Home Wisdom teeth Punishment for absenteeism at work according to the Labor Code of the Russian Federation. The nuances of dismissing an employee from work for one absence. Can one be fired from work for absenteeism?

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Punishment for absenteeism at work according to the Labor Code of the Russian Federation. The nuances of dismissing an employee from work for one absence. Can one be fired from work for absenteeism?

Company managers often encounter unscrupulous employees who ignore the rules of work and rest during working hours established by the enterprise. And the law for such violators, in addition to various administrative measures, also provides for dismissal.

But before resorting to such a radical measure, it is worth familiarizing yourself with how to fire an employee for absenteeism correctly, so that in the future he will not be reinstated through the court and will not receive monetary compensation from the company for the inconvenience caused.

Remember, absenteeism is when an employee is absent from work for more than 4 hours during the working day without a good reason.

So, before issuing a dismissal order, it is necessary to go through the procedure of documenting the fact. It includes:

marks in the report card about the employee’s absence without a valid reason;
drawing up a report stating that the employee is absent for more than 4 hours;
conducting an investigation into why the employee is absent;
select a written explanation about the fact of absenteeism from the employee himself (if he refuses, draw up a report);
convene a meeting with the involvement of the trade union, where to analyze the current situation (draw up a protocol based on the results);
issue an order;
carry out the procedure for registering a work book and paying the violator.

If you really decide to take such a drastic step as dismissal for absenteeism, then you should clearly understand when this can be done and when it is better to refrain from such a step. To begin with, the norm of 4 hours must be maintained. This can be either continuous absence or summed up over the entire day of work.

Remember, if an employee even systematically skips less than 4 hours a day, you do not have the right to fire him for absenteeism.

Even in enterprises where the daily work schedule is actually less than 4 hours, an employee’s absence from the workplace for the entire duration should not be considered absenteeism. If the system is monitored, other administrative measures should be taken every time violations are detected, and only then an appropriate decision should be made, guided by other articles of legislation. Here it is a good idea to read the material from the article How to carry out dismissal due to staff reduction.

These include:

temporary disability (with subsequent provision of sick leave or certificate);
traffic jams (on the way to work, or in the process of doing it);
family problems (the need to pick up a child from kindergarten due to quarantine, an unplanned call to school);
domestic problems (break of sewerage, water supply, damage to heating systems or other centralized supply or drainage systems).

Each of these cases should be documented and indicate why you had to solve the problem. At the same time, the final decision to fire you or not remains with the manager.

Things to always remember

Before firing an employee for absenteeism, you should wait some time to make sure that the absenteeism was without any valid reasons that justify such actions. After all, the employee will also not put up with his illegal dismissal (especially with such an entry in the work book) and will definitely restore justice through the court. And the courts in most cases take the side of the oppressed.

all attempts to contact him should be made in the presence of witnesses with subsequent activation of such actions;
requests should be made in writing via mail with confirmation of such actions;
The order by which you dismiss him should be issued after a month of waiting, after your information (warnings or requests) has accurately reached the addressee.

The employer has the right to dismiss an employee for absenteeism, that is, for absence from the workplace without good reason during the entire working day or shift, regardless of its duration. They can also be fired if they are absent from the workplace without good reason for more than four hours in a row during a working day (shift) (clause “a”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation).

Since absenteeism is recognized as absence from work without valid reasons, it is important to determine which reasons can be recognized as valid and which cannot.

However, in any case, the employer’s decision to recognize a specific reason for an employee’s absence from work as disrespectful and, as a result, dismissing him for absenteeism can be verified in court (Determination of the Constitutional Court of the Russian Federation dated June 23, 2015 N 1243-O).

Valid reasons for absence from work

The Labor Code of the Russian Federation does not contain a list of valid reasons for an employee’s absence from the workplace. However, the following reasons, in particular, can be considered valid (Articles 142, 170, 186, 414 of the Labor Code of the Russian Federation; clause 6 of the Review of judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2013, approved by the Presidium of the Supreme Court of the Russian Federation on 05.02. 2014; Determination of the Moscow City Court dated October 22, 2010 in case No. 33-33169):

1) temporary disability (in this case, untimely submission to the employer of documents confirming the fact of temporary disability cannot serve as a basis for recognizing the reasons for the employee’s absence from work and his dismissal for absenteeism as unjustified);

2) performance of public or state duties;

3) donating blood and its components, as well as conducting related medical examinations;

4) participation in a strike;

5) detention;

6) emergency situations resulting in transport problems, such as, for example, flight cancellation or delay;

7) suspension of work due to delay in payment of wages for more than 15 days (upon notification to the employer in writing).

To confirm the reason for his absence, the employee can submit to the employer a certificate of incapacity for work, a summons to court, a certificate from a medical institution, or from a transport organization.

Unexcused reasons for absence from work

Unexcused reasons for absence from work may, for example, include (Appeal rulings of the Moscow City Court dated 02/18/2016 in case No. 33-2890/2016, dated 10/04/2016 in case No. 33-32613/2016):

1) undergoing a medical examination (receiving medical advice) in the absence of a issued sick leave;

2) time off for days worked during the vacation period, if recall from vacation was not formalized and there are no documents confirming the need to go to work during the vacation period;

3) filing an application for parental leave if the issue of providing such leave has not been decided by the manager;

4) the spouse is in hospital treatment.

Application of disciplinary sanction in the form of dismissal

Before applying disciplinary action in the form of dismissal, the employer must request a written explanation from the employee about the reasons for his absence from work. If after two working days the employee has not provided an explanation, the employer is obliged to draw up a report about this.

An employer has the right to dismiss an employee for absenteeism if the employee refuses to provide written explanations about the reasons for absence from work, as well as documents confirming these reasons. In this case, disciplinary action is applied no later than one month from the date of detection of absenteeism, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees (Parts 1 - 3 of Article 193 of the Labor Code of the Russian Federation).

If the employee has provided an explanation and supporting documents, then the question of whether the reasons for absence are valid remains at the discretion of the employer, but can be challenged by the employee in court.

The employer's order (instruction) to apply a disciplinary sanction in the form of dismissal is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work.

If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up (Part 6 of Article 193 of the Labor Code of the Russian Federation).

At the same time, according to the Supreme Court of the Russian Federation, the employer must assess the reasons for the employee’s absence and apply a disciplinary sanction in proportion to his offense, taking into account the employee’s previous behavior (Definition of the Supreme Court of the Russian Federation dated March 30, 2012 N 69-B12-1).

It should be taken into account that if the procedure for applying a disciplinary sanction is violated, in particular, if the employer does not require a written explanation from employees regarding their absence from work, the dismissal of such employees will be considered illegal. However, if the employer took action to demand explanations from the employee, for example, by sending a telegram to his place of residence, which was not received by him for reasons beyond the employer’s control, then the dismissal of the employee is lawful (Appeal rulings of the Moscow City Court dated August 24, 2016 in case No. 33- 27314/2016, dated July 28, 2014 in case No. 33-29793/14).

Appeal against dismissal

A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for considering individual labor disputes, including the court (Part 7 of Article 193, Article 382 of the Labor Code of the Russian Federation).

If the employee is nevertheless fired, and he considers the reasons for absence from work to be valid, then he can apply for protection of his rights to the district court at the location of the employer, his place of residence or the place of execution of the employment contract (Article

Art. 24, 28, part 6.3, 9 art. 29 Code of Civil Procedure of the Russian Federation). A claim arising from an employment relationship is not subject to state duty (clause 1, clause 1, article 333.36 of the Tax Code of the Russian Federation).

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The following are considered serious reasons for missing work: There are other reasons that can serve as valid reasons for missing work and will be taken into account by the management of the enterprise. For example, a worker, on his way to his shift, saw a man drowning in the river and rushed to save him. In any case, the note should indicate the true circumstance that took place.

Since your boss may well want to check whether you told him the truth or not, and then false information will not work in your favor.

No! The main thing in this situation is to provide documentary evidence of the existence of objective reasons for absenteeism;

absence from work is confirmed and documented.

To bring an employee to disciplinary liability, the procedure defined by law must be followed.

an order to send an employee on vacation or a business trip, etc.
sick leave;
public transport schedule;
summons to court or police;

Taxes and Law

Thus, by virtue of the above provisions of the law, a disciplinary sanction can be applied to an employee for violating labor discipline, that is, for a disciplinary offense. A disciplinary offense is a culpable, unlawful failure or improper performance by an employee of his assigned job duties, including violation of job descriptions, regulations, and orders of the employer.

Although even in case of absenteeism, the employee may be subject to more lenient sanctions than dismissal - a reprimand and a reprimand (Article 192 of the Labor Code of the Russian Federation). Regardless of what punishment you choose, it is necessary: - to record the fact of the employee’s absence from work; - find out the reason for this absence.

The fact of the employee’s absence from work is recorded: (or) by data from the electronic system installed at the checkpoint (checkpoint); (or) a report (official) note from the truant’s immediate supervisor; (or) an absence from work report, which is usually drawn up by an employee of the HR department or the immediate supervisor of the absent employee in the presence of two witnesses - colleagues of the absentee.

How to write an explanatory note about absenteeism from work

Only refusal to write can negatively affect his work, and may even serve as a reason for his dismissal. How to correctly write an explanatory note for absenteeism at work?

Such a document must include a header and all the employee’s data: residential address; correct contact details; FULL NAME; position held; date with signature; time away from work; most importantly, the reasons for absence from work.

Valid and disrespectful reasons for absenteeism

What time of absence occurred, that is, working time or time intended for rest;
How many times during a shift or during a working day a person was absent from performing a production task.
How long does the absence last?

In practice, absenteeism at work is bad, but before you are fired, you need to know the basic concepts of labor law.

Can you be fired for absence from work? What are the consequences of dismissal under an article for absenteeism?

However, in order to record the fact of absenteeism of a certain individual, it is necessary to understand what is meant by the concept of a workplace. However, you must first take into account the requirements of Article 42 of the Labor Code, which provides regulations regarding what actions and conditions must be met in order for the judicial authorities to recognize an individual as missing.

Dismissal of an employee for absenteeism: difficulties and nuances

Dismissal will be legal only if four conditions are met: You must immediately take into account: In what cases cannot you be fired for absenteeism? Based on the materials of judicial practice, the principles of labor legislation and common sense, we can identify the following valid reasons for absenteeism (which in these cases is no longer absenteeism): In all these cases, the employee must provide a supporting document.

Is it possible to fire someone for absenteeism: we look at various cases

30 days have not passed since the offense occurred; the employee was absent for more than 4 hours; there was no valid reason for absenteeism or lateness.

The easiest way to understand the principle of the mechanism of dismissal for absenteeism is through specific examples. Sergei K. was fired as a truant, and the management was so furious because of his failure to appear at work that they violated the dismissal procedure.

Dismissal for absenteeism - conditions, rights of the parties

Missing work is a serious violation of discipline, but in no case can it serve as sufficient grounds for dismissing an employee.

Below we tell you when an employer can fire a specialist for absence from work and when not. In preparing this publication, we relied primarily on paragraph 6 of Article 81 of the Labor Code of the Russian Federation and 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.”

When is absenteeism officially recognized?

An employer may bring this type of charge against an employee if the latter:

absent for more than 4 consecutive hours during a shift or all day;
did not appear not only at a specific workplace, but also in general on the territory of the enterprise;
did not have valid reasons for this that can be confirmed;
went on vacation without permission or decided to use time off without approval from his superiors;
stopped performing his duties before the expiration of the employment contract (in case of conflict-related dismissal at his own request).

It is important to consider that the manager must have evidence of absenteeism - at least, testimony from other representatives of the workforce.

Let's summarize. If the threat of dismissal hangs over you for missing work, collect documents justifying you and find out what evidence your boss is ready to present on his part.

Claims can be withdrawn:

certificate from the hospital;
demonstrated subpoena;
a copy of the vacation schedule;
a copy of the resignation letter with the date stamped, etc.

The employee needs to do everything necessary to ensure that he is not fired for absenteeism. Otherwise, the corresponding entry - “the contract was terminated due to a one-time gross violation by the employee of his labor duties” - will become a shameful mark on the page of the work record book and will interfere with a further cloudless career.

Procedure for dismissal for missing work

The dismissal order in this case is issued according to the standard T-8 form. As its basis, all available evidence documents are listed - from memos to explanatory notes.

It is useful to know that the order must be issued no later than a month after the discovery of the misconduct.

If the employer does not take the trouble to find out the reasons for absenteeism and fires a specialist under hot pressure, the employee, as a rule, can defend himself in court and achieve reinstatement.

If you were fired for absenteeism, what should you do?

There are many questions associated with dismissal for absenteeism: is it possible to recover, is it possible to join the stock exchange, will wages be paid?

And what is considered “truancy” anyway?

But let's start with the main thing: salaries. If a person was fired under an article, he was absent, he was sick, he violated the schedule, etc. - it doesn’t matter. The employer is obliged to make a full payment(this also includes payment for unused vacation and compensatory days). These rights are spelled out in the Labor Code of the Russian Federation:

in Article 140 “On the terms of payment upon dismissal” and Article 84.1 “On the procedure for registration upon termination of an employment contract.”

In particular, it says:

“Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed.” (140 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 and make payments to him” (84.1 Labor Code of the Russian Federation)

Those. you receive a work book, ask for a payment. However, you should not count on payment for days on which you actually did not work.

If we go by principle, then an interesting nuance is contained at the very beginning of Article 84.1, we read:

“The employee must be familiarized with the employer's order to terminate the employment contract against signature.“In other words, whether they called you or told you orally - all this, roughly speaking, has no legal force, therefore, you are still working.

What is truancy?

There is a clear definition, everything else is from the evil one.

Absenteeism is an absence from work without good reason for 4 or more hours in a row. (Article 81 of the Labor Code of the Russian Federation)

How long will it take to attract?

According to the law, absenteeism can be punished within six months from the date of its commission. If they want to fire you for being late, which was 3 years ago, this is illegal.

Is it possible to join the stock exchange after being fired for absenteeism?

Yes, but dismissal under an article is a serious thing. Unfortunately, the employment service has the right to refuse such a person and not pay him anything. And so, the minimum benefit you can count on is about 1000 rubles (depending on the region of residence). Don’t even think about any % of your previous earnings.

How to get reinstated at work after being fired for absenteeism?

The mere fact of such a violation is sufficient to give the employer a free hand. He has the right to fire and not hire him back. However, dismissal under Article 84 Part 6 is associated with a bunch of legal nuances. A competent lawyer will be able to prove the illegality of dismissal.

Reader question: “Can I be fired for going on leave without permission? I’ve been working for several months now, there’s no vacation schedule, but they won’t let me go”

We answer: Yes. The basis will be the same - 81 Labor Code of the Russian Federation.

Legal basis

Based on this provision, the employer can terminate the employment contract with its employee unilaterally.

Today, the version of the Federal Law dated June 30, 2006 is used. But not for every absenteeism an officially employed employee can be fired.

This requires the coincidence of a large number of different factors:

the employee was absent from his place the whole day - even if the working time is only a few hours (if the working day is full - then at least 4 hours in a row);
the employee is absent directly from his workplace, but if such a place is not assigned to the employee and he was somewhere on the territory of the enterprise, absenteeism is not counted;
the employee is absent for an unexcused reason;
the fact of absence has been proven.

A valid reason means any situation that prevents an employee from arriving at his workplace on time. For example:

interruptions in public transport;
summons to trial;
disease;
accident.

All that is important is the availability of appropriate documentary evidence of the presence of force majeure.

This could be sick leave or something else. Moreover, if an employee was unable to notify management about his absence in advance or on time, this is not a reason for imposing a disciplinary sanction.

To formulate an appropriate order of dismissal for absenteeism, there must be a documentary justification.

All claims that are grounds for dismissal must be justified, proven and recorded. In this case, the procedure for bringing the employee to disciplinary liability must be followed.

The execution of the order of dismissal for absenteeism has the following features:

There is no need to issue two documents (on disciplinary action and on dismissal) - the order itself is sufficient;
To generate the document in question, a unified form is used.

In this case, various memos, as well as other documents confirming the presence of absenteeism, are indicated as the basis. If an employment contract with an employee is terminated in this way, then a corresponding entry must be made in the work book.

If any controversial issues arise between an employee and an employer, it is necessary to rely on the following documents:

Labor Code of the Russian Federation dated December 30, 2001 (as amended by Law No. 197-FZ);
Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004.

Consequences

Dismissal for absenteeism entails quite serious consequences. That is why you should avoid this, since later it will be quite difficult to get a job - a corresponding entry is made in the work book: pp. “a” part 1 of article No. 81 of the Labor Code of the Russian Federation.

Usually the wording itself is as follows: “The employment contract is terminated due to a gross violation of the employee’s labor duties.”

Almost always, the employer carefully studies the work record of his potential employee.

And the presence of such a record immediately characterizes a person as unreliable. But this moment is the only unpleasant consequence for those who were fired under the article for absenteeism.

Quite often, a situation occurs when dismissal for absenteeism occurs as a result of going on vacation without warning or due to untimely departure.

But in this case, the employer has the right to threaten dismissal only if there is no schedule. Which is also a serious violation and is punishable by a fairly serious fine.

Therefore, in such a situation, most employers try to find a compromise with their employees.

How to avoid being fired for absenteeism

Violation of the Labor Code always threatens with quite serious problems. But there are always various ways to get out of a difficult situation when an employer has grounds to fire his employee for absenteeism. Moreover, such actions are completely legal.

For example, when an employee is absent from his workplace for more than 4 hours, the employer has every right to initiate disciplinary proceedings.

According to Article No. 193 of the Labor Code of the Russian Federation, the employee is obliged to provide the HR department with an appropriate justification for his absence from the workplace.

But at the same time, according to the same Labor Code of the Russian Federation, the employee must be given at least 2 working days to prepare the appropriate explanatory note.

In this case, it is necessary to put the appropriate mark with your employer - so that subsequently the HR department employee does not have the right to draw up an appropriate act of failure to submit an explanatory note.

This is how you can win two whole days. During this entire time you must do the following:

write a statement of your own free will;
urgently “get sick” and take a sick leave or go donate blood.

If an employee decides to write a letter of resignation of his own free will, in most cases the organization will not interfere with him.

Since terminating an employment contract in this way is much easier than carrying out the procedure of dismissal for absenteeism. Almost always some kind of compromise can be found with management.

The second way is to take sick leave. Of course, there is no need to falsify anything. Since forgery of a certificate confirming incapacity for work, serious punishment is provided in accordance with the relevant article of the Criminal Code.

But when visiting a doctor, it is necessary to indicate the date of onset of the disease - he must fill out the form accordingly.

You will just need to designate it as a day of absenteeism. In this case, the employer will not have the right to fire for absenteeism or impose any penalty.

The third way to legally evade responsibility for truancy is to donate blood. According to the Labor Code of the Russian Federation, the employee is released from his immediate duties, as well as on the next day.

But it should be remembered that the employer must be notified of the fact that the next day is being used for rest due to blood donation.

In this case, it is necessary to focus on the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004.

When using the latter method, you must proceed as follows (if dismissal is inevitable):

write a letter of resignation;
get sick for two weeks.

After this, you can safely pick up the work book - the HR department is obliged to make a record of the termination of the employment contract at the request of the employee.

The two-week period is necessary because it is mandatory to notify the employer in advance of voluntary dismissal.

In all the cases indicated above, the employer simply does not have the right to fire his employee for absenteeism for the following reasons:

Next, you should not show up at work on the day of dismissal of your own free will - you must continue to be sick. When a certain period expires, the employer simply must send a corresponding notification by mail with a request to appear for the work book.

If for some reason the employee does not want to visit his former place of work, he can receive this document by mail.

It is not difficult to fire an employee for absenteeism - it is enough to draw up an act, recognize the reason for absence from work as disrespectful and draw up an appropriate order. Problems may begin later. What if the former employee goes to court and proves that you made some kind of procedural error when terminating the employment contract? To avoid such troubles, you need not only to get a general idea of the procedure for dismissing an employee for absenteeism, but also to take into account many related nuances.

What is truancy?

Absenteeism is the absence of an employee from the workplace for the entire working day or 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 even contain an approximate list of reasons for a person’s absence from work that should be considered valid. Of course, this omission regularly leads to conflicts between employees and employers.

In theory, it is up to the employer to determine and prove that the reason for the absence was unexcused. However, this cannot be done only in accordance with personal convictions; one must also rely on judicial practice. If a dissatisfied employee goes to court and proves that he was fired without justification, you will have to reinstate the truant worker. By the way, violation of the procedural order (incorrect completion of acts, violation of deadlines, etc.) can also become a reason for canceling the dismissal order.

In what cases can you be fired for absenteeism?

Dismissal will be legal only if four conditions are met:

the employee did not appear at work the entire 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 the workplace is not officially assigned to the employee (in the employment contract), but he was located somewhere on the territory of the company, he cannot be recognized as a truant;
if an employee, for objective reasons, was unable to notify his superiors about his absence, the reason for his absence cannot be considered as a priori disrespectful.

In what cases can you not be fired for absenteeism?

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

temporary disability;
performance by the employee of public duties assigned to him by an authorized state or municipal body;
donation of blood and plasma by the 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 salary payment for more than 15 days (but only if the employee notified you in writing that he is not going to come);
participation in the strike.

In all these cases, the employee must provide supporting documentation. The following documents are considered as evidence:

certificate of incapacity for work (“sick leave”);
a certificate from a medical institution (for example, in the case of blood donation);
subpoena or order of arrest or detention;
certificate from the transport organization;
etc.

Be sure to find out the true reason for the employee’s absence. It's no secret that almost any certificate can be purchased. 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 dismissing an employee for absenteeism

The dismissal procedure can be divided into three stages:

documenting the fact of the employee’s absence from work;
finding out the reasons for non-appearance;
making a decision and issuing an order of dismissal.

You can make a procedural error at any of these stages, but every minor violation can cost the company dearly! Do not forget that an employee who is outraged by what he considers to be an unjustified dismissal has the right to go to court. If he also uses the services of a good lawyer, the matter will probably turn out not in your favor. Even if all the grounds for dismissal are present, a minor formal error (for example, when drawing up a report of failure to appear) often becomes a reason for canceling the order. Therefore, pay special attention to the rules and recommendations below.

Preparation of the act

A correctly drawn up act is the main evidence of an employee’s violation of labor laws. The act has the following structure:

name (act of absence from work, absenteeism, absence from work - different name options are acceptable);
date, place and time of compilation;
Full name of the official drawing up the act (such a person can be either the head of the company or the head of a structural unit);
Full name of the employee who did not show up for work;
the circumstances of the employee’s absence (this part should be filled out in as much detail as possible, indicating the exact time of absence and the actions taken by the employer - attempts to reach the truant or contact him in some other way);
date and duration of the employee’s absence (indicating the exact time, “minute to minute”);
the date of drawing up the act and the signature of the manager (for greater confidence, you can ask witnesses to sign - for example, colleagues of the truant).

It is advisable to draw up the act on the same day, without putting it off “until tomorrow”.

Finding out the reasons for the employee’s absence

Before signing an order to dismiss an employee for absenteeism under the article, you need to require an explanatory note from him. At this stage, it is important to document every action, so it is better to send the request for an explanatory note to the employee in writing (even if in the end he did come to work). Sign the request and ensure that the employee signs for its receipt. If you have to send the request by mail, do not throw away the postal receipt under any circumstances.

After requesting an explanation for failure to appear, you must wait two days. By the way, this rule applies even if the employee refuses to “give evidence” immediately - what if he changes his mind? If after two days the answer still does not come, you can move on to the final stage and draw up an order.

Let's assume that the employee nevertheless provided an explanatory note. There are three possible options:

The reason for absence indicated by the employee can be classified as valid, and the stated arguments are supported by documents. In this case, the person cannot be fired.
The truant is clearly making things up: the explanations are unconvincing and there is no evidence. Feel free to write an order.
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 the medical center. institutions, but probably “fake”. What should an employer do? It is impossible to give a definite answer to this question. Try to assess the situation as a whole, taking into account all possible motives of the employee, his previous behavior, attitude towards his duties and the work process in general. Don’t forget – the law gives you the right to draw a conclusion and make a decision.

Order of dismissal

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

no earlier than two days from the moment the request for an explanatory note is sent to the truant;
no later than 30 days from the date of absence.

Structure of the order according to form No. T-8:

Name;
date, place of compilation;
grounds for publication (absenteeism act, details of reports and explanatory notes, etc.);
Full name and position of the employee;
a detailed description of the offense;
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 read the order and confirm with his signature that he is aware of its contents. If he refuses to do this, another act will have to be drawn up. After this, you should make an entry about the dismissal in the work book of the negligent specialist and send him to the accounting department for this book. This completes the dismissal procedure.

The main mistakes made by employers

As stated earlier, any procedural violation may be grounds for appealing the dismissal order. What mistakes do employers make most often?

Often, a report on absenteeism is simply not drawn up. This is terrible - if the case goes to court, the employee will probably achieve reinstatement (and even compensation for wrongful dismissal). Always fill out a document.
Serious shortcomings in the execution of the act - first of all, 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 the exact time - “the employee was absent from 8.00 to 14.18”, “the report was drawn up at 14.58”.
Inconsistency of factual circumstances with the data contained in the act. Sometimes it happens that an employee pisses off the employer with his impudence. In order to guarantee getting rid of the absentee, the employer artificially aggravates the situation - for example, he writes in the act and order that the employee showed up only the next day and insulted him in obscene terms. If at trial it turns out that everything was a little wrong, the boss will have to bear responsibility for such “attacks.”
Dismissal of an employee without requiring an explanatory note from him.
Violation of the deadlines for issuing an order, dismissal of an employee for absenteeism without a corresponding entry in the labor record.

Even if you have indisputable 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 commit at least one of the listed violations.

Labor, discipline, legality

Unfortunately, the dismissal process does not always go smoothly. Even following the rules and recommendations outlined in this article, you can only minimize the risks, but not eliminate them. The laziest employee, 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.

Can they be fired for one absence and how legal is it? After all, this is a significant violation of labor regulations, entailing the imposition of appropriate sanctions.

In accordance with clause 6, part 1, article 81 of the Labor Code of the Russian Federation, absenteeism refers to cases where a worker is not at his place of work for more than 4 hours during the working day without grounds for this. Taking this into account, the signs of such an offense include the following:

The employee does not appear at his workplace.
Missing work without good reason. They are of three types and are divided into force majeure, due to personal circumstances or in connection with events known in advance. The list of valid grounds is not established by law, but by default they include:

Participation in the trial as an applicant (Article 46 of the Constitution of the Russian Federation);
Failure to appear at the place of performance of official duties due to non-payment of wages for more than 15 days (Article 142 of the Labor Code of the Russian Federation);
Disability due to health impairment.

Other grounds may also be accepted in court.

Failure to show up at work during a shift or for more than 4 hours. If the period is less than the established period, then such a violation can be qualified as lateness, which is also a misdemeanor, but is not a reason for dismissal from office. In this case, it is necessary to take into account a half-hour break every day for rest and eating, although internal regulations may increase this. Such time is not subject to payment and is not working time. Therefore, the calculation of absenteeism time must be calculated without such a period. In addition, it is impossible to take into account 2 absences on 1 day due to a person’s absence before and after lunch.

Can you get fired for one day of absenteeism?

How many absences can one get fired for? Analyzing the practice of courts examining proceedings between an employer and an employee, the Plenum of the RF Supreme Court issued a resolution “On the application by courts of the Labor Code of the Russian Federation.” Clause 39 establishes situations when they can be fired for absenteeism:

The employee was absent from work during the working period for more than 4 hours;
Not showing up at work during the working day and even less than four hours, if this is his shift;
Leaving the place of performance of labor duties before the term of the employment relationship has expired, or without notifying the employer or before the expiration of the time for notification of its early termination (Articles 79, 80, 280, 292 of the Labor Code of the Russian Federation);
Self-care on time off or on vacation. Failure to appear at the place of performance of work duties on a day of legal rest, when the manager should present him, but refused to do so, does not apply to absenteeism. For example, after taking blood at a donor center, citizens are entitled to a one-day rest.

Important! Taking into account the position of the courts, when asked whether they can be fired for one day of absenteeism, this is possible, which is directly established by labor legislation. A literal interpretation of the provisions of the law shows that one offense is quite sufficient, provided that it is serious.

Categories of persons not subject to dismissal due to absence from work

Before applying punishment, the manager needs to make sure that the offender can be fired. Since the current regulatory framework establishes a category of persons with whom it is impossible to sever working legal relations. This:

Pregnant women. Article 261 of the Labor Code of the Russian Federation establishes a guarantee for such actions. A woman in a position who is fired for absenteeism, but does not know about it, will have to be reinstated.
Employed citizens under eighteen years of age. To dismiss this category of persons, a conclusion from the labor inspectorate and permission from specialists in juvenile affairs will be required (Article 269 of the Labor Code of the Russian Federation).
Workers who are absent for health reasons or on regular leave.
Absence from work due to force majeure. Unforeseen stormy weather conditions, vehicle breakdowns, cancellation of planned public transport routes and more.
A person who takes measures to save the life and health of people, personal and other people’s property.
An employee who did not approve the transfer to a new workplace and did not show up for it.

All situations must be supported by documentation. In the absence of evidence, this may include witness statements or other information.

What is not considered truancy

The employer makes an assessment of how justified the absence under the article was, but such a decision can be appealed in court, if there is evidence that the absence was not the fault of the dismissed person. If the dispute is resolved in favor of the dismissed person, he is obliged to reinstate him to his position and pay for missed work.

The following are not grounds for dismissal:

Vacation period. Everyone has the right to take the whole day off. You can call from it by agreement with the worker. If the head of the organization insists on his presence, but the worker does not agree, then his actions cannot be regarded as absenteeism;
Working overtime. It can also be called only by agreement with the person performing the duties, who has the right to disagree with it;
Medical Bulletin. An employee has the right to refuse to perform actions that are contraindicated for him due to health reasons. To do this, you need to confirm your disease.

Conditions of dismissal

To comply with the legality of the procedure, you must follow the following instructions:

The fact of absence must be verified by documentation. As evidence of a fait accompli, there is a report letter addressed to the head of the company, presented by the head of the structural unit where the absentee works, as well as an act of absenteeism indicating the period of temporary absence from the workplace, certified by at least two witnesses to the incident. In the second case, the absence of signatures of those present may serve as grounds for declaring the document illegal. The note serves not only as an informational document, but also includes a request for a specific type of punishment, as well as the period of absence and lack of respect for the reasons.
It is necessary to obtain an explanation from the offender. He can be dismissed only if he refuses to provide an explanation or the reason for absence stated in the explanations is not valid. If the employee is not at fault in what happened, then he must provide evidence of it. The legislation provides two days for this. After the expiration of the period, the employer has the right to dismiss him by preparing a certificate of refusal stating the reasons.
Meeting the deadline. Labor law allows an employer to punish an employee for absenteeism no later than 1 month. At the end of the term, the employment relationship is not subject to termination for such a reason. It should be noted that not all managers get rid of the violator for one offense. If his candidacy is of value to the company, then management may impose a penalty in the form of a warning or reprimand.
Proper documentation. It is mandatory to prepare a dismissal order and familiarize the dismissed person with the signature. If there is a refusal, a statement about this is drawn up.

Failure to comply with at least one of the stages may result in the impossibility of dismissing the employee for absenteeism or his reinstatement through the courts.