Good reason for absence from work on shopping mall. Absenteeism for no good reason

The employee was absent from the workplace without good reason throughout the entire working day. No explanation was provided to them. What are the possible actions of the employer in this situation? Can you fire an employee for?

The absence of an employee from the workplace without good reason during the whole working day, as well as absence from the workplace without good reason for more than four hours in a row during the working day is regarded as absenteeism. In the event of such a single gross violation of labor duties by the employee, he may be terminated at the initiative of the employer in accordance with paragraphs. "a" clause 6 of the first part of Article 81 of the Labor Code of the Russian Federation.

As follows from this norm, one of the main signs of absenteeism is the absence of an employee from the workplace for a certain time without a valid reason. In this case, the burden of proving the fact of the employee's absence from absenteeism rests with the employer (clause 38 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 of the Russian Federation of the Labor Code of the Russian Federation"; hereinafter - the Resolution of the Plenum).

At the same time, in the situation you mentioned, the absence of an employee at the workplace can be caused by both valid and disrespectful reasons.

An exhaustive list of valid reasons is not established by the legislation. Good reasons are, for example, periods of temporary incapacity for work, confirmed by sick leave, as well as other periods in which an employee, for reasons beyond his control, cannot go to work.

Accordingly, in each case it is necessary to assess the "respectability" of one reason or another (see also the definition of the IC in civil cases of the Omsk Regional Court of 20.10.2004 N 33-3509).

In addition, it may be found that the absence of the employee was caused by such reasons, which are independent grounds for terminating the employment contract. We are talking about the termination of the employment contract with the employee due to circumstances beyond the control of the parties, in particular, in connection with the death of the employee, as well as the recognition of the employee as deceased or missing (clause 6 of the first part of Article 83 of the Labor Code of the Russian Federation), or conviction of the employee to punishment excluding the continuation of the previous work (clause 4 of the first part of Article 83 of the Labor Code of the Russian Federation).

In other words, since there is always the possibility that an employee is absent for a good reason, it is not recommended to fire an employee for absenteeism until the circumstances of his absence from work are clarified. In such cases, the employer must necessarily record the fact that the employee is absent from the workplace. For this, an act is drawn up in an arbitrary form, which is signed by several witnesses. Such an act can be issued both on the very first day of the employee's absence from work, and on any of the following days. If the employee did not go to work for a long time and the exact reasons for his absence are unknown, then it is recommended to draw up such acts periodically during the entire period of absence.

From the first day of absence in the time sheet, the employee should put down the mark "NN" - "failure to appear for unclear reasons" (Resolution of the State Statistics Committee of the Russian Federation of 05.01.2004 N 1 "On Approval of Unified Forms of Primary Accounting Documents for Accounting for Labor and Its Payment", Form N T-12 and N T-13). Only after the reason for the failure to appear is established, it is possible to change the mark "failure to appear for unexplained reasons" to the appropriate one, for example, to the mark "absenteeism" (PR) or to the mark "Temporary disability" (B) * (1).

From the moment the employee's absence from the workplace is recorded in the personnel documents, there is every reason not to charge the absent employee with wages.

If the employer has data confirming that there are no valid reasons for absence from work, then the employee can be fired for absenteeism.

In accordance with Art. 192 of the Labor Code of the Russian Federation, truancy is a gross violation of labor duties by an employee, that is, a disciplinary offense, but a disciplinary penalty for committing it. This means that when dismissing for absenteeism, the employer must comply with the procedure for applying disciplinary sanctions established by Art. 193 of the Labor Code of the Russian Federation (the general procedure for dismissing an employee for absenteeism is given, for example, in the letter of Rostrud dated October 31, 2007 N 4415-6). If this procedure is violated, then in the event of a court proceeding, the court will most likely recognize the dismissal as illegal, even if the fact of the employee's truancy is proven.

First of all, the employer must meet the time limits for the application of a disciplinary sanction, established by Art. 193 of the Labor Code of the Russian Federation. So, you can be dismissed for absenteeism no later than 1 month from the date of its discovery, 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 of the representative body of employees, and no later than 6 months from the date of its commission. The day of detection of the misdemeanor, from which the period of one month begins, is the day when the person to whom the employee is subordinate at work (service) becomes aware of the misconduct, regardless of whether he is entitled to impose disciplinary sanctions (paragraph 34 of the Resolution of the Plenum) ...

If an employee commits a long truancy, the monthly period for detecting a misconduct should be calculated from the last day of absenteeism, and not from the first (see, for example, the determination of the Ryazan Regional Court of 25.04.2007 N 33-580, Generalization of the practice of consideration in the 1st half of 2008 courts of the Saratov region of cases on termination of an employment contract on the initiative of the employer and on other grounds not related to the will of the employee).

The second most important condition is the correct paperwork.

Article 193 of the Labor Code of the Russian Federation requires that even before the application of a disciplinary sanction, the employer requests an explanation from the employee in writing. It is extremely difficult to request written explanations from an employee who does not appear at the workplace, and to do this so that later it would be possible to prove the fact of such a request for explanations. For this reason, many experts recommend waiting for the moment when the employee appears at work and does not provide supporting documents.

If the employer nevertheless decides to dismiss the employee for absenteeism in his absence, then in case of court proceedings, he must collect evidence that he fulfilled all his duties in the process of applying the disciplinary sanction. Such evidence can be, for example, a postal notification of the delivery of a notice to the employee with his personal signature confirming the receipt of the notice.

In our opinion, a situation where a mail notification is returned with a mark of non-delivery cannot be considered a proper request for a written explanation. Therefore, in such circumstances, we do not recommend issuing a dismissal for absenteeism. The employer, during the period of a long absence of the employee, may periodically send him letters demanding explanations, while waiting for the employee to personally sign the notification.

If two working days have passed since the employee received the letter, and the employee has not provided an explanation, then an appropriate act is drawn up. Failure to provide an explanation by the employee is not an obstacle to the application of a disciplinary sanction, that is, to dismissal * (2).

On the basis of the act of absence from the workplace, as well as a written explanation or an act on the employee's failure to provide an explanation, the employer issues a dismissal order (order).

The order is announced to the employee against signature within three working days from the date of its issuance, not counting the time of his absence from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then an appropriate act is drawn up. An absent employee should be sent a telegram or a registered letter with a notification, in which the employee should be invited to familiarize himself with the dismissal order and to receive a calculation and work book.

Please note that the date of the dismissal order must be the date of its actual issuance within the time limits for the application of the disciplinary sanction established by Art. 193 of the Labor Code of the Russian Federation. But the date of dismissal should be the last day of the employee's work, except for cases when the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, the place of work (position) was retained (part three of Article 84.1 of the Labor Code of the Russian Federation).

According to Art. 84.1 of the Labor Code of the Russian Federation on the day of termination of the employment contract, the employer is obliged to issue the employee a work book. In the event that, on the day of termination of the employment contract, it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the day the specified notification is sent, the employer is released from liability for the delay in issuing a work book. In addition, the employer is not responsible for the delay in issuing a work book if the last day of work does not coincide with the day of registration of the termination of labor relations when the employee is dismissed for absenteeism.

At the written request of an employee who did not receive a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee's request.

Upon dismissal, the employer is obliged to settle accounts with the employee. In Art. 140 of the Labor Code of the Russian Federation states that the payment of all amounts due to the employee from the employer is made on the day of the employee's dismissal. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissal employee submits a payment request.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Panova Natalia

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Voronova Elena

The material was prepared on the basis of an individual written consultation provided within the framework of the Legal Consulting service.

* (1) In connection with the entry into force from January 1, 2013 of the Federal Law of 06.12.2011 N 402-FZ "On Accounting" Federal Service for Labor and Employment (Rostrud) in letters of 23.01.2013 N PG / 409 -6-1, dated 23.01.2013 N PG / 10659-6-1 and dated 14.02.2013 N PG / 1487-6-1 explained that since January 1, 2013, the unified forms approved by the said decree are not for non-governmental organizations. required. Such organizations have the right to use the forms of primary accounting documents developed by them independently.

* (2) In such a situation, it is possible to appeal against the dismissal by the employee, since the reasons for the absence in this situation are unknown. However, in this case, the court may refuse to satisfy the employee's claim for reinstatement at work if the fact of abuse of the right is established (for example, deliberate failure to provide a document confirming the validity of the reasons for absence from work), since in this case the employer should not be held liable for adverse consequences caused by unfair actions on the part of the employee (clause 27 of the Plenum resolution).

According to the Resolution of the Plenum of the Supreme Court of February 17, 2004 No. 2, absenteeism is recognized as:

• absence from work (outside the workplace) without good reason for more than 4 hours in a row during the working day;
• unauthorized use of rest days;
• unauthorized leave on vacation.

A normal and responsible employee will always warn the employer if something happens to him and he does not go to work. But if he disappeared and does not answer phone calls, he is probably skipping. Let's analyze the procedure for issuing dismissal for absenteeism.

Step 1. We fix the fact of absence

A free-form act is drawn up in the presence of two witnesses.

Sample of an employee's absence from the workplace

Sample form of the employee's absence from the workplace

On the first day of such acts, at least two must be done. The first is before lunch, the second is before the end of the working day. On the following days (no more than three), one act is drawn up for each day of absence. If the employee still does not appear, the employer continues to draw up one act per week until the person actually appears at work or a decision is made to send him questions about the reasons for absence by mail. Upon dismissal, this act will serve as one of the supporting documents.

Step 2. Mark the failure to appear in the timesheet

Until the employee goes to work and explains the reasons for his absence, it is necessary to put the codes in: NN code (failure to appear for an unexplained reason). It is impossible to put the PR (absenteeism) code until the written explanations (or the act of refusal to provide explanations) are provided, the court may subsequently recognize such a position as biased, and the dismissal - illegal.

Sample of fixing absenteeism in the time sheet

Before receiving a written explanation

After receiving a written explanation

Step 3. We inform the management of the company

On the very first day of the employee's absence, his manager must inform the general director of this. This message is drawn up in the form or service note, in which:

• the situation is briefly described (the employee did not appear at work and does not get in touch);
• contains a proposal to receive written explanations from the employee, followed by a decision to bring him to disciplinary responsibility, including in the form of dismissal.

Sample memo on absenteeism of an employee

Step 4. Asking questions

If the employee does not appear for a long time, does not answer phone calls, the employer has the opportunity to send him questions about the reasons for his absence by mail. In this case, an official letter is drawn up on the letterhead of the organization with a requirement to explain the reasons for the absence. The CEO must sign such a letter. The letter is sent with an inventory of the attachment (for subsequent submission to the court with a receipt for payment of the postage).

The letter must indicate the deadline by which the employee must provide his explanations. This period should be reasonable, for example 15 calendar days, and include the time:

• mailing to the addressee;
• the actual writing of the explanation;
• return postage.

As noted Managing Partner, Varshavsky & Partners Law Firm Vladislav Varshavsky, the employee must definitely request an explanation of the reasons for absence from work, since the employee's right to provide explanations is provided for by law. Otherwise, the decision of the employer to fire a subordinate for absenteeism may be recognized by the court as unfounded. As an example, the lawyer cited the Definition of the Moscow City Court dated July 30, 2018 No. 4g / 7-8964 / 18, from which the following conclusion can be drawn: the employer did not provide the employee with the opportunity to explain the reasons for his absence from the workplace, which means that he significantly violated the procedure for dismissal on his own initiative. On this basis, the dismissal was declared illegal, and the employer had to reinstate the employee in his position, pay him the average earnings for the period of forced absenteeism and compensate for moral damage.

If, after a reasonable period of time, there is no response or the letter is returned due to the expiration of its storage period, it is necessary to draw up an act of refusal to provide explanations. It is he who may be needed to justify the subsequent dismissal in court.

Sample act of refusal to provide written explanations

Sample letter asking for reasons for absenteeism

If the employee appeared at work and did not provide supporting documents, on the same day he must be served with questions about the reasons for his absence. He has two working days to write his explanation. If after this time no explanations are provided, on the third day an act of refusal to provide written explanations is drawn up. If substantive explanations are provided, proceed to the next step.

Step 5. Assess the validity of the reason for absence

(if there is an act of waiver, this step can be skipped)

If the management decided to dismiss the culprit, the order is drawn up according to the unified form T-8. Registration of dismissal for absenteeism is carried out according to Article 81 of the Labor Code of the Russian Federation.

Sample order of dismissal for absenteeism

Step 8. Introduce the employee to the order

The employee must be made aware of or the application of a disciplinary sanction to him (no matter what it will be - a reprimand or dismissal) within three working days from the date of its publication (not counting the time the employee is absent from work). If he refuses to familiarize himself with the order, an act is drawn up in an arbitrary form in the presence of two witnesses.

Step 9. Fill out the work book

Sample entry in the work book when dismissing for absenteeism

Step 10. We issue a work book

On the last working day, the employee must be paid all cash payments due to him, as well. For its receipt, the recipient signs in.

If he refuses, we draw up an act in any form in the presence of two witnesses.

If a person is actually absent on the day of his dismissal (the last day of his work), the employee of the personnel department on that day must send a notice of the need to appear for his work book or agree to be sent by mail.

If the person did not come and did not provide consent, the employer is obliged to keep such a work book for 75 years.

Give your opinion on the article or ask the experts a question to get an answer

Employees who are not conscientious about their job duties, and in particular truants, 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, serves as a pretext for disciplinary action and even termination of labor relations, however, in reality, everything is not 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. Moreover, both parties must know the rights. In some cases, the nuances of the process can help a conscientious person, protect against unreasonable onslaught of management and not spoil the reputation. What is considered absenteeism, and what are the features of dismissal in connection with it, we will consider further.

Skip working hours

The concept of "truancy" in the Labor Code and its types

Absenteeism according to the Labor Code is the deliberate absence of a subordinate at the workplace (Article 209) without a valid reason for 4 hours in a row or more (Subparagraph "a" of clause 6 of Part 1 of Article 81). And also absenteeism is an unauthorized departure from work without warning of a break in labor obligations. The concept of truancy is defined (by resolution of the Plenum of the Armed Forces of the Russian Federation No. 2 of March 17, 2004). In addition, truancy includes such actions as: unauthorized leave on vacation without the permission of the authorities; failure to fulfill obligations after a legally completed 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; idle working hours in case of violation of the rights of employees by the employer. To understand the situation, it would be more correct to contact the appropriate services.

Leaving work, as well as any non-performance of official duties, will be considered truancy when the truant has not indicated valid reasons and has not attached evidence to them.

Failure to fulfill the 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 is stated in the Labor Code of the Russian Federation, article 193. A person is asked for an explanation of his trick, his excuse must be stated on paper and presented to his superiors within 2 working days. The basis for this is a memorandum drawn up in advance to the name of the superiors and the 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 of the violation. And only after that, the head has the right to issue a decree on the imposition of a disciplinary sanction, recording the date of absence in the report card as absenteeism.
2. Long-term(long-term). Here the employer does not know where the subordinate is staying, for several shifts or weeks. Therefore, you cannot contact him. An employer, in order to be dismissed under the article for absenteeism, has to wait for the appearance of the frame at the workplace and only then proceed to the standard design. At the same time, the law is allowed 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, the truant can turn the situation through the judicial authorities in his favor, recover in office and even receive compensation costs.
   The total time for the collection and issuance of the corresponding order is one month.

The consequences of truancy

We have defined what a labor law absenteeism is, 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 the time of the beginning and end of the shift is strictly regulated in local acts, as well as the workplace is clearly defined. When there is no clear concept of a workplace in regulatory documents, one should rely on Art. 209 of the Labor Code of the Russian Federation. It says that workplace is an area that is assigned to each individual staffing unit of the company... A person must stay in it and carry out the work assigned to him, provided for by the normative and technical documentation.

By knowing the rights, a truant can escape punishment.

When absenteeism, the employer may not issue 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 breaks the rules, then such a method is simply necessary to regulate work. The employer has the right to issue a reprimand, reprimand or to recover from the truant a forfeit 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, it is already prohibited to terminate labor relations for this absenteeism.

The respectfulness of reasons for not showing up for work is not structured by legislation into a clear list.

Therefore, any worker is interested in this issue at least once in his life. Let's figure it out.

Absent or missing for a good reason

Without good reason not to show up for work. Every worker knows about this.

Absenteeism for an employee may end in:

• the need for an explanation with the employer, followed by the submission of an appropriate note - this is at least;
• dismissal under the article for absenteeism is the highest punishment.

Absenteeism should be considered the actual absence of an employee at his workplace without good reason, lasting more than 4 hours (sub. "A" of part 1 of Article 81 of the Labor Code of the Russian Federation).

At the same time, if nothing is specified about a specific workplace in the employment contract, it is inappropriate to talk about absenteeism.

For example, when you are not where you usually work, but on the territory of the enterprise.

Absenteeism is preceded by a written explanation given by the employee to his employer and containing possible reasons for such absence. If the employer considers the reasons stated to be disrespectful, he can dismiss him.

If the employee disagrees with the dismissal, the issue will be resolved in court. On the basis of the supporting documents submitted by the plaintiff, the court will determine whether the reasons were valid and, accordingly, there was absenteeism or not.

The whole catch is that the law does not contain a specific list indicating the objective reasons for the absence of an employee at the workplace. However, after analyzing labor legislation, we can conclude that there are several groups of similar reasons.

Subjective reasons

Subjective reasons indicating the respectfulness of the employee's absence are directly related to the personality of the latter.

The following documents are used as evidence:

• sick leave;
• a mark in the outpatient card about the doctor's appointment;
• a certificate from a doctor confirming the employee's visit to an appointment.

Among the valid reasons, periodic medical examinations of certain categories of workers (Article 213 of the Labor Code of the Russian Federation), a child's illness can also be considered. In the latter case, the justification will look the same as in the case of an adult's illness, with the difference that a certificate will be issued to him in a children's clinic.

An employee cannot be dismissed even if he is absent from the workplace due to participation in the court session as a plaintiff (witness, victim, juror, defendant in the case under consideration).

A similar procedure for an employee will also be observed if he is in the investigating authorities and participates in investigative actions. Then a subpoena is used as a supporting document (to the investigator, the interrogating officer). In addition, they are included in the category of good reasons and calls to the police, the performance of duties as a member of the election commission.

If there was a communal accident at the employee's place of residence, it is considered an excuse.

However, the planned inspection of housing and communal enterprises can no longer act as a sufficient reason for an employee to be absent from work.

Objective reasons

Force majeure circumstances act as objective reasons indicating the impossibility of finding an employee at his workplace. It can be weather conditions, disasters, man-made accidents and such on the road, military actions.

If the employer disagrees with the objectivity of the reasons under consideration, caused by the lack of justification by the employee, the latter has the right to go to court.

As the court practice shows, in such cases the court can meet the worker halfway. Moreover, in accordance with the decision of the court, the worker may even be reinstated in his job. The main thing is not to postpone your appeal to court until later. For filing a statement of claim regarding reinstatement in the workplace, the court sets aside a month (Article 392 of the Labor Code of the Russian Federation).

We substantiate the validity of the reasons for the application

There are a number of circumstances when an employee may not show up for work after notifying his employer. This is the provision of days off on the basis of the submitted application.

According to Article 128 of the Labor Code of the Russian Federation, in the presence of an employee's application, the employer must provide about 5 unpaid days due to the death of a loved one, wedding and the birth of a child in the employee's family.

Four paid days off on application are allocated per month to the employee who has a disabled child in the care of (Article 262 of the Labor Code of the Russian Federation).

An employee working in rural areas can take one day off per month without pay. The basis for the allocation of a day off may be a statement submitted to the employer.

Working mothers with children under one and a half years old can take breaks to feed their children (Article 258 of the Labor Code of the Russian Federation).

The main sign of truancy

I often come across a situation when an employee asks to “lie down” for a couple of days without drawing up a sick leave. And our leader often meets halfway if the employee is conscientious and responsible. After all, this is beneficial not only for business, but also for the employee - he is paid a salary for these days, and not a penny allowance.
But it also happens in another way. The worker is first absent for two days, and then declares that he was ill, but decided not to go to the clinic, he was treated himself. In this case, the manager matures a fair desire to fire him for absenteeism. And, perhaps, not so much for the absence itself, as for indifference to the affairs of the company.

As we know, one of the signs of absenteeism is the absence of an employee from the workplace. for no good reason... Will feeling unwell be a good excuse for not being?
I must say that judicial practice assesses such situations in a uniform way:

• if the employee can confirm poor health with medical documents, then the reason must be considered valid,
• if there are no supporting documents, then there is no good reason either.

By the way, I already wrote about absenteeism.

What documents can confirm the fact of the disease?

The lack of a certificate of incapacity for work only means that the employee is not eligible for hospital benefits. But the absence of a sick leave is not proof of absenteeism, since other documents can also serve as evidence of illness:

• doctor's testimony,
• extracts from the medical card,
• certificates that all medical institutions are obliged to issue to citizens who seek medical help, if they asked for such a certificate.

(Examples of recent years: Appellate ruling of the Altai Regional Court dated 04.22.2015 in case No. 33-3396 / 2015, Appellate ruling of the Sverdlovsk Regional Court dated 09.10.2015 in case No. 33-12660 / 2015).

Practical work

Example 1.
The worker did not come to work. She explained her absence by the fact that she had a toothache, and in the morning she immediately went to treat it. In support of her words, she brought an extract from the outpatient card, which shows that she went to the clinic with acute pain, and she received medical assistance. The dentist did not issue a certificate of incapacity for work. Was the reason valid?
Yes, this is confirmed by the extract.

Example 2.
The employee felt unwell in the morning and did not go to work. The next day, he still asked for help, and the doctor issued a certificate of incapacity for work. How to assess the reason for absence on the first day? Probably, you yourself have already guessed that the reason for the absence on the first day should be considered valid. The court almost always admits that the presence of a sick leave already, as it were, indicates the employee's ill health the day before (although in reality this is not always true).

Example 3.
The employee was absent from work all day. She explained her absence by the fact that her child was ill, she called the doctor at home, but the doctor did not issue a certificate of incapacity for work. In your opinion, is the reason for the absence a valid one?
Don't rush to say yes! This will depend on whether the employee is able to confirm the fact of the child's illness with documents. The presence of one unfounded explanation is not enough - documents are needed: a certificate from a doctor or an extract from the child's medical record.

You can find an analysis of other reasons for the absence of an employee in the book "Detailed Guide to Dismissal for Absenteeism." A fragment of the book can be read.