Walking at work for how many hours. Documentation of employee absenteeism. What is considered absenteeism according to the Labor Code of the Russian Federation

One of the grounds for termination employment contract at the initiative of the employer, it is the commission by the employee of a single gross violation of labor duties, in particular absenteeism (paragraph "a", paragraph 6 of article 81. However, immediately upon dismissal of the offending employee personnel services face a number of questions regarding the procedure for dismissal and proper registration required documents wherein.

The concept of absenteeism is disclosed in paragraphs. "a" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, where absenteeism is understood as absence from the workplace without good reasons during the entire working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day (shift). In paragraph 39 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts Russian Federation Labor Code of the Russian Federation" lists specific cases that should be considered absenteeism:

• 1. Absence from work without good reason, i.e. absence from work during the entire working day (shift), regardless of the length of the working day (shift);
• 2. the presence of an employee without good reason for more than four hours in a row during the working day outside the workplace;
• 3. abandonment of work without a valid reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about the termination of the contract, as well as before the expiration of the two-week notice period;
• 4. abandonment of work without a valid reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice of early termination of the employment contract;
• 5. unauthorized use of days off, as well as unauthorized leave on vacation (basic, additional).

So, the employee is caught in one of the above offenses. What's next for HR representatives? First of all, it should be noted that absenteeism can be different. Conventionally, they can be divided into two groups: short-term with determining the location of the guilty employee (when the employee, for example, after missing one or several working days, appears at his workplace or does not appear, but he can be contacted by phone) and lasting absenteeism, in which it is not possible to find an employee and request an explanation from him (for example, the employee left work, at his place permanent residence there is no information about him, he does not provide any information about himself at work, he does not answer calls).
In the first case, everything is simple. Since the dismissal under Art. 81 of the Labor Code of the Russian Federation is a disciplinary sanction, it is necessary to comply with the requirements of Art. 193 of the Labor Code of the Russian Federation. According to this article, before applying a disciplinary sanction, the employer must request an explanation from the employee in writing. If the employee refuses to give the specified explanation, an appropriate act is drawn up. At the same time, the employee’s refusal to give an explanation is not an obstacle to the application of a disciplinary sanction, but in this case it would not be superfluous to take writing testimonies of colleagues and the immediate supervisor about the absence of the employee at the workplace, without forgetting to formalize them properly. After that, an order is drawn up in the form N T-8 ("Order (order) on the termination (termination) of the employment contract with the employee (dismissal)"), approved by the Decree of the State Statistics Committee of the Russian Federation of January 5, 2004 N 1.
In the second case, it is not worth firing an employee without finding out the reasons for his absence from the workplace (although some employers do this). The fact is that if the reasons for the absence are subsequently recognized as valid, the court will reinstate the employee in the workplace and oblige the employer to pay all the amounts due to him, including forced absenteeism. At the same time, another person will already be working in the place of an improperly dismissed employee, and when deciding what to do next with the latter, difficulties may arise (either to increase staff units or transfer to vacant positions). In such a situation, it is better to accept an employee on the terms of replacing a temporarily absent main employee, and after clarifying all the circumstances, the contract can be transformed into a permanent one.
To resolve this situation, it is necessary to make every effort to find the employee and get an explanation from him. To do this, you can send a letter (with a notification and a description of the attachment) to his home address or to the address of his actual place of residence with a request to explain the reasons for his absence from the workplace. If this does not bring any result, you can apply to the police for a search. If the employee cannot be found, an act should be drawn up about this. At the same time, an entry should be made in the time sheet about the absence of the employee due to unexplained circumstances, since wages are calculated on the basis of these data. Of no small importance for proving the absence of an employee in the workplace are reports from the immediate supervisor and other employees who can testify to the fact of absence. All these documents will help in justifying the dismissal, if, nevertheless, the employee appears and cannot confirm the respectfulness of his absence.
If, nevertheless, it is not possible to find the employee and the relatives do not know his whereabouts, Labor Code The Russian Federation provides for a special basis for terminating an employment contract - the death of an employee or employer - individual, as well as recognition by the court of an employee or employer - an individual as dead or missing (paragraph 6 of article 83). According to the rules of Art. 42, at the request of interested persons (in our case, the employer), a citizen may be recognized by the court as missing if during the year at his place of residence there is no information about his place of stay.
When applying a disciplinary sanction, it should also be borne in mind that it can be imposed no later than one month from the date of discovery of the misconduct. At the same time, it is important to take into account that arbitrage practice developed the concept of "lasting absenteeism", which suggests that the moment of detection of absenteeism is not the day on which the absence of the employee was discovered, but the moment of finding out the reasons for his absence. It is at this moment that the offense is considered completed and discovered.

Roman Larionov, legal adviser of "Garant" company

It is not difficult to dismiss an employee for absenteeism - it is enough to draw up an act, recognize the reason for not showing up for work as disrespectful and draw up an appropriate order. Problems may start after. What if the former employee goes to court and proves that you made some procedural mistake when terminating the employment contract? To avoid such troubles, it is necessary not only to compose general idea about the procedure for dismissing an employee for absenteeism, but also take into account many related nuances.

What is a walk?

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

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

Theoretically, it is the employer who must determine and prove that the reason for the absence was disrespectful. However, this cannot be done only in accordance with personal convictions - one should also rely on judicial practice. If a dissatisfied employee goes to court and proves that he was fired not quite justifiably, you will have to reinstate the truant in the state. By the way, violation of the procedural order (incorrect filling of acts, violation of deadlines, etc.) can also become a reason for canceling the dismissal order.

In what case can you be fired for absenteeism?

Dismissal will be legal only if four conditions are met:

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

Immediately you need to consider:

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

In what cases can not be dismissed for absenteeism?

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

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

In all these cases, the employee must provide a supporting document. The following papers are considered as evidence:

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

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

The procedure for dismissal of an employee for absenteeism

The dismissal procedure can be conditionally divided into three stages:

• documenting the absence of an employee at work;
• clarification of the reasons for the absence;
• making a decision and issuing a dismissal order.

It is possible to make a procedural error at any of these stages, and after all, every minor violation can cost the company dearly! Do not forget that an employee who is outraged by an unreasonable - in his opinion - dismissal has the right to go to court. If he also uses the services of a good lawyer, the case will certainly not turn out in your favor. Even if there are all grounds for dismissal, a minor formal error (for example, when drawing up an act of non-appearance) often becomes a reason for canceling an order. So pay attention Special attention the rules and guidelines below.

Act preparation

A correctly drawn up act is the main evidence of a violation by an employee of labor legislation. The act has the following structure:

• title (act of absence from work, absenteeism, absence from the workplace - acceptable different variants names);
• date, place and time of compilation;
• Full name of the official who draws up the act (such a person can be either the head of the company or the head structural unit);
• Full name of the employee who did not go to work;
• the circumstances of the employee's absence (this part should be filled out as detailed as possible, indicating the exact time of absence and the actions taken by the employer - attempts to get through to the truant, to contact him in any other way);
• date and duration of the employee's absence (indicating the exact time, "minute per minute");
• date of drawing up the act and the signature of the head (for greater certainty, you can ask witnesses to sign - for example, colleagues of the truant).

It is advisable to draw up an act on the same day, without postponing “for tomorrow”.

Finding out the reasons for the absence of an employee

Before signing an order to dismiss an employee for absenteeism under the article, you need to demand an explanatory note from him. At this stage, it is important to document each action, so it is better to send the request for an explanatory note to the employee in writing (even if in the end he still came to work). Put a signature on the demand and make sure that the employee signs for receiving it. If the request has to be sent by mail, in no case do not throw away the postal receipt.

After requesting explanations for non-attendance, you should wait two days. By the way, this rule applies even if the employee refuses to "testify" immediately - what if he changes his mind? If, after two days, the answer does not come, you can proceed to the final stage and draw up an order.

Suppose that the employee nevertheless provided an explanatory note. There are three options here:

1. The reason for the absence indicated by the employee can be classified as a valid one, and the arguments set forth are documented. In this case, the person cannot be fired.
2. The truant is clearly composing: the explanations are unconvincing, but there is no evidence. Feel free to write orders.
3. The situation is ambiguous. There are no supporting documents or they are insufficient, but the arguments look convincing. Or vice versa - there is a certificate from honey. institutions, but certainly "fake". How to be an employer? It is impossible to give an unambiguous answer to this question. Try to assess the situation as a whole, taking into account all the possible motives of the employee, his previous behavior, attitude to his duties and the work process in general. Do not forget - the law provides the right to draw a conclusion and make a decision for you.

Dismissal order

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

• not earlier than two days after sending the demand for an explanatory note to the truant;
• no later than 30 days from the date of absence.

The structure of the order in the form No. T-8:

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

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

The main mistakes made by employers

As mentioned earlier, any procedural violation may be the basis for appealing the dismissal order. What mistakes are made by employers most often?

1. Often, an act of absenteeism is simply not drawn up. This is terrible - if the case goes to court, the employee will most likely achieve reinstatement (and even compensation for wrongful dismissal). Always make a deed.
2. Serious shortcomings in the execution of the act - first of all, the incorrect indication of the time of drawing up the act and the period of absence of the employee. The wording "in the morning", "at lunchtime", "in the evening" is unacceptable. Always indicate exact time- “the employee was absent from 8.00 to 14.18”, “the act was drawn up at 14.58”.
3. Inconsistency of the actual circumstances with the data contained in the act. Sometimes it happens that an employee infuriates the employer with his impudence. In order to get rid of the truant, the employer artificially aggravates the situation - for example, he writes in the act and order that the employee appeared only the next day and insulted him in foul language. If it turns out in court that everything was a little wrong, the boss will have to bear responsibility for such “attacks”.
4. Dismissal of an employee without requesting an explanatory note from him.
5. Violation of the deadlines for issuing an order, dismissal of an employee for absenteeism without a corresponding entry in the labor.

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

Labor, discipline, legality

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

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

Absenteeism is one of the most flagrant violations committed by an employee. Paragraph 6 of Article 81 of the Labor Code defines it as a failure to appear at the place of work of an employee for 4 hours in a row. The total absence of an employee from the workplace during such a period of time will not be considered absenteeism. Also, a necessary sign is the absence of a good reason for the employee.
For the commission of this misconduct by an employee, the legislation establishes various penalties, up to termination of the contract. About what the Code provides for the types of penalties for absenteeism, we will discuss in the current article.

Consequences for absenteeism from work

Of course, with such a negligent attitude to their work, sad consequences cannot be avoided. As soon as the boss finds out about the absenteeism of the employee on his shift, he will certainly demand an explanation. If a statement of the reasons for what happened was not received from the employee, the employees of the personnel department draw up an act about this. An investigation is underway into violation of the rules of discipline. It should be noted that the punishment must be applied no later than a month from the date of receipt of information about the absenteeism admitted by the employee. There are exceptions to this time:

• sick leave;
• Vacation;
• Other official grounds for the absence of a absentee.

In any case, penalties must be applied no later than six months. The procedure for bringing to punishment should be carried out in compliance with the procedure prescribed in Art. 193 of the Code.
When determining the type of punishment to be applied, the employer must carefully consider all the reasons for absenteeism, the personality of the employee and his performance characteristics. Based on all this, he should decide the following: dismiss him or confine himself to a reprimand for the first time.

Punishment for absenteeism without good reason

In accordance with Art. 192 provides for not one type of punishment, but a whole list. At its discretion, taking into account the analysis of all the circumstances of absenteeism, the authorities may take the following measures to the worker who committed the violation:

• Make a note.
• Announce a reprimand in front of the entire team.
• Terminate the contract with the worker.

The legislation does not specify that absenteeism should be dismissed 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 the leadership must be supported by the norms of the law in this regard, and nothing else.

Penalty for absenteeism at work

Labor legislation does not provide for such a measure of punishment 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 prescribe in their local acts a system of fines applied to absentee workers.

The collection of a fine, as practice shows, is an excellent means of preventing such violations among all labor collective. In addition to a fine, the authorities can also deprive the offender of the bonus.

An important point is that if a fine is not prescribed in a local local act as a punitive measure, it is not possible to apply it in relation to a worker.

Dismissal for absenteeism from work

Dismissal is the most formidable measure for this disciplinary offense. Produced in labor record on dismissal with reference to an article of the law can greatly harm the worker in the future, since few employers want to take on a person who is able to play truant.

Dismissal is carried out in a certain order, which is established by the Code. First you need to get an explanatory note from the worker, then an act is drawn up, an inspection is carried out, and only then an order is drawn up. The employee gets acquainted with the order on the day of dismissal. The issuance of a book in hand, a full financial calculation - all these rights of a worker must be observed when he is fired. In addition, compensation for unused legal leave in monetary terms 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 submitted for familiarization to the employee, after which a complete 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 dismissed person.
• The 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 on their own, based on an assessment of the circumstances of the violation.

Employees who are unfair to their official duties, and, in particular, truants, become a headache for the management of most enterprises. Absenteeism, in contrast to being late, is regarded as a violation by the Labor Code labor discipline, serves as a reason for disciplinary action and even termination of employment relations, however, in reality, not everything is so simple. For the employer, the use of extreme disciplinary measures is strictly regulated by Article 193 of the Labor Code of the Russian Federation. And both parties need to know the rights. In some cases, the nuances of the process can help a conscientious person protect himself from unreasonable onslaughts of management and not spoil his reputation. What is considered absenteeism, and what are the features of dismissal in connection with it, we will consider further.

Skipping working 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 a good reason for 4 hours in a row or more (Subparagraph “a”, paragraph 6, part 1, article 81). And also absenteeism is an unauthorized departure from work without warning of a break in labor obligations. The concept of absenteeism is defined (decision of the Plenum of the Armed Forces of the Russian Federation No. 2 of March 17, 2004). In addition, absenteeism is such actions as: unauthorized leave on vacation without the permission of superiors; failure to fulfill obligations after a legally performed transfer to another workplace; skipping shifts before the end of the agreed period, when issued under a fixed-term employment contract; leaving the labor zone without communicating with a superior, in cooperation under an employment contract without a prescribed period of its validity; downtime of working hours in case of violation by the employer of the rights of employees. To understand the situation, it would be more correct to contact the relevant services.

Leaving work, as well as any dereliction of duty, will be considered absenteeism when the truant did not indicate good reasons and did not attach evidence to them.

Failure to perform assigned duties is absenteeism

There are two conditional categories of absenteeism:

1. 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, says the Labor Code of the Russian Federation, article 193. A person is asked for an explanation of his trick, his justification must be put on paper and presented to the authorities within 2 working days. The basis for this is a memorandum prepared in advance in the name of the authorities and a documented fact of missing working hours on a certain day. If no response is received from a person, then an appropriate act is drawn up, which is signed by its compilers and three witnesses to the violation. And only after that the head has the right to issue a decree on the imposition of a disciplinary sanction, fixing the date of absence in the report card as absenteeism.
2. long-term(long). Here the employer does not know where the subordinate is, several shifts or weeks. Therefore, it is impossible to contact him. The employer, in order to dismiss the article for absenteeism, has to wait for the frame to appear at the workplace and after that proceed with the standard design. At the same time, it is allowed by law to request explanations by mail or telegram to the address available 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, a truant can turn the situation through the judiciary in his favor, be reinstated and even receive compensation costs.
   The total time for collecting and issuing the relevant order is one month.

The consequences of absenteeism

What is absenteeism under labor law we have defined, now we will consider what creates constant conflicts of interest between both parties. The fact is that Article 81 of the Labor Code of the Russian Federation does not contain a list of good reasons. As a rule, whether the reason is serious is decided by the manager, if the local acts strictly regulate the start and end times of the shift, and the workplace is clearly defined. When a clear concept of the workplace in normative documents No, you should rely on Art. 209 of the Labor Code of the Russian Federation. It says from it that workplace is a zone that is assigned to each individual staff unit of the company. In it, a person must stay and perform the work assigned to him, provided for by the regulatory and technical documentation.

Knowing the rights, a truant can avoid punishment

When absenteeism, the employer may not file a 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 such a method is simply necessary to regulate work. The employer has the right to make a remark, reprimand or collect a penalty from the truant in the form of deprivation of bonuses, although the lack of encouragement is not a punishment. Note that absenteeism at work of the Labor Code of the Russian Federation provides for only one punishment, so if a person is reprimanded, terminate labor Relations for this truancy is already prohibited.

You will learn:

• What does the concept of "truancy" include and what are the measures to prevent losses from absenteeism
• How to correctly record the absence of an employee at work
• What measures can an employer take in relation to a truant

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

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

How to correctly assess the situation? What documents and in what terms to issue? How to prevent violations of labor laws? These and other questions will be considered in this article.

MEASURES TO PREVENT LOSS FROM TRUSSIA

The absence of an employee at work, even for a short time, disrupts the work process. To minimize damage in the organization, a number of measures should be taken:

• in the Internal Labor Regulations there must be a clause obliging the employee to warn his immediate supervisor in advance about the impossibility to go to work, about the reasons for the absence and the expected period of absence. The fulfillment by the employee of the relevant obligations will help the manager to make timely decisions on the distribution of duties of the absent employee among his colleagues;
• the head of the structural unit must have a list of employees to whom he can entrust the performance of the functions of an absent employee. The employees themselves, in turn, should be aware of the affairs of a colleague, which they will need to perform in case of his absence (not only unexpected, but also planned (for example, for a vacation or business trip));
• the manager must have specific instructions governing his actions in the event of the employee's absence without warning (example 1).

The instructions are of an auxiliary nature, it is not necessary to issue it on the letterhead of the organization and certify it with the signature of the head. The main condition is that they must contain a specific algorithm of actions.

Example 1

Memo to the head of the department on actions in case of non-appearance of the employee

1. Call the employee on all phone numbers known to you (home, mobile, etc.) and find out the reason and possible period of his absence.
2. Ask subordinates if the employee spoke about possible absence at work. If one of the employees is aware of the reasons for the non-appearance of a colleague, ask them to state them in a memorandum addressed to the head of the organization.
3. Draw up an act on the absence of the employee, the measures taken to search for him and their results.
4. Take all documents to the Human Resources Department for instructions on how to further action for an absent employee.

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

The workplace is the place where the worker has to be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer. According to part 4 of Art. 57 of the Labor Code of the Russian Federation, the condition of the employment contract on the workplace is an optional (that is, optional) specification of the condition on the place of work. We recommend (if necessary) assigning an employee to a workplace not by an employment contract (in order to avoid subsequent problems with changing this condition of the employment contract), but by a unilateral document (organization order, subdivision order, notification, etc.).

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

THE EMPLOYEE DIDN'T GO TO WORK: WE RECORD THE ABSENCE

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

A clear fixation of absenteeism will help if the fact of absenteeism is confirmed over time, and it will not hurt if the employee brings a certificate of incapacity for work. The act of non-appearance must be drawn up in the presence of two witnesses. It is better if employees from related departments act as them - if the employee begins to challenge his dismissal in court, he will not be able to refer to the pressure allegedly exerted on witnesses by the head.

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

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

In the event of an employee’s absence from work, the letter code “НН” or the number 30 (absence for unknown reasons (until the circumstances are clarified)) is put on the time sheet. If the timesheet is maintained:

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

If there is no certainty that the employee is sick, for the first week it makes sense to draw up acts on his absence daily, in the future, you can limit yourself to an act on the absence of the employee during the week, drawn up on Fridays. This issue is not regulated by law, so you need to be guided by common sense and judicial practice.

The legislation also does not establish a fixed list of documents that, in without fail must be issued when walking. In the courts as evidence most often recognized:

• time sheet with appropriate marks;
• acts or memos on the absence of the employee at the workplace;

EDITOR'S NOTE

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

• notification to the employee with a request to report the reasons for absenteeism (Appeal ruling of the Moscow City Court dated August 2, 2013 No. 11-15221).

EDITOR'S NOTE

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

WE FIND OUT THE REASON FOR NON-APPEARANCE

If an employee brings a certificate of incapacity for work or a certificate of contact with a doctor, all documents about his absence should be filed in the appropriate file. Destroy them categorically impossible!

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

Example 2

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

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

The employee's failure to provide explanations is not an obstacle to the application of a disciplinary sanction (including dismissal) (part 2 of article 193 of the Labor Code of the Russian Federation).

If an employee does not go to work for a month or more and does not answer the phone, the search should be intensified. You can call him at home after work - it is likely that his relatives (and possibly the employee himself) will be able to clarify the situation. Since it is difficult to involve witnesses in a telephone conversation in the evening, try to record the conversation on a voice recorder, and state the results of the call the next day in a memorandum addressed to the head. Recording a phone conversation on its own is not sufficient reason for dismissal for absenteeism, but will be additional evidence of the correctness of the employer.

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

EDITOR'S NOTE

It is better if the letters are valuable With investment inventory(to exclude speculation on the part of the employee) and, of course, with a return receipt.

WHAT IS TRUE?

Dictionary

Absenteeism- absence from the workplace without good reason throughout the working day (shift), regardless of its (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) (sub. "a "clause 6, part 1, article 81 of the Labor Code of the Russian Federation).

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

1. good reasons absence from the workplace, courts in some cases consider:

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

EDITOR'S NOTE

Note that there is also an opposite judicial practice, for example, Determination of the Chelyabinsk Regional Court dated July 10, 2014 No. 11-7179 / 2014 on recognizing the abuse of the right of an employee not to notify the employer of his temporary disability and that in this case there are no obstacles to the dismissal of the employee at the initiative of the employer.

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

2. Bad reasons clearly recognized:

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

The above lists are not exhaustive - foresee all life situations impossible, but, focusing on them, you can more objectively assess the degree of guilt of the employee.

HOW TO DEAL WITH A TRUGGER

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

extraction

from the Labor Code of the Russian Federation

Article 193. The procedure for applying disciplinary sanctions

Before applying a disciplinary sanction, the employer must request a written explanation from the employee. If, after two working days, the specified explanation is not provided by the employee, then an appropriate act is drawn up.

The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction.

A disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of the employee’s illness, his stay on vacation, as well as the time required to take into account the opinion representative body workers.

A disciplinary sanction may not be applied later than six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the day it was committed. The above time limits do not include the time of criminal proceedings.

For every disciplinary offense Only one disciplinary sanction may be applied.

The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then an appropriate act is drawn up.

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

ADVICE

If you are not sure that the employee is absent without good reason, we recommend that you periodically call him in the presence of witnesses, draw up acts on the results of negotiations, and also periodically (for example, once a month) send registered letters demanding to explain the absences.

If the employee is really absenteeism, you should write a memo addressed to the head of the organization detailing all the circumstances that allow qualifying the absence of the employee as absenteeism, and attach all available documents to it (absence certificates, notices of delivery of registered letters or returned letters, memos of employees clarifying the circumstances of the absence, etc.). These documents are grounds for dismissal of an employee for absenteeism, and All of them should be listed on the notice of dismissal. The date of dismissal of the employee will be the date the head of the organization signs the order to dismiss the truant (parts 3 and 6 of article 84.1 of the Labor Code of the Russian Federation). In the order (as well as in the work book and personal card), the record of the reason and grounds for dismissal must exactly repeat the wording set out in the Labor Code of the Russian Federation (“fired / fired for absenteeism”).

The situation with missing workers is ambiguous:

NOTE

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

WORKER IS FIRED. WHAT'S NEXT?

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

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

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

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

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

Conclusions:

1. A clear fixation of absenteeism will help if the fact of absenteeism is confirmed over time, and it will not hurt if the employee brings a certificate of incapacity for work.
2. The employee's failure to provide explanations is not an obstacle to the application of a disciplinary sanction. When imposing a disciplinary sanction, the gravity of the misconduct committed and the circumstances under which it was committed must be taken into account.
3. Regardless of the penalty applied, it is necessary to strictly observe the procedure prescribed in Art. 193 of the Labor Code of the Russian Federation.

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

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