How to properly dismiss an employee for absenteeism

Absenteeism, unfortunately, is a fairly common occurrence not only in educational institutions; it also happens in the workplace. Employers who are dissatisfied with the unjustified absence of an employee may refuse to continue to cooperate with the truant, dismissing him under the relevant article of the Labor Code. At the same time, in order for such a dismissal not to be challenged in the future, it is necessary to strictly comply with the administrative “regulations”, and most importantly, to correctly qualify absenteeism from the point of view of labor legislation.

Question: Is it legal to dismiss an employee who does not go to work during a period of downtime if the employer’s LNA does not indicate the employee’s right not to go to work during such a period? View answer

The absentee does not agree with the dismissal: can it be challenged?

Absenteeism is a violation so serious that even a single proven case is sufficient by law to dismiss the offender. After all, sometimes employee absenteeism can be fraught with serious unpleasant or even fatal consequences for the entire activity of the enterprise.

However, when dismissing on the basis of absenteeism, the employer must strive to avoid mistakes that could lead to challenging the dismissal in court. If the decision is positive, the plaintiff’s dismissal for absenteeism will be considered illegal.

Question: The employee presented the employer with a sick leave certificate for payment. When checking the authenticity of the sick leave certificate presented, it turned out that it was fake. Is it possible to fire an employee for absenteeism in this case? View answer

This entails the reinstatement of the dismissed person in his previous position with payment of salary for the entire period, from unfair dismissal to the end of the trial, and in some cases, compensation for moral damage. This, unfortunately for the employer, is possible if:

• the reason for dismissal for absenteeism was a fact that is not absenteeism as defined by legislative documents;
• the algorithm of actions during the dismissal procedure due to absenteeism was violated;
• There were errors and inaccuracies in the preparation of relevant documents.

Let's consider how to maintain accuracy in each of these points so that everything is flawless from the point of view of current legislation.

Question: An employee submitted a written application for three days of leave at his own expense in connection with the death and funeral of his brother. The General Director, who accepted the application, verbally authorized the granting of leave. However, the application does not contain a visa for the general director, and no order was issued to grant leave. The employee did not show up for work. Is an employee subject to dismissal for absenteeism? View answer

The employee voluntarily went into self-isolation without sick leave. Is this truancy?

In the appeal ruling of the Moscow City Court dated November 24, 2020 in case No. 33-417067/2020, the court considered the employee’s reference to the fact that there was a colleague sick with coronavirus in the community, and therefore the plaintiff considered it possible to comply with the self-isolation regime and not go to work, untenable , since the evidence presented to the court confirmed that the plaintiff fulfilled his work duties at another place of work, and with regard to the named employee, all requirements regarding labor protection by the employing company were observed. If an employee has not submitted a sick leave certificate and there is no order from management, but he is in self-isolation without any reason, then it is permissible to fire him for absenteeism.

Dismissal for absenteeism is associated with many nuances, which is confirmed by the report of Rostrud and judicial practice, and these nuances must be taken into account by the personnel officer when preparing documents.

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Truancy through the eyes of the law

The Labor Code of the Russian Federation in subparagraph a 6 of paragraph 1 of article 81 clearly defines this disciplinary violation and describes the possible actions of the employer provided for in legislative acts.

Question: Is it possible to fire an employee for absenteeism who did not notify the organization of his absence from work in connection with participation in elections as a member of the election commission, if the election commission received a proposal from the employee 3 days after the elections? View answer

According to the Labor Code, absenteeism is an employee being outside the workplace during the working day or shift (regardless of its duration) or being absent during working hours for more than 4 hours in a row or cumulatively for a shift for reasons considered disrespectful by the employer.

NOTE! Exactly 4 hours of absence is not absenteeism! Lunch break is not included in the time calculation.

Question: Can an organization fire an employee for absenteeism if, when transferred to remote work, but in the absence of a written agreement for the transfer, the employee does not appear in the office, considering the terms of the employment contract to be changed? View answer

When an employee can legally not go to work

The Labor Code stipulates situations when an employee is not present, but this is not absenteeism. Here they are.

Disease

In an ideal world, a sick employee calls a doctor and receives a certificate of incapacity for work - paper or electronic. I inform the employer that I am on sick leave and will not come. Instead of a salary, he receives an allowance. Then the employee closes the sheet and on the day he goes to work, hands it over to the accounting department or gives the number.

Article: How to calculate benefits for an employee on sick leave

But it happens that an employee cannot call and warn. For example, due to high temperature. If an employee reported sick leave later or did not bring it on the first day after illness, this is not a reason to fire for absenteeism - Definition of the Armed Forces No. 69-KG13-4.

Another story is when an employee says that he was sick, couldn’t go out, didn’t call a doctor, but today he felt better. The courts evaluate illness without sick leave something like this.

If an employee does not come out and call, and then explains that he is not feeling well, he can be fired for absenteeism. A skipping waitress lost a similar dispute with her employer - case No. 88-6995/2020.

But the courts usually do not recognize one or two days before the start of sick leave as absenteeism. They believe the employee that he felt bad, he just didn’t get to the doctor. For these days, an act of absence from work is drawn up so as not to accrue wages.

The authenticity of the paper certificate of incapacity for work can be checked on the website of the Social Insurance Fund. If you suspect a sick leave from Photoshop, look at the signs of a fake sick leave. And the stolen forms are on the list of invalid certificates of incapacity for work. Fake paper sick leaves, of course, are not paid for and are not accepted as proof of illness.

Special leave

Employees go on regular annual leave as scheduled; they cannot go on vacation without permission. But the Labor Code contains vacations, the timing of which does not depend on the employer. For example, to pass a test or meet your wife from the maternity hospital.

Article: List of holidays required for employers

If an employee wrote an application for special leave, but the employer did not let him in, this is not absenteeism - clause 39 of Plenum Resolution No. 2.

Refusal to leave vacation early

An employee can be called back from annual leave only with his consent. An employee does not want to go out - this is not absenteeism. He does not have to explain the reason - clause 37 of Plenum Resolution No. 2.

Refusal to work on a day off

It is possible to give an employee a day off or a working holiday only with his written consent. An exception is when it is necessary to eliminate an accident, consent is not required - Art. 113 Labor Code of the Russian Federation.

Salary debt

An employee has the right to stop work if wages are delayed for more than 15 days. He received a written warning from the employer. And from the employer - the average earnings for all non-working days.

The employee is obliged to go to work the next day after the employer’s written notification of readiness to pay wages. The military, civil servants, housing and communal services and ambulance workers do not have the right to stop work - Art. 142 Labor Code of the Russian Federation.

Change of schedule

The new shift schedule is announced a month in advance - Art. 103 Labor Code of the Russian Federation.

An employee may not respond to verbal requests to work outside his shift. And you can’t skip your shift at all; an example is case No. 33-9958/2016.

Translation without consent

An employee can be demoted or transferred to another location if she changes her place of work only with his consent - Art. 72, 72.1 Labor Code of the Russian Federation.

If an employee was told to go to a point at the other end of the city on Monday, but he did not go, this is not absenteeism - clause 40 of Plenum Resolution No. 2.

Article: how to legally change the terms of an employment contract

Dangerous job

An employee is not obliged to risk life and health if the employer violates labor protection. You cannot be fired for refusing to work in an office without heating in winter or breathing fumes - Art. 219, 220 Labor Code of the Russian Federation.

Article: how to organize labor protection in a small enterprise

What else will be considered absenteeism?

The legislation also includes absenteeism as absenteeism in the following cases:

• unauthorized termination of work before the expiration of the employment contract;
• time off that was not agreed upon with management (the employee’s right to rest for reasons provided for by law, for example, after donating blood, is not considered time off);
• did not work the required two weeks after submitting the resignation letter (or 3 days if the outgoing employee is on a probationary period);
• unauthorized departure on vacation not included in the schedule.

ATTENTION! If the employer has not provided the leave required by law, the time of which is not left at his discretion, then even unauthorized rest in this case cannot be considered absenteeism.

The employee wrote a letter of resignation without specifying the date

In the resignation letter submitted to the employer, there was neither the date of drawing up the document nor the date of dismissal. In the lawsuit, the employee explained this by saying that he initially did not intend to quit, and wrote the application under pressure.

The boss, before giving the application to the personnel officers, himself counted down two weeks until the beginning of the month.

The employee went to court.

The court's decision

The court supported the employee and pointed out important details:

• the parties did not reach an agreement on termination of the employment contract at the initiative of the employee;
• there is no evidence of agreement with the plaintiff on the date of dismissal;
• when dismissing at his own request, the employer was not convinced of the employee’s will;
• The Labor Code does not provide for the employer to independently determine the date of dismissal of the employee at his own request without the consent of the employee;
• filing a lawsuit to declare the dismissal illegal is precisely proof of the lack of voluntary expression of will.

Convenient employee accounting, salary calculation, sick leave, vacation pay, taxes and contributions, dividend calculation.

To learn more

What reason for absence will be approved?

The Labor Code does not provide a list of valid reasons for absence from work; usually these are considered to be events supported by documentary evidence. In the event of an appeal against dismissal, the court will not consider the following to be absenteeism:

• temporary loss of ability to work due to health reasons - a certificate from the treating organization is required;
• emergency situations (natural disasters, communal troubles, misfortune that happened to loved ones);
• transport problems (disruption of public transport, flight delays or cancellations, etc.) - it is better to obtain a certificate from the transport company;
• performance during working hours of public or state duties provided for in Art. 170 Labor Code of the Russian Federation;
• donation;
• strike of company employees;
• the employee being in custody;
• absenteeism from work overtime;
• disagreement to interrupt a planned vacation;
• absence from performing activities prohibited to the employee for medical reasons;
• refusal to transfer to work in another location.

IMPORTANT INFORMATION ! If an enterprise delays employees’ salaries for more than 15 days, then employees can suspend work activities by notifying their superiors in writing, and this cannot be regarded as absenteeism.

If the manager voluntarily released the employee at his request, of course, his absence is not absenteeism. But if the boss wants to fire a person for some reason, he may take advantage of this situation in bad faith if permission to leave the job was given privately. If the employee is not on the best terms with the employer, then in such circumstances it is better to record the permission in writing or talk to the manager in the presence of several people.

The employee withdrew the application by email on the last working day at 17.24

The employee first wrote a letter of resignation, but later, after thinking about the situation, he decided to withdraw it. He approached management, but they refused to accept his application. Therefore, he decided to send feedback to the company email and notify management about it via SMS message.

The employer considered that the employee had abused his right by withdrawing the application on the last working day at 17.24 by email.

The court's decision

The court reinstated the employee. According to Part 4 of Art. 80 of the Labor Code of the Russian Federation, before the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time.

The Labor Code does not contain restrictions for an employee to withdraw his resignation letter by mail, telegraph, or e-mail.

The court did not consider the employer’s arguments weighty, namely the arguments that:

• the application to withdraw the application did not contain a signature;
• The electronic document does not contain data that allows the sender to be identified.

The employer must take into account the application and, in case of doubt, ascertain the will of the employee. But this was not done.

How to properly fire a truant worker

If the employer has decided to fire, and not to use other measures of influence permitted by law on the absentee employee (reprimand, deprivation of bonus, etc.), then he must adhere to the procedure prescribed by Art. 193 Labor Code of the Russian Federation.

Step-by-step algorithm for the employer:

1. Documentary recording of absenteeism by an act of absence from the workplace with signatures of witnesses or a memo in which the immediate supervisor notifies the superior about the absence of his subordinate from the workplace.
2. Requiring an explanatory note from a potential truant. It must be submitted within 2 days, otherwise the reason for absence will be considered unsatisfactory. If such a note is not received, an act of refusal of the employee to explain is drawn up.
3. Issuance of an order for the enterprise on dismissal according to subclause a, clause 6, part 1, article 81 of the Labor Code of the Russian Federation (form T-8, T-8a).
4. Familiarization of the dismissed employee with the order against signature within 3 days, drawing up a report in case of refusal to sign.
5. Making a corresponding entry in the work book and handing it over to the person being dismissed. If an employee does not show up for a work book, he is sent a notice of this possibility (by a notification letter or by courier to the address specified in the contract). It is strictly not allowed to send the work itself in this way.
6. Payment to the employee on the day of dismissal. Payment of wages for hours worked, calculation of compensation for vacation days if they are not used, and, if necessary, payment for sick leave.

FILES Act on absence from work (sample) in DOC Memo (sample) in DOC Explanatory note (sample) in DOC

See also: Completed sample and blank form of the T-8 form.

Long absence: difficulties of dismissal

01.01.70

In conditions of great dynamics in the labor market, cases are not so rare when workers, in search of a better life, go to other employers, “forgetting” to communicate their decision, without formalizing the termination of employment, and abandoning their work record. An employee's failure to show up at work can be caused by a variety of other reasons.

In such situations, when the reasons for an employee’s long absence from work are unknown, the employer must strictly comply with the requirements of the law when terminating the employment relationship with such an employee, so as not to suffer a fiasco in the event of legal disputes.

Basic Concepts

Definition of truancy

The concept of long-term absenteeism is not legally established. The Labor Code provides a definition of absenteeism, but it is not tied to its duration in days, weeks or months.

Document fragment

Since absenteeism refers to gross violations of labor duties by an employee, for which the most severe disciplinary sanction is provided - dismissal (Article 192 of the Labor Code of the Russian Federation), the author believes that there is no need to legislate the concept of long absenteeism. Since, in the absence of an employee at the workplace for one working day, and in the event of his absence from work for a week, several weeks, or a month, an equally strict sanction can be applied - termination of the employment contract at the initiative of the employer on the basis of subparagraph “a” of paragraph 6 part one of Article 81 of the Labor Code of the Russian Federation.

Types of truancy

To make it easier to navigate the issue that interests us, we will divide absenteeism into two conditional categories.

First category

– classic absenteeism, indicated in Art. 81 of the Labor Code of the Russian Federation, i.e. short-term. In case of short-term absenteeism, as a rule, the employer knows the whereabouts of the employee or can establish it (for example, when, after missing one working day, the employee returned to work or when he does not appear at the workplace, but he can be contacted by phone, email, or through other employees, etc.).

The employer's procedure in such situations is clearly described in Art. 193 Labor Code of the Russian Federation.

Before applying a disciplinary sanction, which in this case may be dismissal for absenteeism, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up. At the same time, the employee’s failure to provide an explanation is not an obstacle to applying disciplinary action. An act of refusal to provide explanations is drawn up with the signatures of the employees present. It is also necessary to document the fact of the employee’s absence from the workplace on a certain day by drawing up a report or collecting other evidence (testimonies of witnesses, reports of the absentee’s immediate supervisor, extracts from the logbook at the checkpoint, etc.).

If the reasons given by the employee in the explanation for absenteeism are not considered valid by the employer or the employee refuses to give explanations, the employer has the right to apply disciplinary action in the form of dismissal. The employer's order to apply a disciplinary sanction is announced to the employee under his personal signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the indicated order against signature, then a corresponding act is also drawn up.

Second category

- long walks.

During long absences, as a rule, it is not possible to find an employee and request an explanation from him regarding the reasons for absence from work (for example, when an employee does not show up at work, does not answer calls, and there is also no information about him at his place of permanent residence).

Long absence: algorithm of actions

The problem of dismissal during long-term absenteeism is somewhat more complicated than during classic blitz absenteeism for a number of reasons.

During long periods of absenteeism, objective difficulties arise in strictly complying with the requirements of Art. 193 Labor Code of the Russian Federation. If an employee does not show up at the workplace, then, accordingly, it becomes difficult to obtain an explanation from him regarding the fact of absence from work. However, the legislation does not prohibit in such cases from requesting explanations from the employee by sending him postal correspondence or a telegram to the address specified in the employment contract and the employee’s personal file.

In judicial practice, there have been cases when the court reinstated an employee at work on the grounds that it considered the receipt of a letter sent to the employee to be inadequate evidence that the letter contained requirements for giving an explanation for the fact of absence from the workplace. Therefore, it is better to send a valuable letter to the employee with an inventory of the contents and a notification of delivery or a telegram. The telegram should be sent with acknowledgment of delivery, as well as with the obligatory receipt of a certified copy by telegraph (see Example 1). The text of the notification letter may be more detailed (see Example 2).

Example 1

Example 2

The period for giving explanations should be counted from the date of receipt of the letter or telegram by the employee, and also add 3-4 days for mail delivery if the employee, for good reason, cannot get to work and sends explanations by letter.

If after two working days (plus several days for mail mileage) the employee does not provide the specified explanation, a corresponding report is drawn up. The act reflects the fact of failure to receive an explanation from the employee signed by a personnel service employee, the immediate supervisor of the absentee employee, or other employees.

At the same time, both in case of receipt of correspondence by an employee, and in case of its return to the sender after the expiration of the storage period, the fact of the employee’s absence from the workplace should be recorded from the first day of absence from work (see Example 3) or confirmed by other evidence (absence of the employee’s signature in the log registration at the checkpoint, witness statements, reports from immediate superiors, etc.).

Example 3

It is better to issue absence reports for each day the employee is absent from the workplace. At the same time, we strongly recommend that you do this day after day, and not “retroactively,” since in the event of a trial this fact may come to light, which may lead to a decision not in favor of the employer.

If the employee received a letter or telegram, as indicated on the notice, but did not show up at work and did not provide an explanation for the fact of absenteeism within 2 working days, the employer can safely dismiss the absenteeist.

Arbitrage practice

If the sent correspondence with a request to provide an explanation for the fact of absence from work was not received by the employee (the letter was returned after the expiration of the storage period, no one opened the door for the postman to deliver the telegram), it is better for the employer to play it safe and take a number of additional measures to find an employee: apply for wanted by the police, try to find out from the employee’s relatives (if the employer has information about them) what happened to him, send inquiries to hospitals. In practice, few employers take such measures, since they require time and effort. That is why employees who are absent from work for a long time for unknown reasons are fired for absenteeism without establishing the reasons for their absence.

However, if the reasons for absence are subsequently recognized by the court as valid, the court will reinstate the employee at work and oblige the employer to pay all amounts due to him, including forced absence.

In addition, by the time of the trial, a new employee may have already been hired to replace the improperly dismissed employee, who will have to be transferred to other positions or solve this problem by increasing the number of staffing units.

To avoid such negative consequences, it is better for the employer to take all available measures to find the employee, despite the fact that the law does not oblige the employer to search for the missing employee.

Registration of dismissal for long absence: main difficulties

So, having collected a complete set of documents confirming compliance with the requirements of Art. 193 of the Labor Code of the Russian Federation (requesting an explanation from an employee, drawing up reports of non-receipt of explanations, reports of the employee’s absence from the workplace, collecting written testimony, collecting other evidence of the employee’s absence), as well as making efforts to find an employee, as a result of which the employer came to the conclusion If the employee’s prolonged absence from the workplace is most likely not due to valid reasons, you can begin the procedure for terminating the employment contract.

According to the Labor Code of the Russian Federation, termination of an employment contract for any reason is formalized by order (instruction) of the employer.

The general procedure for formalizing the termination of an employment contract is enshrined in Art. 84.1 of the Labor Code of the Russian Federation, according to which the employee must be familiarized with the order (instruction) of the employer to terminate the employment contract under his personal signature. In the event that an order (instruction) to terminate an employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, a corresponding entry is made on the order (instruction).

In case of dismissal for absenteeism, in which the employee does not appear at the workplace after a long absence, it becomes impossible to bring the order to his attention. Therefore, the norm of Art. 84.1 of the Labor Code of the Russian Federation on the need to indicate on the order the fact that it is impossible to bring the contents of the order to the attention of the employee due to his absence from the workplace.

Date of termination of employment

The main question that arises when issuing a dismissal order for long absence is the date of termination of the employment relationship. The problem is that, according to Art. 84.1 of the Labor Code of the Russian Federation on the day of termination of the employment contract in all cases

is the last day of work of the employee, except for cases when the employee did not actually work, but in accordance with the Labor Code or other federal law, his place of work (position) was retained.

Based on this norm, the day of dismissal should indicate the last day of work, that is, the day preceding the first day of absenteeism. So, if an employee did not go to work on April 1 and did not show up at work over the next few days, then March 31 should be indicated as the day of termination of dismissal.

But then it turns out that the labor relationship between the employee and the employer ceased on March 31, accordingly, the employee after March 31 could no longer commit any labor offenses within the framework of the terminated employment contract. Consequently, dismissal for absenteeism cannot take place. In this regard, some experts propose to indicate in the dismissal order the date of termination of the employment relationship, which coincides with the date of issue of the order.

However, it is more correct, in our opinion, to indicate in the order the date of termination of the employment relationship as the employee’s last day of work, which will at least be in accordance with the provisions of Part Three and Part Six of Art. 84.1 Labor Code of the Russian Federation.

This point of view is also supported by the Federal Service for Labor and Employment. According to her letter No. 1074-6-1 dated June 11, 2006: “One of the grounds for dismissal for absenteeism (subparagraph “a”, paragraph 6 of part one of Article 81 of the Labor Code) may be abandonment of work by a person without a valid reason. who have concluded an employment contract for both an indefinite and a definite period. As a general rule, in all cases, the day of dismissal of an employee is the last day of his work. If an employee is dismissed for absenteeism, the day of his dismissal will be the last day of his work, that is, the day preceding the first day of absenteeism.”

Confirmation of the correctness of this position is also contained in part six of Art. 84.1 of the Labor Code of the Russian Federation, according to which the employer is not responsible for the delay in issuing a work book in cases where the last day of work does not coincide with the day of registration of termination of employment relations

upon dismissal of an employee on the grounds provided for in subsection. “a” clause 6 of the first article. 81 or clause 4 of part 1 of Art. 83 Labor Code of the Russian Federation. Thus, the legislator indicates that in case of dismissal for absenteeism, the last day of work does not coincide with the day of registration of the termination of the employment relationship.

Of course, this point of view is more reasonable and is supported by Rostrud and the State Labor Inspectorate during inspections. However, the position regarding the coincidence in the dismissal order of the date of issue of the order with the date of termination of the employment relationship has a right to exist, since in cases where the dismissal order indicates the last working day as the date of termination of the employment relationship, disputes may arise in court on this issue, which may or may not be resolved in favor of the employer. And in cases where the dates coincide, the courts, as a rule, do not make any claims, since the employees do not demand to change their dismissal date from a later to an earlier one.

Thus, this issue has not yet been clearly defined by law and resolved with indisputable certainty. Therefore, employers can only hope that if a dispute arises about the date of termination of the employment relationship, the court will side with them.

Grounds for dismissal for absenteeism

When registering a dismissal for long absence, questions also arise as to what to include as the basis for dismissal. In practice, there are cases when, upon dismissal for absenteeism, which lasted for a month, the order, as the basis for dismissal, indicated only the report for one of the days of absenteeism, and the employee at the trial presented evidence for that very day of absence from the workplace (certificate from emergency room, etc.), and he was reinstated at work by the court.

To avoid such situations, some experts recommend that the dismissal order indicate, for example, that “for absenteeism on April 01, 2010, for absenteeism on April 02, 2010, for absenteeism on April 9, 2010, apply a disciplinary measure - dismissal.” Since labor legislation does not contain restrictions on the possibility of applying one penalty for several offenses, if a truant worker presents supporting documents for one or two days of absenteeism, then he will no longer be able to justify himself for the rest. However, there are also opponents of this position, who refer to the fact that the Labor Code does not directly provide for the application of one disciplinary sanction for several labor violations by an employee. In addition, since absenteeism is considered by law to be a serious violation of labor duties by an employee, for which the most severe penalty is provided - dismissal, the meaning of indicating several days of absenteeism (in fact, several absenteeism) as the basis for dismissal is lost. However, orders that contain instructions for several absenteeism (several days of absenteeism) are, as a rule, not recognized by the courts as illegal, but are accepted as evidence of the employee’s absence from work for more than one day and are the basis for establishing the reasons for the employee’s absence from the workplace on each of the days specified in the order.

Time limits for applying disciplinary action

What should not be forgotten when dismissing someone for absenteeism is the timing of the application of this disciplinary sanction.

According to Art. 193 of the Labor Code of the Russian Federation, disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, 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.

A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

It should be borne in mind that judicial practice has developed such a concept as “continued absenteeism,” which assumes that the moment of discovery of absenteeism is not the day on which the employee’s absence was discovered, but the moment the reasons for his absence are clarified: it is at this moment that the offense is considered completed and discovered. However, the court, when considering each specific dispute, can resolve this issue differently, so it is better for the employer to play it safe and fire for absenteeism within a month, that is, choose those dates of the employee’s absence from the workplace that fall within the month before the date of issue of the order (see. Example 4).

Example 4

On the day the order is issued, a record of dismissal is made in the work book.

An entry in the work book about the basis and reason for termination of the employment contract must be made in strict accordance with the wording of the Labor Code or other federal law and with reference to the relevant article, part of the article, paragraph of the article of the Labor Code or other federal law.

In practice, entries about the dismissal article are usually made starting from the corresponding paragraph of the corresponding part of the relevant article of the Labor Code (see Example 5).

Example 5

According to part six of Art. 84.1 of the Labor Code of the Russian Federation “in the event that it is impossible to issue a work book to an employee on the day of termination of the employment contract 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.”

Thus, on the day the dismissal order for absenteeism is issued and an entry is made in the work book, the employer must send a letter or telegram to the employee about the need to appear for the work book or agree to have it sent by mail.

Missing person…

Now let’s consider the option when the employer did everything possible to find the employee: filed a corresponding statement with the police, interviewed relatives and acquaintances of the missing employee, called hospitals, etc. However, the comprehensive search measures taken did not bring any results: the worker disappeared and no one knows what happened to him. For such cases, the legislation provides for the option of terminating an employment contract on the basis of clause 6 of Part 1 of Art. 83 of the Labor Code of the Russian Federation: “Death of an employee or employer - an individual, as well as recognition by the court of an employee

or an employer – an individual who is deceased or
missing
.”

If there is no news from the missing employee for more than a year, the employer can legally recognize the missing employee as missing, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and Chapter 31 of the Civil Procedure Code of the Russian Federation. So, according to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested parties, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. If it is impossible to determine the day of receipt of the latest information about the absentee, the beginning of the calculation of the period for recognizing an unknown absence is considered to be the first day of the month following the one in which the latest information about the absentee was received, and if it is impossible to determine this month, the first of January of the next year.

And if the court satisfies the stated requirements to recognize the missing employee as missing, the employer will be able to terminate the employment contract with this employee under paragraph 6 of part one of Article 83 of the Labor Code of the Russian Federation.

In this case, the following entry is made in the work book (see Example 6):

Example 6

Missing or Truant: How to Make the Right Choice

So, the legislation offers two options for terminating an employment relationship with a long-term absent employee.

In this regard, the question arises in what cases should an employee who does not show up for work for a week, a month or more be fired for absenteeism under Art. 81 of the Labor Code of the Russian Federation, and when you should expect news about him for a year or more, and then, using the procedure for recognizing a missing citizen as missing in court, terminate the employment contract under clause 6, part 1, art. 83 Labor Code of the Russian Federation?

In each specific case, the employer must resolve the issue of the applicable article for terminating the employment relationship with a long-absent employee, based on many factors: the moral characteristics of the employee, his status, business qualities, the employee’s permanent place of residence, the territorial jurisdiction of cases of reinstatement and recognition citizen (missing employee) missing, etc.

Dismissal for absenteeism is always a disciplinary measure. Therefore, in each specific case, it is necessary to decide whether a penalty can be applied to an employee if the reasons for his absence from the workplace are not reliably known.

Example 7

In situations where an employee who has been working in an organization for several years, has established himself as an excellent specialist and responsible employee, suddenly does not show up for work, the employer should not make hasty decisions and fire him for absenteeism. Measures on the part of the employer to establish the reasons for the employee’s absence from work may show that he disappeared under strange circumstances - neither relatives, nor friends, nor acquaintances know about his whereabouts. At the same time, there is no need to be afraid that the employer will have to put the employee on the wanted list, and then recognize him as missing in court. If the missing person has relatives, then they will carry out all these actions. The employer will need to issue an order based on the court decision and make a corresponding entry in the employee’s work book.

Source: “HR service and personnel management of the enterprise”, 2010, No. 4.

https://www.delo-press.ru/magazines/staff/issue/2010/4/12419/

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Terms of dismissal

When carrying out the dismissal procedure due to absenteeism, the employer must not only ensure full compliance with the sequence of actions, but also take into account the statute of limitations for holding a person accountable for the offense committed. Current legislation, in particular Art. 193 of the Labor Code of Russia allows you to punish an employee for absenteeism within 1 month from the date of commission of unlawful actions. This period may be interrupted, for example, due to a person being on vacation or temporary disability, which will be confirmed by relevant documents. The maximum extension period for dismissal is 6 months. After this, it is impossible to bring the person to disciplinary liability.

The employee learned about the layoff a month later than others

The employee was notified of the staff reduction almost a month later than the rest of the staff. The employer explained this by saying that he was waiting for his return from vacation. At the time of notification of the current situation, there were no vacant positions left in the company.

It turned out that only one employee was fired due to staff reduction without assessing the priority right to remain at work. The remaining personnel were transferred to other places.

The dismissed man decided to defend his rights in court.

The court's decision

The first instance did not see any violations, but the appeal agreed with the employee - the employer did not take into account his preferential right to remain at work. This opinion was also supported by the cassation.

The court clarified another important detail: “compliance with the plaintiff’s labor rights and the guarantees established by labor legislation could not be made dependent on the employee being on regular paid leave and worsen his situation compared to other employees who were not on regular paid leave.”

Where to go

Citizens who believe that their rights have been violated, and the situation is related to issues within the scope of labor legislation, it makes sense to write a complaint against the employer to the State Labor Inspectorate, or to apply to the prosecutor's office. However, the Labor Inspectorate and the prosecutor's office cannot oblige the employer to compensate for the damage caused to the dismissed employee.

This is only within the competence of the court. It is typical that the State Tax Inspectorate and the prosecutor’s office, if they notice any serious violations, in the vast majority of cases also go to court. If, in parallel with this, the employee himself files a claim, then parallel paperwork will be organized. One month is given to file a claim in court regarding illegal dismissals. You will need to attach copies of all relevant documents to it.

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Dmitry Leonov

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