home Business blog Absence from work is an article of the Labor Code of the Russian Federation. Procedure for dismissal for absenteeism

Absence from work is an article of the Labor Code of the Russian Federation. Procedure for dismissal for absenteeism

The labor legislation of the Russian Federation provides the employer with a number of tools for regulating relationships with employees. One of them is the application of disciplinary sanctions - dismissal - for violation labor discipline, namely truancy. However, the application of this sanction against an employee requires compliance with the procedural order and the legality of the grounds.

We all understand that dismissal “under article” is not the most humane method.

But if an employee systematically violates internal rules labor regulations- skips work. And all possible options decisions, such as dismissal or, no longer help.

Then there is only 1 option - dismissing the employee for absenteeism. Today we will tell you how to do this correctly and legally.

What is truancy?

Sometimes an employer or employee interprets the concept of “absenteeism” in their own way. For some, it is failure to show up for work without warning, for others, being late, and some believe that absenteeism is a refusal to do extracurricular work. To resolve disputes, you need to study what the law says. The legal definition of truancy is given in Art. 81 Labor Code of the Russian Federation.

Absenteeism is considered to be 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).

To qualify absenteeism, the following conditions must be met:

absence for 4 or more hours;
unjust cause;
the offense is one month old.

Therefore, before dismissing an employee for absenteeism, it should be established that he was actually absent from the workplace, correctly determine the period of his absence and the reason why the employee did not come to work or left workplace until the end of the shift.

What constitutes absence from work?

The procedure for dismissal for absenteeism clearly regulates the condition - absence from work. But what is considered a workplace? An office, company territory or a chair on which an employee sits while working?

In this matter, you should first study job description and an employment contract with the employee, as well as a collective agreement, if any. Additionally, other local acts (orders, instructions, regulations) can be used that define the “workplace” for a specific employee.

For example, an instruction or order for a worker may indicate that his workplace is a specific machine or workshop number. In this case, absenteeism will be considered the time that the employee spent outside the workshop or at the machine.

If there is a clear concept of what is considered a workplace, in local acts or there is no employment agreement, then you need to be guided by Art. 209 of the Labor Code of the Russian Federation, which defines that a workplace is a territory where an employee needs to arrive to perform assigned functions. That is, the entire territory of the company.

Time away from work

The law gives an employer the right to dismiss an employee for absenteeism if the employee has been absent for 4 hours or more. It means that, If an absence of exactly 4 hours or less is recorded, then you cannot be fired for absenteeism. Yes, other disciplinary measures can be taken, such as a reprimand, but not dismissal. Having information on how to fire a person for absenteeism, employees sometimes take advantage of this four-hour period, which does not allow absence to be considered absenteeism.

How is time away from work calculated correctly?

Further, the period of absence does not include the lunch break. Reason – Art. 108 of the Labor Code of the Russian Federation, excluding the duration of the break from working time. Therefore, if, for example, an employee came to work at 14:20, but was supposed to at 10:00, while the break was set from 13:00 to 14:00, then this act will not be considered absenteeism, since the employee was absent only 3 hours 20 minutes.

The Labor Code of the Russian Federation allows you to take into account and summarize all periods when the employee was not on site, but only within one shift or day, depending on the established schedule. That is, periods of absence cannot be summed up over several days or shifts.

1 hour in the morning;
1 hour 10 minutes after lunch;
2 hours at the end of the shift.

In total, 4 hours and 10 minutes will be missed for the whole day. This can be qualified as truancy, subject to other procedural requirements.

Valid reasons for absenteeism

The legislator for the current 2019 does not define in any article of the Labor Code what are valid reasons for absenteeism. It is believed that this fact must be established within the framework of the proceedings, that is, separately in each individual case. In practice, a valid reason is one that arose not at the will of the employee.

That is, they recognize as respectful:

Of course, valid reasons for absenteeism must be documented or otherwise confirmed, for example, by testimony of witnesses. Documents must be certified by general procedure. For example, get a medical certificate, a copy of the accident report.

The law also does not consider absence of an employee with the consent of the manager as absenteeism. That is, if an employee “asked for time off,” then this is not absenteeism. But, as with other reasons, the fact of management’s permission must be proven.

Oral permission alone is not enough, because it will be impossible to prove it. In practice, the employer can take advantage of this “loophole”. Therefore, it is important to know what constitutes absenteeism without a good reason, absence from the workplace even with the permission of the manager, if there is no written confirmation of permission.

Step-by-step procedure for dismissal for absenteeism

The step-by-step instructions for dismissal for absenteeism provide the following procedure for going through all stages: from committing an offense - absenteeism - to the final entry in the work book.

It is important to comply with all procedural formalities to avoid litigation. After all, if the procedure for actions and paperwork is violated, the dismissal may be declared illegal in court, the employee may be reinstated in his position, and the employer may be required to pay compensation.

So the procedure for how to properly fire an employee for absenteeism:

Document the fact of absenteeism. This can be done by logging the employee's absence. The act is drawn up in the presence of witnesses (2-3 people). It is also permissible if the immediate supervisor submits a report on the commission of an offense to his subordinates to higher authorities.
. An explanatory note must be drawn up only in writing. Verbal explanations are not suitable. Duration – 2 days.
Based on the results, it is either closed an official investigation, or an act is drawn up. Also, if there is no explanation from the employee within 2 days, a corresponding one is drawn up (Article 193 of the Labor Code of the Russian Federation).
A decision is made to impose penalties. The right to fire for absenteeism is not an obligation, that is, the employer may not fire the employee, but apply another type of penalty.
A dismissal order is being prepared.
Familiarize the employee with the order.
Record your dismissal by making an entry in your work book.

Nuances of action during long absences

The situation when there is a long walk deserves special attention. When dismissing someone for long absence, the step-by-step instructions are almost the same as for normal dismissal, that is, there are discrepancies:

Record absence: compile, enter data in.
Draw up the need to appear and provide explanations.
Send notice to the employee at a known postal address.
After receiving notification of delivery, wait 2 days + the period required for delivery of correspondence.
If explanations are not provided and confirmation of receipt of the notification, draw up a report.
Take measures to determine the reasons for absence if notification has not been received. This stage is not mandatory, but recommended to avoid problems in a possible lawsuit later. You can make calls to the employee’s relatives and get their testimony.
Write down the activities carried out, recording the information received. Optional.
Design .
Draw up a report on the impossibility of familiarizing the employee with the order.
Enter information into the work book.
Make payment calculations.
Send a notification to the employee about the need to obtain a work book.

Due to the fact that the law establishes a period for disciplinary punishment of 1 month, it is necessary to carry out all actions as quickly as possible. Considering that letters are returned to the sender after a month of storage, we recommend sending a telegram asking for clarification.

It would also be reasonable to draw up daily reports of the employee’s absence during the entire period of absenteeism, or to record this in some other way. in an accessible way, for example, by making notes in the arrival and departure log in order to comply with the procedure for dismissal for absenteeism without a good reason.

Preparation of procedural papers

The first document that needs to be prepared is confirmation of the fact of absence. The most common option is to draw up a report, although a report can also be used, based on the results of which an official investigation is opened. After requesting an explanatory note, you must wait two working days. Immediately on the day of absenteeism, it is impossible to issue a dismissal order for absenteeism sample and terminate the employment contract.

As part of the investigation, a decision may be made to dismiss for absenteeism without a valid reason if the employee refuses to provide an explanation for why he was absent. Or he did not confirm the documented reason, even if he considers it valid. An act should be drawn up about this.

date of dismissal

If there is a dismissal for absenteeism, then on what day should the dismissal take place? Not an easy question. To make a decision, you must be guided by Art. 84.1 Labor Code of the Russian Federation. According to its contents, the employee’s last working day is the date of his dismissal, if for other reasons there is no place assigned to him. In the case of absenteeism, the last day that the employee worked was the day before the day of absenteeism, unless a valid reason was confirmed.

Therefore, if the absenteeism was a one-time occurrence and the employee subsequently appeared and gave explanations that were regarded as an unjustifiable reason, the date of dismissal and the order to dismiss for absenteeism will correspond to the day the explanatory note was received. if the absenteeism is of a long nature, the employee’s daily absences are confirmed by reports and time sheets, and explanations were never received, then dismissal is allowed on the last working day. However, dismissal dated on the day of drawing up the final act on the lack of explanation will not be a violation.

Registration of a work book

Entering data into the work book is the final stage of dismissal. If you don’t know or are not sure under what article one is fired for absenteeism, then dismissal for absenteeism is regulated by Article 81 of the Labor Code of the Russian Federation. Information is entered into the employee’s work book based on the order. The registration data of the order itself is written in the column “Name and date of the document.” Sample entry in the employment record about dismissal for absenteeism:

First, the number of the serial entry is indicated; the deadline is not missed. Next, the date for entering the information is specified, which must coincide with the date of dismissal and issuance of the order. Further it is indicated in words in labor record about dismissal for absenteeism (). Afterwards the signature and job title are affixed responsible person. The record is certified by the company seal.

Sometimes an employer can terminate a contract and fire not for absenteeism, but if the employee is recognized as dead or missing. To do this, it is necessary to have a court decision (here in detail about) confirming this fact. The employer can initiate the process himself, or another interested party, for example, a relative, will file a claim.

The entry in the work book will look like this:

Special cases of dismissal for absenteeism

Not every absence from work is regarded as absenteeism, even if it has almost all the signs. For example, it will not be considered absenteeism if the employee does not want to go to work on a non-working day. However, there are exceptions to this rule, the same as when recalled from vacation. It is acceptable to have employees work on days off if this is required to recover from accidents or emergencies.

Dismissal and sick leave

It is unacceptable to fire someone if an employee is sick. If an employee was hastily fired for absenteeism, and he brought sick leave in the form of an explanation of the reason, then such an employee must be reinstated in his position, since the dismissal is unlawful. However, if the fact of concealment of illness and the presence of sick leave has been established, then during the trial the court may side with the employer, considering that the employee is abusing his rights and infringing on the rights of the employer (Resolution of the Supreme Court of the Russian Federation).

In their lawsuits, citizens explain the situation this way: “I was fired for absenteeism while I was on sick leave.” A certificate of incapacity for work is provided as proof. This is not enough; it is necessary to prove that the employer was notified that the employee was ill. Moreover, a citizen may be denied a claim if he refuses to give an explanation. Of course, if he could do it for objective reasons.

Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and others regulatory documents to regulatory authorities.

It is not difficult to fire an employee for absenteeism - it is enough to draw up an act, recognize the reason for absence from work as disrespectful and draw up an appropriate order. Problems may begin later. All of a sudden former employee go to court and prove that you made any procedural error during termination employment contract? To avoid such troubles, you need not only to draw up general idea about the procedure for dismissing an employee for absenteeism, but also take into account many related nuances.

What is truancy?

Absenteeism is the absence of an employee from the workplace for an entire working day or more. four hours in a row without good reason. This definition is given by the legislator in the Labor Code.

Dismissal for absenteeism is provided for in Article 81 of the Labor Code. The problem is that the Code does not even contain an approximate list of reasons for a person’s absence from work that should be considered valid. Of course, this omission regularly leads to conflicts between employees and employers.

In theory, it is up to the employer to determine and prove that the reason for the absence was unexcused. However, this cannot be done only in accordance with personal convictions; one must also rely on judicial practice. If a dissatisfied employee goes to court and proves that he was fired without justification, you will have to reinstate the truant worker. By the way, violation of the procedural order (incorrect completion of acts, violation of deadlines, etc.) can also become a reason for canceling the dismissal order.

In what cases can you be fired for absenteeism?

Dismissal will be legal only if four conditions are met:

the employee did not appear at work the entire day (even if his working day is one or two hours) or more than four hours in a row;
the employee was absent from his workplace;
he did not show up for work for an unexcused reason;
the fact of his absence is proven and documented.

Immediately you need to consider:

if an employee was absent from his place for exactly 4 hours and not a minute more, this is not absenteeism;
if the workplace is not officially assigned to the employee (in the employment contract), but he was located somewhere on the territory of the company, he cannot be recognized as a truant;
if an employee, for objective reasons, was unable to notify his superiors about his absence, the reason for his absence cannot be considered as a priori disrespectful.

In what cases can you not be fired for absenteeism?

Based on materials judicial practice, principles labor legislation and common sense, we can identify the following valid reasons for absenteeism (which in these cases is no longer absenteeism):

temporary disability;
performance by the employee public duties assigned to him by an authorized state or municipal body;
donation of blood and plasma by an employee (and subsequent medical examination, if the need arose);
taking an employee under arrest, taking him into custody by police officers;
problems with transport (for example, due to weather conditions);
delay in salary payment for more than 15 days (but only if the employee notified you writing that he is not going to come);
participation in the strike.

In all these cases, the employee must provide supporting documentation. The following documents are considered as evidence:

certificate of incapacity for work (“ sick leave»);
certificate from medical institution(for example, in the case of blood donation);
subpoena or order of arrest or detention;
certificate from transport organization;
etc.

Be sure to find out the true reason for the employee’s absence. It's no secret that almost any certificate can be purchased. If it turns out and is confirmed that the employee committed such an offense, the dismissal order can be issued with full right.

The procedure for dismissing an employee for absenteeism

The dismissal procedure can be divided into three stages:

documenting the fact of the employee’s absence from work;
finding out the reasons for non-appearance;
making a decision and issuing an order of dismissal.

A procedural error can be made at any of these stages, but every minor violation can cost the company dearly! Do not forget that an employee who is outraged by what he considers to be an unjustified dismissal has the right to go to court. If he also uses the services of a good lawyer, the matter will probably turn out not in your favor. Even if all the grounds for dismissal are present, a minor formal error (for example, when drawing up a report of failure to appear) often becomes a reason for canceling the order. Therefore, pay special attention to the rules and recommendations below.

Preparation of the act

A correctly drawn up act is the main evidence of an employee’s violation of labor laws. The act has the following structure:

name (act of absence from work, absenteeism, absence from work - different name options are acceptable);
date, place and time of compilation;
Full name official, constituting the act (such a person can be either the head of the company or the chief structural unit);
Full name of the employee who did not show up for work;
the circumstances of the employee’s absence (this part should be filled out in as much detail as possible, indicating the exact time of absence and the actions taken by the employer - attempts to reach the truant or contact him in some other way);
date and duration of the employee’s absence (indicating the exact time, “minute to minute”);
the date of drawing up the act and the signature of the manager (for greater confidence, you can ask witnesses to sign - for example, colleagues of the truant).

It is advisable to draw up the act on the same day, without putting it off “until tomorrow.”

Finding out the reasons for the employee’s absence

Before signing an order to dismiss an employee for absenteeism under the article, you need to require an explanatory note from him. At this stage, it is important to document every action, so it is better to send the request for an explanatory note to the employee in writing (even if in the end he did come to work). Sign the request and ensure that the employee signs for its receipt. If you have to send the request by mail, do not throw away the postal receipt under any circumstances.

After requesting an explanation for failure to appear, you must wait two days. By the way, this rule applies even if the employee refuses to “give evidence” immediately - what if he changes his mind? If after two days the answer still does not come, you can move on to final stage and make an order.

Let's assume that the employee nevertheless provided an explanatory note. There are three possible options:

The reason for absence indicated by the employee can be classified as valid, and the stated arguments are supported by documents. In this case, the person cannot be fired.
The truant is clearly making things up: the explanations are unconvincing and there is no evidence. Feel free to write an order.
The situation is ambiguous. There are no supporting documents or they are insufficient, but the arguments look convincing. Or vice versa - there is a certificate from the medical center. institutions, but probably “fake”. What should an employer do? It is impossible to give a definite answer to this question. Try to assess the situation as a whole, taking into account all possible motives of the employee, his previous behavior, attitude towards his duties and the work process in general. Don’t forget – the law gives you the right to draw a conclusion and make a decision.

Order of dismissal

An order to dismiss an employee for absenteeism without good reason is drawn up and issued according to unified form No. T-8. The law establishes the following deadlines for issuing an order:

no earlier than two days from the moment the request for an explanatory note is sent to the truant;
no later than 30 days from the date of absence.

Structure of the order according to form No. T-8:

Name;
date, place of compilation;
grounds for publication (absenteeism act, details of reports and explanatory notes, etc.);
Full name and position of the employee;
detailed description misdemeanor;
justification of why the reasons for absenteeism cannot be recognized as valid;
clarification of the employee’s right to appeal the dismissal decision;
date of compilation and signature of the employer.

The employee must read the order and confirm with his signature that he is aware of its contents. If he refuses to do this, another act will have to be drawn up. After this, you should make an entry about the dismissal in the work book of the negligent specialist and send him to the accounting department for this book. This completes the dismissal procedure.

The main mistakes made by employers

As stated earlier, any procedural violation may be grounds for appealing the dismissal order. What mistakes do employers make most often?

Often, an absenteeism report is simply not drawn up. This is terrible - if the case goes to court, the employee will probably achieve reinstatement (and even compensation for wrongful dismissal). Always fill out a document.
Serious shortcomings in the execution of the act - first of all, incorrect indication of the time of drawing up the act and the period of absence of the employee. The wording “in the morning”, “at lunchtime”, “in the evening” is unacceptable. Always indicate the exact time - “the employee was absent from 8.00 to 14.18”, “the report was drawn up at 14.58”.
Inconsistency of factual circumstances with the data contained in the act. Sometimes it happens that an employee infuriates the employer with his impudence. In order to guarantee getting rid of the absentee, the employer artificially aggravates the situation - for example, he writes in the act and order that the employee showed up only the next day and insulted him in obscene terms. If at trial it turns out that everything was a little wrong, the boss will have to bear responsibility for such “attacks.”
Dismissal of an employee without requiring an explanatory note from him.
Violation of the deadlines for issuing an order, dismissal of an employee for absenteeism without a corresponding entry in the labor record.

Even if you have indisputable evidence that the dismissed employee is an undisciplined and irresponsible truant, the court will still be able to reinstate him at work. It is enough to commit at least one of the listed violations.

Labor, discipline, legality

Unfortunately, the dismissal process does not always go smoothly. Even following the rules and recommendations outlined in this article, you can only minimize the risks, but not eliminate them. The laziest employee, fired for absenteeism, sometimes shows desperate determination and goes to court. And the trial is long and unpleasant, even if the case is decided in your favor.

To prevent such an undesirable development of events, always carry out the dismissal procedure carefully, methodically and carefully. Record each stage on paper, draw up acts, send requests - and the employee will be convinced that it is pointless to “go to war” with you.

Absenteeism is regarded by the Labor Code as a malicious violation of labor discipline, which may be grounds for dismissal. According to established standards, absenteeism is considered to be the absence of an employee from the workplace for 4 consecutive hours or more. Absenteeism also includes the situation when an employee leaves his workplace without notifying the employer and without expressing his intention to terminate the employment contract.

In this article we will talk about how to properly formalize dismissal due to absenteeism.

The concept of “truancy” in the Labor Code

The Labor Code of the Russian Federation defines two types of absenteeism - short-term and long-term. During a short-term absence, the employer knows the whereabouts of the employee and has the opportunity to contact him. Long-term absenteeism means that the employee's whereabouts are unknown and, therefore, contact with him is impossible.

In case of short-term absenteeism, a memorandum is drawn up in the name of the head of the enterprise, and later - a report on the absence of the employee from his workplace. These documents are necessary so that on their basis it is possible to request an explanatory statement from the employee, which, according to Article 193 of the Labor Code of the Russian Federation, he is obliged to provide within two working days. If the employee does not prepare an explanatory note within the specified period, it will be necessary to draw up an act on his refusal to provide written explanations for absenteeism. This act must be signed by the originator and three witnesses to the truancy. Only after these actions the employer has the right to issue an order to impose a disciplinary sanction. In this case, the day the employee is absent from work is recorded in the report card as absenteeism.

In case of long-term absenteeism, when there is no communication with the employee, the employer will have to wait for him to appear at the workplace in order to request an explanation from him. Next, the procedure for registering absenteeism is carried out in the same way as in the previous version.

It is very important that absenteeism is documented in strict accordance with labor legislation, because If an employee goes to court and the court recognizes the reasons for his absence from work as valid, he will have to be reinstated to work, while paying compensation costs.

Unlike tardiness, absenteeism is a serious disciplinary violation that is punishable by certain penalties, including dismissal. But for this, the fact of absenteeism must be documented. First of all, it is necessary to make a corresponding entry in the working time log, as well as record the readings of CCTV cameras. According to labor legislation, due to absenteeism, an employee can be dismissed within a month from the date of the commission of the offense, not counting the periods the employee is on or on vacation.

Read also: Dismissal of an employee without working time: new amendments

Under what circumstances can an employee be fired for absenteeism?

To dismiss an employee for absenteeism, the employer must prepare appropriate evidence and document the fact of his absence from the workplace. For this, absence reports, memos, etc. must be drawn up. Documents can be drawn up both on the day the employee is absent from work and on subsequent working days. The Labor Code allows dismissal for absenteeism if an employee fails to show up for work without a valid reason and is absent from the workplace for 4 consecutive hours or more.

In addition, you can fire an employee for absenteeism under the following circumstances:

The employee left the workplace without a valid reason. At the same time, the employer was not notified of the termination of the employment contract and the upcoming dismissal;

An employee working under a fixed-term employment contract did not return to work before the end of the period established in the contract;

The employee went on his own initiative or took time off.

The procedure for dismissing an employee for absenteeism in 2019: step-by-step instructions

To fire an employee for absenteeism, the employer must act as follows:

1. Draw up a report on the employee’s absence from the workplace.

The act can be drawn up in any form, but this document must be certified by the signatures of three witnesses. If an employee is absent from work long time, each day of absenteeism is documented in a separate act.

2. Demand an explanation from the employee regarding the fact of absenteeism.

To request an explanatory note, the employer must give the employee a notice requesting a written explanation for absenteeism on the day he returns to work. Having received the notification, the employee must, within two working days, give a written explanation of his misconduct, indicating the reasons for absenteeism. If the explanatory note is not provided within the specified period, the employer must draw up a report and have it certified by the signature of three witnesses.

3. Draw up a memo about the fact that the employee is absent from work.

An explanatory note from the employee is attached to this note.

4. Issue a dismissal order for absenteeism.

The order must be drawn up in a unified form.

5. Register the dismissal order in the personnel order log.

6. Prepare a pay slip for the employee in the prescribed form.

In this case, full payment is made on the last day of dismissal.

7. Inform the employee of the dismissal order.

This issue is dealt with by the enterprise’s human resources department, which must inform the employee of the dismissal order within three working days. The fact of familiarization is the signature of the employee. If the employee does not intend to sign the document, it is necessary to draw up an act of refusal to sign in order to familiarize himself with the order. In this case, the act must be signed by the compiler himself in the presence of the employee and certified by the signature of three witnesses.

8. Make a note about the termination of the employment contract in the employee’s personal card.

The document must be certified by the signature of the HR department employee and the employee. If the employee refuses to sign, a corresponding entry is made on the card.

9. Register the employee.

An entry about the termination of the employment contract indicating the reason is made in the work book of the dismissed employee.

10. Issue a work book to the employee.

On the day of dismissal, the employee is given his work book with an entry about the dismissal. The issuance of the document is confirmed by the corresponding entry in the labor movement register. If the employee does not show up for the work report, the employer must send it to the postal address, ordering a receipt.

On the last day of dismissal, the employer is obliged to pay the employee in full, as well as pay for the days of his unused vacation.

Read also: How to fire an employee during a probationary period

Retroactive dismissal of an employee

Since the date in the dismissal order is considered the employee's last working day, retroactive dismissal is illegal. However, in some situations, for example, when an employee is absent from the enterprise for a long time, the employer is not able to indicate the exact date dismissals. This situation, as well as the death of an employee, are considered the only exceptions in which the Labor Code allows retroactive dismissal.

It follows from this that if an employee is absent from work for a long time (more than a month), the order for his dismissal can be issued retroactively. However, in order to avoid misunderstandings, it is necessary to maintain complete documentary order by recording entries in journals and verifying each issued act with signatures. If the employer violates established order document flow, the employee will be able to challenge his dismissal in court.

Read also: Can you be fired from your job if you have a minor child?

The nuances of dismissal for certain categories of workers

The legislation defines special rules regarding workers with children and pregnant women. According to the law, an employer does not have the right, on its own initiative, to terminate an employment contract with an employee who is carrying a child. However, in this case there are some nuances that you should familiarize yourself with.

Firstly, an employer can terminate an employment contract with a pregnant woman if the reason for this is the liquidation of the enterprise or the cessation of its activities.

Secondly, a pregnant employee can be fired by agreement of the parties. Since in this case the initiative to break labor relations lies with both the employer and the employee, the employer does not violate the law. For dismissal, it is necessary to draw up a separate act, specifying in it an agreement to terminate the employment contract and indicating the date of dismissal.

By agreement of the parties, employees on sick leave may also be dismissed. However, please note that cancel this decision unilaterally is impossible.

If we're talking about about the dismissal of an employee who is on probationary period, then the employer can be guided by such a concept as “dissatisfaction with the results of the test.” In this case, at least three working days before the date of dismissal, the employer is obliged to notify the subject employee of his decision.

The process of dismissal of employees on probation is regulated by Article 81 of the Labor Code of the Russian Federation. According to this article, the dismissal order must be supplemented a separate document indicating the reasons for termination of the employment contract. In this case, it is necessary to list a list of tasks that the employee could not cope with, because a record that an employee “performed poorly” is considered illegal. If an employee on a probationary period wishes to resign on his own initiative, he is obliged to notify the employer at least three days before the date of termination of the contract.

According to labor legislation, termination of an employment contract with an employee may occur due to the actual absence of the worker from the workplace without valid reasons, equal in duration to both the entire working day (shift) and more than four hours in a row during this day (shift). In other words, an employee’s four-hour absence from work is equivalent to absenteeism.

Let's look at how such absenteeism is punished and what the procedure for dismissal is.

Duration of employee absence and its impact on the choice of disciplinary action

It is important for the employer to record the duration of the worker’s absence from the workplace.

Since the law provides for the possibility of dismissal due to absenteeism only in the absence of an employee for more than 4 hours in a row, dismissal for absence for 3.5 hours is no longer allowed (subparagraph “a” of paragraph 6 of paragraph 1 of Article 81 Labor Code of the Russian Federation).

In this case, disciplinary sanctions may be applied to the employee for committing an offense. This is a reprimand, reprimand and termination of employment relations, i.e. dismissal.

In addition, it is not allowed to sum up the time of a worker’s total absence, for example, over several days, for individual hours of delay (morning, afternoon) or those associated with leaving earlier than expected.

Dismissal due to absenteeism is considered to be the rights of the employer, and not its responsibilities. Therefore, if there is a fact of absenteeism, he can apply one of the types of disciplinary sanctions against the employee or not apply anything at all.

Dismissal procedure

Since absenteeism is classified as a type of disciplinary offense, i.e. failure to fulfill the job duties entrusted to him or performing them improperly, termination of the employment contract can become a disciplinary measure.
Dismissal of a worker, taking into account the provisions of Article 81 of the Labor Code of the Russian Federation, can be carried out only subject to compliance with the rules stipulated by Article 193 of the Labor Code of the Russian Federation.

Firstly, you should prepare and verify it with the signatures of at least two witnesses. The act must be drawn up on the same day, but the absent employee must be familiarized with this document on the day he appears at work.

In the event of a long absence of the latter, daily drawing up of such an act is allowed. If a document confirming the valid reasons for the absence is presented, some days of those that were missed may be beyond the scope of documentary evidence.

In the work report card, the corresponding marks are made according to the time of the employee’s absence.

This can be the letter code “NN” or the numeric “30”, which means failure to appear for unknown reasons.

In addition to the act, you can prepare a memo addressed to the head of the enterprise. The immediate supervisor of the absent employee can handle its registration.

The note should indicate the worker’s absence from the workplace and the measures taken to find him (call to mobile, home phone, other). As soon as an unscrupulous employee appears at work, you should immediately demand from him an explanation for his absence, documented in writing.

The employee is given two working days to prepare such an explanation (Article 193 of the Labor Code of the Russian Federation). If the employee does not provide explanatory note, a report is drawn up indicating the employee’s refusal to provide explanations for his behavior. The act is certified by the signatures of at least two witnesses.

After the employer receives an explanatory note from the employee, the validity of the reasons for the worker’s absence is assessed. This is a rather difficult task, since labor legislation does not provide an approximate list of reasons considered.

If the employer considers the stated reasons to be disrespectful, an order for his subsequent dismissal () is issued to the employee and presented to him for review and signing. If the employee refuses to sign the document, the corresponding act is drawn up again, after which an entry is made in the work book confirming the dismissal under the article.

The dismissed employee is given a full payment for wages. If an employee disagrees with the actions of the employer, he can go to court.

When hiring an employee, management expects maximum results in the assigned area of activity, but the expectations are not always justified. There may be situations when an employee does not go to work without any good reason. If the fact of absenteeism is proven, the employer has the right to part with the negligent employee, based on the article of the Labor Code related to dismissal on the basis of absenteeism.

The truant is presented disciplinary action only when an unjustified reason for a long absence from work is established. In addition, the law provides for a number of circumstances that will not allow dismissal for absenteeism, even if it becomes obvious that the employer is right.

To ensure that dismissal for absenteeism does not lead to unpleasant consequences and proceedings with supervisory authorities, the procedure should be carried out in strict accordance with current labor legislation.

The process of parting with a truant must be formalized in accordance with Labor Code and the Resolution “On approval of documents on labor accounting and payments”.

In 2018 personnel workers and the management of the enterprise must know how dismissal is carried out in such cases and coordinate their actions with the following articles of the Labor Code: 81, 140, 142, 192-193,261, 392.

The code contains language defining the grounds for dismissal for absenteeism, but in reality, it can be quite difficult to prove the objectivity and legality of dismissal, and truants themselves do not agree with the circumstances of dismissal, preferring to challenge the employer’s decision and interfere in every possible way.

When deciding to be fired for absenteeism, employees HR department must be clearly aware of the possible consequences, and strictly adhere to the provisions of the law in order to avoid further claims. Every enterprise must develop step by step instructions actions if it is necessary to dismiss a truant under the article.

Definition of truancy

First of all, it is necessary to understand which of the employee’s actions can be regarded as absenteeism, and, therefore, can become grounds for dismissal under Art. 81 TK.

This article (clause 6, part 1) clarifies the definition:

Absenteeism can be considered an employee’s absence from work for at least 4 hours in a row, or complete absence from work, regardless of the length of the shift or working day, provided that the reason for the absence was not recognized as valid.

The simplest cases of absenteeism include situations where an employee does not show up for work after making a unilateral decision to terminate the employment relationship with the employer, whom the employee did not notify of the fact of his resignation.

In addition to the unilateral decision to leave, the following patterns can be classified as classic truancy:

the employee personally decided to take time off without notifying the employer and without agreeing on this time off with management;
use of regular leave (annual or additional) outside the schedule and in the absence of a visa for the immediate superiors;
refusal to work on the eve of dismissal at his own request.

It is enough for the enterprise administration to record one fact of such violations in order to have the right to use the article for dismissal due to absenteeism.

Actions by the employer

The supervisor must contact the employee to determine the reasons for absence. If this cannot be done, a registered letter is sent to a known residential address, which sets out the requirement to provide explanations regarding the reasons for absence from work.

The citizen is given a two-day period to respond to the employer’s administration, during which he is obliged to submit an explanatory note.

If the letter is returned with a note that the citizen is absent from the specified address, the employer must contact neighbors or the police station in order to find out the whereabouts of the employee.

This measure is necessary, because if an employee is detected and compelling reasons are provided for the person’s absence from the workplace, the employee is subject to full reinstatement through the court.

Thus, prerequisite To dismiss under an article for absenteeism, you will need to provide conclusive evidence of the very fact of absenteeism without a good reason. The following documents will help document the fact that an employee is absent from the workplace:

Entry in the report card.
A document drawn up establishing the fact of the employee’s absence.
A notice sent to the employee's home address asking him to return to work.

Following this step by step procedure, the administration will be able to fire the truant without any undesirable consequences in the future:

Obtaining grounds for dismissal - drawing up an absence certificate. The act is drawn up in free form, but must mandatory reflect information about a specific day, time, and duration of absence.
Certification of the act by witnesses.
If there are several absences, a report is signed for each day of absence.
Explanatory Requirement. If an employee appears at the workplace, the administration requires an explanation for the unapproved absence
Within two days after receiving the request to provide an explanatory note, the employee prepares a note outlining the reasons for his absence.
If the note is not provided within the required period, this is recorded in the presence of three witnesses in the relevant act.
The manager prepares a memo addressed to the director of the organization with a note from the employee attached.
If the reason for non-appearance is considered disrespectful, an order is issued in the strictly established T-8 form.

This order serves as the basis for further dismissal procedures. Because any deviation from the standard established by law will allow it to be challenged in court. When drawing up and issuing an order, follow the following instructions:

The date of termination of the employment agreement must be reflected.
The reason for dismissal is indicated.
The order mentions the documents that served as confirmation of absenteeism.

Three days are allotted for the employee to familiarize himself with the order, followed by registration of the order in a special personnel journal. Changes are made to the work time sheet: the NN mark changes to PR, which records the fact of absenteeism.

It is very important to fire a negligent employee correctly by making correct entries in the employment record:

in the first column indicate the entry number in order;
in the second - the date of the event;
the third column is filled in with information about dismissal indicating Article 81 of the Labor Code of the Russian Federation;
in the fourth indicate the number and date of the order.

After completion of the registration, the employee is given the latest documents, payroll documents, and if the employee does not show up for work, if it is impossible to hand over the documents, they are sent to the address of the dismissed person by registered mail.

Before giving the work record to the dismissed person, the records are duplicated into a personal card in the T-2 form and certified by the employee’s signature. Each entry from the labor record must be reflected in the card and certified by the signature of the dismissed employee.

According to Article 81 of the Labor Code (subclause a, clause 6.ch.1), as a basis for dismissal, an entry is made in the labor report about dismissal “in connection with a single gross violation labor duties." To avoid problems with the Social Insurance Fund in the future, with work book make a copy and transfer it to the archive.

Closing events

The issuance of the employment record with the last notice of dismissal made and the payment of the final payment is made on the day the contract was terminated.

If the dismissal date falls on a non-working day, the calculation is made on the first day after a weekend or holiday.

The final payment to the employee is subject to the amount determined on the basis of Article 140 of the labor legislation. Based on Article 127 unused days vacations are also subject to monetary compensation.

If the issuance of a work permit on the last working day is impossible (the employee did not show up for work or refused to receive it), an official notice is sent to the employee, and a report is drawn up at work indicating the impossibility of transferring documents. Subsequently, if the employee wants to return his work permit, the employer is obliged to provide it within three days from the moment of registration of the corresponding application of the dismissed person.

In addition to the work record book, the former employee must submit certificates of earnings for previous periods 2-NDFL and others established by paragraph 3, part 2, article 4.1 of Federal Law No. 255 of December 29, 2006.