How to fire an employee for absenteeism. The employee was absent from the workplace without good reason during the whole working day: Can he be fired? Sample letter with questions about the reasons for absenteeism

DISMISSAL FOR AWAY:

According to paragraphs. "a" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation absenteeism is the absence from the workplace without good reasons during the entire working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day (shift). The employment contract can be terminated by the employer in cases of a single gross violation by the employee of labor duties - absenteeism.

Dismissal for absenteeism is a disciplinary sanction, therefore, when making this dismissal, one should also take into account General requirements dismissal laws and disciplinary requirements.

1. Fixing the fact of the absence of an employee at work.

The main document for fixing working time (attendance / non-attendance) is the time sheet.

Also, for additional confirmation of the fact of the absence of an employee at work, in practice, an act is drawn up on the absence of an employee at work, reports are submitted by employees who have discovered the absence of a colleague.

These documents are registered in the manner prescribed by the employer, for example, in the relevant registration / accounting journals.

2. It is checked whether the employee belongs to the category of employees who are prohibited from being fired at the initiative of the employer.

Yes, following step-by-step procedure for dismissal for absenteeism, note - according to Art. 261 The Labor Code of the Russian Federation does not allow termination employment contract at the initiative of the employer with pregnant women, except in cases of liquidation of the organization or termination of activity by an individual entrepreneur.

3. The deadlines set for the application of a disciplinary sanction are checked.

If the employee refuses to familiarize himself with the order to terminate the employment contract in this case it is necessary to draw up an act (part 6 of article 193 of the Labor Code of the Russian Federation). The act is registered in the manner prescribed by the employer in the appropriate registration log.

9. Making a note-calculation upon termination (termination) of an employment contract with an employee (dismissal).

10. Settlement with the employee.

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. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment. In the event of a dispute about the amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article (Article 140 of the Labor Code of the Russian Federation).

According to Art. 127 of the Labor Code of the Russian Federation upon dismissal, the employee is paid monetary compensation for all unused vacations.

11. Making an entry on the termination of the employment contract in the work book(if a paper work book is maintained for the employee in accordance with Article 66 of the Labor Code of the Russian Federation) and personal card. The employee certifies these records with his signature in the prescribed manner.

According to clause 12 of the "Rules for maintaining and storing work books, preparing work book forms and providing employers with them", approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225 "On work books", with each contribution made to work book record of work performed, transfer to another permanent job and dismissal, the employer is obliged to familiarize its owner against the signature in his personal card, in which the entry made in the work book is repeated. Personal card form is approved Federal Service state statistics.

12. Making a copy of the work book dismissed employee for the archive of the employer.

13. Issuing a work book to an employee or providing information about labor activity on the day of dismissal.

If, on the day of termination of the employment contract, it is impossible to issue a work book to an employee or provide information about work activities with this employer due to the absence of the employee or his refusal to receive them, the employer is obliged to send a notification to the employee about the need to appear for a work book or agree to send it by mail or send it to the employee by registered mail with notification of information about labor activity for the period of work for this employer at hard copy duly certified.

Notifications are registered in the manner prescribed by the employer, for example, in the register of notifications and offers to employees.

At the written request of an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s request, and if, in accordance with this Code, another federal law, a work book is not kept for the employee, at the request of the employee (in writing or sent in the manner prescribed by the employer to the email address of the employer) who did not receive information about labor activity from this employer after dismissal, the employer is obliged to issue them no later than three working days from the date of the employee's application in the manner specified in his application (on paper, duly certified, or in the form electronic document signed by enhanced qualified electronic signature(if the employer has it).

14. Confirmation of the fact of issuing a work book to an employee. The employee confirms with his signature the fact of receiving his work book in the book of accounting for the movement of work books and inserts in them. The form of this book was approved by the Decree of the Ministry of Labor of Russia dated 10.10.2003 N 69 "On approval of the Instructions for filling out work books."

15. Transfer of information about the labor activity of a registered person in the form of SZV-TD to the territorial body of the PFR.

16. Issuance of a certificate/certificates on the amount of earnings(Clause 3, Part 2, Article 4.1 federal law dated December 29, 2006 N 255-FZ "On compulsory social insurance in case of temporary disability and in connection with motherhood").

If the employee refuses to receive the notification, read it, put his signature, it is recommended to draw up an appropriate act, which is certified by the signatures of the compiler and the employees who were present at the refusal, and send the notification to the employee's home address by letter with the notification and description of the attachment. The act is registered in the manner prescribed by the employer in the appropriate registration log.

See the step-by-step procedure for bringing an employee to disciplinary responsibility (announcement of a remark or reprimand).

In the event of an employee's refusal to receive a work book, it is advisable to draw up an act on the employee's refusal to receive a work book. The act is signed by the compiler and employees who were present at the refusal. The law does not require the drawing up of such an act, but it can be useful as evidence of the innocence of the employer if a dispute arises upon dismissal and the case goes to court. The act is registered in the manner prescribed by the employer in the appropriate registration log. materials on personnel from the base of the magazine "Kadrovik-praktik" and "Package of Kadrovik": samples and forms of documents, books, consultations, legislation, letters from Rostrud, etc. >>

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Excused Absence is when an employee was absent from work for more than four consecutive hours, excluding the time officially allotted for rest (for example, lunch break), which cannot be qualified as absenteeism, since the employee objectively could not come to the workplace and provided documentary evidence of the impeding circumstances.

It is possible and impossible (according to the Labor Code of the Russian Federation)

Although any employer dreams that all his employees are always in work time were in their places, in life it is impossible. Each employee is a living person, and from time to time circumstances arise that force him not to go to work.

What are the types of absence from work?

• different types of vacations: regular, at their own expense, for child care, educational and others;
• day off;
• absenteeism.

The first two cases are agreed with the employer, the last one is a violation of labor discipline and is fraught with serious consequences for the employee, up to and including dismissal.

If an employee manages to justify his absence from work, this is not recognized as absenteeism. And if by this time a disciplinary sanction has already been imposed, it is subject to cancellation.

The employer needs to be very careful, because in Labor Code of the Russian Federation there is no list of valid reasons for absence from work, and unreasonable disciplinary action and dismissal is a violation of the rights of the employee, as a result of which he will most likely go to court, and the court will restore his rights.

When can

The employer is forced to decide for himself what is considered a valid reason for absence from work and what is not. And the employee has the right to disagree with him, then the case may go to court.

There is a list on which the court relies when resolving such issues. Absence due to illness Labor Code considers as one of them, but subject to the provision of a document from a medical institution.

Also valid reasons are:

• execution of public works;
• donation of blood and components;
• participating in a strike;
• problems with transport - flight delay, car accident, etc .;
• force majeure, for example, catastrophes, natural disasters, military operations and others;
• detention;
• Absence from work due to a salary delay of more than 15 days (upon prior notice by the employee to the employer).

From a practical point of view, it is more correct when an employee's absence from work is agreed in advance with the employer. This is the case when a person, going on vacation or intending to use the day off to which he is entitled, writes a statement about this.

By law, an employee is entitled to time off if:

• went to work on non-working days;
• donated blood and components;
• he has irregular working hours;
• is going to undergo a medical examination (one day every three years, and for employees of pre-retirement age - two days every year) or a mandatory periodic medical examination;
• going to participate in the trial as a juror.

In response to the application, the employer draws up an order.

Most employers are sympathetic to the absence for family reasons:

• the need to care for a sick family member, most often a child;
• local communal accident at the place of residence;
• death of a close relative;
• wedding;
• moving;
• the birth of a child, etc.

In order to avoid problems, we strongly recommend that you develop and bring to the attention of employees the rules of conduct in such cases. If there is a risk of non-attendance at work, the employee is obliged to inform his manager, then he will receive instructions on what to do in this case so that his absence does not become absenteeism, for example, take some supporting documents. In many organizations, it is possible to work remotely, for example, if a child is sick. To take or not to take sick leave in this case is negotiated separately. It is important that employees must know how to proceed in order to avoid problems.

When not to

There is also no list of disrespectful reasons, but there is arbitrage practice, which defines the following disrespectful reasons for absence from the workplace:

• breakage of the alarm clock;
• employee forgetfulness;
• a medical examination for which a certificate of incapacity for work was not issued;
• days off for the days worked during the vacation period, if the recall from the vacation is not formalized;
• treatment of the spouse in the hospital.

For all categories of employees, except for pregnant women, absenteeism is grounds for dismissal. For pregnant employees, this measure is not applicable, but disciplinary action is allowed for everyone.

How to file an absence

A few tips on how to formalize the absence of an employee for a good reason.

If a person needs to be absent for no more than two hours, it is recommended not to document this, but simply to agree with the manager in order to obtain permission to be absent. If an employee needs to be absent longer, it is necessary not only to agree with the management, but also to write a statement. An order is issued in response to the application. It is always better to agree and arrange everything in advance, but if it didn’t work out, and you are dealing with a case that looks like absenteeism, you need to ask the employee for an explanation in writing.

Life is full of surprises and there are many different reasons for absence from work, examples of statements mention the most common ones:

“I ask you to allow me to be absent from the workplace on April 15, 2019 from 13.00 to 18.00 due to the need to be present at parent meeting at school in the class where my child is studying Petrov I.I.”

“I, Aleksandrov Petr Nikolaevich, was absent from the workplace yesterday, 04/15/2019, due to the fact that I became a participant in a traffic accident. Attached is a copy of the accident report.

“I, Gureev Daniil Dmitrievich, was absent from the workplace on 09/02/2019. I provide a certificate from the clinic confirming my absence due to illness.

If the employee did not provide explanations or the explanations provided do not suit the employer, a penalty is issued. If in the future the employee still managed to provide supporting documents, the penalty is canceled.

You can be fired for absenteeism. No one is obliged to tolerate an employee who systematically violates the routine. But in order not to be sued for wrongful dismissal, you need to do everything right. It's not difficult - in the article we clearly talk about it.

Is it legal to fire for absenteeism

Even for one single absenteeism, you can be fired. This is stated in paragraph 6 of Art. 81 of the Labor Code of the Russian Federation. Even for a single gross violation, if a person without a good reason did not appear at the workplace all day (regardless of the length of the working day) or 4 hours in a row.

Walking is also considered:

If a person wrote a letter of resignation and did not work the prescribed 2 weeks.

If a person entered into a fixed-term employment contract and did not go to work without warning before its expiration.

If a person arbitrarily decided to take off the time off or leave due to him and did not warn the employer.

When it is decided that a person has been absent, it is necessary to fire him correctly.

The procedure for dismissal for absenteeism

Dismissal for absenteeism is a disciplinary sanction.

Therefore, you must comply with the procedure for applying disciplinary sanctions - Art. 193 of the Labor Code of the Russian Federation.

Draw up an act and fix the violation. Ask the head of the department of the employee and 2 witnesses to sign this act. Just in words, the fact of violation will not have force. The act is drawn up in any form - you can use our version of the act of absence from the workplace.

Ask an employee for an explanation. He must do so in writing. If within 2 days the employee did not provide an explanatory note, an act is also drawn up about this. It is also signed by the head of the department and 2 witnesses. Take our example as a template or create your own in any form.

Write a letter of resignation. The order must be drawn up within 3 days from the date of its issuance. The employee must read it and sign it. If he refuses, draw up an act about this.

The fact that an employee does not give explanations or refuses to sign the acts with which you are trying to familiarize him is not an obstacle to disciplinary punishment. The main thing is to follow the mandatory procedures.

What else is important if you are fired for absenteeism

Disciplinary action according to art. 193 of the Labor Code of the Russian Federation is applied no later than a month from the date of the misconduct. Therefore, it is impossible to dismiss for absenteeism after 32 days - do not hesitate.

A disciplinary offense can only be punished once. If you have already fined an employee, then you can’t fire him later.

You may be sued for dismissal due to absenteeism - make sure you are doing everything right.

Do not rush to fire people for the first absenteeism. A person can get sick, disappear without a trace, he may have serious reasons to miss work. If it turns out later that you had no right to fire him, you will have to reinstate him and, possibly, pay compensation if you are sued.

To begin with, make every effort to find a person - call, send someone to his home, find out from friends, relatives or neighbors.

Of course, if absenteeism is systematic, it is better to act decisively. The main thing is to follow the law and take your time.

Each case of dismissal of an employee for absenteeism without a good reason is individual. There cannot be a universal sample document and a single template, acting on which, you are guaranteed to fire any truant without any problems. Moreover, absence from the workplace is not always a disciplinary offense. There are times when an employee is forced to miss a working day and cannot immediately provide required documents in your own defense. And hasty action in such cases is dangerous - you may be called to court, which you are likely to lose.

That is why we offer not a template solution, but a detailed analysis of terms, documents and rules of conduct, taking into account judicial practice.

Absenteeism or not: we understand the terminology

According to the Labor Code of the Russian Federation, absenteeism is a single gross violation by an employee of his labor duties ( Article 81, Clause 6, Clause “a” of the Labor Code of the Russian Federation). IN Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004, 5 actions of an employee are described that can be qualified as absenteeism:

• Absenteeism. This means the absence of an employee from work without good reason throughout the working day, regardless of its duration. For example, if we are talking about a person who, according to an employment contract, works 3 hours a day, absence during these three hours already means absenteeism.
• The presence of an employee without good reason outside the workplace for more than 4 hours in a row during the working day. What does it mean? Suppose a person came to work, took a pass, checked himself in, and then left somewhere and did not appear at the workplace for 4 hours. Of course, provided that he was obliged to be there - that is, he did not have a traveling nature of work and he did not have to meet with clients, negotiate with business partners, etc.
• Leaving work without warning of termination of the contract and without a good reason, provided that the employment contract is concluded for an indefinite period. Or - a similar misconduct before the expiration of the two-week warning period. An example is a situation where an employee is in a confrontation with superiors, writes a letter of resignation on own will and no longer comes to work, although he has to work for another two weeks.
• Leaving work without a good reason, provided that the employment contract is concluded for a certain period, and this period has not yet expired. Similarly - if the warning period for early termination of the contract has not expired.
• Unauthorized use of days off or unauthorized leave. Even if an employee agreed on a vacation orally, but did not receive an order and did not sign it, his departure can be qualified as absenteeism.

Note that we say "may qualify as absenteeism". The fact is that between absence from the workplace and the moment when this act of an employee is recognized as absenteeism, a certain time passes. The task of the personnel officer during this time period is not only to issue an act of absence from the workplace (we will describe how to do this below), but also to ask the employee for an explanation of his absence from work. And if the employee was able to provide a convincing explanation, even an absence from work for 1-2 weeks cannot be qualified as absenteeism.

The word "persuasive" is the key here. Not every explanatory note meets this criterion.

Let's take an example. Let's say you received an explanation like this:

On the one hand, there is no convincing explanation here. If the sister called Ivanov, it means that he still had some kind of phone, as well as the opportunity to warn the authorities about being late - if not even by phone, then by phone. e-mail. In addition, the employee decided to go to lunch and not to the workplace, and this is also important. But on the other hand, if there is no evidence that Ivanov has repeatedly violated discipline before, when dismissed for absenteeism at the initiative of the employer, the court may well take the side of the employee - this is the practice.

What to do in such a situation? Request additional written clarifications on the following questions: why, after arriving at work, Ivanov immediately went to lunch and why he did not warn his superiors about his absence. It is desirable to do this in writing, moreover, communication regarding clarifications should also be formalized as an act. Having requested clarification, you can reprimand Ivanov and warn that the next time such an offense will already qualify as absenteeism.

Let's take a quick look at another case: remote employee did not get in touch at the appointed time and explained this by the fact that his Internet was turned off. If the Internet is provided by a company, an explanation must be requested from the IT department. If the employee himself is responsible for technical issues, evidence is needed that the Internet was turned off through no fault of his (for example, not because he forgot to pay for the service).

Good reasons: when can you be absent from the workplace?

There is no list of valid reasons for absence from the workplace in the Labor Code of the Russian Federation. But there is jurisprudence. Based on it, we can make the following list:

Illness of the employee himself or the child he cares for. Moreover, it is not necessary to provide a sick leave - a certificate from a doctor is enough, especially if the employee missed one day for health reasons.

• Technological disaster.
• Big traffic jams, road blocking. This fact must be registered - evidence can be obtained from the traffic police.
• Shift in the schedule of movement of electric trains.
• Road accident, confirmed by a certificate of accident.
• Death of a relative or loved one.
• Summons to law enforcement agencies and court.
• A fire or other emergency that prevented you from coming to work.
• Urgent hospitalization of a close relative.
• Emergency work at an employee's home that prevented him from leaving.

If you qualified the absence of an employee at work as absenteeism, the algorithm of actions will be as follows:

If an employee has previously violated labor discipline and it was decided to terminate the employment contract with him, the algorithm for dismissal for absenteeism will be as follows:

How to draw up an absence from work

First, let's understand the terms. The workplace and the place of work are not the same thing. Place of work is the name of the employer specified in the business contract. For example, Alfa LLC, Moscow, 10th Stroiteley Street, 25. And the workplace is the place where the employee should be or where he should come to perform work duties. It is not necessary to name the workplace in the contract, but it can be indicated in another document - for example, in job description, lease agreement, floor plan, etc. If it is not indicated in any document, when drawing up the act, it is necessary to explain what you mean by the phrase "the employee was absent from the workplace."

It is very important to take into account the difference in terms and the need to explain where the employee's workplace is located. The court always carefully checks the acts, so you can be sure: it is enough to write “the employee was absent from the place of work” for the act to be recognized as incorrect and withdrawn from the case.

What else needs to be specified in the act:

• Name and position of the employee. Please note: the position must be the same as in the job description.
• date and exact time absence of an employee at the workplace. If possible, indicate when he came and went. If the employee was absent all day, indicate his working hours indicated in the documents.
• The exact time of drawing up the act.
• Name and position of the employees who signed the act. In their presence, the employee will familiarize himself with the document. It is desirable that there be at least three signatures - then the document will have more weight in court.

We also recommend including additional marks in the act. The first is that the employee refuses to familiarize himself with the act. The second is that the document was read aloud in his presence. If you are asked in court what it means “the employee got acquainted with the act of misconduct”, you can answer: the document was read aloud in the presence of the employee himself and several witnesses. The third mark is about the need to provide an explanation. Of course, you can prepare separate documents - an act of refusal to familiarize, a notice of the need to provide explanations. But their employee may ignore, and you will lose convincing evidence for the court.

We have prepared a sample misdemeanor act for you, but it is not necessary to use it - you can create your own document template.

Important: if an employee missed several working days, draw up an act every time! In this case, upon dismissal for a long absence, you can prove that the employee has repeatedly violated labor discipline.

Familiarization of the employee with the document must take place in the presence of at least three witnesses. It is undesirable that only managers be witnesses - it is better to involve the employee's colleagues and one of the employees personnel service. Each action of the employee in the act - in particular, the signature or refusal to familiarize - the witnesses must certify with their signatures.

What to do if the employee has stopped going to work at all, and it is impossible to acquaint him with the act? In this case, you can send him registered letter and immediately after receiving a notification of non-delivery, proceed to compiling a memorandum addressed to the general director and launching the procedure for dismissal for absenteeism. Other options are to call the employee and make an appointment phone conversation, warning about this, or ask the employee's colleagues to contact him and, based on the results, draw up a memo.

Getting explanations from an employee

After reviewing the act of misconduct, the employee must write and provide an explanatory note within 2 working days. It is written in free form in the name of the immediate supervisor and transferred either to this supervisor, or to the secretariat or personnel department. Example explanatory note we have already discussed above.

If the employee has not prepared an explanatory note in two working days, you need to draw up an act of no explanation - its form will be the same as that of the act of misconduct. At the same time, it is important to understand: the absence of an explanatory note does not prevent the application of a disciplinary sanction.

Then, on the basis of the act and the explanatory note, the head of the department in which the employee works, or the head of the personnel department, writes a memo addressed to the general director. In it, the boss briefly describes the situation and suggests considering the application of a disciplinary sanction for absenteeism in the form of a remark, reprimand or dismissal. If you decide to issue a notice of the need to provide explanations separately, this document must also be submitted to the CEO.

After reviewing all documents CEO puts a resolution in which it requires the preparation of an order on disciplinary action and indicates the punishment he has chosen for the employee - a remark, reprimand or dismissal.

It is necessary to apply a disciplinary sanction within a month from the date of discovery of the misconduct (i.e. from the date of drawing up the act) and within 6 months from the date of the misconduct, not counting the days when the employee was absent from work, was on sick leave or on vacation, and also the time it took to take into account the opinion of the representative body of workers. This means that the sooner an employee of the personnel department draws up an act, the better.

The procedure for dismissal for absenteeism: paperwork

Important point: if it is decided to dismiss an employee, only one order for disciplinary action needs to be drawn up. You can't both reprimand and fire - it's illegal.

The need to dismiss an employee must be explained in detail and justified in the order. To do this, indicating the grounds for termination of the employment contract, it is recommended to provide the wording from subparagraph “a” of paragraph 6 of article 81 of the Labor Code of the Russian Federation. You also need to indicate all the documents with numbers and dates that the CEO considered when making a decision to dismiss. If the employee did not appear at the workplace and did not receive a registered letter in his name, this letter with a return mark should also be included in the list of documents.

A sample order for dismissal for absenteeism is possible.

The employee must read the order and sign it. If the employee refuses to do this, you need to draw up an act of refusal to familiarize yourself with the order. If there is no communication with the employee at all (he stopped going to work, does not pick up the phone), he needs to send a registered letter with a request to appear and familiarize himself with the dismissal order. A simple rule applies here: in court, you must easily prove that the fact of dismissal was brought to the employee very clearly.

It is also necessary to make a record of dismissal for absenteeism in the work book. And then the question arises: what is the date of dismissal to put?

There are two options. The first is to indicate the last day of the employee's work, except for cases when he did not actually work, but the position was retained by him. This option is relevant if the absenteeism is long and it is not possible to contact the employee.

The second option is to indicate in the record of dismissal the date of issuance of the order to apply a disciplinary sanction.

If the absenteeism is long and the employee does not come to work, you need to send him a notification where and when he should appear to pick up the work book. If the employee, even after this notification, did not request a work book, it should be stored in the archive of the organization.

Finally

Here are samples of documents that may be useful to you when processing the dismissal of an employee for absenteeism:

Remember that in the event of dismissal for absenteeism at the initiative of the employer, it is the employer, and not the employee, who has to prove the legality of his actions in court. Therefore, in the process of dismissal, you need to collect a good evidence base and, if possible, enlist the support of colleagues of the employee who can speak in your defense.