable, for example 15 calendar days, and include the time:

postal forwarding to the addressee;
the actual writing of the explanation;
return postage.

As noted Vladislav Varshavsky, Managing Partner at Varshavsky & Partners Law Firm, the employee must be required to explain the reasons for absence from work, since the employee's right to provide explanations is provided for by law. Otherwise, the decision of the employer to dismiss the subordinate for absenteeism may be recognized by the court as unreasonable. As an example, the lawyer cited Ruling of the Moscow City Court No. 4g/7-8964/18 dated July 30, 2018, from which the following conclusion can be drawn: the employer did not provide the employee with the opportunity to explain the reasons for absence from the workplace, which means that he significantly violated the procedure for dismissal on his own initiative. On this basis, the dismissal was declared illegal, and the employer had to reinstate the employee in his position, pay him the average salary for the period of forced absenteeism and compensate for moral damage.

If after a reasonable time there is no answer or the letter is returned due to the expiration of its storage period, it is necessary to draw up an act of refusal to provide explanations. It is he who may be needed to justify the subsequent dismissal in court.

Sample act of refusal to provide written explanations

Sample letter with questions about the reasons for absenteeism

If the employee appeared at work and did not provide supporting documents, on the same day he must be given questions about the reasons for his absence. He has two working days to write his explanation. If after this time no explanations are provided, on the third day an act of refusal to provide written explanations is drawn up. If substantive explanations are provided, proceed to the next step.

Step 5. Assess the validity of the reason for the absence

(if there is an act of refusal, this step can be skipped)

If the management decided to dismiss the perpetrator, the order is issued according to unified form T-8. Registration of dismissal for absenteeism is carried out according to article 81 of the Labor Code of the Russian Federation.

Sample letter of dismissal for absenteeism

Step 8. We introduce the employee to the order

The employee must be familiarized with or applied to him a disciplinary sanction (no matter what it will be - a reprimand or dismissal) within three working days from the date of its publication (not counting the time the employee was absent from work). If he refuses to familiarize himself with the order, an act is drawn up in an arbitrary form in the presence of two witnesses.

Step 9. Fill out a work book

Sample entry in the work book upon dismissal for absenteeism

Step 10. Issue a work book

On the last working day, the employee must be paid all the cash payments due to him, as well as. For its receipt, the recipient signs in.

If he refuses, we draw up an act in any form in the presence of two witnesses.

If a person is actually absent on the day of his dismissal (the last day of his work), the employee of the personnel department on this day is obliged to send a notification about the need to appear for his work book or agree to be sent by mail.

If the person did not come and did not provide consent, the employer is obliged to keep such work book for 75 years.

Express your opinion about the article or ask the experts a question to get an answer

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 turning to specific questions, consider general order liability 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. And do it better 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 " main book. 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 severance pay in the amount of a two-week average salary 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 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, like for any other disciplinary offense, can be punished b Art. 193 Labor Code of the Russian Federation:

within a month from the date of its discovery, not counting the time 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 responsibility:

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 in which she asked to be given leave without saving wages 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 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 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 O 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 own will. 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?

: No. Dismissing an employee the day before the first day of absenteeism, that is, in your situation on March 25, 2011, is incorrect. After all, according to general rule the day of termination of the employment contract 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.

The percentage of the restoration of an employee at his former place of work after dismissal for absenteeism is high. In most cases, this is due to a violation of the dismissal procedure. Judicial practice and the accumulated experience of companies will help to eliminate the "white spots" of the legislation.

Grounds for dismissal

The right of the employer to dismiss an employee in case 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 throughout the working day (shift), regardless of its (her) duration, as well as in 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 (paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2):

absence from work without good reason, that is, absence from work throughout the working day (shift), regardless of the length of the working day (shift);
the presence of an employee without good reason for more than four hours in a row during the working day outside the workplace;
leaving work without a good reason by an employee on an indefinite employment contract without warning the employer about the termination of the contract;
leaving 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 leave on vacation (basic, additional).

Determining the period of absence of an employee from work and the validity of the reasons for such absence are especially problematic moments for the employer. Thus, neither the courts nor labor law specialists can clearly answer the question of whether to include meal breaks in the four-hour period of absenteeism. There are two points of view on this issue.

Position 1. The lunch break should be included in the 4-hour period of absenteeism. If this is not done, then it is almost impossible to dismiss 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. This means that the lunch break cannot interrupt the period provided for by Art. 81 of the Labor Code of the Russian Federation (subparagraph “a”, paragraph 6 of 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 eating as a rest time. This means that the employee at this time is free from the performance of labor duties. Absence from the workplace at this time cannot be blamed on the employee and entail disciplinary liability.

The second point of view in judicial practice is more common, but the final decision remains with the employer.

The next controversial point 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, realizing the possibility of checking 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 misconduct, attitude to work, the impact of the employee’s absence on the work process, and the circumstances of the misconduct. The judges considered the following reasons for the absence of an employee to be respectful:

participation in court proceedings;
leave without pay, due to the employee in accordance with the Labor Code of the Russian Federation;
absence from work after two weeks have elapsed from the date of the written warning of the employer about the desire to quit;
feeling unwell (documented);
child's illness, which is confirmed by a doctor's certificate, extracts from medical card(even when sick leave only open the next day)
carrying out emergency repairs in the employee’s apartment (confirmed by a certificate from the HOA, housing office, etc.);
finding an employee on the way to the place of study and back;
suspension of work due to a delay by the employer of more than 15 days of payment of wages (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).

If a dispute arises about the legality of dismissal, the employer is obliged to prove the fact of absenteeism. Therefore, it makes sense to resort to dismissal for absenteeism only if there is indisputable evidence of the lack of respect for the reasons for absence from the workplace, as well as documented information about the absence of the employee within a 4-hour period of time.

Important! The dismissal of an employee for absenteeism during a period of temporary disability, the employee's stay on vacation, as well as during the pregnancy of an employee 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 dismiss an employee for absenteeism before he appears at work, because the reason for the absence may 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 exclude possible reasons for the emergence of a labor dispute with an employee.

Step 1. Identify the absence of an employee. The law does not give precise recommendations in this regard. Any employee of the enterprise can detect that an employee is absent: a timekeeper, immediate supervisor, colleague. If there is no information about the location of the employee or the reasons for the absence, any of the named employees notifies the management of the enterprise in writing.

Documentation: memorandum; time sheet (with the mark "НН" - absence for unexplained reasons).

Step 2. Draw up an act on the absence of the employee at the workplace. Here it is important to correctly fix the period of absence. The act is drawn up on the same day when the absence of the employee is revealed, otherwise the court will not recognize the reliability of the evidence. Record in the act: the fact of absence, the time of absence, the time of drawing up the act, enlist the signatures of at least 3 people from those employees who are near the workplace and have the opportunity to observe the place of the absentee. Please note that if an employee is absent for more than a day, then acts must be drawn up daily.

Documentation: an act of absence of an employee at the workplace. It is advisable to draw up two documents - by the middle and by the end of the working day.

Step 3: Ask the employee for an explanation. This can also be done orally if the employee immediately provided an explanation. Otherwise, draw up the request in writing and hand it to the employee under a personal signature. If the employee refuses to receive the demand, draw up a free-form refusal act with the signatures of at least three employees of the company, which will attest to the fact of refusal.

If the employee does not appear at the workplace for a long period, send him a request by mail with a return receipt, which must indicate the date the employee received the document.

Documentation: the requirement to provide a written explanation; an act of refusal to receive a claim.

Step 4. Get the employee's explanations or record the refusal of explanations. After sending the request for a written explanation, the employee has two days to explain his absence. The countdown of days starts from the day following the day of the request transfer. Within the same period, the employee may present evidence of good reasons for the absence. The explanation is in writing. If after two days the employee does not explain himself, then an act of refusal to provide explanations must be drawn up. The act is certified by the signature of at least three employees.

Documentation: explanation of the employee (explanatory note); an act of refusal to provide explanations.

Step 5. Internal investigation. It is used when it is not known whether the reason for the absence was valid, or when the employee does not get in touch. If it is not clear whether the employee is at fault, then it is better to create a commission to investigate. The commission will draw up an act of an internal investigation, it indicates the circumstances that were found out.

Documentation: an order to establish a commission to conduct an internal investigation, an act of internal investigation.

Step 6Deciding on the extent of responsibility. Dismissal acts as a measure of disciplinary responsibility, but the employer is not at all obliged to dismiss such an employee. You can apply other disciplinary measures - a remark or a reprimand. Any decision is made by the employer.

Documentation: the idea of being held accountable.

Step 7Dismissal. As a general rule disciplinary action may be applied by the employer no later than one month from the day the misconduct was discovered and no later than six months from the day it was committed. Violation of these terms gives grounds for recognizing the dismissal as illegal.

So, if the decision to dismiss was made, then it is recommended to check the reasons and duration of the absence again. After checking, collecting evidence and completing the above documents, you can issue a dismissal order. Familiarize the employee with this document under signature - 3 days are allotted for this from the moment the order is issued, not counting the time the employee is absent. In case of refusal to sign, draw up an act. On the day the employment contract is terminated, give the employee a work book and make a calculation (on the day the employee appears at work).

Note that the law does not provide for liability for the discrepancy between the last working day and the day of termination of the employment contract. The last day of the employment contract is the day preceding the first day of absenteeism, it is he who is the last day of the employee's work.

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