Employees who are dishonest about their job responsibilities, and, in particular, absentees, become a headache for the management of most enterprises. According to the Labor Code, absenteeism, in contrast to being late, is regarded as a violation of labor discipline and serves as a reason for disciplinary action and even termination of employment relations, however, in reality, not everything is so simple. For an employer, the use of extreme disciplinary measures is strictly regulated by Article 193 of the Labor Code of the Russian Federation. Moreover, both parties must know the rights. In some cases, the nuances of the process can help a conscientious person protect himself from unreasonable pressures from management and not damage his reputation. What is considered absenteeism, and what are the features of dismissal in connection with it, we will consider further.
Missing work hours
The concept of “truancy” in the Labor Code and its types
Absenteeism according to the labor code is the intentional absence of a subordinate from the workplace (Article 209) without good reason for 4 hours in a row or more (Subclause “a”, clause 6, part 1, article 81). Absenteeism also means leaving work without permission without warning of the termination of employment obligations. The concept of absenteeism is defined (by Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2 of March 17, 2004). In addition, absenteeism includes such actions as: unauthorized going on vacation without permission from superiors; failure to fulfill duties after a legally executed transfer to another workplace; skipping shifts before the end of the agreed period when signed under a fixed-term employment contract; leaving the work zone without communicating with a superior, when collaborating under an employment contract without a specified validity period; downtime of working hours if the employer violates the rights of employees. To understand the situation, it would be better to contact the appropriate services.
Leaving work, as well as any failure to perform official duties, will be considered truancy when the truant does not indicate valid reasons and does not attach evidence to them.
Failure to perform assigned duties is truancy
There are two conventional categories of absenteeism:
- Short-term(classic). Here the employer is warned where the subordinate is and can always talk to him. What needs to be done for absenteeism is stated in Article 193 of the Labor Code of the Russian Federation. The person is asked for an explanation for his behavior; his justification must be written down on paper and presented to his superiors within 2 working days. The basis for this is a memorandum prepared in advance addressed to the authorities and the documented fact of missing working hours on a certain day. If there is no response from the person, then a corresponding act is drawn up, which is signed by its drafters and three witnesses to the violation. And only after this the manager has the right to issue a decree imposing a disciplinary sanction, recording the date of absence on the report card as absenteeism.
- Long-term(long-term). Here the employer does not know where the subordinate is staying, for several shifts or weeks. Therefore, he cannot be contacted. In order to fire someone for absenteeism, the employer has to wait for the employee to appear at the workplace and then proceed with the standard processing. The law allows you to request explanations by mail or telegram to the address in the personal file of the subordinate. It is necessary to carry out registration strictly according to the Labor Code of the Russian Federation; otherwise, the truant can turn the situation through the judicial authorities in his favor, be reinstated in his position and even receive compensation costs.
The total time for collection and issuance of the corresponding order is one month.
Consequences of absenteeism
We have defined what absenteeism is under labor law; now we will consider what creates constant clashes of interests between both parties. The fact is that Article 81 of the Labor Code of the Russian Federation does not contain a list of valid reasons. As a rule, the manager decides whether the reason will be serious if local regulations strictly regulate the start and end times of the shift, and the workplace is clearly defined. When there is no clear concept of a workplace in regulatory documents, one should rely on Art. 209 Labor Code of the Russian Federation. From it it is said that a workplace is an area that is assigned to each individual staff unit of the company. A person must stay in it and perform the work assigned to him, as provided for in the regulatory and technical documentation.
Knowing the rights, a truant can avoid punishment
In case of absenteeism, the employer may not formalize dismissal under the article for absenteeism, although he has every right to do so, it all depends on how competent he is in this matter. If an employee systematically violates the rules, then this method is simply necessary to regulate work. The employer has the right to issue a reprimand, reprimand, or collect a penalty from the truant in the form of deprivation of bonuses, although the lack of incentives is not a punishment. Let us note that the Labor Code of the Russian Federation provides for only one punishment for absenteeism at work, so if a person is reprimanded, terminating the employment relationship for this absenteeism is already prohibited.
Dismissal for absenteeism
An employment contract can be terminated by the employer in the event of a single gross violation by the employee of labor duties: absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the event of absence from work place without good reason for more than four hours in a row during a working day (shift) - paragraphs. "a" clause 6, part 1, art. 81 Labor Code of the Russian Federation.
Explanations of the Supreme Court of the Russian Federation on dismissal for absenteeism
Judicial practice of dismissal for absenteeism
1. Satisfying the demands for reinstatement at work, the court took into account the fact that the plaintiff worked for the defendant for 45 years, is a labor veteran, and was not brought to disciplinary liability during the entire period of work, therefore the court came to the conclusion that the disciplinary offense on the part of the plaintiff took place, however, when he was dismissed for absenteeism, the administration did not take into account the provisions of Article 192 of the Labor Code of the Russian Federation
The plaintiff was unable to go to work due to health reasons; he had a heart attack. The next day he went to the doctor, where he was given a sick leave certificate, first for outpatient treatment, and then he was prescribed inpatient treatment.
The court came to the conclusion that the demands for reinstatement are legal and justified; the demands for recovery of wages during forced absence are also subject to satisfaction (Determination of the Moscow Regional Court dated April 5, 2011 in case No. 33-7511).
2. The plaintiff was supposed to be on a business trip for 5 days, but left the city earlier, that is, he was absent from the workplace for more than two days. The traveling nature of the plaintiff’s work does not give him the right to freely move around the country during working hours at the time when the plaintiff was sent on a business trip to a specific city for a certain period of time
D. filed a lawsuit against the LLC for reinstatement at work, and asked the court to reinstate him in the position of Deputy General Director for Human Resources, to recover average earnings for the period of forced absence, and compensation for moral damages.
The claim was rejected, since it was proven that the plaintiff was supposed to be in Yaroslavl until June 23, 2010, but instead left the city on June 21, 2010, and went to work in St. Petersburg only on June 24, 2010, then is absent from work for more than two days (dated March 28, 2011 N 33-4247/2011).
3. The court declared the dismissal for absenteeism illegal, indicating that since the employment contract did not stipulate the plaintiff’s specific workplace, in accordance with Art. 209 of the Labor Code of the Russian Federation is considered to be the place where the plaintiff should have been or where he needs to arrive in connection with his work
The court of first instance ruled: to reinstate the plaintiff in his position, to recover compensation for moral damage in favor of the plaintiff in the amount of 20,000 rubles.
The court stated the following. From the case materials, it is clear that the plaintiff’s job responsibilities are related to the performance of work not only in the office, but also outside it. On October 27, 2010, the plaintiff performed duties in the city of Solikamsk, participating in the inspection of damaged cargo, and then was summoned by the Department of Internal Affairs of the city of Perm. Since the employment contract did not stipulate the plaintiff’s specific workplace, in accordance with Art. 209 of the Labor Code of the Russian Federation is considered to be the place where the plaintiff should have been or where he needs to arrive in connection with his work. Therefore, the court, correctly guided by Part 6 of Art. 209 of the Labor Code of the Russian Federation, came to the conclusion that the defendant’s arguments about the plaintiff’s absence from the workplace without good reason were unfounded (Cassation ruling of the Perm Regional Court dated March 16, 2011 in case No. 33-2325).
4. The court correctly determined the circumstances of the employee’s absence from the workplace and came to the conclusion that there were no grounds for dismissing the employee for absenteeism
N. filed a lawsuit against MUZHEP-12 for reinstatement at work, citing in support of the claim that she was illegally dismissed from her position as a janitor for absenteeism, while at that time she was sent by her employer to a medical commission.
The claim was satisfied. The court found that the administration of MUZHEP-12 issued N. a referral to undergo a mandatory medical examination. At the same time, based on the provisions of Art. 212 of the Labor Code of the Russian Federation, has no legal significance whether this medical examination was preliminary (Article 69 of the Labor Code of the Russian Federation) or periodic (Article 213 of the Labor Code of the Russian Federation). In any case, the plaintiff could not be allowed to perform her job duties without undergoing a medical examination.
Thus, having established the validity of the reasons for the plaintiff’s absence from work from December 12 to 19, 2006, also taking into account that N. underwent a medical examination within a reasonable time, the court rightfully recognized her dismissal under paragraph “a” of Part 6 of Art. 81 of the Labor Code of the Russian Federation for absenteeism without good reason is illegal and, guided by the requirements of Art. 394 of the Labor Code of the Russian Federation, decided to reinstate her at work (see Generalization (review) of practice
5. The court recognized the dismissal for absenteeism as justified, because the plaintiff was not deprived of the obligation to appear at his workplace after the end of his interrogation by law enforcement agencies. In addition, the plaintiff had a real opportunity to inform the employer about the reasons for his absence from the workplace
The plaintiff asked the court to recognize his visit to law enforcement agencies on May 28, 2010 and June 30, 2010 as a valid reason for absence from work, to cancel the order imposing a disciplinary sanction for absenteeism, to reinstate him in his position, to recover wages from the defendant for the period of forced absence .
The claim was rejected, since it was established that the plaintiff was actually called to the premises of the law enforcement agency on June 30, 2010 at 09.30, but did not appear by the specified time, in fact he was in the premises of the law enforcement agency on June 30, 2010 from 15.00. 05 min. until 16 o'clock 15 minutes.
The plaintiff's absence from the workplace on May 28, 2010 and throughout the entire working day on June 30, 2010, without good reason, indicates that the employer has legal grounds for dismissing the employee for absenteeism under paragraphs. "a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (Determination of the St. Petersburg City Court dated March 1, 2011 N 33-2871/2011).
6. The court declared the repeated dismissal of the plaintiff for absenteeism illegal, since the employer did not indicate in the order that, on the basis of a court decision, he was reinstating the plaintiff to work, in what position and with what work schedule, taking into account the ITU conclusion on loss of professional ability to work
The plaintiff indicated that she was fired by the defendant on August 28, 2009 for absenteeism, but by a court decision the dismissal was declared illegal and she was reinstated at work. On 02/15/2010, the plaintiff was again dismissed for absenteeism due to failure to show up for work in the period from 01/14/2010 to 02/04/2010.
The court satisfied the claims and decided to recognize the wording of V.’s dismissal under paragraph 6 of paragraphs as illegal. "a" st. 81 of the Labor Code of the Russian Federation (truancy), change the specified wording of dismissal to dismissal of one’s own free will, that is, Art. 80 Labor Code of the Russian Federation. At the same time, the court indicated that the court decision to reinstate the employee at work is subject to immediate execution, regardless of the fact that this execution is not recorded in the operative part of the decision. This follows from the provisions of Art. 396 Labor Code of the Russian Federation. However, from the materials of the case, it is not clear that the employer fulfilled it in full immediately after the court decision was made, that is, ensured the plaintiff fulfilled her labor duties and brought this to her attention. According to the order dated January 14, 2010, the employer only canceled the order to dismiss the plaintiff dated August 28, 2009; this order does not contain a record that the plaintiff was reinstated at work as a bricklayer and with what functional responsibilities; in addition, this order was not brought to the attention of the employee (Cassation ruling of the St. Petersburg City Court dated February 14, 2011 No. 33-1934/2011).
7. The defendant’s failure to provide evidence of the employee’s absence from work without good reason led to the cancellation of the decision. The defendant did not provide the court with evidence that the plaintiff was absent from work without good reason during the disputed period.
8. Disciplinary action must correspond to the gravity of the offense committed. The court did not take into account the long length of service at the enterprise, that previously no disciplinary sanctions were imposed on this employee, he has a dependent minor son, and receives child benefits as a single mother
The plaintiff was dismissed under sub. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation (for absence from the workplace without good reason for more than four hours in a row. She asked to recognize the dismissal as illegal, since she was absent from the workplace for a good reason, and as a result: to reinstate her at work, to recover the average salary for the entire period of forced absence, compensate for moral damage.
In overturning the court's decision, the judicial panel stated the following. The court reasonably concluded that the plaintiff was absent from her workplace without good reason for more than four hours in a row on January 21, 2004. However, the court did not take into account the requirements of paragraph 53 of Resolution No. 2 of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” that the employer must provide evidence indicating not only that the employee committed disciplinary action misconduct, but also that when imposing a penalty, the severity of this offense, the circumstances under which it was committed, the employee’s previous behavior, and his attitude to work were taken into account. If, when considering the case for reinstatement at work, the court comes to the conclusion that misconduct actually occurred, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied (extract from the decision of the Judicial Collegium for Civil Cases No. 33-2619 of August 4, 2004 ; (26), 2006)
9. Failure by the employer to provide evidence of the legality of dismissal for absenteeism entails the plaintiff’s reinstatement at work or, at his request, changing the wording of the dismissal to dismissal at his own request.
By order, the plaintiff was dismissed from the position of foreman under clause 6 sub-clause. "a" st. 81 of the Labor Code of the Russian Federation for absenteeism.
Satisfying the plaintiff's demands, the judicial panel indicated that in March - April 2004 there was no work at RSU LLC and employees were called to work when there was volume of work. He carried out his duties, looked for work volumes, and worked at DSU facilities. The court came to the conclusion that the defendant legalized the dismissal of L. under clause 6 sub. "a" st. 81 of the Labor Code of the Russian Federation was not proven (extract from the ruling of the Judicial Collegium for Civil Cases No. 33-3047 dated September 1, 2004; Bulletin of Judicial Practice of the Omsk Regional Court No. 1 (26), 2006)
10. If there was evidence indicating that the employee was ill, that he was provided with medical care during this period, and that he had no motive for concealing the reason for absenteeism due to illness, the court had reason to be critical of the explanations of the defendant’s representative that the employee refused from giving written explanations and was familiarized with the dismissal order. Failure to clarify the reasons for the employee’s absence from work and the date of familiarization with the order led to the cancellation of the decision
Ch. filed a claim against OMUP for reinstatement at work. Dismissal under paragraphs. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation is considered illegal, since it works according to the approved schedule for each month. On October 31, 2003, after finishing his shift, he went home.
Satisfying the requirements, the judicial panel indicated that there was no written explanation from Ch. about the reasons for absenteeism from work. The court was presented with a copy of the emergency medical care station call card, according to which on November 3, 2003, Ch. was provided with medical care at home due to an exacerbation of his illness. At the same time, medical workers established the fact that his health condition had deteriorated approximately a week before the call.
On November 4, 2003, due to the exacerbation of Ch.’s disease, a sick leave was issued; on November 11, he was hospitalized in a hospital, where he remained until March 10, 2004. On March 9, 2004, the Bureau of Medical and Social Expertise established a second disability group in connection with the same disease.
If there was a body temperature or high blood pressure, indicating the presence of a disease, the driver could not be released on the flight by medical workers. In this connection, the argument of the defendant’s representative that Ch. was absent on these days should have been questioned. (Extract from the Determination of the Judicial Collegium for Civil Cases of the Omsk Regional Court No. 33-2145 dated July 7, 2004; Bulletin of Judicial Practice of the Omsk Regional Court No. 1 (26), 2006)
11. The court correctly concluded that the employer had the right to dismiss an employee for unauthorized use of a day off under paragraph “a” of Part 6 of Art. 81 of the Labor Code of the Russian Federation (for absenteeism). The fact that the plaintiff took time off with the employer’s permission is not confirmed by the case materials
By order of December 5, 2006, T. was dismissed from her job under paragraph “a” of Part 6 of Art. 81 of the Labor Code of the Russian Federation - absenteeism (absence from the workplace without good reason for more than four hours in a row during the working day), committed on October 27, 2006.
The claim for reinstatement at work was denied, because from the case materials it is clear that at the court hearing T. claimed that she had time off, and she took it on October 27, 2006 with the permission of her immediate superior B., therefore her dismissal for absenteeism is illegal. She did not write an application for time off with the permission of B. However, this statement of the plaintiff is unfounded, since it is not confirmed by the case materials. Thus, B., questioned as a witness at the court hearing, testified that the employee always writes an application for time off (see Generalization (review) of the practice of consideration of labor dispute cases by district courts of the Novgorod region for 2007).
12. Dismissal of the plaintiff under paragraphs. "a" clause 6 of Article 81 of the Labor Code of the Russian Federation, the court declared it illegal for absenteeism, the wording of the dismissal was changed to "dismissal at one's own request." The court refused to satisfy the claims for the recovery of average wages during forced absence, compensation for moral damage, since the defendant ceased his status as an entrepreneur
By order, the plaintiff, who works for individual entrepreneur V. as a salesperson, was dismissed under Art. 81 paragraphs 6 paragraphs "a" of the Labor Code of the Russian Federation for absenteeism without good reason.
The court came to the correct conclusion that her dismissal was illegal, since the defendant did not provide the court with evidence of the validity of her dismissal, and the fact of the plaintiff’s absenteeism without good reason was not proven by the defendant. The court also found a violation of the procedure for dismissing the plaintiff from work, since she was not given an explanation for the alleged violation of labor discipline. Since by the time the case was considered, the defendant had ceased his status as an entrepreneur without forming a legal entity, the court rightfully satisfied the plaintiff’s claims, recognizing her dismissal under Art. 81 clause 6 "a" of the Labor Code of the Russian Federation is illegal, in accordance with Art. 394 of the Labor Code of the Russian Federation changed the wording of her dismissal to “dismissal at her own request” (Determination of the Irkutsk Regional Court dated April 21, 2011 in case No. 33-3479/11).
13. The reasons for absence from work indicated by the plaintiff in her explanation were rightfully considered disrespectful by the employer, since the fact of the shortage and the criminal investigation into this fact, by virtue of Art. 21 of the Labor Code of the Russian Federation did not relieve the plaintiff from her duties to observe labor discipline, show up for work and conscientiously perform her labor duties
By order, B. was dismissed from her job under paragraphs. "a" part 6 art. 81 of the Labor Code of the Russian Federation for absenteeism. The claim to declare the dismissal illegal was denied. The court stated the following.
On August 7, 2003, after carrying out the next inventory, the plaintiff’s keys to the pavilion were taken away, and all the goods were removed from the pavilion. Disagreeing with the actions of management, the plaintiff did not show up for work on August 8, 2003.
The reasons for absence from work indicated by the plaintiff in her explanation were rightfully considered disrespectful by the employer.
The fact that the plaintiff’s keys to the pavilion, which was subsequently closed, could not be considered a valid reason for the plaintiff’s absence from work. Based on clause 2.3. employment contract, the plaintiff’s workplace was not the pavilion, but the Alyonushka trading house (as follows from the employment contract), but the plaintiff only went to work at the trading house on August 11, 2003. After which she was absent from work, although she did not have any obstacles to this.
The fact that, due to the discovery of a shortage of goods in pavilion No. 4, the plaintiff was suspended from work directly in this pavilion, also did not relieve her of the obligation to report to work at the Alyonushka Trading House (Generalization (review) of the practice of consideration by district courts of the Novgorod region labor dispute cases for 2007).
14. If the employment contract is terminated according to paragraphs. "a" clause 6 of Art. 81 Labor Code of the Russian Federation for absenteeism, it must be taken into account that dismissal on this basis is possible only if the absence was due to an unexcused reason; there are cases when employees challenge the illegality of their dismissal in the absence of a dismissal order; There are cases of incorrect application by the courts of the provisions of Part 1 of Art. 261 of the Labor Code of the Russian Federation, according to which termination of an employment contract at the initiative of the employer with pregnant women is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur. On dismissal under clause 6 of Art. 81 of the Labor Code of the Russian Federation (paragraphs “a”, “b”) (one-time gross violation of labor duties) see also “Review of the practice of consideration by the courts of the Kaliningrad region in 2008 of civil cases on reinstatement at work.”
Employee absenteeism is a fairly common type of violation of labor discipline and is subject to strict disciplinary action, including dismissal. We will talk in detail about the specifics of the procedure for dismissal for absenteeism and the documents required to complete this procedure in our article.
Truancy: concept, types, criteria
Missed work or received a reprimand for absenteeism - such phrases are often used by both employees and employers. But is everyone familiar with the concept of absenteeism and in what case can we say that an employee skipped work?
- An employee can be called a truant only when he is not in his place more than 4 hours in a row and this fact is confirmed by written evidence. In other words, if an employee left work and did not return to it after 4 hours, then this situation can be considered absenteeism.
- A truant can also be a person who did not show up for work at all, and therefore did not perform his job duties the whole day.
Two main criteria have been established to recognize an employee’s absence from the workplace as absenteeism. These factors are considered:
- the employee is not at the workplace without good reason;
- the employee left the workplace for 4 consecutive hours (or more) or did not show up for work at all.
Types of truancy
As for the types of absenteeism, they are divided into two categories:
- The main ones are cases when an employee left work for several hours, or did not show up at the place of performance of work duties, and then showed up at work the next day. In such cases, the employer knows where the employee is, can contact him, find out the reason for absence (perhaps it is valid) and determine when the employee will return to work.
- Long-term - the situation is more complicated with long-term absenteeism, in which the employee is not at work for several days (weeks), while he does not make contact, and therefore it is impossible to establish his whereabouts. These factors significantly complicate the procedure for dismissal and other disciplinary sanctions for long absences.
What is not considered truancy
You left your workplace to receive medical care
This exculpatory factor is quite common in the event of industrial accidents and other emergency situations when an employee seeks help for himself or for his colleague. It does not matter whether you needed medical assistance directly, or you called a doctor for the victim - in both cases, your absence is not considered absenteeism. If you have left your place of work to see a doctor and you have a certificate about this, feel free to provide it to your employer! Your “absence” is legally justified and is not considered absenteeism. But keep in mind that the date of the certificate must correspond to the date when you were not at work.
You are participating in investigative activities or are under investigation yourself
As in the case described above, it does not matter whether you are directly a suspect in a court case, or act as a witness or witness - in each of these cases you are given the right to miss a day of work if this is caused by investigative needs. It is possible that on your way to work you became a participant or witness to an accident, and for this reason you were late for work or did not show up at all.
In order not to become a truant, take care to obtain a certificate stating that you are a victim, witness, witness, etc. If you provide such a certificate to your employer, you can consider yourself absolutely protected from the application of various penalties for absenteeism. When an employee is detained by internal authorities, the date of his detention must correspond to the date when he did not show up for work.
Your employer delays payment of wages for more than 15 days
By allowing you not to work “for free,” the legislation provides you with legal protection from an unscrupulous employer. But before you refuse to perform your job duties, be sure to inform management about this by filling out the appropriate application. It will not be superfluous if you decide to write a complaint to the labor inspectorate. In the event that the organization tries to fire you for absenteeism, a copy of the above statements will serve as confirmation of the legality of your missed work day.
An employee did not show up for work: what to do?
So, the employee is absent from the workplace for more than 4 hours in a row. What algorithm of action should the employer apply? Let us briefly describe each of the stages of step-by-step dismissal for absenteeism:
- The employer draws up an absenteeism report.
- An explanation of the reasons for absence is obtained from the absent employee. From the text of the explanatory note and the documents attached to it, it is established whether the absence has a valid reason or not.
- It has been established that the truant has no valid reasons. The employee's immediate line supervisor draws up a memo and submits it to the head of the organization.
- At the discretion of management, a disciplinary sanction is applied to the truant (reprimand, fine, dismissal).
Absenteeism without dismissal
We would like to separately note cases of absenteeism without dismissal. If you are a highly qualified employee with high work performance and have violated labor discipline for the first time, then it is quite possible that the employer will not fire you, but will limit itself to a reprimand:
- The use of penalties of a moral and ethical nature is the most universal and effective method of influence, because a reprimand can be issued to those categories of employees who cannot be fired for absenteeism (energy supply workers, ambulance and emergency care workers, workers in hazardous and hazardous industries).
- In addition, a reprimand allows for financial penalties in the form of deprivation of bonuses, as well as the imposition of a fine. Also, according to the Labor Code, a reprimand is one of the prerequisites for subsequent dismissal.
Let's try to find out all the intricacies of the procedure for dismissal for absenteeism in 2016, for this we will use step-by-step instructions.
Registration of an absenteeism report
If you are away for more than 4 hours or for the entire working day (shift), then the employer will definitely document this fact in writing. Registration of absenteeism is recorded in the appropriate act. The form of the act is not strictly established, so the document can be drawn up in the form established directly by the organization. But the law regulates compliance with the following conditions when drawing up paper:
- the document is drawn up and signed by members of the special commission;
- the act must record information about the location of the employee, and in the absence of such information - about the measures taken to establish it;
- the act contains exact data about the time the employee is absent from the workplace. If you have not been at your place of work for a long time, including during a break, then this fact must be recorded in the report;
- the date of drawing up the document strictly corresponds to the date of the employee’s absence.
The paper is handed over to the truant for review and signature. If you do not want to read and sign the act, then the fact of refusal is described in the document. It doesn’t matter whether you sign the document or not - in any case, the employer can fine you, reprimand you and even fire you.
Sample act
ACT N 1
absence from work without good reason
more than 4 hours in a row during a working day (shift)
Time for drawing up the act: 18 hours. 20 minutes.
Senior economist of the financial department Petrushov K.D. in the presence of chief accountant V.P. Skuratova and accountant of the 1st category of the settlement department Kirova G.L. has drawn up this act on the following:
April 25, 2016, 2nd category accountant of the settlement department S.N. Vasilyeva was absent from work at Saratov, st. Lenina, 25, office. 19 from 09 o'clock. 45 min. until 18 o'clock 00 min., including lunch break from 12 noon. 00 min. until 13 o'clock 00 min. - during the working day. (total 8 hours 15 minutes).
Vasilyeva S.N. requested to provide a written explanation within 2 business days.
Signatures of the persons who drew up the act:
______________/Petrushov K.D/
_____________/Skuratova V.P./
_____________/Kirova G.L/
I have read the act ___________/Vasilyeva S.N./
Requesting an explanation from the employee
Next, we move on to the explanations that the absentee employee must give, describing the reasons for his action. To draw up an explanatory statement, you have 2 days. You can refuse to give explanations; this will be formalized in an act of refusal.
Such an explanation is drawn up by the violator in writing in the form of an explanatory note (the form of preparation is free). If you are required to draw up an explanatory note, then in its text you should mention good reasons, if any (you saw a doctor, were involved in an accident, etc.). All supporting facts must be supported by documented evidence.
Preparation of a memorandum
Analyzing the scheme of dismissal for absenteeism at work, we move on to the next point - preparing a memo. The report is written by the line manager addressed to the director of the enterprise; the form of the document is free, but it is worth mentioning the reasons for the employee’s misconduct and other violations that were noticed in him. At the end, the compiler expresses his opinion regarding the required impact.
Memo from the manager
General Director of JSC "Mars"
Komarov S.L.
REPORT No. 37 dated June 15, 2016
about violation of labor discipline
I would like to bring to your attention that today, June 12, 2016, the driver-forwarder of the sales department, Sorokin Stepan Markovich, was absent from his workplace for 7 hours 15 minutes. (including lunch break from 13.00 to 14.00) from 10:45 to 18:00.
Due to Sorokin’s absence from the workplace, the supply of materials to customers of JSC Kremen and LLC Sobol was disrupted.
There is no information confirming the validity of the reason for the absence of S.M. Sorokin. Sorokin refused to explain the reasons for his absence from work (I am attaching a statement of refusal).
In connection with Sorokin’s systematic violation of labor discipline, about which there are relevant acts, I ask you to consider the issue of imposing a disciplinary sanction on I.V. Makarov in the form of dismissal.
Head of Sales Department (signature) ____________ Khomyakov V.Yu.
Dismissal and entry into the work book
So, the director of the enterprise received a report and decided to fire the offender, about which an order was issued. It is important to understand that the order must contain the following mandatory information:
- reference to legislative norms that allow dismissing an employee for absenteeism, namely clause “a” of Part 6 of Article 81 of the Labor Code of the Russian Federation;
- a list of all documents grounds for dismissal (acts, reports, refusal of explanations, etc.);
- a note about the opinion of the trade union (if there is such a body in the organization).
The order of dismissal for absenteeism is subject to mandatory review by the dismissed person within 3 days from the date of issue of such an order. That is, if you are fired for absenteeism, the employer is obliged to inform you about it. But even if you refuse to sign the order in the “Acquainted” column, you are still considered dismissed, that is, refusal to familiarize yourself with the order is not grounds for canceling its validity.
Example of an order
JSC "Meridian"
ORDER No. 41-P dated 04/03/2016
on termination of an employment contract with an employee (dismissal)
Terminate the employment contract dated August 15, 2001 No. 43, dismiss on April 3, 2016.
Kondratyev Petr Afanasyevich (Table No. 318), senior expert-analyst of the Analytics and Financial Monitoring Department for a single gross violation of labor duties by an employee - absenteeism, subparagraph “a” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation.
Grounds for termination of the employment contract: order “On the application of disciplinary sanctions in the form of dismissal” dated March 20, 2016 No. 24-k
Head of the organization ________________ F.L. Stepantsov
The employee is familiar with the order (instruction) ________ P.A. Kondratiev
04/03/2016
Entry into the work book
After signing and issuing the order, a corresponding entry is made in the work book of the dismissed person according to the sample below:
Dismissed due to a one-time gross violation by an employee of his work duties - absenteeism, subparagraph "a" of paragraph 6 of part 1 of Article 81 of the Labor Code of the Russian Federation.
A completed work book, certified by the signature of the manager and the seal of the organization, can be given to the dismissed person or sent by registered mail with notification.
Estimated payments
Upon dismissal due to absenteeism, an employee can count on monetary payments in the general manner, namely:
- receiving a payment for the days actually worked;
- monetary compensation for days of unused vacation;
- sick leave payment (if the employee was sick and provided sick leave before dismissal).
In addition, if dismissed for absenteeism, an employee has the right to compensation for travel and other business expenses incurred before the dismissal order was issued. To avoid delays and red tape, the employee should take care in advance to provide advance reports and documents confirming expenses.
Example: Specialist of the financial monitoring department of Znamya JSC Kurchenko G.L. 03/21/2015 dismissed for absenteeism. Kurchenko’s salary for the period 03/01/2015 - 03/21/2015 amounted to 14,380 rubles, including bonuses of 3,740 rubles. In the period from 03/05/2015 to 03/07/2015, Kurchenko was on a business trip to Astrakhan, where he incurred expenses in the amount of 4,120 rubles, for which he provided a corresponding report. Kurchenko also transferred sick leave to the accounting department of Znamya JSC for the period 03/20/2015 - 03/22/2015. The amount of compensation for sick leave was 3,518 rubles.
On the day of Kurchenko’s dismissal, the amount of 14,760 rubles was paid, of which:
- compensation for business trip expenses to Astrakhan - 4,120 rubles;
- salary minus bonuses that were not paid due to absenteeism - 10,640 rubles;
- Kurchenko’s sick leave was not paid, since its duration came later than the date of dismissal.
How to get your job back after being fired for absenteeism
In some cases, you can go to court to challenge unlawful dismissal and demand reinstatement from your employer. The court will take your side if you can prove that you were absent from work for good reasons. You also have a chance to win a lawsuit if your employer forced you to go to work on a day off and, having received a refusal, registered your absence as absenteeism. Reinstatement of dismissal for absenteeism is possible if the court establishes one of the following facts:
- You did not go to work during your vacation (sick leave, compensatory leave);
- You refused to work overtime, on weekends or outside the schedule;
- You were asked to change your place of work (locality, another area, etc.), to which you refused;
- You have been assigned a job for which you have medical contraindications (hazardous production, dangerous working conditions, etc.).
Judicial practice shows that in the above cases, the court, as a rule, is on the side of the employee, and therefore decides to reinstate him in the workplace, and in some cases even to compensate for the damage caused by the employer.
As you can see, strict punishment is provided for violators of labor discipline. But despite this, if you have evidence of your innocence, you always have the opportunity to defend your legal interests and, if necessary, demand financial compensation from your employer for the damage suffered.
Absenteeism is one of the most serious violations committed by an employee. Paragraph 6 of Article 81 of the Labor Code defines it as failure to appear at the employee’s place of work for 4 consecutive hours. The total absence of an employee from the workplace for such a period of time will not be considered absenteeism. Also a necessary sign is that the employee does not have a valid reason.
For the commission of this offense by an employee, the law establishes various penalties, up to and including termination of the contract. What types of punishments for absenteeism are provided for by the Code will be discussed in the current article.
Consequences for absenteeism at work
Of course, with such a negligent attitude towards your work, sad consequences cannot be avoided. As soon as the boss learns that an employee is absent from his shift, he will certainly demand an explanation. If a statement of the reasons for the incident is not received from the employee, the personnel department employees draw up a report about this. An investigation into violations of disciplinary rules is being carried out. It should be noted that the punishment must be applied no later than a month from the date of receipt of information about the employee’s absenteeism. There are exceptions to this time:
- Sick leave;
- Vacation;
- Other official reasons for the absence of a truant.
In any case, penalties must be applied no later than six months. The procedure for bringing to punishment must be carried out in compliance with the procedure prescribed in Art. 193 Code.
When determining the type of punishment to be applied, the employer must carefully study all the reasons for absenteeism, the employee’s personality and his job characteristics. Based on all this, he should decide the following: fire him or limit himself to a reprimand for the first time.
Punishment for absenteeism without good reason
In accordance with Art. 192 provides not just one type of punishment, but a whole list. At its discretion, taking into account the analysis of all the circumstances of absenteeism, management can take the following measures against the worker who committed the violation:
- Make a note.
- Reprimand the entire team.
- Terminate the contract with the worker.
The legislation does not indicate that absenteeism results in dismissal from work. The fate of the worker is in the hands of his employer, only he evaluates whether he needs such an employee or not. However, it should be noted that the implementation of the will of management must be supported by the law in this regard, and nothing else.
Fine for absenteeism at work
Labor legislation does not provide for such a penalty as a fine. However, the Code does not prohibit the establishment of penalties that are not specified in it. On the basis of which enterprises and firms in their local acts prescribe a system of fines applied to absentee workers.
Collection of a fine, as practice shows, is an excellent means of preventing such violations among the entire workforce. In addition to the fine, management may also deprive the offender of his bonus.
The important point is that if a fine as a punitive measure is not prescribed in a local act, it is not possible to apply it to the worker.
Dismissal for absenteeism at work
Dismissal is the most severe measure for this disciplinary offense. A notice of dismissal made in the employment record with reference to an article of the law can greatly harm the worker in the future, since few employers will want to hire a person who is capable of absenteeism.
Dismissal is carried out in a certain manner, which is established by the Code. First, you need to get an explanatory note from the worker, then a report is drawn up, an inspection is carried out, and only then an order is drawn up. The employee becomes familiar with the order on the day of dismissal. Issuance of a book in hand, full financial settlement - all these rights of the worker must be respected upon his dismissal. In addition, compensation for unused legal leave in cash is also a prerequisite.
Order on disciplinary action for absenteeism - sample
The order is signed by the head of the company. After signing, the order is presented to the employee for review, after which a full dismissal procedure is carried out with an explanation of rights, collection of signatures and issuance of documents.
The sample order must contain the following:
- Business name.
- Information about the person being dismissed.
- Date of termination of the relationship.
- The basis with the exact formulation of the norm.
- Attached documents: acts, explanation.
- Chief's signature.
Thus, the law determines the exact list of punishments for violation of discipline, and also provides the employer with the opportunity to choose the type independently, based on an assessment of the circumstances of the violation.
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