The article will help to understand that the dismissal of an employee for absenteeism is a disciplinary measure, there is an article for absenteeism in the Labor Code of the Russian Federation. How to fire your job to avoid litigation.

As you know, absenteeism is a violation of the Labor Code of the Russian Federation. Therefore, dismissal for absenteeism is a measure of the employer, it is a disciplinary sanction that must be applied in strict accordance with the requirements of the Labor Code of the Russian Federation in order to avoid litigation.

What is considered absenteeism?

Absenteeism is the absence of an employee at the workplace without good reason during the entire working day (shift), regardless of its (her) duration, as well as absence from the workplace without good reason more than four hours in a row during the working day (shift) (items "a", item 6).

Absenteeism is the absence of an employee from the workplace for no good reason... What should be understood by disrespectful reason for not at the workplace, in the Labor Code of the Russian Federation is not established. Therefore, the employer assesses the validity of the reason for the employee's absence from the workplace based on his own discretion.

Note: But this discretion is not unlimited.

In addition, the following situations are equated to absenteeism:

• the employee did not warn the employer in advance about the early termination of the contract, about dismissal of his own free will (article 280, part 1 of article 292, part 1 of article 296, part 1 of article 80 of the Labor Code of the Russian Federation);
• the employee unauthorizedly used the days off;
• the employee unauthorizedly went on vacation (main, additional).

Disrespectful reason for absence from work?

As pointed out by the Constitutional Court of the Russian Federation in the Decision dated 10.17.06, No. 381-О, the absence in the Labor Code of the Russian Federation of a list of "disrespectful reasons" in itself cannot be considered as violating the constitutional rights of citizens. The Constitutional Court of the Russian Federation explains this by the fact that, in carrying out a judicial review of the employer's decision, the court does not act arbitrarily, but proceeds from the general principles of legal and, consequently, disciplinary responsibility (in particular, fairness, proportionality, legality) and assesses the entire set of specific circumstances of the case , including checking and assessing the circumstances and motives of the employee's absence from work, the employee's previous behavior, his attitude to work, etc.

Therefore, the employer, when assessing the reasons for the absence of an employee from the workplace, must act reasonably and competently. The employer must establish a disciplinary sanction commensurate with the misconduct, taking into account the employee's previous behavior, in particular, bringing him to disciplinary liability earlier.

Note: Definition of the RF Armed Forces dated 30.03.12, No. 69-B12-1

An employee can be fired for absenteeism only if it turns out that there were no valid reasons for absence

If an employee does not come to work and his phones do not answer, his absence cannot be considered absenteeism. Until the manager finds out why the employee does not go to work. It is possible to bring an employee to disciplinary responsibility only when it is clear that the employee missed work without a valid reason.

If, after the employee returns to work, it turns out that he was ill or, say, was caring for a sick relative, he needs to be "rehabilitated." The time of his absence will not be considered absenteeism.

Note: Labor law does not oblige employees to notify management in advance of a valid absence. And this is not always possible.

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A valid reason for absence from work?

In addition, it is advisable for the employer to take into account the law enforcement practice of the courts on this issue. For example, the court recognizes as valid reasons for absence from work:

• calling an employee on a summons to the internal affairs bodies, for example, for a survey
  

  Note: Definition of the RF Armed Forces dated April 30, 2010 No. 6-B10-1

• summoning an employee on a subpoena, for example, to participate in a court hearing
  

  Note: Determination of the Moscow Regional Court dated 31.08.2010 No. 33-15193

• temporary incapacity for work, confirmed by an extract from the card of an inpatient in the absence of a certificate of incapacity for work
  

  Note: Determination of the Moscow City Court dated 10.08.2010 No. 33-23831

When assessing the actions of an employee, it is important to know that absenteeism does not include the use of rest days by the employee if the employer, in violation of the statutory obligation, refused to provide them, and the time the employee used such days did not depend on the employer's discretion.

Other GOOD reasons for the absence of an employee from the workplace

The legislation does not establish a specific list of valid reasons why an employee may be absent from work. Therefore, it is up to the employer to decide whether the reason for the absence from work is valid.

For this the manager requires a written explanation from the employee.

In practice, good reasons can be recognized malfunctions of public transport, a call to law enforcement agencies and the court, illness etc.

True, the written explanation in itself does not prove the fact that the employee was absent from work for a good reason. Apart from this paper, the employee must submit additional documents... For example, a certificate from a transport organization, a summons or sick leave.

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PROCEDURE for dismissal for absenteeism

Absenteeism is the basis for termination of the employment contract on the initiative of the employer (clauses a, clause 6, article 81 of the Labor Code of the Russian Federation). Before terminating an employment contract, an employer must follow a specific procedure.

The fact of absenteeism must be documented. In this regard, you can:

Time sheet

Record the fact that the employee is not at work in the time sheet.

If the reason for the absence of an employee at the workplace is unknown, put the letter code "НН" in the time sheet in the form No. T-12 or No. T-13. If in the future the employee submits documents confirming the illness, or the fact of absenteeism is recognized, the report card needs to be clarified. In it, correct the letter code "НН" to the code "B" - temporary disability (illness) or "PR" - absenteeism (absence from the workplace without good reason). Symbols of attendance and non-attendance are given on the title side of the report card according to the form No. T-12, approved by the resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.

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Absence from work

To record the absence of an employee from the workplace without good reason for more than four hours in a row during the working day. If the work shift lasts less, then absence from work during the entire shift is recognized as absenteeism.

Upon the establishment of absenteeism, the employer draws up an act, the unified form of which is not in the legislation. Therefore, this act is drawn up in any form. Nevertheless, it is advisable to indicate in the act:

• Title of the document;
• date, place and time of its compilation;
• surname, name, patronymic and position of the person who draws up the act.
  

  Note: This can be the head of a structural unit or organization. This act is signed by the head, it can be additionally signed by the head of the personnel department, witnesses that the employees of the organization can become;

• the circumstances in connection with which the act is drawn up;
• surname, name, patronymic and position of the employee;
• date and duration of absence from work.

Note: It is advisable to draw up this act on the day of truancy.

The form of the act is arbitrary. As a rule, it is drawn up by the immediate supervisor of the absent employee. The act can be drawn up within a month from the moment of detecting truancy. But it is best to draw it up after the fact, that is, on the day the employee is absent from work. If an employee is absent for a long time (several days in a row), it is safer to draw up an act for each day of his absence.

Draw up the act in the presence of two or more witnesses. If the specific place of work of the employee is not specified in the employment contract or local document of the organization (order, schedule, etc.), then this is the place where the employee should be located or where he needs to arrive in connection with his work. This area must be under the direct or indirect control of the employer.

Indicate the exact time the employee was away from work. An employee can be fired for absenteeism only if he was absent from the workplace for no good reason:

• more than four hours in a row during the working day (shift);
• during the whole working day (shift), regardless of its (her) duration

Indicate how the employee explains the reason for his absence. Dismissal is allowed only for absenteeism for disrespectful reasons. If the employee refuses to give explanations, draw up a separate act about this.

Familiarize the employee with the signed act. If the employee refuses to sign the acquaintance, draw up a separate act about it

Download the Employee Absence Act
(to confirm the fact of absenteeism), Word 56 Kb

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Employee notification

In the event of a long absence of an employee from the workplace, send a notification letter to his home address. In the notice, ask him to come to work and explain the reasons for the absence. The letter must be registered with return receipt... You need to issue it on the letterhead of the organization. In the letter, indicate the period within which the employee will have to respond (two weeks is enough). After the email notification returns, you need to wait for a response. If within the specified period the answer does not come, and the employee does not appear, draw up an act on the absence of explanations signed by two or more witnesses.

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Employee's written explanation

As soon as the employee appears at work, it is necessary to demand from him a written explanation of the reasons for the absence.

An explanatory note is required to understand the employee's motives for being absent from the workplace. It is drawn up by an employee personally in any written form

In the note, the employee should detail the reasons why he was absent from the workplace. This is necessary so that the employer, with the greatest objectivity, can establish the nature of these reasons: valid or disrespectful. The list of valid reasons is not provided by the legislation, therefore, in each specific case, the employer decides this issue at its own discretion.

The employee must submit his written explanations within two working days from the moment the employer requested them. If, after the expiration of the specified period, the employee does not provide an explanation, draw up an act about this in the presence of two or more witnesses

Dismissal for absenteeism is also a disciplinary measure. Therefore, it must be carried out in accordance with the rules of the Labor Code of the Russian Federation. After two working days, the employee did not give an explanation, draw up an act about this in the presence of two or more witnesses. This procedure is provided for in parts 1 and 2 of article 193 of the Labor Code of the Russian Federation and is explained in the letter of Rostrud dated October 31, 2007 No. 4415-6.

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Dismissal order

When all the evidence of the employee's absenteeism is collected, issue a resignation order. When drawing up an order, an organization can, at its own choice:

• use the unified form No. T-8, approved by the decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1;
• apply a self-developed form approved by the head (the form must contain all the mandatory details from part 2 of article 9 of the Law of December 6, 2011 No. 402-FZ).

Note: Part 4 of the Law of December 6, 2011 No. 402-FZ, letter of Rostrud dated February 14, 2013 No. PG / 1487-6-1

Within three working days after the approval of the order, the employee must be familiarized with it against signature. If an employee refuses to sign a resignation order, draw up a waiver in any form.

After issuing the order, make a record of the dismissal in the employee's work book: "Dismissed due to absenteeism, subparagraph" a "of paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation." Indicate the serial number of the entry, the date of the employee's dismissal for absenteeism.

In the record, indicate that the employee is fired for a one-time gross violation of labor duties, and specify the violation itself - absenteeism. In addition, give a link to the article of the Labor Code of the Russian Federation, which was the basis for dismissal (subparagraph "a", clause 6, part 1 of article 81 of the Labor Code of the Russian Federation)

Confirm the entered record with the seal of the organization and two signatures:

• the person responsible for maintaining work books in the organization;
• employee

Make a record on the basis of the order to dismiss the employee, indicating the date and number of this order

Note: See an example of an entry in a work book about dismissal for absenteeism

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Violation of the dismissal procedure

For violation of the procedure for dismissal for absenteeism, the court may decide to reinstate an employee at work. This can happen even if the absence from work was caused by a disrespectful reason.

1. 
   After the operation, the employee requires light labor that the employer cannot provide. How to be? Is it possible to fire for health reasons?
2. 
   If an employee wants to resign of his own free will, then he must write an application no later than two weeks in advance, without working off.

Good reasons for not showing up for workthe law is not defined in a clear list. Therefore, the question in the title of the article is asked at least once in a lifetime by every working person. Let's try to find the answer.

What is absenteeism

It is impossible not to come to work without good reason. Every employee knows this. Absenteeism is fraught with: at least - an explanation with the authorities, as a maximum - dismissal for absenteeism "under the article." Truancy, the Labor Code of the Russian Federation tells us (article 81, part 1, paragraph 6, sub. "A"), is absence from the workplace without good reason for more than 4 hours in a row. At the same time, if a specific workplace is not specified in your employment contract, then it is impossible to assume that you are skipping, being not where you usually work, but on the territory of the organization.

Dismissal for absenteeism must be preceded by a written explanation of the employee. If the employer considers the reasons for absence from the workplace indicated by the employee to be disrespectful, then he can fire him. If the latter does not agree with such dismissal, he can go to court. The court will decide whether the reasons for the absence from work were valid or not. This means whether there was absenteeism on the part of the employee or not.

The catch is that the law does not contain a clear list of valid reasons for absence from work. An analysis of labor legislation allows us to single out several groups of such reasons.

Subjective good reasons

Subjective reasons are inextricably linked with the personality of the employee.

First of all, it is a disease. In this case, evidence of justified absence from the workplace will be:

• a doctor's note about a visit;
• an entry in the outpatient card for admission;
• sick leave.

Periodic medical examinations of some categories of workers (Article 213 of the Labor Code of the Russian Federation) are a good reason. The child's illness is also a good reason. Here everything is exactly the same as with the illness of an adult, only the sick leave will be issued not in an adult, but in a children's clinic.

An employee may not be dismissed for absence from the workplace in connection with participation in the court session as a plaintiff, juror, witness, victim, defendant in the case. The same applies to failure to appear for work due to being in the investigating authorities in order to participate in investigative actions. The supporting document in this case is a subpoena to the court or to the investigator (interrogator). Calls to the police, work as a member of the election commission belong to the same category of good reasons.

It is justified to be absent from work in connection with the elimination of any communal accident at the employee's place of residence. However, scheduled inspections of housing and communal organizations are not a sufficient reason for absenteeism.

Objective valid reasons

Objective reasons that make it impossible to appear at work are circumstances of various force majeure. It can be weather conditions, and accidents on the road, and man-made accidents or disasters, and military actions.

If the employer in these cases does not agree that the absence from work occurred due to circumstances beyond the employee's control, and the case comes to dismissal, then, as the analysis of judicial practice in such cases shows, the case for reinstatement at work will most likely be considered in the benefit of the employee.

The main thing is not to delay going to court. Labor legislation for filing a statement of claim for reinstatement at work in court gives a month (Art. 392 of the Labor Code of the Russian Federation).

Good reasons for the application

There are a number of circumstances in the event of which an employee has the right not to come to work. But the employer must be warned about this. Therefore, the employee must write an application for the provision of days off.

In accordance with Article 128 of the Labor Code of the Russian Federation, at the request of the employee, the employer is obliged to provide up to 5 unpaid days in the event of the death of a loved one, the birth of a child, or a wedding.

17.04.2017, 14:52

Does the Labor Code of the Russian Federation provide for valid reasons for absenteeism at work? Are there any such reasons? Is the child's illness, spouse feeling unwell, the death of a close relative, or an accident causing such reasons? Let's figure it out.

What is considered a truancy according to the Labor Code of the Russian Federation

The employer has the right to dismiss an employee for absenteeism, that is, for absence from the workplace without good reason during the entire working day or shift, regardless of their duration. Also, the employer has the right to terminate the employment contract if he is absent from the workplace without good reason for more than four hours in a row during the working day (shift) (subparagraph "a" of paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation).

Good reasons: checklist

The Labor Code of the Russian Federation does not disclose a list of valid reasons for an employee's absence from the workplace. Therefore, it is up to the employer to decide which reason is valid and which is not. At the same time, it makes sense for personnel workers to know that the decision of the employer to recognize the specific reason for the absence of an employee at work as disrespectful and, as a result, his dismissal for absenteeism can be verified in court (Definition of the Constitutional Court of the Russian Federation of 23.06.2015 N 1243-O). Thus, if, for example, the death of a close relative is regarded as a disrespectful reason, then it is highly likely that the court will not agree with such a campaign. Also, if an employee's child fell ill and he did not manage to transfer the sick leave to the personnel department in time, then this should also not be regarded as a disrespectful reason for absence from work. Almost 100 percent of the court recognizes such dismissal as illegal.

On the other hand, if an employee “has gone into a binge” and does not appear at work, then the village can fire him for absenteeism. It is difficult to imagine a situation when the judiciary considers that booze is a good reason for leaving work duties.

At the same time, individual cases can be distinguished from the Labor Code and some court decisions that define certain situations as valid reasons for absence from the workplace. If there are such reasons, you should not be fired for absenteeism. It is too likely that the employee will have to be reinstated at work and paid compensation. So, based on the analysis of Art. Art. 142, 170, 186, 414 of the Labor Code of the Russian Federation, clause 6 of the Review of the judicial practice of the Supreme Court of the Russian Federation for the III quarter of 2013, approved. By the Presidium of the Supreme Court of the Russian Federation on 02/05/2014 and the Determination of the Moscow City Court of 10/22/2010 in case N 33-33169, the following valid reasons for truancy as of 2017 can be distinguished:

It is clear that the employee must document the absence from work for a good reason. For example - bring a sick leave or a certificate of detention in a pre-trial detention center.

Also, in practice, the following are recognized as valid reasons:

• interruptions in the work of public transport, as well as traffic jams on the way to work;
• summons to law enforcement agencies and courts;
• urgent hospitalization of a relative to the hospital if he needs urgent help;
• fires, emergencies, natural disasters that did not allow to get to work on time.

Disrespectful reasons

There is also no list of disrespectful reasons for absenteeism in the Labor Code of the Russian Federation. However, you can refer to the already rendered court decisions. And come to the conclusion that unreasonable reasons for absence from the workplace may, for example, refer :

The employer must assess the reasons for the absence of the employee and apply a disciplinary sanction commensurate with his misconduct, taking into account the employee's previous behavior (Determination of the Supreme Court of the Russian Federation dated 03.30.2012 No. 69-B12-1).

Maria Soboleva

How to skip work without unpleasant consequences?

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

How to skip work and not get fired

If you are fortunate enough to have loyal leadership, almost any excuse will do as an explanation for the missed work day.

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

Absence from the workplace — the most valid reasons

You can ask your superiors for an extra day of rest, or day off, in advance for working overtime or on weekends. He will not be paid, but it is quite possible to skip relatively legally. You need to warn of your intention to take time off in writing.

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

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

Alibi will provide you with a certificate that you have visited a doctor, an entry in the outpatient card. You could feel bad and you decided to urgently visit a doctor. But you should notify your superiors about your intention to seek medical help on the day you are not at work.

A certificate about the illness of a child or a 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 to the repair team to eliminate an emergency - problems with gas supply, pipe break, sewer blockage.

But the installation of plastic windows or the installation of entrance doors, forcing you to skip work, will clearly anger a strict manager. If you can talk convincingly with your superiors - you're in luck.

If you have the ability to get fake certificates, don't expect to get away with it. One or two times the number may pass, but when you abuse it, the management can check the authenticity of the documents.

Reason for not showing up - what to say

Skipping, 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, workers refer to poor health, and then there is a chance for a day or two to take a break from work.

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

Or a terrible migraine broke out, which will in no way give you the opportunity to fully work. Either you have a toothache - you will urgently have to visit a dentist.

The version of your food poisoning sounds convincing, because this can easily happen to anyone. They ate something like that 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 sleepy voice will look more like a sick person. In addition, you are very worried about your absence and warn about this in advance.

And you can imitate a cold by drawing in water with your nose, the illusion of a runny nose will be provided. When you return to work, continue to feign weakness, take some pills. Play a role, so it’s to the end.

Skipped work - what to do

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

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

For those who work with clients, you can think of a meeting with one of the respectable people as an excuse for their truancy: they played bowling (billiards, squash) and discussed the details of the future contract.

Sometimes the banal fiction that the husband (child, mother) took both sets of keys and you could not close the apartment helps to excuse yourself.

Women have a very natural reason for skipping work - the critical days.

Lack of transport, an accident, a natural disaster - these are quite good reasons for not showing up to the place of their work. In order not to be late for work as a result of such a force majeure, you decided not to come at all and work this day fully at another time.

Each person may personally need to skip the work day, but it is always better to negotiate with the management and work out your hours later. Then there will be no need to puzzle over how to skip work. A little respite will help you to work with great enthusiasm later.

Take it for yourself, tell your friends!

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