Seven steps for a trouble-free dismissal for absenteeism. Valid reasons for absenteeism: why won’t you get fired? Valid reasons for missing a day of work

Sometimes events happen that prevent an employee from showing up for work. Very often it depends not on him, but on the weather or transport.

In legislation there is no concept of truancy, but there is an article describing the consideration by courts of labor disputes in case of absence for valid reasons or for unjustifiable reasons ().

Absenteeism is considered absence from work without a valid reason for 3 hours or more. In this case, the hours are not counted consecutively. If an employee works only 5 out of 8 working hours, this is considered absenteeism.

Reasons for absence from work

But before considering absence as absenteeism, you need to pay attention to the reason for not showing up for work. The reasons can be both valid and disrespectful.. Only the employer can determine the category. To do this, he needs an explanation from the employee and the attached documents.

Subjective

Subjective reasons are those reasons for non-appearance that associated only with the employee. For example, illness. In this case, the employee must provide one from the following evidence:

• sick leave;
• record of an appointment with a doctor in the hospital record.

Sample certificate from a doctor

However, at many enterprises sick leave is not paid.

Every year all employees must undergo medical examination by doctors. This will happen in work time, therefore such omissions are considered a valid reason.

Sample application for release from work due to a medical examination

Also, a person cannot be fired if participated in the court hearing as:

• witness;
• victim;
• the defendant;
• juror.

Sample subpoena

Also, a valid reason is that the person participated in an investigative experiment, checking the premises as a witness, or in other actions related to the law. In this case law enforcement agencies are required to issue the employee a document indicating the reason for absence from work.

There are times when an employee received a summons to the military registration and enlistment office. He must appear there in exact time, otherwise he will face problems with the law. If he misses work, this is also considered a valid reason.

Sample summons to the military registration and enlistment office

Objective

Objective reasons are those that make it impossible to get to work, due to an emergency. Among these:

• road accident;
• technological disaster;
• hostilities;
• severe snowstorm;
• landslide, fire or flood;
• earthquake or hurricane;
• a road blocked with snow if it was not cleared in time;
• broken transport (if it is impossible to get to work on foot);
• road repair;
• unexpected failure associated with the sphere utilities(a pipe burst or a gas leak began);
• salary delay (if the delay is more than 15 working days, the employee may not work until he receives his money, but is obliged to notify his superiors in writing in advance);
• elevator breakdown (person stuck inside);
• epidemic in the area and mandatory vaccination;
• lack of transport tickets;
• delay or cancellation of transport.

If the above cases are not considered a valid reason for the boss and the employee faces dismissal, a court hearing will be held. It is highly likely that the court will decide that the dismissal was illegal.

In addition, the Labor Code of the Russian Federation specifies several other valid reasons for absenteeism. Among them work activity at:

• holiday;
• days off;
• 1 day more than necessary.

In such cases, you work overtime and has the right to demand monetary compensation or time off from management. Remember about the day when you are going to take a day off, you need to warn in advance to avoid problems in the future.

The list of all valid reasons is in articles , , , Labor Code of the Russian Federation.

According to the application

This reason is also valid. You write a statement to the director indicating the reason for absence. Take it to the official. The director gets acquainted with it and decides whether this reason is considered valid or not. The most important thing in such cases is to submit a statement to your superiors before you miss work. Among these reasons:

• parent meeting at school;
• an event in honor of the first or last bell;
• the need to submit documents to the child’s place of study;
• bad feeling;
• wedding;
• death of a loved one;
• birth of a child.

According to Article 128 of the Labor Code of the Russian Federation, the last three reasons allow you to take a day off for 5 working days. According to the same article, you can take a short time off if it concerns the first 4 reasons. But missed days are not paid.

Regulatory regulation

Regulatory regulations are documents with structure, functions and legal status workers. They are developed on the basis of legislation, so they must be adhered to. There is all the information about managers and employees. And this is where the certificates and statements you provide will be located.

List:

• documents related to labor standards;
• documents on the structure, departments and number of employees in the company;
• documents related to working conditions, organization of workplaces, etc.;

What to do if, despite good reasons, dismissal occurs

Contact V labor inspection with a complaint that the boss is violating labor legislation.

You will have no control over the review process. Therefore, the duration of the proceedings can be very long.

Some very large companies have labor dispute commissions. This is a group of people independent from management that deals with such issues.

The best solution is to go to court. But the application for consideration must be submitted no later than 1 month from the date of dismissal. Evidence will be collected, witnesses will be interviewed and a decision will be made. If the court determines that the dismissal was illegal, you will be immediately reinstated at your place of work, and you will also be paid moral compensation, which depends on your wages. A court hearing is a paid procedure, but the price will be within reasonable limits.

We bring to your attention a video that tells you what an employer should do if an employee does not show up for work.

It is best to negotiate with your superiors peacefully without attracting unauthorized persons. A lawsuit can lead to poor relations with management.

If you're going to miss work, you better notify your superiors in advance by writing a statement. If he refuses to let you go, promise him to work another day.

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).

Good reasons can be divided into groups:

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

Valid reasons for personal absenteeism

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.

Body check 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 the average salary for these days (Article 186 of the Labor Code of the Russian Federation).

Accident. Unexpected breakdowns in the utility sector include gas leaks, breakdowns of common building 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). In addition, 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 public transport malfunction 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, obstacles natural character: flood, ice and others - also make it difficult for an employee to go 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. According to others family circumstances and for 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 the imposition of a disciplinary sanction on the employee.

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 event of an illness of an employee who did not contact medical institution 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 telephone, 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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Maria Soboleva

How to skip work without unpleasant consequences?

How to skip work - well, admit it, this question arises at least sometimes even for the most disciplined employee. We understand that this is not good, but we are not robots and we can afford to not show up to the workplace just once. You just have to come up with a valid and convincing reason.

How to skip work and not get fired

If you are lucky and have loyal management, then almost any excuse will do as an explanation for the reasons for missing a day of work.

In general, for absenteeism under strict management, any employee may well face dismissal. At best, a reprimand or fine. This means you will have to think in advance about how to skip work without consequences.

Absence from work — the most valid reasons

You can ask your boss in advance for an additional day of rest, or time off, for working overtime or on weekends. It won’t be paid, but it’s relatively legal to skip the boat – it’s quite possible. You must notify your intention to take time off in writing.

Another option for not showing up to work for a valid reason is to donate blood. Do a good deed in the morning and the whole day is at your disposal. This, of course, is not suitable for everyone. Not everyone can become a donor due to health reasons, and many of us are afraid of the procedure.

If you still decide on this option, fill out a certificate at the donor point and an official explanation of your reluctance to work today will be provided.

An alibi will be provided by a certificate stating that you visited a doctor, an entry in the outpatient card. You might feel bad and decide to urgently visit a doctor. But about your intention to apply for medical care You should notify your superiors on the day of absence from work.

A certificate of illness of a child or relative who needs your help - escort to the hospital, care, supervision - will also save you from trouble.

How else to skip work and not be fired: in case of an urgent call for a repair team to liquidate emergency situation- problems with gas supply, pipe break, sewer blockage.

And here is the installation plastic windows or installation of entrance doors, forcing you to skip work will clearly anger the strict manager. If you can talk convincingly with your boss, you are lucky.

If you have the opportunity to obtain fake certificates, do not expect that you will get away with it. The number may work once or twice, but when you abuse it, management can check the authenticity of the documents.

Reason for no-show - what to say

Truancy, of course, is not good. But since this happens to almost everyone, let’s look at the most popular reasons for not showing up for work.

Most often, employees refer to poor health, and then there is a chance to take a day or two off from work.

For example, you caught a cold, and in order not to infect the team, you decided to get treatment at home. Look for the cause of a cold depending on the season - in winter - infection (infected from Yulia from the accounting department, picked up on a crowded trolleybus), in summer - air conditioning or draft.

Or you have a terrible migraine that will not give you the opportunity to work fully. Or you have a toothache - you will urgently need to visit the dentist.

The version of your food poisoning sounds convincing; this could easily happen to anyone. We ate something like this at a party or in a cafe - and this is the result. Just sit at home for a day.

You need to call with a complaint about your poor health early in the morning - this is more convincing, the voice of a sleepy person will sound more like a patient. In addition, you are very worried about your absence and warn about it in advance.

You can simulate a cold by sniffing water through your nose, which will create the illusion of a runny nose. When you return to work, continue to feign weakness and take some pills. Play the role until the end.

I missed work - what to do?

What to do if you missed work - write an explanatory note, and even before you are asked to present it. Describe more convincingly the reasons and circumstances of your absenteeism; it is better if the note is supported by some papers (certificates, telegrams, letters).

For example, a telegram about the urgent arrival of relatives, you must meet and accommodate them.

Those who work with clients can come up with a meeting with one of the respectable people as an excuse for their absenteeism: they played bowling (billiards, squash) and discussed the details of the future contract.

Sometimes a trivial fiction that your husband (child, mother) took both sets of keys and you couldn’t lock the apartment helps you get away with it.

Women have a completely natural reason for missing work - critical days.

Lack of transport, accident, natural disaster - these are completely valid reasons for not showing up at your place of residence. labor activity. In order not to be late for work as a result of such force majeure, you decided not to come at all and work this day fully at another time.

Each person may have a personal need to miss a day of work, but it is always better to negotiate with management and work out your hours later. Then there will be no need to rack your brains about how to skip work. A short break will help you work with more enthusiasm later.

Take it for yourself and tell your friends!

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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 a 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 valid reasons, 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. Thus, 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 an individual) 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 significant 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 confirmation 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 breakdown of 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 applications and postpones the trial date without negative consequences for the applicant.

In conditions of great dynamics in the labor market, it is not uncommon for workers in search of better life go to other employers, “forgetting” to inform about their decision, without formalizing the termination of employment, abandoning their work book. An employee's failure to show up at work can be caused by a variety of other reasons.
In such situations, when the reasons for an employee’s long absence from work are unknown, the employer must strictly comply with the requirements of the law when terminating the employment relationship with such an employee, so as not to suffer a fiasco in the event of legal disputes.

Basic Concepts

Definition of truancy

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

Document fragment

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Labor Code of the Russian Federation pp. “a” clause 6 of the first article. 81 Labor Code of the Russian Federation

Absenteeism is considered to be the absence of an employee 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).

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

Types of truancy

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

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

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

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

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

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

Long absence: algorithm of actions

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

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

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

Example 1

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Example 2

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

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

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

Example 3

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

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

Arbitrage practice

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If you're sick, let me know

It should be noted that in practice there are cases when employees, trying for various reasons to cause inconvenience to employers, deliberately hide the fact of being on sick leave and then appeal illegal dismissal(according to Article 81 of the Labor Code of the Russian Federation, the dismissal of an employee at the initiative of the employer, with the exception of the case of liquidation of the organization or termination of activities individual entrepreneur, during the period of his temporary incapacity for work and while on vacation is not allowed), and they require payment for forced absence.

But in such situations, the courts side with employers, referring to paragraph 27 of the Plenum resolution Supreme Court RF dated March 17, 2004 No. 2, which reads: “When considering cases of reinstatement at work, it should be borne in mind that when implementing the guarantees provided by the Code to employees in the event of termination of an employment contract with them, the general legal principle of the inadmissibility of abuse of rights must be observed, including from the employees themselves. In particular, it is unacceptable for an employee to conceal temporary disability during his dismissal from work.

If the court establishes that the employee has abused his right, the court may refuse to satisfy his claim for reinstatement at work (while changing, at the request of the employee dismissed during a period of temporary incapacity, the date of dismissal), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of unfair actions on the part of the employee."

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

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

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

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

Registration of dismissal for long absence: main difficulties

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

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

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

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

Date of termination of employment

The main question that arises when issuing a dismissal order for long absence is the date of termination of the employment relationship. The problem is that, according to Art. 84.1 of the Labor Code of the Russian Federation, the day of termination of the employment contract in all cases is the last day of work of the employee, with the exception of cases where the employee did not actually work, but in accordance with the Labor Code or other federal law, his place of work (position) was retained.

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

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

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

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

Confirmation of the correctness of this position is also contained in part six of Art. 84.1 of the Labor Code of the Russian Federation, according to which the employer is not responsible for the delay in issuing a work book in cases discrepancy between the last day of work and the day of registration of termination of employment relations upon dismissal of an employee on the grounds provided for in subsection. “a” clause 6 of the first article. 81 or clause 4 of part 1 of Art. 83 Labor Code of the Russian Federation. Thus, the legislator indicates that in case of dismissal for absenteeism, the last day of work does not coincide with the day of registration of the termination of the employment relationship.

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

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

Grounds for dismissal for absenteeism

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

To avoid such situations, some experts recommend that the dismissal order indicate, for example, that “for absenteeism on April 1, 2010, for absenteeism on April 2, 2010, for absenteeism on April 9, 2010, apply a disciplinary measure - dismissal.” Since labor legislation does not contain restrictions on the possibility of applying one penalty for several offenses, if a truant worker presents supporting documents for one or two days of absenteeism, then he will no longer be able to justify himself for the rest. However, there are also opponents of this position, who refer to the fact that the Labor Code does not directly provide for the application of one disciplinary sanction for several labor violations on the part of the employee. In addition, since absenteeism is considered by law to be a serious violation of labor duties by an employee, for which the most severe penalty is provided - dismissal, the meaning of indicating several days of absenteeism (in fact, several absenteeism) as the basis for dismissal is lost. However, orders that contain instructions for several absenteeism (several days of absenteeism) are, as a rule, not recognized by the courts as illegal, but are accepted as evidence of the employee’s absence from work for more than one day and are the basis for establishing the reasons for the employee’s absence from the workplace on each of the days specified in the order.

Time limits for applying disciplinary action

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

According to Art. 193 of the Labor Code of the Russian Federation, disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

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

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

Example 4

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

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

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

Example 5

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According to part six of Art. 84.1 of the Labor Code of the Russian Federation “in the event that it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book.”

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

Missing person…

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

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

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

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

Example 6

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Missing or Truant: How to Make the Right Choice

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

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

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

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

Example 7

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The management of B-s LLC approached the board with the following problem. Employees E. and L., who work as drivers in this organization for about six months, do not appear at work for almost three weeks. Attempts to reach them by phone were unsuccessful. Taking into account the fact that E. and L. have permanent residence in another locality, it was also not possible to visit them at home. They also did not show up at their place of temporary residence in a hostel in Moscow during these three weeks. The HR service indicated to these employees “NA” (absence due to unknown circumstances) on the timesheet for all days of their absence from the workplace. Also, the absence of E. and L. was registered from the first day of absence from work.

• check with colleagues in the transport department whether there have been any expressions of dissatisfaction with work, management, etc. on the part of the missing employees, whether they mentioned in conversations the possibility of termination of work in the organization.

As a result of a survey of colleagues E. and L., it turned out that they were talking about returning to their native village in order to visit their families and then try their hand at another job;

• send telegrams to the permanent registration addresses of employees E. and L. with a request to provide an explanation of the reasons for absence from work.

Employee E. received the telegram personally; the telegram addressed to employee L. was received by his wife;

• then it was recommended to wait about 5 days for a response from E. and L., and then issue orders for their dismissal for absenteeism.

The said employees did not provide explanations about what the corresponding acts were drawn up;

• on the day the orders were issued (the orders recorded the fact that it was impossible to bring the contents of the orders to the attention of workers), it was recommended to send telegrams to both E. and L. with a request to come to receive a work book or to consent to its sending by mail.

As a result, the issue was resolved; the dismissed employees did not go to court with claims to declare the dismissal illegal.

In this case, the employer reliably established that employees E. and L. did not disappear under unclear circumstances, that they went home and decided not to return to work. The absentees did not provide valid reasons for their absence from work; they did not in any way show any intention to continue working at B-s LLC. Therefore, taking into account all the above circumstances, the employer made the right decision - to fire these employees for absenteeism.

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