Absence from work for a valid reason. What is considered a valid reason for absenteeism?

Absenteeism is considered to be the absence of an employee from the workplace for more than 4 hours or the entire working day (shift) without confirmation of a valid reason (clause 6, paragraph “a” of Article 81 of the Labor Code of the Russian Federation).

Valid reasons can be divided into groups:

• personal reasons;
• force majeure;
• documented permission from the employer.

Valid reasons for absenteeism of a personal nature

There are a huge number of life circumstances, and not all of them are valid. Let's look at some of them.

Disease. An employee may be absent from work in case of illness. Usually an employee has a sick leave certificate, but sometimes he can refuse this in order to maintain his salary. Then the employee must provide a doctor’s certificate indicating the date of the appointment. A similar situation is that in case of illness of a child or another family member, you need to provide a doctor’s certificate or take sick leave to care for the child.

Medical examination at some enterprises this is a mandatory procedure under an employment contract (Article 213 of the Labor Code of the Russian Federation). If an employee did not take it on his own initiative and brought a certificate from a doctor, then absence is not considered absenteeism and is considered a valid reason. In addition, on the day of undergoing a medical examination, as well as donating blood, the employer is obliged not only to release the employee from work, but also to provide an additional day of rest and pay for these days. average earnings(Article 186 of the Labor Code of the Russian Federation).

Accident. To unexpected breakdowns in the sphere utilities include gas leaks, breakdowns of common house equipment, accidents, electrical short circuits, fires, etc.

Court. Participation in government processes will also be a valid reason: for example, if an employee is in court as a plaintiff or witness, represents an election commission, or participates in a strike (Article 414 of the Labor Code of the Russian Federation). Besides that government agency or public association who engaged the employee in this activity must pay compensation to the employee for the time he is absent from the workplace (Article 170 of the Labor Code of the Russian Federation).

Non-payment of wages. If the employer delays wages for more than 15 days, the employee has the right to suspend work until the delayed amount is paid, notifying the employer in writing in advance. However, it is impossible to suspend work during a period of martial law, a state of emergency, in bodies and organizations of the Armed Forces of the Russian Federation, by civil servants and in other cases (Article 142 of the Labor Code of the Russian Federation).

Force majeure situations

Road traffic accident or transport malfunction are valid reasons, if in the event of a malfunction of public transport it is impossible to get to the workplace by other transport. This also includes flight delays when returning from a business trip, vacation or other trip.

Epidemiological situation, natural obstacles: flooding, ice and others also make it difficult for an employee to get out workplace.

In this case, the employee needs to confirm that this circumstance occurred for serious reasons that arose unexpectedly, regardless of the employee. A link to messages from the Ministry of Emergency Situations, the media or transport services will do. Then they will be valid reasons.

Documented permission from the employer

Sometimes the reasons for missing a work day are known in advance: for example, a wedding, the birth of a child, an exam session in educational institutions and other reasons. In such cases, the employee has the right to additional unpaid days off, which are not considered absenteeism. To do this, the employee warns the employer in writing or by telephone. At the birth of a child, registration of marriage, death of close relatives, the period for granting leave is set at 5 calendar days. For other family circumstances and valid reasons, leave is granted by agreement between the employee and the employer (Article 128 of the Labor Code of the Russian Federation).

How to justify the reason for absenteeism

If an employee is absent from the workplace for a valid reason, it must be confirmed. In the absence of a valid reason, failure to appear will be recognized as absenteeism, which entails dismissal (Article 81 of the Labor Code of the Russian Federation) or imposition on the employee disciplinary action.

Art. 56 of the Code of Civil Procedure of the Russian Federation states: “Each party must prove the circumstances to which it refers.” That is, the employee must prove that he was absent for a good reason, and the employer, for his part, must prove the very fact of the employee’s absence. For an employer, such evidence may be an employee’s absence certificate, data from electronic systems for the arrival and departure of employees, and testimony of witnesses. For an employee, this is a sick leave certificate, documents about an accident drawn up by a police officer, an apartment flood report and other documents.

If the employee does not provide evidence, the decision remains with the employer. For example, in the case of an illness of an employee who did not go to a medical facility and does not have documentary evidence, recognition will depend on the decision of the employer, the reputation of the employee and the degree of trust in him by management.

The employee must inform the employer about his absence by phone, orally or in another way, if possible, documenting a valid reason for absenteeism (a summons, a document from a medical institution, etc.). Documentary evidence is more reliable and will help the employer make an informed decision, or cancel the imposed penalty for failure to appear.

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Dismissal for absenteeism is considered the most severe disciplinary measure allowed in the event of a worker’s absence from work for a long time. Next, taking into account the severity of the offense, comes: reprimanding the employee and financial penalty based on the system of fines developed by the organization.

Read more about absenteeism from work and the resulting liability in our article.

The concept of “truancy” through the prism of the Labor Code of the Russian Federation

In accordance with the provisions of Article 81 of the Labor Code of the Russian Federation, absence from work is recognized as absenteeism.

Absence from work must be accompanied by the presence of the following factors:

• lack of valid reasons;
• duration of absence exceeding 4 hours or equal to the duration of the entire work shift.

The absence of a worker who applied for work is not considered absenteeism. medical care who is on sick leave (due to deterioration of his own health, illness of a child, caring for a disabled family member), participating in investigative actions (court hearing).

All of the above circumstances must be confirmed by supporting documents.

This could be a summons, a certificate of incapacity for work, or a medical certificate. About what reasons for absence from work can be considered valid.

The right to suspend work and, accordingly, not go to work can be exercised by an employee who is not paid wages more than 15 days (Article 142 of the Labor Code of the Russian Federation). The employee must notify his employer of this intention in advance and in writing. Otherwise, when there is no documentary substantiation of the reasons, the worker may face dismissal due to absenteeism.

Article for absenteeism: application, judicial practice

According to subparagraph “a” of paragraph 6 of paragraph 1 of article 81 of the Labor Code of the Russian Federation, absenteeism can be a legal basis for terminating a contract with a worker.

At the same time, the law does not establish mandatory conditions, the presence of which may allow the most severe disciplinary sanction to be applied to the employee, i.e. dismissal. For example, the repetition of such actions, the presence of outstanding penalties, etc.

It follows that dismissal under the article in question is permitted even despite the one-time occurrence of such a violation of labor discipline.

As for judicial practice, there are often cases when the court recognizes the reinstatement as illegal and demands the reinstatement of the employee, since the employer did not take into account the severity of the offense, the employee’s previous behavior and attitude towards the performance of work duties.

About forced absenteeism and the extent of responsibility

Dismissal for absenteeism is not used as a punishment if the worker’s absence is considered forced or caused by the fault of the employer.

It could be:

• transfer of an employee to another position or illegal dismissal;
• deviation from deadlines at conclusion employment contract;
• untimely execution or complete inaction of the employer related to the implementation of a court decision regarding the reinstatement of the employee;
• incorrectly formulated reasons for dismissal in the employee’s work record book, preventing him from being hired for a new job;
• late submission (failure to submit) of a work book after dismissal.

Reprimand for absenteeism (download)

The highest degree of punishment – ​​dismissal – is not always used as a punishment. In some cases, the employer has the right to take into account the worker’s previous merits and limit himself only to reprimanding the latter.

The procedure for issuing a reprimand due to absenteeism and the procedure for its implementation will be similar to those applied upon dismissal (Article 193 of the Labor Code of the Russian Federation).

Fines

Despite the fact that labor legislation does not consider fines as a measure of punishment, it does not prohibit the establishment of them as a measure of punishment, based on the system of fines prescribed by the enterprise applied to absentees.

This type of punishment is possible only if there is information about it in local act organizations. Otherwise, imposing a fine will be considered illegal.

Litigation is a complex and serious process. When the case is ready for trial, the judge sets a date and time for the trial. Next, the parties to the trial and other participants are notified when and at what address the case will be considered. To do this, they are sent subpoenas called judicial notices. There are certain rules for serving subpoenas. In particular, this is done against signature, by registered mail with notification. A person who has received a summons is required to appear at the court hearing, unless there are valid reasons for failure to appear in court.

Why is it important to ensure the attendance of all participants in the trial?

In order for the trial of any case - criminal, civil or administrative - to be as complete as possible, the judge must interview all persons who can provide important information on the merits of the case. The plaintiff and defendant, suspect and victim, as well as witnesses must appear in court and answer the judge's questions in detail. The more diverse data there is on the case, the more objective the decision will be. And because it must be fair, it is imperative that all persons to whom court notices have been served be present in court.

Failure to appear in court without a valid reason - what are the consequences?

The obligation of a person who has received a subpoena to appear at a court hearing on the appointed day and time is established by law. If a person duly summoned to court ignores this duty without good reason, this is regarded as contempt of court and entails certain liability.

The degree of responsibility and sanctions depend on the capacity in which the person is summoned to court. So, if we are talking about failure to appear at a hearing in a civil or administrative case of a participant in the process, the fine ranges from 5 thousand rubles (for individual) up to 100 thousand rubles (such a significant fine can be imposed on government agencies). When a witness skips a criminal court hearing without good reason, the fine can be up to 2,500 rubles.

There is also the concept of forcibly bringing to a court hearing a participant in a process who systematically fails to appear at hearings. This is usually used in criminal cases.

Which reasons for being absent from a court hearing are considered valid?

Sometimes persons summoned to a court hearing cannot attend for compelling reasons. There is no list of them in legislative acts, but in practice it has long been formed. What are the valid reasons for failing to appear in court?

1. Quite a serious illness of a participant in the trial. A disease is considered serious if it prevents you from appearing in court in person. This also includes the summoned person being treated in a hospital hospital.
2. Receiving a subpoena too late, for example, directly on the day of the hearing, due to which the summoned person was unable to appear in court.
3. Being in business trip or departure for any reason good reason- a common valid reason for the failure of the defendant or other participant in the process to appear in court.
4. Inability to attend the meeting due to difficult personal circumstances (illness or death of relatives).
5. Force majeure. Force majeure circumstances - various types of disasters, accidents, accidents. For example, a temporary lack of access by transport from a populated area or a burst pipe in a house.

As a rule, valid reasons for failure to appear in court are limited to the above. But in each specific case the court decides this issue on an individual basis.

Reasons for absence that are not considered valid

Here everything depends on the court’s assessment of the circumstances of the non-appearance of the summoned person. Practice shows that, for example, leaving on a tourist package, even if purchased in advance, is not recognized by the court as a valid reason. A person who lives within walking distance from the courthouse will not be able to plead the inability to get to the court hearing due to transport problems.

In addition, it is necessary documentary evidence the reasons cited by the person. A certificate from the hospital with a doctor’s signature and seal, a travel document, a certificate from the housing department about the accident utility systems in the house - such documents must be provided to confirm valid reasons for failure to appear in court.

Actions releasing from the consequences of failure to appear in court

There is a legal opportunity to skip a court hearing and avoid liability for failure to appear. It is enough to apply to the court in advance with a request to postpone the date of the scheduled hearing or to consider the case in your absence. In this case, there is no need for special valid reasons for failure to appear in court; it is enough to refer to the impossibility of attending the hearing “due to family circumstances.” Usually the court is loyal to such statements and postpones the trial date without negative consequences for the applicant.

You will learn:

• What does the concept of “truancy” include and what are the measures to prevent losses from absenteeism
• How to correctly record an employee’s absence from work
• What measures can an employer take in relation to a truant worker?

In any organization, it happens that employees do not go to work. Sometimes, even if there are good reasons (for example, illness), the employee not only does not report his absence to the employer, but also does not confirm his absence from work with supporting documents. In this case, failure to appear is considered absenteeism.

But there are situations in which it is difficult to understand immediately: for a good reason, the employee stopped going to work or not, in which situations he can be fired, and in which - absolutely not. Often, a situation that is clear at first glance turns out to be far from being so simple upon further examination.

How to correctly assess the situation? What documents should be completed and within what time frame? How to prevent violations labor legislation? We will consider these and other questions in this article.

MEASURES TO PREVENT LOSSES FROM ABSENTANCE

The absence of an employee from work, even for a short time, disrupts the work process. To minimize damage, the organization must take a number of measures:

• The internal labor regulations must contain a clause obliging the employee to warn his immediate supervisor in advance about the impossibility of going to work, the reasons for absence and the expected period of absence. Fulfillment by the employee of the relevant obligations will help the manager make timely decisions on the distribution of the responsibilities of the absent employee among his colleagues;
• supervisor structural unit must have a list of employees whom he can entrust to perform the functions of the absent employee. The employees themselves, in turn, must be aware of the colleague’s affairs, which they will need to carry out in the event of his absence (not only unexpected, but also planned (for example, during a vacation or business trip));
• the manager must have specific instructions regulating his actions in the event of an employee’s absence without warning (example 1).

The instructions are of an auxiliary nature; they do not have to be issued on the organization’s letterhead and certified by the signature of the manager. The main condition is that they must contain a specific algorithm of actions.

Example 1

Memo to the head of the department on actions in case of employee absence

1. Call the employee at all telephone numbers known to you (home, mobile, etc.) and find out the reason and possible deadline his absence.
2. Ask your subordinates whether the employee has spoken about possible absence from work. If one of the employees is aware of the reasons for a colleague’s absence, ask them to state them in a memo addressed to the head of the organization.
3. Draw up a report on the absence of the employee, the measures taken to find him and their results.
4. Take all documents to the HR department and receive instructions there on further actions regarding the absent employee.

Specify in the documents as clearly as possible the employee’s workplace (workshop, machine, office number. If you have a chain of stores and regularly rotate staff, such specifics, on the one hand, will complicate the work personnel services, increasing document flow, on the other hand, will protect the interests of the employer.

A workplace is a place where an employee must be or arrive in connection with his work and which is directly or indirectly under the control of the employer. According to Part 4 of Art. 57 of the Labor Code of the Russian Federation, the condition of the employment contract about the workplace is an optional (that is, optional) clarification of the condition about the place of work. We recommend (if necessary) that an employee be assigned to a workplace not by an employment contract (in order to avoid subsequent problems with changing this condition of the employment contract), but by a unilateral document (an order for the organization, an order for the division, a notification, etc.).

When registering an employee - part-time worker focus his attention on the fact that part-time work (as opposed to freelancing) is being done regularly, he is entitled to leave, as at his main place of work, but it is prohibited to go on it without permission. As practice shows, many workers perceive part-time work as extra income if they have free time, not realizing that a second job is same obligations, as when performing the main one.

THE EMPLOYEE DIDN'T GO TO WORK: WE FIX A NO-SEE

On the first day of an employee’s absence from work, we cannot be sure that he is absent (or even absent) and not sick.

A clear record of absence will help if the fact of absenteeism is confirmed over time, and will not hurt if the employee brings a certificate of incapacity for work. The failure to appear report must be drawn up in the presence of two witnesses. It is better if employees from related departments act in their capacity - if an employee challenges his dismissal in court, he will not be able to refer to the alleged pressure exerted on witnesses by the manager.

The Labor Code of the Russian Federation does not oblige the employer to immediately begin an active search. But if the missing employee is a responsible person, lives alone, and his phone does not answer, we recommend going to his home - perhaps the employee needs urgent help.

For example, dentist N. did not come to work on time. None of the colleagues heard the doctor planning to leave urgently or complaining about feeling unwell. The head of the department called him throughout the day, but the phone was silent. Concerned about N.'s absence, she went to his house. Nobody opened the door. When the local police officer was called and opened the apartment, it turned out that the 45-year-old man was dead (as it turned out, due to a stroke).

In the event of an employee’s absence from work, the work time sheet is marked letter code“NN” or digital 30 (failure to appear for unknown reasons (until the circumstances are clarified)). If the timesheet is maintained:

If the organization is large, with a complex structure, for uniformity of document flow, the procedure for recording working time in the absence of an employee should be clearly stated in the local regulatory act.

If you are not sure that the employee is sick, it makes sense to draw up reports of his absence every day for the first week; in the future, you can limit yourself to a report of the employee’s absence during the week, drawn up on Fridays. This issue is not regulated by law, so you need to be guided by common sense and judicial practice.

The legislation also does not establish a fixed list of documents that must be completed when absenteeism. In the courts as evidence more often admit:

• time sheet with appropriate marks;
• acts or memos about the employee’s absence from the workplace;

SCIENTIFIC EDITOR'S NOTE

As well as certified printouts from the electronic system for recording the entry and exit of workers (paragraph 5 of clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1 “On the application of legislation regulating the labor of women, persons with disabilities family responsibilities and minors").

• notifications to the employee with a request to inform about the reasons for absence from work (Appeal ruling of the Moscow City Court dated August 2, 2013 No. 11-15221).

SCIENTIFIC EDITOR'S NOTE

In addition, if written explanations are not received from the employee, in accordance with Art. 193 of the Labor Code of the Russian Federation, an act of failure to provide explanations must be drawn up. In their practice, courts in most cases are of the opinion that the employer lawfully applied a disciplinary sanction, including dismissal for absenteeism, if the employee did not receive a notice to provide written explanations requested by telegram (or letter), for reasons beyond the control of the employer (Appeal ruling of the Moscow City Court dated July 28 .2014 No. 33-29793/14).

WE FIND OUT THE REASON FOR NO APPEARANCE

If an employee brings a certificate of incapacity for work or a certificate of seeing a doctor, all documents about his absence should be filed in the appropriate file. Destroy them absolutely not possible!

If the employee does not present supporting documents, in accordance with Art. 193 of the Labor Code of the Russian Federation, the employer is obliged to request from him written explanation. The Labor Code of the Russian Federation does not oblige the employer to draw up a request (notification) in writing (example 2 ® ), but in court a document is always a more powerful argument than words. Therefore, it is better to make a request in two copies, give one to the employee, and ask him to sign on the second.

Example 2

Notice of the need to explain the reasons for non-appearance

If within two workers days the employee does not provide written explanations, an appropriate report should be drawn up.

Failure by an employee to provide explanations is not an obstacle to applying a disciplinary sanction (including dismissal) (Part 2 of Article 193 of the Labor Code of the Russian Federation).

If an employee does not go to work for a month or more and does not answer phone calls, the search should be intensified. You can call him at home after work - there is a high probability that his relatives (and perhaps the employee himself) will be able to clarify the situation. Since it is difficult to attract witnesses to a telephone conversation in the evening, try to record the conversation on a voice recorder, and state the results of the call the next day in a memo addressed to the manager. Recording a telephone conversation by itself is not a sufficient reason for dismissal for absenteeism, but will be additional evidence that the employer is right.

It is also necessary to send registered letters with acknowledgment of receipt to all known addresses where the employee may be, with a requirement to explain the reasons for non-appearance in writing within 2 days, and if this is not possible, contact the HR department or immediate supervisor by phone.

SCIENTIFIC EDITOR'S NOTE

It's better if there are letters valuable With inventory of the attachment(to exclude speculation on the part of the employee) and, of course, with notification of delivery.

WHAT IS CONSIDERED A SHALKING?

Dictionary

Absenteeism— absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift) (subparagraph “a” » clause 6, part 1, article 81 of the Labor Code of the Russian Federation).

There is no exhaustive list of valid reasons for an employee’s absence from work. To assess an offense, one should be guided by judicial practice:

1. Good reasons absence from work, courts in some cases consider:

• visiting a lawyer to get advice about a violation labor rights(Decision of the Moscow Regional Court dated November 24, 2011 in case No. 33-26558);
• being on leave without pay when the employee is entitled to such leave by law in accordance with Part 2 of Art. 128 of the Labor Code of the Russian Federation (Appeal ruling of the Kemerovo Regional Court dated August 17, 2012 in case No. 33-7790);
• illness of the employee, including in the absence of a certificate of incapacity for work (Appeal ruling of the Supreme Court of the Republic of Mordovia dated February 21, 2013 in case No. 33-426/2013);

SCIENTIFIC EDITOR'S NOTE

Note that there is also the opposite judicial practice, for example, Resolution of the Chelyabinsk Regional Court dated July 10, 2014 No. 11-7179/2014 recognizing the abuse of the right of an employee not notifying the employer of his temporary disability and the absence in this case of obstacles to dismissing the employee at the employer’s initiative.

• fire, short circuit, emergencies, natural disasters (Appeal ruling of the Khabarovsk Regional Court dated March 1, 2013 in case No. 33-1372/2013).

2. For unjust reasons clearly admit:

• unauthorized termination of work before the expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation) or notice of dismissal (Part 1 of Article 80, Article 280, Part 1 of Article 292 and Part 1 of Article 296 of the Labor Code of the Russian Federation);
• unauthorized use of days off or unauthorized going on vacation (subparagraph “d”, paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code Russian Federation" (as amended on September 28, 2010).

The above lists are not exhaustive - it is impossible to foresee all life situations, but by focusing on them, you will be able to more objectively assess the degree of guilt of the employee.

HOW TO DEAL WITH A SHUTTER

According to the Labor Code of the Russian Federation, the employer has the right to dismiss an employee for absenteeism (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation), but is not necessarily obliged to do this. Moreover, in accordance with Part 5 of Art. 192 of the Labor Code of the Russian Federation, when imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.

Extraction

from the Labor Code of the Russian Federation

Article 193. Procedure for applying disciplinary sanctions

Before applying disciplinary action, 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.

Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.

Disciplinary action 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, but based on the results of an audit, inspection of financial and economic activities or audit- later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction can be applied.

The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against 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 specified order (instruction) against signature, then a corresponding act is drawn up.

A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

ADVICE

If you are not sure that the employee is absent without good reason, we recommend periodically calling him in the presence of witnesses, drawing up reports on the results of negotiations, and also periodically (for example, once a month) sending registered letters demanding an explanation for absences.

If the employee is actually absenteeism, you should write a memo addressed to the head of the organization detailing all the circumstances that qualify the employee’s absence as absenteeism, and attach to it all available documents (absence certificates, notifications of delivery of registered letters or returned letters, employee memos , clarifying the circumstances of non-appearance, etc.). These documents are the grounds for dismissing an employee for absenteeism, and all of them must be listed in the dismissal order. The date of dismissal of the employee will be the date the head of the organization signs the order to dismiss the absentee (Parts 3 and 6 of Article 84.1 of the Labor Code of the Russian Federation). In the order (as in the work book and personal card), the entry about the reason and basis for dismissal must exactly repeat the wording set out in the Labor Code of the Russian Federation (“dismissed/dismissed for absenteeism”).

The situation with missing workers is ambiguous:

PLEASE NOTE

It is prohibited to fire pregnant women, even if the fact of absenteeism is confirmed!

THE EMPLOYEE IS FIRED. WHAT'S NEXT?

Part 2 Art. 84.1 of the Labor Code of the Russian Federation obliges the employer to familiarize the employee with the dismissal order against signature, and part 4 of the same article - to issue it on the day of dismissal work book.

According to Part 6 of Art. 84.1 of the Labor Code of the Russian Federation, if an employee is fired for absenteeism, the employer is relieved of responsibility for storing the work book, but there is an obligation to issue it no later than three days from the date of receipt of the employee’s written request.

On the dismissal order, a note should be made about the impossibility of bringing its contents to the attention of the employee due to his absence from work (Part 2 of Article 84.1 of the Labor Code of the Russian Federation). We recommend making a similar entry in your personal card.

Regardless of the reason for dismissal, on the day of dismissal you must make a full settlement with the employee: pay all due wages, as well as compensation for unused vacation. If the employee does not have a bank card, the accrued amounts are deposited.

Strict adherence to all the measures described in this article will help you avoid mistakes when parting with truants and prove your case in court.

Conclusions:

1. A clear record of absence will help if the fact of absenteeism is confirmed over time, and will not hurt if the employee brings a certificate of incapacity for work.
2. Failure by an employee to provide explanations is not an obstacle to applying disciplinary action. When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.
3. Regardless of the penalty applied, it is necessary to strictly observe the procedure prescribed in Art. 193 Labor Code of the Russian Federation.

Accordingly: temporary disability with benefits, temporary disability without pay or absenteeism.

Accordingly, there is no need to send an employee fired for absenteeism a notice of the need to pick up his work book - Note scientific editor.

The employee was absent from the workplace without good reason for the entire working day. They were given no explanation. What actions are possible for the employer in this situation? Is it possible to fire an employee for?

An employee’s absence from the workplace without good reason during the entire working day, as well as absence from the workplace without good reason for more than four hours in a row during the working day, is regarded as absenteeism. In the event of such a one-time gross violation by the employee of his labor duties, he may be terminated at the initiative of the employer in accordance with paragraphs. "a" clause 6 of part one of Article 81 of the Labor Code of the Russian Federation.

As follows from this norm, one of the main signs of absenteeism is the absence of an employee from the workplace for a certain time without a good reason. In this case, the burden of proving the fact that the employee committed absenteeism rests with the employer (clause 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”; hereinafter referred to as the Resolution of the Plenum).

At the same time, in the situation you cited, the absence of an employee from the workplace can be caused by both good and bad reasons.

An exhaustive list of valid reasons is not established by law. Valid reasons are, for example, periods of temporary incapacity for work, confirmed sick leave, as well as other periods during which an employee, for reasons beyond his control, cannot go to work.

Accordingly, in each case it is necessary to assess the “respectability” of a particular reason (see also the ruling of the Investigative Committee for civil cases of the Omsk Regional Court dated October 20, 2004 N 33-3509).

In addition, it may turn out that the employee’s absence was caused by reasons that are independent grounds for termination of the employment contract. We are talking about the termination of an employment contract with an employee due to circumstances beyond the control of the parties, in particular, in connection with the death of the employee, as well as the recognition of the employee as deceased or missing (clause 6 of part one of Article 83 of the Labor Code of the Russian Federation), or the conviction of the employee to a punishment that precludes the continuation of previous work (clause 4 of part one of Article 83 of the Labor Code of the Russian Federation).

In other words, since there is always a possibility that the employee is absent for a good reason, it is not recommended to fire an employee for absenteeism before the circumstances of his absence from work are clarified. In such cases, the employer must record the fact that the employee is absent from the workplace. To do this, an act is drawn up in any form, which is signed by several witnesses. Such an act can be drawn up either on the first day of the employee’s absence from work or on any of the following days. If an employee has not gone to work for a long time and the exact reasons for his absence are unknown, then it is recommended to draw up such reports periodically throughout the entire period of absence.

From the first day of absence, the employee should put the mark “NN” on the work time sheet - “failure to appear for unknown reasons” (Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment”, forms N T-12 and N T-13). Only after the reason for non-appearance has been established, can the mark “failure to appear for unknown reasons” be changed to the appropriate one, for example, to the mark “absenteeism” (PR) or to the mark “Temporary disability” (B)*(1).

From the moment of fixation in personnel documents If the employee is absent from the workplace, there is every reason not to accrue wages to the absent employee.

If the employer has data confirming that there are no valid reasons for absence from work, then the employee can be fired for absenteeism.

In accordance with Art. 192 of the Labor Code of the Russian Federation, absenteeism is gross violation employee's labor duties, that is, a disciplinary offense, and - a disciplinary sanction for its commission. This means that when dismissing for absenteeism, the employer must comply with the procedure for applying disciplinary sanctions established by Art. 193 of the Labor Code of the Russian Federation (the general procedure for dismissing an employee for absenteeism is given, for example, in the letter of Rostrud dated October 31, 2007 N 4415-6). If this procedure is violated, then in the event of a lawsuit, the court will most likely recognize the dismissal as illegal, even if it is proven that the employee committed absenteeism.

First of all, the employer must meet the deadlines for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. Thus, dismissal for absenteeism can be done no later than 1 month from the date of its discovery, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees, and no later than 6 months from the date of its occurrence. The day of detection of the misconduct, from which the month period begins, is considered the day when the person to whom the employee is subordinate for work (service) became aware of the commission of the misconduct, regardless of whether he is vested with the right to impose disciplinary sanctions (clause 34 of the Plenum Resolution) .

If an employee commits long-term absenteeism, the monthly period for detecting an offense should be calculated from the last day of absenteeism, and not from the first (see, for example, the ruling of the Ryazan Regional Court dated April 25, 2007 N 33-580, Generalization of review practice in the 1st half of 2008 . by the courts of the Saratov region of cases of termination of an employment contract at the initiative of the employer and on other grounds not related to the will of the employee).

Second the most important condition is proper documentation.

Article 193 of the Labor Code of the Russian Federation requires that even before applying a disciplinary sanction, the employer requires an explanation from the employee in writing. It is extremely difficult to request written explanations from an employee who does not show up at work, and to do this in such a way that it can then be proven that such an explanation was requested. For this reason, many experts recommend waiting until the employee shows up at work and does not provide supporting documents.

If the employer nevertheless decides to dismiss an employee for absenteeism in his absence, then in case of litigation, he must collect evidence that he fulfilled all his duties in the process of applying a disciplinary sanction. Such evidence may be, for example, a postal notification of delivery of the notice to the employee with his personal signature confirming receipt of the notice.

The situation when a postal notice is returned with a mark of non-delivery, in our opinion, cannot be considered a proper request for a written explanation. Therefore, in such circumstances, we do not recommend filing for dismissal for absenteeism. During a period of long-term absence of an employee, the employer may periodically send him letters demanding an explanation, waiting for the employee to personally sign the notice.

If two working days have passed since the employee received the letter, and the employee has not provided an explanation, then a corresponding report is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying a disciplinary sanction, that is, dismissal *(2).

Based on the act of absence from the workplace, as well as a written explanation or an act of the employee’s failure to provide an explanation, the employer issues an order (instruction) on dismissal.

The order is announced to the employee against signature within three working days from the date of its publication, not counting the time he is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up. The absent employee should be sent a telegram or registered letter with a notification inviting the employee to familiarize himself with the dismissal order and to receive a paycheck and work book.

Please note that the date of the dismissal order must be the date of its actual issue within the time limits for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. But the date of dismissal should be the last day of work of the employee, except for cases where the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, his place of work (position) was retained (part three of Article 84.1 of the Labor Code of the Russian Federation).

According to Art. 84.1 of the Labor Code of the Russian Federation, on the day of termination of the employment contract, the employer is obliged to issue the employee a work book. If 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 come for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book. In addition, the employer is not responsible for the delay in issuing a work book if the last day of work does not coincide with the day of registration of termination of employment when an employee is dismissed for absenteeism.

By written request For an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s application.

Upon dismissal, the employer is obliged to make a settlement with the employee. In Art. 140 of the Labor Code of the Russian Federation states that payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Panova Natalya

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Voronova Elena

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

*(1) In connection with the entry into force on January 1, 2013. Federal Law dated 06.12.2011 N 402-FZ “On Accounting” Federal service for Labor and Employment (Rostrud) in letters dated 01/23/2013 N PG/409-6-1, dated 01/23/2013 N PG/10659-6-1 and dated 02/14/2013 N PG/1487-6-1 explained that from January 1, 2013, the unified forms approved by the said resolution are not mandatory for non-governmental organizations. Such organizations have the right to use forms of primary accounting documents developed by them independently.

*(2) In such a situation, it is possible for the employee to appeal the dismissal, because The reasons for absence in this situation are unknown. However, in this case, the court may refuse to satisfy the employee’s claim for reinstatement if it is established that the right was abused (for example, deliberate failure to provide a document confirming the valid reasons for absence from work), since in this case the employer should not be held responsible for the adverse consequences that occurred as a result of dishonest actions on the part of the employee (clause 27 of the Plenum resolution).