When suspended, the employee does not come to work. Long absence: difficulties of dismissal. Written agreement on vacation time with the employer is in the interests of the employee

Concept long absence not legally established. The Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) provides a definition absenteeism, but it is not tied to its duration in days, weeks or months.

If the employee was absent from the workplace without good reason during the entire working day (shift), regardless of its duration, or at least more than 4 hours in a row, then this is already considered truancy. Moreover, it does not matter whether such absence occurred at the beginning, middle or end of the working day (shift) (subparagraph “a”, paragraph 6 of Part 1 of Article 81 of the Labor Code of the Russian Federation).

Since absenteeism refers to gross violations of labor duties by an employee, for which the most severe disciplinary sanction is provided - dismissal (Article 192 of the Labor Code of the Russian Federation), the author believes that there is no need to legislate the concept of long absenteeism. Since even if an employee is absent from the workplace for 1 working day (not to mention a week, a month or more), a strict disciplinary measure can already be applied - dismissal (termination of an employment contract at the initiative of the employer on the basis of subparagraph “a” of paragraph 6 of part first article 81 of the Labor Code of the Russian Federation).

To make it easier to navigate the issue that interests us, we will divide absenteeism into two conditional categories:

• classic, indicated in Art. 81 of the Labor Code of the Russian Federation, i.e. short-term, and
• long-term.

Short-term absenteeism: algorithm of actions

In case of short-term absenteeism, the employer, as a rule, knows the whereabouts of the employee or can establish it (for example, when, after missing 1 working day, the employee returned to work or when he does not appear at the workplace, but he can be contacted by phone, email, or through other employees, etc.).

The employer's procedure in such situations is clearly described in Art. 193 Labor Code of the Russian Federation. Before applying a disciplinary sanction, which in this case may be dismissal for absenteeism, the employer must request from the employee written explanation. If after 2 working days the employee does not provide the specified explanation, then a corresponding act is drawn up. At the same time, the employee’s failure to provide an explanation is not an obstacle to applying disciplinary action. Act on refusal to provide explanations drawn up with the signatures of the employees present. It is also necessary document the fact that the employee is absent from the workplace on a certain day by drawing up an act or collecting other evidence (testimony of witnesses, reports of the truant’s immediate supervisor, extracts from the logbook at the checkpoint, etc.).

If the reasons given by the employee in the explanation for absenteeism are not considered valid by the employer or the employee refuses to give explanations, the employer has the right to apply disciplinary action in the form of dismissal. Order The employer announces the application of a disciplinary sanction to the employee under personal signature within 3 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 by the indicated order signature, then a corresponding act is also drawn up.

Long absence: features of documenting this fact

In case of long absences, it is usually not possible to find an employee and request an explanation from him regarding the reasons for absence from work (for example, when an employee does not show up at work, does not answer calls, and there is also no information about him at his place of permanent residence).

The task of dismissal during long-term absenteeism is somewhat more difficult than during classic blitz absenteeism for a number of reasons. During long periods of absenteeism, objective difficulties arise in strictly complying with the requirements of Art. 193 Labor Code of the Russian Federation.

If an employee does not show up at the workplace, then, accordingly, it becomes difficult to obtain an explanation from him regarding the fact of absence from work. However, the law does not prohibit in such cases request an explanation from the employee by sending him postal correspondence or a telegram to the address specified in employment contract and the employee’s personal file.

If the registration address in the passport differs from the actual place of residence that you may have, then it is better to send the request for explanations to all addresses.

In judicial practice, there have been cases when the court reinstated an employee at work on the grounds that it considered the receipt of a letter sent to the employee to be inadequate evidence that the letter contained requirements for giving an explanation for the fact of absence from the workplace. Therefore, it is better to send to the employee:

• a valuable letter with a description of the contents and notification of delivery, or
• telegram. It should be sent with acknowledgment of delivery, as well as with the obligatory receipt of a certified copy by telegraph.

For the texts of these documents, see Examples 1 and 2. The text of the letter can be more detailed, because here you are not limited by the space allocated for text in the form of a telegram. The sender of the correspondence must be the employer.

Example 1

Collapse Show

Example 2

Text of a telegram demanding an explanation of the reason for absence from work

Collapse Show

We ask you to provide explanations about the reasons for your absence from work from August 1, 2014 to the present. If you fail to provide an explanation of the reasons for your absence from work within two working days, you may be subject to disciplinary action in the form of dismissal for absenteeism.

Collapse Show

Natalia Plastinina

After 2 working days from the date of delivery of the demand sent to the employee, by virtue of the provisions of Art. 193 of the Labor Code of the Russian Federation, the employer has the right to record the failure to provide an explanation for the fact of absence from the workplace.

However, in the event of a missing person, counting dates is somewhat difficult - the employee does not come to the post office and does not receive a notification from the employer. In this case, the post office, in accordance with postal rules, stores mailing 1 month. If it is not received by the addressee, despite repeated postal notifications, after the expiration given period The postal item is returned to the sender. In our case - to the enterprise. From the date of receipt of the returned letter or notification of delivery, 2 working days should be counted and a report should be drawn up on the employee’s failure to provide explanations for the fact of absence from the workplace.

At the same time, both in case of receipt of correspondence by an employee and in case of its return to the sender after the expiration of the storage period, the fact of an employee’s absence from work should be recorded from the first day of absence from work(see Example 3) or confirm it with a set of other evidence (lack of the employee’s signature in the accounting log on checkpoint, reports from immediate superiors, etc.). However, the act is better, because it contains the signature of not only the immediate superior, but also of witnesses whom the court considers more independent persons, so it is better to attach the remaining evidence to the act.

It is better to issue absence reports for each day the employee is absent from the workplace. At the same time, we strongly recommend that you do this day after day, and not “retroactively,” since in the event of a trial this fact may come to light, which may lead to a decision not in favor of the employer. In this situation, the act should be drawn up at the end of the working day, then it will be possible to state that the person was absent from work all day.

If the employee received a letter or telegram, as indicated on the notice, but did not show up at work and did not provide an explanation for the fact of absenteeism within 2 working days, an employer can safely fire a absentee.

Example 3

Collapse Show

If the employee later appears at work (after all, the reasons for his absence may be objective, and then he has nothing to fear: after recovery or the end of the emergency, he can return to work), he will need to be familiarized with all the certificates of absence from the workplace against his signature. But if he refuses, then the fact of refusal will have to be activated - this can be done with a single document regarding the refusal to sign for familiarization with a whole set of papers, then in the act of refusal they will need to be listed individually, for example, like this:

Example 4

Collapse Show

Similar text is placed after the words “this act has been drawn up as follows:” (marked with an exclamation point in the sample act from Example 3). Otherwise, the recipe for making these acts is similar.

It should be noted that in practice there are cases when employees, trying for various reasons to cause inconvenience to employers, deliberately hide the fact that they are on sick leave, and then appeal against illegal dismissal (according to Article 81 of the Labor Code of the Russian Federation, the dismissal of an employee at the initiative of the employer, with the exception of the case of liquidation organization or termination of activities individual entrepreneur, during the period of his temporary incapacity for work and while on vacation is not allowed), and they require payment for forced absence.

But in such situations, the courts side with the employers, referring to paragraph 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. If the court establishes that the employee has abused his right, the court may refuse to satisfy his claim for reinstatement at work (while changing the at the request of an employee dismissed during a period of temporary disability, the date of dismissal), since in this case the employer should not be responsible for adverse consequences resulting from dishonest actions on the part of the employee.

If the sent correspondence with a request to provide an explanation for the fact of absence from work was not received by the employee (the letter was returned after the expiration of the storage period, no one opened the door to the postman to deliver the telegram), It is better for the employer to play it safe and take a number of additional measures to find the missing person: file a wanted report with the police, try to find out from the employee’s relatives (if the employer has information about them) what happened to him, and send inquiries to hospitals. In practice, few employers take such measures, since they require time and effort. That is why employees who are absent from work for a long time for unknown reasons are fired for absenteeism without establishing the reasons for their absence.

However, if the reasons for absence are subsequently recognized by the court as valid, the court will reinstate the employee at work and oblige the employer to pay all amounts due to him, including forced absence.

In addition, a person who was improperly dismissed may already be replaced by the time of the trial. new employee, who will have to be transferred to other positions or solve this problem by increasing the number of staff units.

To avoid such negative consequences, it is better for the employer to take all available measures to find the employee, despite the fact that the law does not oblige the employer to carry out a search.

Collapse Show

Natalia Plastinina, head of the legal support sector for the activities of a bank branch

And yet, the act of absence from work and the requirement to provide explanations only record the employee’s absence, but “do not dig deeper.” In a situation where a person goes missing, it would not be superfluous to conduct official investigation, including with the involvement of the service own safety. To do this, the order must appoint the composition of the commission to conduct the investigation, as well as set the time frame for the investigation. Even if the investigation did not produce any results, this also needs to be recorded, for this purpose a official investigation report in any form. It can reflect all the information collected: even a media report about a terrorist attack, if the disappearance of a person coincided with it, data from the correspondence of the “missing person” on social networks, not to mention official responses from law enforcement and other agencies.

After reviewing the results of the internal investigation and the package collected documents the manager may decide to terminate the employment contract with the missing employee. Of course, an employee’s absence from work does not oblige every employer to immediately formalize his dismissal. The law does not require such steps from employers. And yet, keeping “dead souls” is not in the interests of employers who need the planned amount of work to be completed. Therefore, most managers decide to terminate labor relations with "dead souls".

In the event of the disappearance of an employee for unknown reasons, the most suitable of the grounds provided for by the Labor Code of the Russian Federation is subsection. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation - dismissal for absenteeism. Other grounds, including those listed in Art. 83 of the Labor Code of the Russian Federation cannot be applied in this case. For example, it would be wrong to terminate an employment contract under clause 6, part 1, art. 83 of the Labor Code of the Russian Federation - “the death of an employee..., as well as recognition by the court of an employee... as deceased or missing,” since the employer will not have a death certificate for this. Even if there is reason to believe that a colleague has died or gone missing (for example, he was supposed to fly on vacation to a country where mass armed unrest occurred around the same time), as long as there is no documentary evidence of this, he should be considered a “truant.”

Registration of dismissal for long absence: main difficulties

So, having collected a complete set of documents confirming compliance with the requirements of Art. 193 of the Labor Code of the Russian Federation (requesting an explanation from an employee, drawing up reports of non-receipt of explanations, reports of the employee’s absence from the workplace), as well as making efforts to find an employee, as a result of which the employer came to the conclusion that the employee’s prolonged absence from the workplace is most likely , is not associated with valid reasons, you can begin the procedure for terminating the employment contract.

How can I get acquainted with the order?

The general procedure for formalizing the termination of an employment contract is enshrined in Art. 84.1 of the Labor Code of the Russian Federation, according to which the employee must be familiarized with the order (instruction) of the employer to terminate the employment contract under his personal signature. In the event that this document cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, an appropriate entry is made on it (marked with number 4 in Example 5).

Date of termination of employment

The problem is that, according to Art. 84.1 of the Labor Code of the Russian Federation on the day of termination of the employment contract in all cases is the last day of work of the employee, except for cases when the employee did not actually work, but is beyond him in accordance with the Labor Code or other federal law the place of work (position) was maintained.

Based on this norm, the day of dismissal should be indicated the last day of work, that is, the day preceding the first day of absenteeism. So, if an employee did not go to work on August 1 and did not show up at work over the next few days, then the day of dismissal should be indicated as July 31.

But then it turns out that the labor relationship between the employee and the employer ceased on July 31, accordingly, after this date the employee could no longer commit any labor offenses within the framework of the terminated employment contract. Consequently, dismissal for absenteeism cannot take place. In this regard, some experts suggest indicating in the dismissal order the date of termination of the employment relationship, coinciding with date of issue of the order.

However, it is more correct, in our opinion, to indicate in the order the date of termination of the employment relationship as the employee’s last day of work, which will at least be in accordance with the provisions of Part Three and Part Six of Art. 84.1 Labor Code of the Russian Federation. This is exactly what we did in our samples of the order and work book (Examples 5 and 6): numbers 1 and 2 indicate the date of issue of the order and the earlier date of dismissal on the person’s last working day before his disappearance.

This point of view is also supported Federal service on labor and employment. According to her letter dated June 11, 2006 No. 1074-6-1, “one of the grounds for dismissal is for absenteeism (subparagraph “a”, paragraph 6, part one, article 81 Labor Code) may be the abandonment of work without a good reason by a person who has entered into an employment contract for both an indefinite and a definite period. By general rule in all cases, the day of dismissal of the employee is the last day of his work. If an employee is dismissed for absenteeism, the day of his dismissal will be the last day of his work, that is, the day preceding the first day of absenteeism.”

Confirmation of the correctness of this position is also contained in part six of Art. 84.1 of the Labor Code of the Russian Federation, according to which the employer is not responsible for the delay in issuing a work book in cases where the last day of work does not coincide with the day of registration of termination of labor relations upon dismissal of an employee on the basis provided for in subsection. “a” clause 6 of the first article. 81 or clause 4 of part 1 of Art. 83 Labor Code of the Russian Federation. Thus, the legislator indicates that in case of dismissal for absenteeism, the last day of work does not coincide with the day of registration of the termination of the employment relationship.

Of course, this point of view is more reasonable and is supported by Rostrud and the State Labor Inspectorate during inspections. However, the position regarding the coincidence in the dismissal order of the date of issue of the order with the date of termination of the employment relationship has a right to exist, since in cases where the dismissal order indicates the last working day as the date of termination of the employment relationship, disputes may arise in court on this issue, which may or may not be resolved in favor of the employer. And in cases where the dates coincide, the courts, as a rule, do not make any claims, since the employees do not demand that their dismissal date be changed from a later to an earlier one.

Thus, this issue has not yet been clearly resolved by law.

Grounds for dismissal for absenteeism

In practice, there are cases when, upon dismissal for absenteeism, which lasted for a month, the order on the basis of dismissal indicated only the report for one of the days of absenteeism, and the employee at the trial presented evidence for that very day of absence from the workplace (certificate from the emergency room and etc.), and he was reinstated at work by the court.

To avoid such situations, some experts recommend indicating in the dismissal order, for example, that “for absenteeism on August 1, 2014, for absenteeism on August 02, 2014 ... for absenteeism on August 09, 2014.” apply a disciplinary measure - dismissal. Since labor legislation does not contain restrictions on the possibility of applying one penalty for several offenses, if a truant worker presents supporting documents for 1-2 days of absenteeism, then he will no longer be able to justify himself for the rest. However, there are also opponents to this position. Nevertheless, orders that contain instructions for several absences (several days of absenteeism) are usually recognized by the courts as legal. See the wording of the grounds for dismissal in Example 5, marked with number 3.

Time limits for applying disciplinary action

What should not be forgotten when dismissing someone for absenteeism is the timing of the application of this disciplinary sanction.

According to Art. 193 of the Labor Code of the Russian Federation, disciplinary action is applied no later than 1 month from the date of discovery of the misconduct, 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.

Disciplinary action cannot be applied later than 6 months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or audit - later than 2 years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

It should be borne in mind that judicial practice has developed such a concept as “continued absenteeism,” which assumes that the moment of detection of absenteeism is not the day on which the employee’s absence was discovered, but the moment the investigation of the reasons for his absence is completed: it is at this moment that the offense is considered completed and discovered. However, the court, when considering each specific dispute, can resolve this issue differently, so it is better for the employer to play it safe, and if evidence of absenteeism is collected, then try to register the dismissal within a month (that is, choose those dates of the employee’s absence from the workplace that are included in the monthly period before the date of issue of the order). What will get in the way here, first of all, is the period of waiting for a response to a request sent by mail.

Employment history

On the day of issuance of the order in work book a record of dismissal is made. The grounds for dismissal must be formulated in strict accordance with the Labor Code of the Russian Federation or other federal law and with reference to the relevant paragraph or article. See Example 6.

According to part six of Art. 84.1 of the Labor Code of the Russian Federation “in the event that it is impossible to issue a work book to an employee on the day of termination of the employment contract 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 date of sending this notification, the employer is released from liability for the delay in issuing the work book.”

Example 5

Collapse Show

Thus, on the day the dismissal order for absenteeism is issued and an entry is made in the work book, the employer needs to send a letter or telegram to the employee about the need to appear for the work book or agree to have it sent by mail.

Example 6

Collapse Show

Missing person…

Now let’s consider the option when the employer did everything possible to find the employee: filed a corresponding statement with the police, interviewed relatives and acquaintances of the missing employee, called hospitals, etc. However, the comprehensive search measures taken did not bring any results: the worker disappeared and no one knows what happened to him. For such cases, the legislation provides for the option of terminating an employment contract on the basis of clause 6 of Part 1 of Art. 83 of the Labor Code of the Russian Federation: “The death of an employee or employer - individual, and recognition of an employee by the court or an employer - an individual deceased or missing».

If there is no news from the missing employee for more than a year, the employer can judicially recognize him as missing, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and Chapter 31 of the Civil Procedure Code of the Russian Federation. So, according to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested parties, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. If it is impossible to determine the day of receipt of the latest information about the absentee, the beginning of the calculation of the period for recognizing an unknown absence is considered to be the first day of the month following the one in which the latest information about the absentee was received, and if it is impossible to determine this month, the first of January of the next year.

And if the court satisfies the stated requirements to recognize the missing employee as missing, the employer will be able to terminate the employment contract with this employee under paragraph 6 of part one of Article 83 of the Labor Code of the Russian Federation.

Example 7

Collapse Show

“Missing person” or “truant”: how to make the right choice?

So, the legislation offers 2 options for terminating an employment relationship with a long-term absent employee. In this regard, the question arises: in what cases should an employee who does not show up for work for a week, month or more be fired for absenteeism under Art. 81 of the Labor Code of the Russian Federation, and when you should expect news about him for a year or more, and then, using the procedure for recognizing a missing citizen as missing in court, terminate the employment contract under clause 6, part 1, art. 83 Labor Code of the Russian Federation?

In each specific case, the employer must make a decision based on many factors: the moral characteristics of a person, his status, business qualities, permanent place of residence, territorial jurisdiction of cases of reinstatement at work and recognition of a citizen (missing employee) as missing, etc.

Dismissal for absenteeism is always a disciplinary measure. Therefore, in each specific case, it is necessary to decide whether a penalty can be applied to an employee if the reasons for his absence from the workplace are not reliably known.

Example 8

Collapse Show

The management of B-s LLC contacted the Bar Association with the following problem. Employees E. and L., who work as drivers in this organization for about six months, do not appear at work for almost 3 weeks. Attempts to reach them by phone were unsuccessful. Taking into account the fact that E. and L. have permanent residence in another locality, it was also not possible to visit them at home. They also did not show up at their place of temporary residence in a hostel in Moscow during these 3 weeks. The HR service marked these employees with “NN” (absence due to unknown circumstances) on the time sheet for all days of their absence from the workplace. Also, the absence of E. and L. was registered from the first day of absence from work.

• check with colleagues in the transport department whether there have been any expressions of dissatisfaction with work, management, etc. on the part of the missing workers, did they mention in conversations the possibility of stopping work in the organization (as a result of a survey of colleagues, it turned out that E. and L. talked about returning to their native village in order to visit their families, and then try their hand at another place of work);
• send telegrams to the permanent registration addresses of employees E. and L. with a request to provide an explanation of the reasons for not showing up for work (employee E. received the telegram in person; the telegram addressed to employee L. was received by his wife);
• then it was recommended to wait about 5 days for a response from E. and L., and then issue orders for their dismissal for absenteeism. The said employees did not provide explanations about what the corresponding acts were drawn up;
• on the day the orders were issued (the orders recorded the fact that it was impossible to bring the contents of the orders to the attention of workers), it was recommended to send telegrams to both E. and L. with a request to come to receive a work book or to consent to its sending by mail.

As a result, the issue was resolved; the dismissed employees did not go to court with claims to declare the dismissal illegal.

In this case, the employer established that employees E. and L. did not disappear under unclear circumstances, but went home and decided not to return to work. The absentees did not provide valid reasons for their absence from work; they did not in any way show any intention to continue working at B-s LLC. Therefore, the employer made the right decision by firing these employees for absenteeism.

In situations where an employee who has been working in an organization for several years, has established himself as a wonderful specialist and a decent person, suddenly does not show up for work, the employer should not make hasty decisions and fire him for absenteeism. Measures taken by the employer to establish the reasons for a person’s absence from work may show that he disappeared under strange circumstances - neither relatives, nor friends, nor acquaintances know about his whereabouts. There is no need to be afraid that the employer will have to put the employee on the wanted list, and then recognize him as missing in court. If the missing person has relatives, then they will carry out all these actions. The employer will only need to issue an order based on the court decision and make a corresponding entry in the employee’s work book.

The employee did not show up for work or disappeared without warning. How to find it? What documents should I fill out if the search does not produce results? Is it possible to fire an employee in his absence? Natalia Vladyko, leading editor of the magazine “I am an occupational safety specialist,” answers these questions.

— If an employee does not come to work and does not warn the manager about it, the employer must first find out the reasons for the absence on his own. If the employee is in work time disappeared from his workplace for a long time for unknown reasons, then his immediate supervisor should inspect the most likely locations of his location.

The search, of course, is carried out within reasonable limits and within the company’s workspace.

For example, there is no need to follow a truck driver from Belarus to the Amur region just to make sure that his phone battery is dead. However, if the driver is involved in an accident, a message about the incident will be sent to the organization and such an accident will be investigated according to the established requirements.

How to register absence using documents

The absence of an employee must be recorded in writing.

1. At the end of the working day, in the presence of several witnesses and in free form, a Act, which indicates information about the employee and the number of hours he was absent.

For impartiality, it is better to involve people from other departments or divisions as witnesses. 2. On the time sheet Only those hours that the employee actually worked should be recorded: for example, 4 hours in the case of disappearance or NN in the case of absence. If the employee shows up later and the reason for his absence turns out to be valid (for example, a document from a medical institution), then an adjustment report card with corrections is drawn up.

If the employee never shows up

Let’s say the employee never got in touch, and the employer no longer wants to continue cooperation with him.

In accordance with legal requirements, it is impossible to dismiss an employee until the reason for his absence has been established. Therefore, if an employee does not appear for a long time after disappearing and the reason for his absence is unknown, the employer should take more serious measures to find him. Perhaps the person is hospitalized, detained by law enforcement, or there is another valid reason. Algorithm of actions:

Step 1. Look at his personal card, find out his contacts and try to reach him or contact his relatives.

Step 2. If you are unable to contact, send a letter to the employee’s address asking him to explain the reason for his absence. If there is no answer, about a week after the notification is returned, draw up a report stating that it is impossible to obtain an explanation.

Not only a person’s relatives, but also his colleagues have the right to write a statement to the police. Step 4. If the search by the police does not produce results for more than a year, then the employer, as an interested party, has the right to go to court to have the missing person recognized as missing. Only after this can you formalize the dismissal of an employee who has gone missing.

• Organization of labor of workers - art. 55
• Organization of working time recording - art. 133.

According to experts in the field of HR, a person’s discipline directly depends on the position he occupies. Thus, lawyers, managers, economists and programmers rarely go missing. Most often, loaders, couriers, waiters and security guards go underground.

Basically, three categories of workers stop going to work. Firstly, these are people engaged in unskilled labor. They go on binges and may forget about work. The second category is skilled workers, but not very far from the lumpen. They are solely concerned with finding money. As soon as they find out that somewhere they pay three kopecks more, they rush to a new place. Rounding out the top three are part-time workers who do not always understand that part-time work, according to Article 282 of the Labor Code of the Russian Federation, refers to regular and not temporary work, notes Evgenia Rivkina, head of the HR department of CORISassistance LLC.

Often those who decide to quit do not go to work. At the same time, they are little concerned about the fact that their work book remains in the personnel department, and payments are due for unspent vacation days.

Deputy Head of HR Service of KSK Group Aida Ibragimova emphasizes that there are missing employees in almost every company. Their number depends on the activities of the organization. There are many escapees in companies with large production and sales personnel, as well as in large call centers.

Regularly among the missing employees are those for whom the company is their first place of work. Such employees stop going to work because they do not have time to combine it with their studies or get a new job.

Sometimes employees ignore job responsibilities after a conflict with management. Many deliberately do not come to service.

What should an employer do if an employee does not come to work?

The problem is that the employer does not have the right to fire a missing employee under the law. There may be a good reason, but it still needs to be installed and formalized. An employer can fire a person only after providing him with an explanation of the reasons for his non-appearance. If a company fires a truant without asking for an explanation, he can appeal the decision in court. As a result, the court reinstates the employee due to violation of the dismissal procedure. The employer in such a situation must pay average earnings during forced absence and accrue vacation days.

What to do? First of all, the colleagues and superiors of the missing employee try to reach him by phone, write letters to email, ask friends and relatives (if their contacts are available). CEO Center for Business and Career Development "Perspective" Natalya Storozheva also advises sending a letter addressed to the truant’s home address letterhead organizations. The letter must be registered, with acknowledgment of receipt.

The principle of protecting employers from unscrupulous employees has been adapted to market realities. If previously an employee was afraid of being fired for absenteeism, now he is not. This means that you will often have to deal with the problem of absenteeism. I advise employers to be sure to describe all the nuances of working in the company. If you have employees working remotely, then do not be lazy to indicate the time of mandatory communication; no one is stopping you from stipulating that if an employee does not communicate within four hours during working hours, this behavior can be regarded as absence from the workplace with the ensuing consequences,” comments HR Director of exeStation, an expert in the selection of freelance professionals for project work to solve business problems Olga Shulgina.

If the employee does not show up for work, take action on the same day. Don't forget about new technologies. Take a look at the employee's pages at in social networks. Article 193 of the Labor Code of the Russian Federation will help you.

If attempts to find an employee have led nowhere, the employer must record the fact of the employee’s absence with a special act, which must indicate the following data: full name of the employee, his position, date of absence. The act must be signed by the persons who compiled it, as well as by employees (necessarily at least three people) confirming the information contained in the act. Such a document is drawn up every day throughout the entire period of absence of the employee, adds Natalya Storozheva.

You can visit the missing employee and demand an explanatory note from him. If the truant could not be found at home, then this information must be entered into the report. The document must be certified by the signature of one of the neighbors, reports HR Director of SimbirSoft Ekaterina Artyushina.

As noted Head of the Moscow Human Rights Center Mikhail Salkin, the employer will have to keep the work book of the missing employee and maintain his personal file. However, reporting for pension fund and such an employee will not affect the tax inspectorate, since payments for absenteeism are not due.

The employer must record employee absences from work on the time sheet. Wherein wage the employee is not credited. If necessary, the employer may hire a new employee under a fixed-term employment contract to replace the absentee. Officially, absence of an employee from the workplace for more than four hours in a row can be considered absenteeism.

When the fact of absenteeism is established, the employer has the right to unilaterally decide to punish the employee. The employer may dismiss such an employee under Article 81, paragraph 6, part 1 in connection with a single (or repeated) violation labor discipline or limit yourself to a reprimand for the first time,” explains Natalya Storozheva.

By the way, according to the Labor Code of the Russian Federation, the employer is not obliged to either force the absentee to return to work or fire him (Part 2 of Article 22 of the Labor Code of the Russian Federation). Also, the law does not require the employer to search for a missing person, and the Labor Code does not contain instructions for searching for missing employees.

Whose side is the law on?

If an employee does not show up for work for a long time, the employment contract with him can only be terminated in court. In court, you must provide evidence that the employer made every effort to find the employee. This is where the Failure to Appear document comes in handy.

The employer goes to court if there is no information about the employee’s whereabouts during the year. In this case, the employment contract can be terminated under clause 6, part 1, art. 83 of the Labor Code of the Russian Federation (termination of an employment contract due to circumstances beyond the control of the parties).

If by his actions the truant caused a direct material damage employer, the latter has the right to go to court to demand compensation.

If you are faced with a situation where your employee does not show up at work for several weeks in a row and does not communicate, act in accordance with the rules of the Labor Code. And do not make a decision to dismiss before establishing the reason for the employee’s absence from work.

Lawyer, Department of Taxes and Law, AKG Interexpertiza Sitnikova Elena.

In the first days after the holidays, employers are faced with an eternal problem - absenteeism. Some employees simply don’t make it in time for the start of the working day, some show up only at lunchtime, and some are completely absent for several days. What responsibility can subordinates be held accountable for such misconduct? Let's see what the Labor Code thinks about this.

As we know, absenteeism is a serious violation of labor discipline. The law allows an employer to fire an employee even for a single case of absenteeism. But here it is important not to make a mistake and not confuse absenteeism with being late or simply the absence of an employee at work.

What is truancy

We issue a disciplinary sanction

New Year's explanatory notes

AKG "Interekspertiza" asks you to keep in mind when using publications that:

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 show up for 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 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 materials judicial practice, principles 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»);
• certificate from 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.

A procedural error can be made 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 - acceptable different variants names);
• 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. On 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:

1. 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.
2. The truant is clearly making things up: the explanations are unconvincing and there is no evidence. Feel free to write an order.
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 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 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;
• detailed description misdemeanor;
• 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?

1. Often, an absenteeism report 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.
2. 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”.
3. Inconsistency of factual circumstances with the data contained in the act. Sometimes it happens that an employee infuriates 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.”
4. Dismissal of an employee without requiring 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 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.

home » Loans » When suspended, the employee does not come to work. Long absence: difficulties of dismissal. Written agreement on vacation time with the employer is in the interests of the employee