Absenteeism is one of the most common types of employee dismissal. And often, from the employer’s point of view, the situation looks like absenteeism, but the motive of an employee who is absent from the workplace is not always his desire to absenteeism. Yes, of course, if an employee is absent from the workplace during the working day (during his working hours), then this can be considered a violation of labor discipline. However, one should not make hasty decisions, but first of all, correctly qualify such a violation - establish whether the employee’s absence from the workplace is absenteeism.
What is considered truancy? If an employee is absent from the workplace for more than four hours in a row without a good reason, this is considered absenteeism. For committing this disciplinary offense, the employer has the right to apply a disciplinary sanction: reprimand, reprimand or dismissal.
The Labor Code does not document valid reasons for employees’ absence from work, so the main guideline is judicial practice.
Let's figure out what reasons can be considered valid?
Absence due to illness, but no supporting documents
It is not always possible to accurately determine the day an employee fell ill, because... he can seek medical help only the next day after the onset of the illness.
In this regard, the opinion of the Supreme Court of the Russian Federation is that the document justifying the absence of an employee from work - a sick leave certificate - confirms the employee’s incapacity for work, but not the moment of its onset, i.e. hour and minute. And even if the employee is unwell, and he left work before the end of the working day (shift, duty), but he received the certificate of incapacity for work only the next day, then in this case, dismissal for absenteeism will be illegal.
But it is necessary to take into account that before receiving sick leave, the employee must receive another document confirming his illness, for example, a certificate of seeking medical help or a certificate of health. Because not only a certificate of incapacity for work, but also a certificate or a doctor’s report can be evidence of an employee’s poor health.
But if an employee was absent from the workplace for a long time and provided a certificate of dental medical care as evidence of a valid reason, then such a reason will not be valid, because in this case, it confirms only a short visit to the doctor.
Who has the right to remove an employee from work?
Who signs the removal order: the head of the organization or can the head of the unit do it?
The answer to this question should be sought in job descriptions, other local regulations or employment contracts with department heads: if any of the documents states their right to remove subordinates from work, these officials have the right to issue appropriate orders.
Otherwise, only the head of the organization has the right to issue an order for removal.
But the head of a structural unit or the head (employee) of the personnel department has the right to record the fact that an employee has not provided a vaccination certificate or documents on contraindications in an act or official (report) note (example 1).
Absence due to a traffic accident
An employee is involved in an accident, and as a participant in it, he needs to wait for the arrival of traffic police officers. In this case, the reason for absence is valid, and the supporting document will be a certificate of the accident, which will indicate the date and time of the incident. Dismissal in such a situation for absenteeism will be illegal.
But if in such a situation the employee is absent from work the next day, for example, on the occasion of repairing a car or transporting it from another city, without informing the employer or manager about this, then this absence can be interpreted as absenteeism.
It must be taken into account that in all situations, the employee must negotiate his absence with the employer , obtain consent from him, and best of all, if it is in the form of an order or resolution on the submitted application.
What is the procedure for dismissing a missing (unknown) employee?
The procedure for dismissing a missing (unknown) employee is as follows. Dismissal is carried out on the basis of a court decision declaring the employee missing. You need to fill out standard dismissal documents (in particular, a dismissal order and a work book).
Terminate the employment contract on the date the specified court decision enters into legal force. But the dismissal documents may have to be drawn up later, in case you received the court decision after its entry into force.
Give the work record book and amounts due to the employee on the date of dismissal to his relatives (other persons) only if this is provided for by a court decision.
The date of dismissal of an employee recognized by the court as missing is the date the corresponding court decision enters into legal force. This follows from clause 6, part 1, art. 83 Labor Code of the Russian Federation, para. 1 tbsp. 42 Civil Code of the Russian Federation, Part 2, Art. 13, art. 210 Code of Civil Procedure of the Russian Federation, Letters of Rostrud dated 09/05/2006 No. 1552-6.
You can check the date of entry into force of the court decision on the official website of this court.
Execute the dismissal documents (in particular, the order and work book) only when you have a court decision in your hands, but not before it comes into force. In practice, it is possible that such documents will have to be drawn up later than the date of dismissal. For example, if a relative of a missing employee contacts you with such a decision some time after it came into force. Then it is better to draw up the dismissal documents on the day the court decision is presented to you.
In this case, in order to avoid questions from regulatory authorities, we recommend that you draw up a report in any form, recording in it the date you received the court decision. Such an act will help you justify the execution of dismissal documents later than the date of termination of the employment contract.
Went on vacation at my own expense without approval from my superiors
There are cases when an employer is obliged to provide an employee with leave without pay, for example, up to five days upon the death of a close relative, registration of a marriage, or the birth of a child. You need to negotiate with the employer if we are not talking about such exceptions.
Without agreement with the management of the organization, the employee does not have the right to go on vacation. In addition, upon a written application from the employee, the leave must be formalized by a personnel order indicating its duration and type, with familiarization against signature.
However, exceptions are possible to any rule. If it is impossible to comply with the procedure for taking leave at his own expense, the employee may resort to any means available to him to notify the employer of his possible absence from the workplace. If this condition is met, the courts usually side with the employee and recognize dismissal as an excessive punishment that does not correspond to the severity of the offense. But the assessment of the situation in court will depend on the circumstances and the integrity of the employee’s actions.
You will learn:
Which employees will have to be suspended from work
? Who has the right to do this?
What to consider when drawing up a removal order
Is there a legal alternative to suspension?
What are the consequences of suspension for the employee and the employer?
Since vaccination against COVID-19 is included in the all-Russian vaccination calendar, the leadership of a number of constituent entities of the Russian Federation obliged heads of areas of activity to remove employees who did not get vaccinated.
Went on annual leave without permission
If an employee goes on annual leave without the required registration and without approval from his superiors, then you can be prepared for the fact that this can be defined as absenteeism. The decision of the courts proving the legality in this case is based on the fact that there is no evidence of the provision of the next vacation, its period has not been agreed upon, and the employee does not belong to the category for whom vacation can be used at a convenient time.
In this case, you should pay attention to the fact that if an employee goes on leave at his main place of work, this does not mean that he can go on part-time leave without approval and registration in the appropriate manner. This is confirmed by the judicial practice of the St. Petersburg City Court, where it was recognized that it was completely legal in a similar situation for the employer to fire a part-time worker for absenteeism.
Removal procedure
The removal procedure is triggered if the following conditions are met :
The Labor Code of the Russian Federation does not regulate the procedure for removal from work. In practice, the following procedure is used:
Absence due to bad weather conditions
In the event that the reason for an employee’s absence from work was bad weather conditions, and they are not related to emergency situations, then this can be regarded as absenteeism. This is because under these circumstances it is possible to get to work or inform the employer.
However, the Supreme Court of the Russian Federation, in a case dated September 12, 2019, ruled that an employee’s absence from work due to bad weather conditions may be a valid reason.
WHICH EMPLOYEES SHOULD BE REMOVED
Now let’s move from the sphere of regulatory legal acts to the area of explanations from officials. Let us consider and analyze the Joint Explanations of the Ministry of Labor of Russia and Rospotrebnadzor mentioned at the beginning of the article and the letter of Rostrud No. 1811-TZ, as well as the responses of officials on the website Onlineinspektsiya.rf.
First of all, let's deal with percentages. The decrees of the chief sanitary doctors of the constituent entities of the Russian Federation indicate a specific percentage of company employees for whom vaccination must be provided. More often it is 60%, but you can find 65% (St. Petersburg), 70% (Yakutia), 80% (Leningrad region) and even 90% (Chechen Republic). In some regions, sanitary doctors did not indicate this percentage at all (Dagestan, Volgograd region), probably meaning that all workers should be vaccinated (i.e. 100%).
In the Joint Interpretation, officials showed how to calculate the percentage of workers already vaccinated. Using this information, we will derive a formula to determine the number of workers who need to be vaccinated (for 60%):
Who belongs to the remaining 40%? This information can also be obtained from the Joint Interpretations. Officials believe that in order to stabilize the situation with the incidence of COVID-19, it is necessary to ensure collective immunity at a level of at least 80% of the payroll. The distribution should be as follows:
That is, the 40% (those who may not have a vaccination certificate) can include the workers listed in the right column of the table. If there are none or less than 40%, the list for vaccination may not include workers who do not have direct contact with people, are not at high risk of infection and will not cause the spread of infection (for example, those working remotely and at home). The employer is given the right to independently determine who will be included in the list of employees subject to vaccination .
Is it necessary to suspend workers who refuse vaccination from work if the target of 60% of those vaccinated has already been completed?
Rospotrebnadzor for the city of Moscow believes that employees who fall into 40% of the total workforce of departments located in Moscow, who are not vaccinated for various reasons, are allowed to work at the discretion of the employer[11].
Rostrud specialists also refer to this letter when answering citizens’ questions on the website Onlineinspektsiya.rf[12].
In the explanations on the website of the mayor of Moscow[13] we read: “When monitoring the implementation by employers of the resolution of the Chief State Sanitary Doctor, only compliance with the requirement to vaccinate the established number - at least 60 percent of the total number - will be assessed.
Subject to the fulfillment of this requirement, the employer must independently make a decision regarding employees who do not have a medical exemption from vaccination and refuse preventive vaccination, including taking into account the level of their epidemiological contacts and participation in the chain of transmission of the virus.”
The reason for the dismissal was the employee's wedding
In the organization where the employee worked, the collective agreement provided for the provision of leave to employees on the occasion of marriage registration for a period of up to five calendar days, one of which was provided with payment in the amount of the tariff rate (salary), and the rest - without pay.
The employee notified his immediate supervisor in advance of his absence from work in connection with the marriage registration orally. However, upon returning to work, the employee was required to explain the reasons for his absence in writing, after which he was fired for absenteeism.
Since the employee believed that he was fired illegally, he went to the court of the city of Khabarovsk (case No. 2-1303 / 2015 dated 04/01/15). His demands were: compensation for wages for forced absence, reinstatement to his job and compensation for moral damage.
The court of first instance, refusing to satisfy the claim and siding with the employer, argued that the reason for the employee’s absence from the workplace was not valid, because he did not notify in writing of his need to take time off in connection with the marriage registration.
The appeal decision of the Judicial Collegium for Civil Cases of the Khabarovsk Regional Court was diametrically opposite (case No. 33-3783 / 2015 dated June 24, 2015). According to the collective agreement, the plaintiff cannot be denied leave for marriage.
The fact that there is no written application for time off for personal reasons is not a reason for disciplinary action . This violation does not exclude the possibility that the employee may have a valid reason for absence. Since no adverse consequences arose as a result of this, the employee had not previously been brought to disciplinary liability, the court concluded that when dismissing the employee, the reason for his absence from work and the severity of the offense were not taken into account.
Ultimately, the court declared the dismissal illegal, the employee was reinstated, and the employer was ordered to pay the employee the average wage for the period of forced absence, as well as compensate for the moral damage caused.
