An employee is absent from work: does the employer have the right to fire him?

What is truancy

Absenteeism is considered a one-time gross violation by an employee of his work duties, which consists of the fact that he was not at his workplace without good reason:

• or throughout the entire working day or shift, regardless of its duration;
• or more than four consecutive hours during a workday or shift.

In addition, the Plenum of the Supreme Court of the Russian Federation, in Resolution No. 2 dated March 17, 2004, defined the following situations qualified as truancy:

• abandonment of work without a good reason by an employee employed for an indefinite period, without warning the employer of termination of the employment contract or before the expiration of the two-week period of compulsory service upon dismissal of his own free will;
• abandonment of work without a good reason by an employee employed under a fixed-term contract before the expiration of its term or before the expiration of a two-week work period upon dismissal at will;
• unauthorized use of days off;
• unauthorized departure on basic or additional annual paid leave.

The Labor Code of the Russian Federation allows the employer to dismiss an employee who has committed absenteeism. However, dismissal is lawful only if the reasons for absence from work for a controlled period of time were unjustified.

At the same time, the Labor Code of the Russian Federation does not contain a list of reasons that are valid. Therefore, the employer must independently determine in each specific case whether the employee’s absence from the workplace is considered a valid reason.

Recommendations to the employer in controversial cases

Determining the period of absence of an employee from work and valid reasons for such absence are especially problematic issues 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 fire an employee for absenteeism. The fact is that the Labor Code of the Russian Federation does not define a working day as working time before and after lunch. This means that a 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 point is whether the reasons for absenteeism are valid. 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;
• unpaid leave due to an 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).

If a dispute arises about the legality of dismissal, the employer must prove the fact of absenteeism. Therefore, it makes sense to resort to dismissal for absenteeism only if there is conclusive evidence that the reasons for absence from the workplace are not valid, as well as documented information about the employee’s absence for a 4-hour period. 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).

Prohibitions on dismissal for absenteeism

Labor legislation establishes a number of cases when an employer does not have the right to fire an employee for absenteeism. This cannot be done if:

• the employer did not understand why the person was not at work;
• the reason for the person’s absence from work was valid;
• the employee used rest days in a situation where the employer unlawfully refused to provide them and the time of use of such days did not depend on the discretion of the employer (for example, denying a donor days of rest immediately after each day of blood donation).

In addition, only one disciplinary sanction can be applied for each disciplinary offense.

Forgiveness

What to do if the employer decides to forgive the subordinate and not punish him to one degree or another?

This arrangement causes the least amount of trouble. According to the Labor Code, all previously listed documentation is used for disciplinary sanctions and reprimands. This means that the boss may not document absenteeism in any way.

The only thing that occurs most often in practice is explanatory ones. It is possible, but not necessary, to ask the employee to clarify the situation. It is possible that a day of work was missed for good reasons.

What mark is used in this case on the worksheet? It is enough to simply put “PR” in it.

Restrictions on dismissal for absenteeism

To fire an employee for absenteeism, it is important to take into account that the initiator of such separation is the employer. This means that you cannot part with the guilty person:

• during the period of his temporary incapacity for work;
• during his vacation;
• during other periods of absence, when the employee retains his place of work, including his position.

An exception to this rule exists only for cases of liquidation of the employer - organization or termination of activities by the employer - individual entrepreneur.

Deadlines for dismissal for absenteeism

The employer has the right to dismiss a specialist who has committed absenteeism no later than one month from the date of discovery of absenteeism, that is, from the day the employer discovered that the employee was absent from the workplace for an unexcused reason. This monthly period does not include the time:

• employee illness;
• his stay on vacation;
• necessary to take into account the opinions of the representative body of workers, if there is one.

At the same time, it is possible to dismiss the guilty person only within six months from the date of absenteeism.

About pregnant women at work

In addition, it is important to take into account that it is prohibited to fire pregnant women for absenteeism. The Labor Code of the Russian Federation protects women in an interesting position. In this case, it is possible to terminate the employment relationship at the initiative of the employer only when it comes to liquidating the company.

However, the law does not prohibit imposing disciplinary sanctions on pregnant women if they simply missed work. It is extremely difficult to prove that the employee has no valid reasons for such an action.

How to fire someone for absenteeism

In order for parting with an employee who has committed absenteeism to be lawful and not entail the risk of further disputes with him, the following mandatory conditions must be met:

• the employee’s absence from work for a controlled period of time is documented - for example, the employer has drawn up a corresponding report;
• the employee is required to provide written explanations of the reasons for absence;
• the employee either provided such explanations or refused to provide them;
• the employer issued an order to apply a disciplinary sanction in the form of dismissal for absenteeism and familiarized the employee with this order against signature;
• if the employee refused to sign the order, then the employer drew up a corresponding act about this;
• the date of dismissal corresponds to all the time limits mentioned above.

Record employee absence

So that no one has doubts later, absenteeism must be documented. Draw up a corresponding act. In it, record the day and time of the employee’s absence, as well as the day the document was drawn up. It is important that the dates match. A document signed retroactively will raise doubts in the judge’s mind if the truant decides to challenge the dismissal.

It is necessary that the document be signed by three people who can confirm that the employee did not go to work - for example, they work with him in the same office. If the absence lasts several days, the report must be drawn up daily.

It is important to familiarize the truant with the contents of the act against his signature when he appears.

Sample certificate of absence →

How to get explanations

It is impossible to fire an absentee employee if he has not received from the employer a requirement to provide written explanations of the reasons for his absence from work. Therefore, even if a person is not at work, you should still:

• convey to him the demand to provide an explanation;
• document the fact that the employee received this request.

Example. On the employer's requirement to provide written explanations

The carpenter of Symbol LLC did not show up for work for three days. “Symbol” sent him a request by mail to provide an explanation. In this case, confirmation of receipt of the demand by the carpenter will be a postal notification of delivery of the notice to him with his personal signature.

If a person simply disappeared for a long time and does not make himself known, then it is recommended to carry out work to find him, since the employer does not know what happened and whether what happened can be considered a valid reason.

Special categories of persons

The Labor Code provides protection to the most vulnerable categories of workers and is a guarantor of normal labor relations between the employer and subordinates. Before embarking on the process of early termination of the contract, the manager must find out which category of persons the person belongs to.

The legislative framework prohibits the dismissal of the following employees under the article:

• Pregnant women. It is worth considering that if the employee was pregnant at the time of dismissal, but did not know about it, then after presenting a certificate of pregnancy, the boss is obliged to reinstate the employee in her position. Moreover, even after the expiration of the employment contract, upon presentation of a certificate, the agreement will have to be renewed. But this does not mean that an employee can miss work without a good reason with impunity. No one has canceled disciplinary sanctions, therefore, in the absence of a medical report about poor health or other exculpatory documents, the manager can fine the employee, issue reprimands, and enter them into his personal file.
• Individuals who are officially employed in an organization, but have not yet reached the age of 18. Thus, Article 269 of the Labor Code allows for early termination of a contract at the initiative of the employer in case of absenteeism, but this will require additional procedures. It is necessary to obtain the consent of the labor inspectorate and the Council, which specializes in cases of minors.

In other cases, you should be guided by good or bad reasons for absenteeism. To protect yourself from illegal actions on the part of management, you should carefully study reviews about the organization. If you miss work due to poor health, you should notify the head of the department about the current situation and be sure to open and close your sick leave.

Arbitrage practice

The Tchaikovsky City Court of the Perm Territory considered a case that was initiated at the request of a janitor who was fired from his workplace, and the reason for the dismissal was absenteeism. The applicant claimed that he attended work regularly, and this dismissal was an unpleasant surprise for him. The plaintiff’s demands contained a desire to receive compensation payments for the entire period missed due to the employer’s fault, compensation for late payment of wages and compensation for moral damage.

The individual entrepreneur who acted as the defendant did not recognize the claim, as he considered his actions to be justified. Proof of absenteeism is the absence of a janitor’s signature on the specified day in the work log.

The court, having considered all aspects of the case, came to the conclusion that the entrepreneur had no grounds for applying such a strict disciplinary measure. The janitor worked for him for a long time and had never been subject to penalties before; moreover, all his colleagues spoke of him as a very responsible person. The fact that the employer still transferred wages to the employee for that day, despite the misconduct, also did not fit with the IP’s statement. In addition, the norms of Article 193 of the Labor Code were violated, according to which the truant should have been required to explain his actions or draw up a report on his failure to appear.

In connection with the clarified circumstances, the court decided to satisfy the plaintiff’s demands and pay him all the requested amounts.

Decision of June 19, 2021 in case No. 2-972/2017

• Look

Absenteeism: preventing a problem is easier than solving it

In order not to deal with the consequences, it is necessary to prevent the problem of employee absenteeism.

To prevent absenteeism, HR managers need to develop an inspiring corporate culture, regularly conduct surveys to identify problems in the team, motivate and encourage employees to work effectively.

If an employee feels like an important part of the company, he is unlikely to start skipping his favorite job without a serious reason (good reasons don’t count).

• Legislation

Concept of fine

It should be understood that the definition of “fine” by employers often means a penalty of another kind, known as “deprivation of bonuses” or deprivation of an employee of already accrued bonus amounts.

In essence, such a penalty is not much different from a fine, since the employee is deprived of certain monetary accruals.

But deduction of bonuses occurs only if the bonus system is provided for by local regulations in force in the organization or enterprise.

As for other methods of influencing negligent workers provided for by the Labor Code, they come down to a written reprimand, reprimand or dismissal (Article 192).